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"The Arms Control Association’s work is an important resource to legislators and policymakers when contemplating a new policy direction or decision."

– General John Shalikashvili
former Chairman of the Joint Chiefs of Staff
Conventional Arms Control and Trade

U.S. Firearms Export Changes Meet Challenges


March 2019
By Jeff Abramson

The Trump administration proposed changes in February to how the United States approves exports of certain firearms, a move that triggered quick responses from some congressional leaders who argued that the approach would be dangerous and reduce oversight. They warned that semiautomatic and military-style weapons, as well as 3D-printed "ghost" guns, would more easily end up in the hands of criminals, terrorists, and human rights abusers if the rules were to take effect.

Japanese police confiscated this batch of 3D printed guns in 2014. The Trump administration is seeking to modify how the United States oversees exports of some firearms, including plans for 3D printed weapons. (Photo: Jiji Press/AFP/Getty Images)Under the proposed rules, semiautomatic and nonautomatic firearms and their ammunition are deemed to "no longer warrant control under the United States Munitions List (USML)," a State Department-administered list of weapons. Instead, they would be transferred to a list administered by the Commerce Department, the Commerce Control List, an indication of the administration's view that these are "essentially commercial items widely available in retail outlets and less sensitive military items."

Sen. Bob Menendez (D-N.J.) sponsored legislation Feb. 12 that rejected the rationale for the change and would prohibit the transfer to Commerce Department oversight. The proposed new rules would “defy common sense,” Menendez said in a statement. He added, “Small arms and associated ammunition are uniquely lethal. They are easily spread and easily modified and are the primary means of injury, death, and destruction in civil and military conflicts throughout the world.”

The Senate measure also focused on the danger of 3D gun printing, with Menendez saying, “Every terrorist and criminal that wants to hijack an airplane with Americans onboard will more easily be able to smuggle 3D-printed, virtually undetectable guns aboard.” Because online plans for 3D-printed guns currently controlled by the USML are deemed an export, a move to the Commerce Department would likely deregulate their control. The Commerce Department is not expected to impose licensing restrictions on what 3D print advocates are trying to make open-source information. An administration decision last year to allow the organization Defense Distributed to publish 3D plans online met an outcry and has been delayed in ongoing court cases.

On Feb. 26, Menendez sent a letter to U.S. Secretary of State Mike Pompeo placing a hold on the proposed rules change, but whether the administration will honor the hold remains to be seen. It could choose to publish the final rules this month, when the 30-day clock for congressional review that began Feb. 4 expires. Such changes typically then have a six-month implementation phase-in period.

House Foreign Affairs Committee Chairman Eliot Engel (D-N.Y.) co-sponsored a measure with Rep. Norma Torres (D-Calif.) on Feb. 9 that would also block the change. In his statement about the rules, Engel warned that Congress would lose its oversight role, which is needed "so we can step in and make sure these weapons aren’t sent to bad actors, including terrorists, drug cartels, human rights abusers or violent criminals."

In 2002, Congress amended notification requirements so it would be informed of potential commercial sales of firearms under USML Category I when they were valued at just $1 million, but no such notifications exist for items on the Commerce Control List.

Data compiled by the Security Assistance Monitor indicates that the Trump administration requested Congress to approve at least $746 million in firearms sales to a total of 14 countries in 2018, more than two-thirds of which was for Saudi Arabia. The value of transfers that would be subject to the new rule is not clear as that data cannot be disaggregated from the automatic and other firearms that would remain on the USML.

The rules were considered during the Obama administration as part of a broader export control effort that transferred portions of the larger USML to Commerce Department control. Changes to firearms and ammunition in the first three USML categories were never formerly introduced, in part due to a different sensibility related to gun violence.

The Trump administration first introduced the rules for public comment in May 2018, garnering thousands of public responses. (See ACT, June 2018.)

These military-style weapons, although more tightly controlled in many other countries, have been sold domestically and used in many mass shootings, including at Sandy Hook Elementary School in Newtown, Conn.; the Pulse nightclub in Orlando, Fla., and Stoneman Douglas High School in Parkland, Fla. Human rights and gun control groups have backed the legislative efforts to stop the change. Kris Brown, president of the Brady Campaign, stated on Feb. 8, "While the corporate gun lobby is no doubt thrilled to be able to take their products to a wider audience, we need to be taking steps to reduce gun violence at home, rather than exporting it.”

 

The Trump administration is trying to change bureaucratic oversight rules for U.S. exports of selected conventional weapons.

Congress Has Opportunity to Halt Dangerous Firearms Export Changes

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Statement from Jeff Abramson, non-resident senior fellow for arms control and conventional arms transfers

For Immediate Release: Feb. 8, 2019

Media Contacts: Jeff Abramson, (646) 527-5793

The Trump administration will soon publish final rules that would likely expedite how certain firearms and military-style weapons are sold internationally. Congress can and should seek to block these changes, which exacerbate the export of U.S. gun violence problems abroad.

On Monday, mildly revised versions of rules first released for comment in May were presented to Congress, starting a 30-day review period.

