When Can the President Withdraw From the Open Skies Treaty?

Several weeks ago, in early April 2020, Secretary of Defense Mark Esper and Secretary of State Mike Pompeo reportedly agreed to begin withdrawing the United States from the Treaty on Open Skies, a multilateral agreement that facilitates reconnaissance overflights among its members in order to promote military transparency. The Guardian writes that Esper and Pompeo reached this understanding without convening the usual interagency process through the National Security Council—and over the possible objections of others within the Trump administration. Following the Trump administration’s withdrawal from the Iran nuclear deal and Intermediate-Range Nuclear Forces (INF) Treaty, these efforts may be a sign of President Trump’s ongoing commitment to shedding arms-control-related restrictions. Yet Trump has not yet pursued any consultations or other formal steps toward withdrawal from the Open Skies Treaty, leaving the administration’s next step—and its ultimate intentions—somewhat unclear.

The future of the Open Skies Treaty has been a topic of debate since the Trump administration began to hint that it was considering withdrawal in the fall of 2019. Proponents of withdrawal have argued that Russia is abusing the treaty, which, they say, has become unnecessary in light of modern satellite surveillance. Arms control experts, however, contest these assertions and have continued to defend the treaty as a valuable tool for both the United States and American allies in Europe. Several members of Congress have echoed these latter concerns and urged the Trump administration to engage in “robust prior consultation” before proceeding with withdrawal. As part of recent defense legislation, Congress even imposed several preconditions on initiating withdrawal, including an advance notification requirement that, at this point, would prevent any upcoming withdrawal from being finalized before the next presidential inauguration. But the Trump administration has suggested that it views this requirement as constitutionally invalid in at least some circumstances.

Both Congress’s decision to impose limits on the president’s authority to withdraw from the Open Skies Treaty, and Trump’s threat to disregard those limitations, moves both branches of government onto uncertain legal territory. Some observers maintain that the president’s authority to withdraw is exclusive and cannot be infringed by Congress. Yet there are good arguments that Trump may not be able to pursue withdrawal where Congress has legislated to the contrary.

In this case, however, the statutory language adopted by Congress may not be clear-cut enough to force the federal courts to decide the constitutional issue—potentially allowing Trump to move forward without complying with congressional requirements even as the scope of his constitutional authority over treaty withdrawal remains unsettled. If Congress wishes to constrain Trump’s ability to withdraw from the Open Skies Treaty with certainty, it should consider enacting clearer statutory limits. That said, the fact that the Trump administration may still feel pressured to comply with congressional requirements underscores the substantial legal and political authority that Congress can exercise over treaty withdrawal when it chooses, even where the specific measures it adopts may not be legally effective.

Treaty Background

The Treaty on Open Skies began as an initiative of President George H.W. Bush, who first outlined the arrangement in remarks at Texas A&M University in 1989. Building on an earlier “Open Skies” proposal by President Eisenhower, Bush saw reciprocal observation flights as a means of promoting transparency around military activities and reducing tensions with the Soviet Union, potentially creating a framework for more sustained peace in Europe. The treaty itself was not finalized until 1992, after the fall of the Soviet Union. Yet the Russian Federation and several other post-Soviet states were among its initial signatories, alongside the United States and most of the other members of the North Atlantic Treaty Organization (NATO). The Clinton administration eventually ratified the treaty on behalf of the United States in 1993, after receiving the advice and consent of the Senate. The treaty itself did not enter into force until 2002 due to substantial delays in ratification by the Russian Federation and a number of other signatories. Yet, pursuant to its terms, several of its provisions began to be provisionally applied shortly after signature. These activities have in turn been coordinated through the Helsinki-based Open Skies Consultative Commission (OSCC), which includes representatives from each signatory.

Under the treaty, parties have the right to conduct observation flights over another party’s territory, using special observation aircraft that meet certain technical requirements—including limits on the types of observation sensors to be used—that are set forth in the agreement. Each party is entitled to a certain number of flights, which must not exceed the number of observation flights that party accepts over its own territory in a given year. An “observing party” must provide three days’ notice to conduct an overflight. Any photographs taken during the flight are shared with all treaty parties—a unique form of information sharing. Implementation is conducted through the OSCC on the basis of unanimous consensus, as the parties (at least until recently) had equal stakes in the successful implementation of the treaty. All in all, the United States and many of its closest European allies benefited from Open Skies over the past several decades.