Specifically, the proposed rules relate to the first three categories of the United States Munitions List (USML) maintained under the International Traffic in Arms Regulations (ITAR), whose lead administrator is the Department of State. Under the new rules, nonautomatic and semi-automatic firearms and their ammunition currently controlled under the USML would move to the Commerce Control List (CCL) to become part of the Export Administration Regulations (EAR), whose lead administrator is the Commerce Department.

Under the new rules, Congress would lose its ability to provide oversight on many firearms sales. In 2002, Congress amended notifications requirements so it would be informed of potential commercial sales of firearms under USML category I when they were valued at just $1 million, but no such notifications exist for items on the CCL. In recent years, Congressional involvement has helped forestall firearms transfers to repressive forces in Turkey and the Philippines.

At the core of these proposed changes is the mistaken belief that firearms do not merit tighter control because they are neither high-tech nor provide unique military advantages. In reality, they are some of the weapons most often used to commit abuses and extend conflict around the world. These weapons, used in the mass shootings at Sandy Hook, the Pulse nightclub, Las Vegas, and Parkland, are not the commodities that the United States should make easier to export. Exported and trafficked into Mexico and Central America, for example, U.S.-origin small arms are already falling into the hands of human rights abusers and criminal organizations.

In 2017, the administration notified Congress of more than $660 million of proposed firearms sales regulated under the USML, according to the Security Assistance Monitor. The value of transfers that would be subject to the new rule is not yet clear as that data cannot be fully disaggregated.

A bill introduced Friday by Representative Norma Torres (D-Calif.) and co-sponsored by House Foreign Affairs Chair Elliot Engel (D-N.Y.) and others would simply prohibit the changes.

If not halted or significantly changed, the new rules would continue the cynical approach of the Trump administration to treat weapons as any other trade commodity, threatening to undermine long-term global security and upsetting decades of more responsible U.S. arms transfer policy.

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Statement from Jeff Abramson, non-resident senior fellow for arms control and conventional arms transfers

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How Congress Can Exert Responsible Oversight on Trump’s Dangerous Approach to Arms Sales

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Volume 11, Issue 1, January 15, 2019

In December, the Senate issued a stunning rebuke of President Donald Trump’s support for Saudi Arabia and its actions in the bloody war in Yemen, which are exacerbating a massive humanitarian crisis. A bipartisan group of 56 Senators took the extraordinary step of invoking the 1973 War Powers Resolution to direct the president to cease direct U.S. military engagement in the war, including through any aerial refueling of Saudi coalition aircraft fighting there–a step that had garnered steam since nearly winning approval in March 2018.

In a separate measure, the Senate said by voice vote that it “believes Crown Prince Mohammed bin Salman is responsible for the murder” of journalist and U.S. resident Jamal Khashoggi—a finding the president has not fully supported. Trump’s refusal to hold the prince accountable and to consider suspending arms sales to Saudi Arabia in response to the grisly murder further underscores his retreat from common-sense U.S. and international norms regarding international arms sales.

Trump’s lack of concern about human rights and harm to civilians caused by U.S. arms trade partners is not, however, surprising. The conventional arms transfer policy his administration issued in April 2018 dangerously elevated economic arguments as a driving motive for arms transfer approvals. A November 2018 update on implementing that plan and a related factsheet on sales agreements again stress his administration’s desire to expedite the sale of increasingly more weapons, citing as success agreements to supply American arms to repressive regimes in not just Saudi Arabia, but also Bahrain and Nigeria.

Options to Encourage a More Responsible Approach

As the new Congress develops its agenda, both chambers can be expected to pass another resolution that seeks to restrict the role of U.S. military support for the war in Yemen. Members of Congress should also more fully utilize their oversight powers to ensure U.S. arms trade is more responsible. The first opportunity to do so typically comes when the administration delivers customary pre-notifications of potential arms sales to the Senate Foreign Relations (SFRC) and the House Foreign Affairs Committee (HFAC), where the chair and ranking members tend to lead any review.

In June 2018, Senator Robert Menendez (D-N.J.), ranking SFRC member, properly placed a hold on tens of thousands of precision-guided munitions kits to Saudi Arabia and the United Arab Emirates (UAE). Other members of these key committees should, as necessary, consider supporting and initiating such efforts during this pre-notification period in order to hold or amend dangerous potential sales.

Once officially notified, Congress typically has 30 days to pass a joint resolution of disapproval that bars the president from going forward with unwise sales. Over the past few years, the full Senate has publicly debated controversial arms sales to places such as Pakistan and Saudi Arabia during this notification period—positive examples of what a functioning Congress should do—but House procedures make it very difficult to get such measures to the full floor.

Legislation introduced late in the 115th Congress under the Arms Sales Oversight Act should be revisited as one possible avenue for better empowering Representatives to assert oversight, while properly keeping HFAC as the first committee of review. Other measures, such as an amendment offered on the National Defense Authorization Act (NDAA) in 2018 to strengthen oversight as relates to human rights deserve reconsideration. So too does a resolution proposing a comprehensive approach to the conflict in Yemen, especially if it were expanded to incorporate arms suspensions to all Saudi partners, including the critical UAE.

While the public can raise its voice against irresponsible Foreign Military Sales (FMS) because such government-to-government negotiated sales are quickly added to a public website, the increasingly important business-led Direct Commercial Sales (DCS) are not as transparent, in part because any public notification is obscure or functionally comes after the initial review period has passed. Earlier this month, news broke with this exact scenario on a missile defense sale to Saudi Arabia. Members of Congress could insist that, or possibly take it upon themselves to make, these potential DCS transactions more transparent. Proposed sales of precision-guided munitions to Saudi Arabia via the more opaque DCS process came to light because concerned members of Congress took the initiative to reveal them.

While the notification period garners the most attention, Congress also can block a sale up until weapons are delivered. Given how security, geopolitical, and humanitarian realities can change between the time of notifications and often years-later deliveries, members should follow the entire process. In 2014, Congress gave itself the authority (see Section 201) to receive from the State Department notification of an arms shipment at least 30 days before its delivery. It is currently limited to joint requests by the chair and ranking members of the SFRC or HFAC and may have only been used once. Those leaders should exercise it much more diligently and Congress should consider making it much easier to use by allowing all committee members to request pre-delivery notifications.

In general, transparency around arms deliveries remains too obscure as a New Hampshire NPR reporter recently discovered. When U.S. census export data showed weapons worth more than $61 million had been sold from his state to Saudi Arabia in August 2018, he could not uncover what was in the sales nor which companies provided the weapons. Annual reports on U.S. arms transfers have grown increasingly opaque. Congress should mandate a change demanding much greater transparency on the specifics of what is in U.S. weapons deliveries.

Finally, sometime in the first quarter of 2019, the administration is expected to publish final rules transferring export authority on select firearms from the State Department to the Commerce Department, despite a large number of negative public comments and a great deal of concern. Members of Congress have raised an alarm that they will lose notifications about these sales, which in the past two years has enabled them to forestall small arms sales to Turkey and the Philippines. Last year, legislation was introduced to stop these changes and should again be considered. As with Trump’s broad approach to arms sales, these changes risk making it easier for weapons to end up in the hands of terrorists, international criminals, and abusive regimes.

Just before the December 2018 vote on direct U.S. military engagement in the war, Sen. Menendez expressed concern that the Trump administration believed “selling weapons to the Saudis was more important than America’s enduring commitment to human rights, democratic values, and international norms.” Congress has the tools and must now use its authority to ensure U.S. arms sales strengthen, rather than undermine, those enduring values and norms. —JEFF ABRAMSON, nonresident senior fellow

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Congress has the tools and authority to ensure U.S. arms sales strengthen, rather than undermine, enduring America’s values and norms, writes Jeff Abramson.

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Open Skies Treaty: A Quiet Legacy Under Threat


January/February 2019
By Alexandra Bell and Anthony Wier

On a pleasant day in August 2017, a low-flying jet pierced secure airspace near the White House, the Capitol, and the Pentagon that had been mostly off-limits since the Sept. 11, 2001, terrorist attacks. Surprise turned to suspicion when news reports revealed the midday flight was a Russian military aircraft taking photographs.

A U.S. Air Force OC-135B aircraft, one of two modified Boeing 707s used for Open Skies flights, prepares to take off September 14, 2018, at Offutt Air Force Base, Nebraska. (Photo: Charles J. Haymond/U.S. Air Force)Was this some outgrowth of President Donald Trump’s campaign call for friendlier relations with Moscow? No. The Russian Tupolev Tu-154 had U.S. permission to fly over Washington that day because of an idea President Dwight Eisenhower had in 1955 and a treaty President George H.W. Bush forged in 1992.

The little-known Open Skies Treaty provided the authority for that surveillance flight and many like it elsewhere across the Euro-Atlantic region. The United States carries out similar surveillance flights over Russia and other treaty member states using two U.S. Air Force OC-135B observation aircraft. Yet despite its long history of enhancing mutual understanding and lowering military tensions, the 34-nation pact, centered around transparency and information sharing, has operated mostly unseen and unknown by the public.

Now, with several disputes hampering aspects of the treaty’s implementation and a U.S. administration openly questioning other bilateral and multilateral arms control agreements, the Open Skies Treaty is at risk. This is troubling because abandoning the treaty would destroy concrete national security benefits. It would deny the United States real-time, comprehensive images of Russian military facilities. It would pull the rug out from under long-standing U.S. allies. It would sap the confidence that is built through the treaty’s intense but cooperative implementation process. Above all, ending the Open Skies Treaty would be one more move by Trump and his national security adviser, John Bolton, to squander an arms control and national security inheritance that Bush and other Republican presidents worked so hard to hand down.

The Concept

In July 1955, Eisenhower shocked the Soviet Union and the world. In a bid to calm superpower tensions and lower fears of all-out surprise attacks, Eisenhower offered to allow unarmed Soviet aircraft to make unlimited surveillance flights over U.S. territory if the Soviet Union would permit U.S. planes to do the same over Soviet territory. Just a few months after Sen. Joseph McCarthy (R-Wis.) had spun the country into a red-scare frenzy, a scheme to let communist Soviet spy planes into U.S. airspace seemed sure to go over poorly.