Article XV of the treaty sets out the terms under which parties may exercise “the right to withdraw.” First, a party must notify the other parties of its intent to withdraw at least six months in advance of doing so. Once this occurs, the state parties, including the withdrawing party, are supposed to convene a conference within 30 to 60 days to discuss the effects of the withdrawal.

Yet this isn’t the only means of leaving the treaty, as customary international law also provides for other exit mechanisms. Most notably, in the event of a material breach by a party to the treaty, customary international law—as reflected in Article 60(2) of the Vienna Convention on the Law of Treaties—allows those parties not in material breach to unanimously agree to suspend the treaty in part or in whole, to terminate it, or to terminate it in relation to the breaching party, effectively expelling that party. Alternatively, if a nonbreaching party to the treaty is “specially affected” by the material breach or that breach “radically changes the position of every party[,]” then that nonbreaching party may unilaterally decide to suspend the operation of the treaty in whole or in part in relation to the party that is in material breach. The Trump administration recently relied on this latter remedy to suspend aspects of the INF Treaty in response to alleged Russian material breaches, even before the United States completed its eventual withdrawal in August 2019.

Thus far, no party has asserted material breach in relation to the Treaty on Open Skies. But that doesn’t mean everything has gone smoothly. For several years, the United States has assessed—and other treaty parties have agreed—that Russia is violating the treaty by imposing a 500 kilometer altitude limit on observation flights over the exclave of Kaliningrad, as well as by refusing to authorize flights along Russia’s borders with the secessionist Georgian republics of Abkhazia and South Ossetia. Earlier this month, the United States also asserted that Russia violated the treaty by refusing to authorize a September 2019 U.S.-Canadian observation flight over a Russian military exercise.

Experts have expressed doubts about whether these violations compromise aspects of the treaty “essential to the accomplishment of [its] object or purpose” so as to constitute a “material breach” for purposes of customary international law. Nonetheless, Russia’s actions have been a source of ongoing diplomatic friction. In 2017, the United States began to respond by setting “treaty-compliant” limits on Russian overflights, which led Russia to impose additional reciprocal restrictions of its own. These disputes prevented any U.S.-Russian overflights from taking place in 2018, though flights were able to resume in 2019.

Nor are Russian restrictions the only source of controversy related to the Treaty on Open Skies. American critics of the treaty have also accused Russia of using treaty-backed overflights to gather valuable intelligence on American military installations and critical infrastructure, pointing to Russia’s efforts to seek approval from the OSCC for new types of sensors to be used on planes, an action permitted by the treaty. While experts have disputed whether the intelligence provided by these overflights is superior to what Russia can already secure from satellite surveillance, Russia’s actions have nonetheless led several Republican members of Congress to speak out in support of withdrawal.

Congress’s Position

Since 2014, Congress has regularly inserted provisions relating to the treaty into the annual National Defense Authorization Acts (NDAAs), setting limits on the availability of funds for various treaty-related activities—including U.S. overflights, technical modifications to U.S. aircraft and sensors, and efforts by the OSCC to change the types of sensors used for overflights—absent certain findings and certifications by executive branch officials. These requirements grew more demanding as the State Department publicly documented Russian noncompliance with the treaty and Russian overflights triggered more congressional concerns. Several of these provisions also reflected a separate debate over the type of military aircraft used for U.S. overflights, which have proved to be expensive to maintain and unreliable in operation but maintain a strong contingent of supporters in Congress.

In the 2020 NDAA, however, Congress took a different approach. Section 1234 of the NDAA lifts prior restrictions on U.S. engagement with the OSCC and reasserts various reporting requirements. More importantly, it sets preconditions on any Trump administration effort to withdraw from the treaty, directing the secretary of defense and secretary of state to “jointly submit” to the congressional foreign affairs and defense committees a notification that withdrawal is in the best interests of U.S. national security and that other treaty parties have been consulted. This notification must be submitted “[n]ot later than 120 days before the provision of notice of intent to withdraw the United States from the Open Skies Treaty[.]” Effectively, this extends the timeline for withdrawal from six to 10 months. If the Trump administration were to try to move forward with withdrawal now, this timeline would delay final withdrawal from the treaty until February 2021, potentially providing the next presidential administration with the opportunity to reverse the decision before it goes into effect. (Separately, Congress also appropriated $41.5 million to repa

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