Instead, the American public loved the idea. Eisenhower’s highly publicized offer brought him some of the highest approval ratings of his presidency.1 Senate Majority Leader Lyndon Johnson (D-Tex.) praised the Republican president’s gambit. Eisenhower’s approach, Johnson said, would “separate the warmongers from the peacemakers” at a time when the “American people yearn for peace.”2

Decades would pass, however, before Eisenhower’s vision could become reality. For years, Moscow shunned Eisenhower’s proposal with a suspicion bordering on paranoia. It finally took another war vet to use a Cold War’s thaw to bring the vision to life. In May 1989, Bush spoke to the new graduates of Texas A&M University.3 In sweeping remarks dreaming of a path beyond the Cold War, he revived the long-forgotten Open Skies transparency plan.

Yet, Bush went even further. He called for a regime built “on a broader, more intrusive and radical basis.” His key twist was to propose applying overflight rights and duties to all of NATO and the Warsaw Pact, stretching from Vancouver to Vladivostok. As Bush put it, Soviet willingness to embrace the Open Skies idea could prove their commitment to real change. Moscow balked again, but by 1992, a newly formed Russian government finally agreed to open its entire territory to observation and overflight. Twenty-four states signed the new Treaty on Open Skies in Helsinki on March 24, 1992.4 Eventually, membership would rise to 34 states.

At its core, the treaty aims to lower the temptation and fear of surprise attack by guaranteeing that there will be photographic evidence of any major military preparations and movements across the Euro-Atlantic region. Each state-party must allow a certain number of flights over its own territory and then may conduct an equal number of flights over the territories of other states-parties.

Observing countries give very short notice of their specific flight plan. Each party’s cameras must be verifiably limited to a resolution well below state-of-the-art technology, even for 1992. The cameras just need to be good enough to distinguish a tank from a truck. The treaty explicitly permits a range of imagery, including optical and video cameras, as well as infrared and synthetic aperture radars, while barring collection of any other electromagnetic signals. All imagery collected from overflights is then made available to any state-party.

The treaty is simple in concept but excruciatingly detailed in its operation. The implementation process carries its own confidence-building benefit by creating more opportunities for interaction among parties.

U.S. Ratification

The Bush and Clinton administrations each thought the Open Skies Treaty provided valuable national security advantages. Before the United States could become a party to the treaty, however, the U.S. Senate had to give its advice and consent. Given the current congressional atmosphere, one might expect that a treaty signed by a just-defeated Republican president would have had trouble winning approval from a Democratic-controlled Senate.

Fortunately, things were different in the early 1990s. Both sides of the aisle queried administration officials, worked through a few concerns, and signed off with a few minutes of floor debate and without a single opposing vote.

Russian and American representatives sign an agreement on August 5, 2006, before a U.S. flight over Russia conducted under the Open Skies Treaty. (Photo: OSCE)The Senate Armed Services Committee concluded that the treaty represented “the broadest international effort to date to promote openness and transparency of military forces and activities.”5 Even so, senators knew that the treaty was not the most important treaty they had ever considered. They knew that the United States had intelligence capabilities that far outstripped any other potential treaty partners. They understood that U.S. satellites could generally see more than what the treaty’s resolution limits would allow.

What they did not know was that Open Skies Treaty aircraft would become the best tool available for imaging significant parts of Russia.6 Senators also did not fully grasp then what experience has taught since, that it is a lot easier to use pictures acquired through Open Skies Treaty flights instead of sensitive satellite sources to gain diplomatic advantage. The conflict in Ukraine has put this aspect of the treaty’s value on display. By early 2014, the United States and its allies had already been able to use more than 10 Open Skies Treaty overflights covering “thousands of square miles” of Ukrainian and Russian territory to collect photos of Russian forces and military movements.7 These photographs could be shared among European governments without the usual delays or concerns that accompany sensitive intelligence declassification. As recently as December 2018, the United States and Ukraine again partnered to take advantage of the treaty to collect shareable, incontrovertible imagery following a Russian attack on Ukrainian vessels in the Sea of Azov.8

Senators did understand that the treaty would help build transatlantic transparency, confidence, and stability. The Senate backed the treaty so unreservedly because European allies valued it.9 The United States’ security partners, after all, do not have the same imaging capabilities as the United States. For most European allies, Russian tanks have just a border to cross, not a wide ocean. Those allies need and want U.S. backing in securing the rights of European countries to periodically fly east and take a look around.

After the other countries met their own treaty approval requirements, the treaty came into force in 2002. Since then, the United States, Russia, and 32 other countries have flown 1,426 picture-snapping flights over each other’s territories.10 The United States and its allies have been able to fly more than 500 times over Russian territory with Russian permission.11

Current Disputes

Implementation issues arise with any arms control treaty. For the Open Skies Treaty, these questions are managed through the Open Skies Consultative Commission. With 34 parties and more than 100 pages of detailed rules, the commission has seen its share of disputes. Frustrations have risen over the last few years on a couple of key issues, mostly having to do with Russians activities.12

Unlike Russia’s violation of the Intermediate-Range Nuclear Forces (INF) Treaty, from which Trump currently plans to withdraw the United States in early 2019 unless Moscow returns to compliance, the U.S. concerns regarding the Open Skies Treaty have focused on specific practices that do not fundamentally undermine what the United States and its allies gain from the treaty.

U.S. Air Force Master Sgt. David Dines changes out the film aboard an OC-135B Open Skies observation aircraft during pre-flight checks January 16, 2010, at Joint Base Andrews, Md. (Photo: Perry Aston/U.S. Air Force)One ongoing dispute relates to flights near the border between Russia and Georgia. Article VI says that flights cannot happen within 10 kilometers of “the border with an adjacent State that is not a State Party.” Russia defies most of the world by asserting that South Ossetia and Abkhazia are independent states. To be consistent, Russia also has to deny treaty overflights along those disputed borders. In addition, Russia has created general implementation problems for Ukraine.

The Open Skies Treaty thus has become collateral damage in Russia’s deteriorating relationship with its neighbors. Yet, Russia is not the only country to prevent flights near a sensitive border. In 2016, Turkey prevented a Russian flight from getting too close to the Syrian border, a source of heavy Russian complaints.13 In all of these cases, problems are connected to broader national disputes.

More troubling is Russia’s unilateral imposition of a 500-kilometer sublimit for certain observation flights over Russia’s Kaliningrad exclave, despite the limitation having no basis in the treaty. Russia is allowing treaty-compliant planes to fly over Kaliningrad, just not for the flight distances technically permitted. The Russians imposed the restriction because some past flights over Kaliningrad have zig-zagged across the small territory, creating problems for civilian flights and air traffic control. One 2014 overflight by Poland causing such problems has been cited as the origin of the dispute.14

Based on this cumulative activity, the United States determined in 2016 that Russia has not been meeting its obligations and has therefore limited certain Russian overflight privileges here.15 Specifically, the United States has restricted flights under the treaty over the Pacific Fleet in Hawaii and the missile defense interceptor fields
at Fort Greely, Alaska.16

Although such reciprocal measures might be a natural response, by themselves they do not actually resolve disputes. The United States and Russia nevertheless have been able to find solutions in some cases. For instance, in its April 2018 report to Congress on treaty compliance, the Department of State stated that a long-standing disagreement about how to deal with overflights during major events had been settled.17 The April 2017 report confirmed that previous U.S. concerns about altitude restrictions over Chechnya had also been resolved.18

Such progress has been complicated by those in the United States who seem happy to impede the treaty. The United States has caused particular trouble with regard to Russian moves to upgrade its treaty observation aircraft and replace film cameras with digital sensors. Congress has fueled the challenges to new Russian equipment. As early as 2014, the U.S. House of Representatives led Congress to require a report at least 30 days prior to signing off on any Russian proposal to modify or replace its treaty observation aircraft or sensor.19 The next year, the House pushed Congress to triple that warning time, unilaterally imposing an artificial three-month diplomatic cooling-off period.20 In August 2018, Congress defied administration objections and passed restrictions virtually guaranteed to force the United States to oppose any state-party’s bid to use infrared or synthetic aperture radar sensors in exactly the way the treaty envisions.21

On the heels of this congressional direction, in early September 2018, the Trump administration caught allies and Congress by surprise when it blocked the consultative commission against certifying a new Russian Open Skies plane and its associated digital sensors. The United States eventually relented, but the incident served as a reminder of the administration’s disrespect for multilateral agreements that allies support.22

September’s diplomatic dust-up had followed a late 2017 act of apparent neglect that resulted in no regularly planned Open Skies flights for 2018. Unlike in previous years, the United States and other partners had failed to coordinate on a plan for navigating a long-running dispute between Russia and Georgia. As a result, the treaty states-parties did not reach agreement on a regular schedule of flights for 2018.23 The same mistake did not happen in October 2018, and a regular program of flights is back on schedule for 2019.24

Not content to stop at Russian aircraft, Congress has gotten in the way of upgrades to U.S. observation aircraft, as well. The Department of Defense has been seeking funds to overhaul and replace the 1960s-era OC-135B aircraft and its film-based cameras. According to Secretary of Defense Jim Mattis, in 2017 the United States could not complete roughly one-third of its scheduled Open Skies missions over Russia.25 In May 2018, the Omaha World-Herald revealed one U.S. flight crew’s harrowing experience during a 2016 mission over Russia, when an equipment failure caused one unplanned landing and then a cabin fire forced an emergency landing on the second attempt to leave Russia.26

The Republican-controlled House Armed Services Committee nevertheless led Congress in 2018 in putting restrictions on the funding for replacing the aging aircraft and its outdated film camera unless the administration imposes reciprocal measures for Russia’s compliance shortfalls.27 In a hopeful turnaround for the treaty, however, a month after imposing those restrictions, Congress nevertheless appropriated nearly $150 million for two replacement observation aircraft.28

All this adds up to a few positive signs and a treaty that will still be in serious danger without a more concerted effort to actually fix the problems and get matters back on track. It would be reckless to keep going down this route; none of what has been going wrong with the Open Skies Treaty should be enough to risk losing what is right with it.

A Worthy Fight

For the last 16 years, the United States made the most of the treaty, overflying Russia nearly three times as often as the Russia overflew the United States.29 Whatever the treaty’s shortcomings, the United States should strive to preserve a right for nations across the transatlantic region to collectively acquire images that distinguish tanks from trucks in all weather. Despite the problem areas, the overwhelming majority of Russia is available for overflights. With tensions between Russia and NATO on the rise, the treaty’s goal to provide mutual transparency is more important than ever.

Some U.S. critics have dismissed the value of imagery obtained under the treaty.30 They assert that the United States can get the same or better pictures from its own intelligence satellites while other countries could rely on intelligence shared by Washington or use commercial satellite digital imagery. Conversely, in 2016 testimony before the House Armed Service Committee, the director of the Defense Intelligence Agency, Lieutenant General Vincent Stewart, mused that Russia could use processing techniques on treaty-obtained digital imagery to somehow gain an unfair advantage.31

The critics’ contentions are all faulty. The U.S. government had the chance to thoroughly examine the new Russian sensor and aircraft after the initial questions were raised. It certified that both fully fit within the treaty’s guidelines. It is also difficult to reconcile the call for relying solely on commercial digital imagery with the fear about processing lower-resolution, treaty-obtained digital imagery. Russia presumably could apply the same processing techniques to commercially obtained digital satellite imagery as would be applied to imagery acquired through the treaty.

As for U.S. flights over Russia, satellite imagery can surpass the limited resolution of cameras aboard Open Skies flights, but planes enjoy much more flexibility in choosing flight paths. The three to four days’ warning that observed countries get before a satellite overpass gives them ample time to move military assets. Treaty flights provide only 24 hours’ notice, increasing the odds that overflights capture an accurate assessment. Planes can also double back to provide a more comprehensive set of images than fixed-orbit satellites can.

Danish jets accompany a Russian An-30 aircraft during an Open Skies Treaty observation flight over the territory of Denmark on  June 12, 2008. (Photo: OSCE)Moreover, every party, observers and observed, can see the same set of certified Open Skies pictures. Any time the United States challenges Russia over new misbehavior in the region, Russia will look to exploit the public mistrust that still lingers from faulty U.S. claims about Iraq. The United States benefits immensely from having common Open Skies images that offer an indisputable level of authenticity and do not force the United States to expose its own intelligence means. Besides, 15 years after Iraq, many poorer, smaller allies would be loathe to lose Open Skies imagery and become the United States’ imagery intelligence client-state.

The treaty-mandated collaboration helps build confidence in its own right. The treaty forces countries’ military and government officials to work with one another, jointly solve air traffic or other logistical questions, inspect planes together, and confront problems in a broadly inclusive, transatlantic diplomatic framework. All these acts and the choice by the larger powers to submit themselves to them increase mutual trust and predictability.

This is why U.S. allies are voting for the Open Skies Treaty with their wallets, investing large sums in new Open Skies planes and digital sensors. They reject suggestions of nefarious activities connected to overflights; no treaty party has ever tried to employ prohibited technology during a flight. They know that the incredibly intrusive pre-flight inspection process, in which an aircraft is all but taken apart, should remove concerns that any observing party is somehow capturing unauthorized information. They appreciate that the treaty even lets a nervous observed country insist that its own Open Skies plane be used for an observation flight.

Mattis also apparently values the national security benefits of the treaty enough to invest more in it. “In order to maximize U.S. benefits from the Treaty,” Mattis wrote, “the United States needs to recapitalize and modernize its sensors and aircraft.”32 Mattis’s advocacy looks more and more likely to set up a showdown at some point with Bolton. When that happens, the fate of a national security legacy passed down from Eisenhower and Bush may hang in the balance.

A Squandered Inheritance?

Bush used his 1989 Open Skies proposal to test the Soviet Union’s commitment to changing its relationship with the world. The U.S. approach toward the treaty now will test its own commitment to a once-honored U.S. strategy of using adroit diplomacy and collective action to secure key national security interests.

It is no coincidence that Bush, the last World War II military veteran to serve as president, valued an arms control concept put forward by Eisenhower, the first World War II vet to occupy the Oval Office. They, along with President John Kennedy, another combat veteran of that war, grasped the urgency of averting modern great-power war because they survived the worst conflict the world had ever known. They understood the true costs of war. They knew that avoiding war between great powers was at least as important as any thoughts about “winning” such a war.

To be sure, the Open Skies Treaty by itself will not guarantee that major conflicts will never return to the Euro-Atlantic region. Yet, the treaty joins other arms control agreements and a larger institutional order to form a safety net that has kept the world from falling back into the chaos and destruction of great-power war. There can be no doubt that, with each and every discarded international agreement, the inherited safety net frays and the United States slips further down an uncertain and unsafe path.

Opponents of arms control thrive on attacking the shortcomings of each treaty or agreement one by one. The compliance problems are easy to see, while most of a treaty's benefits only truly reveal themselves in the shadow left by their absence. The full potential of each individual treaty or agreement can only be seen if it sits within a larger, complementary ecosystem of other agreed rules and behaviors.

More difficult still to prove, but perhaps most important of all, is the benefit that comes from the spirit of collaboration and mutual problem solving required of the leaders who create and sustain arms control treaties and agreements. As valuable as the Open Skies Treaty has been and will continue to be, the real inheritance that Bush left was the example he set in forging the treaty in the first place. He was fundamentally committed to working cooperatively with heavily armed adversaries to avoid the mutual catastrophe of war, even when doing so meant assuming new obligations and denying himself the fantasy that instead he should simply aim to destroy those adversaries.

Walking away from a treaty that Eisenhower imagined and that Bush built would cost more than the national security insights lost and the alliance resentments generated. Rejecting the treaty would be one more step away from the spirit of confidence, patience, and problem solving that made the treaty possible in the first place.

The Open Skies Treaty has existed mostly out of sight, but its dissolution would be felt across the Euro-Atlantic region. As the United States continues to reflect on the passing of a president who led us out of a Cold War, it is important to sustain the legacy he left behind.

 

ENDNOTES
 

1. “Legal Agreement Pertaining to the Oral History Interview of Harold E. Stassen,” National Archives and Records Administration, February 4, 1994, p. 7, https://www.eisenhower.archives.gov/research/oral_histories/oral_history_transcripts/Stassen_Harold_519.pdf (interview of April 29, 1977); See FiveThirtyEight, “How Popular Is Donald Trump?” n.d., https://projects.fivethirtyeight.com/trump-approval-ratings/ (accessed October 25, 2018).

2. W.W. Rostow, Concept and Controversy: Sixty Years of Taking Ideas to Market (Austin: University of Texas Press, 2010), p. 166.

3. George H.W. Bush, “Commencement Address at Texas A&M University,” May 12, 1989, https://millercenter.org/the-presidency/presidential-speeches/may-12-1989-commencement-address-texas-am-university.

4. The Treaty on Open Skies, March 24, 1992, https://www.osce.org/library/14127?download=true.

5. “Treaty on Open Skies: Report,” Executive Report 103-5, 103rd Congress, 1st Session, August 2, 1993, p. 141.

6. Bureau of Arms Control, Verification, and Compliance (AVC), U.S. Department of State, “Key Facts About the Open Skies Treaty,” June 6, 2016, https://2009-2017.state.gov/t/avc/rls/2016/258061.htm.

7. U.S.-Russia Nuclear Arms Negotiations: Ukraine and Beyond; Joint Hearing Before the Subcommittee on Terrorism, Nonproliferation, and Trade and the Subcommittee on Europe, Eurasia, and Emerging Threats of the Committee on Foreign Affairs, 113th Cong. 13 (2014) (testimony of Anita E. Friedt, principal deputy assistant secretary for nuclear and strategic policy, AVC).

8. U.S. Department of Defense, “DOD Statement on Open Skies Flight Over Ukraine,” December 6, 2018, https://dod.defense.gov/News/News-Releases/News-Release-View/Article/1703977/dod-statement-on-open-skies-flight-over-ukraine/.

9. 139 Cong. Rec. 10801 (1993) (remarks of Senator Claiborne Pell [D-R.I.]).

10. U.S. Delegation, Open Skies Consultative Commission, “Open Skies Treaty Observation Flights 2017,” OSCC.DEL/2/18, May 8, 2018, https://www.state.gov/documents/organization/282711.pdf. The total number includes an extraordinary flight flown on December 6, 2018.

11. AVC, “Key Facts About the Open Skies Treaty,” June 6, 2016, https://2009-2017.state.gov/t/avc/rls/2016/258061.htm.

12. AVC, “2018 Report on Adherence to and Compliance With Arms Control, Nonproliferation, and Disarmament Agreements and Commitments,” April 2018, p. 8, https://www.state.gov/documents/organization/280774.pdf (hereinafter 2018 AVC report); AVC, “2017 Report on Adherence to and Compliance With Arms Control, Nonproliferation, and Disarmament Agreements and Commitments,” April 14, 2017, https://www.state.gov/t/avc/rls/rpt/2017/270330.htm#OST (hereinafter 2017 AVC report).

13. “Turkey Dismisses Russia’s Charges Over Breaking Aviation Treaty,” Hurryiet Daily News, February 4, 2016.

14. U.S. government officials, discussions with author, Washington, D.C., November 2018

15. Brett Forrest and Nathan Hodge, “In Tiff With Russia, U.S. Moves to Restrict International Military Flights Over Hawaii,” The Wall Street Journal, September 28, 2017.

16. Aaron Mehta, “U.S., Russia Remain at ‘Impasse’ Over Open Skies Treaty Flights,” Defense News, September 14, 2018.

17. 2018 AVC report.

18. 2017 AVC report.

19. Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113–29, sec. 1242.

20. National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114–92, sec. 1244.

21. John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115–232, sec. 1242.

22. Kingston Reif, “U.S. Reverses Course on Open Skies Treaty,” Arms Control Today, October 2018, https://www.armscontrol.org/act/2018-10/news/us-reverses-course-open-skies-treaty.

23. Ibid.; U.S. government officials, discussions with author, Washington, D.C., November 2018.

24. Open Skies Consultative Commission, “Decision No. 2/18: Distribution of Active Quotas for Observation Flights in the Year 2019,” OSCC.DEC/2/18, October 22, 2018, https://www.state.gov/documents/organization/287236.pdf.

25. Jim Mattis, Letter to Senator Deb Fischer, May 22, 2018, https://www.fischer.senate.gov/public/_cache/files/b2df2cf7-3828-4d81-aa57-2963ce8d70b0/sd-response-to-senator-fischer-regarding-the-open-skies-treaty-osd070739-18.pdf (hereinafter Mattis letter).

26. Steve Liewer, “Despite Danger to Offutt Crews, U.S. House Drops New Open Skies Jets From 2019 Budget,” Omaha World-Herald, May 16, 2018.

27. Center for Arms Control and Non-Proliferation, “Analysis of Fiscal Year 2018 National Defense Authorization Bill: HR 2810,” n.d., https://armscontrolcenter.org/wp-content/uploads/2017/11/NDAA-conference-analysis-111417.pdf.

28. Office of Senator Deb Fischer, “Fischer, Fortenberry, Bacon Applaud Open Skies Funding in FY2019 Defense Funding Bill,” September 14, 2018, https://www.fischer.senate.gov/public/index.cfm/2018/9/fischer-fortenberry-bacon-applaud-open-skies-funding-in-fy2019-defense-funding-bill.

29. AVC, “Key Facts About the Open Skies Treaty.”

30. Edward R. Royce, Devin Nunes, and William M. “Mac” Thornberry, Letter to President Barack Obama, June 14, 2016.

31. World Wide Threats; Hearing Before the Committee on Armed Services, 114th Cong. 13 (2016), https://www.govinfo.gov/content/pkg/CHRG-114hhrg99649/pdf/CHRG-114hhrg99649.pdf (testimony of Lt. Gen. Vincent R. Stewart, director, Defense Intelligence Agency).

32. Mattis letter.

 


Alexandra Bell is senior policy director at the Center for Arms Control and Non-Proliferation. Anthony Wier is legislative secretary for nuclear disarmament and Pentagon spending at the Friends Committee on National Legislation.

 

 

With tensions between Russia and NATO on the rise, the treaty’s goal to provide mutual transparency is more important than ever.

U.S. Conducts Special Open Skies Flight


January/February 2019
By Kingston Reif

The United States and several allies on Dec. 6 conducted an “extraordinary flight” over eastern Ukraine under the Open Skies Treaty, the first and only treaty flight worldwide during 2018.

A U.S. Air Force OC-135B Open Skies aircraft parked on a ramp at Offutt Air Force Base, Neb., September 14, 2018. (Photo: U.S. Air Force)The flight followed a Russian attack in late November on Ukrainian naval vessels in the Black Sea and as Ukraine said Russia has been increasing its forces near its border with Ukraine.

The U.S. Defense Department said U.S., Canadian, French, German, Romanian, UK, and Ukrainian observers were aboard the OC-135B aircraft during the observation flight, which was requested by Ukraine.

“The timing of this flight is intended to reaffirm U.S. commitment to Ukraine and other partner nations,” the Defense Department said in a Dec. 6 news release.

“Russia's unprovoked attack on Ukrainian naval vessels in the Black Sea near the Kerch Strait is a dangerous escalation in a pattern of increasingly provocative and threatening activity,” the statement added.

The treaty, which entered into force in 2002 and has 34 states-parties, aims to increase confidence in and transparency of military activities, particularly in Europe, by allowing unarmed aerial observation flights over the entire territory of its participants for information-gathering purposes. The parties have yearly quotas on overflights and must make the information they acquire available to all treaty parties.

For example, the treaty permits up to 42 overflights of Russia by states-parties, of which 16 can be flown by the United States.

A dispute between Georgia and Russia over the inclusion of Russian observers on treaty flights over Georgia prevented agreement on quotas for 2018, thereby freezing flights for all member states.

But the treaty includes a provision allowing for two states-parties “on a bilateral and voluntary basis to conduct observation flights over the territory of each other.” The last such extraordinary observation flight over Ukraine took place in 2014 as part of the U.S. response to Russia’s annexation of Crimea.

Normal flights appear set to resume in 2019. States-parties at an Oct. 22 meeting of the Open Skies Consultative Commission, the treaty’s implementing body, agreed to active quotas for observation flights this year.

In recent years, disputes over implementation and concerns from some U.S. officials and lawmakers about the value of the treaty have threatened to derail the pact.

The agreement on quotas for 2019 followed a U.S. decision in September not to certify a new Russian aircraft outfitted with an upgraded digital electro-optical camera for flights under the treaty, a decision that was reversed several days later. (See ACT, October 2018.)

Washington for several years has raised numerous concerns about Russian compliance with the pact. The State Department’s annual compliance report released in April determined that Russia is violating the treaty by restricting observation flights over Kaliningrad, which is a sensitive Russian enclave between Poland and Lithuania, to no more than 500 kilometers, and within a 10-kilometer corridor along Russia’s border with the Georgian border-conflict regions of South Ossetia and Abkhazia.

The United States said the 500-kilometer restriction is about half the distance needed to fully cover Kaliningrad and, in response, has placed restrictions on some of Russia’s treaty flights.

Andrea Thompson, U.S. undersecretary of state for arms control and international security, told the Senate Foreign Relations Committee on Sept. 18 that “recently Russia has resolved one violation of its obligations and has made overtures that suggest it could resolve another.” But she added that Russia had refused to address the violation related to Kaliningrad.

The Open Skies Treaty has also become a point of contention in Congress. (See ACT, July/August 2018.)

The fiscal year 2019 defense authorization act, signed into law by President Donald Trump on Aug. 13, waters down language in the original U.S. House of Representatives version of the bill that would have blocked the Air Force’s budget request to replace the aircraft that the United States uses to conduct Open Skies Treaty flights, including over Russia. Instead, the law conditions funding necessary to acquire an upgraded digital imaging system for treaty flights and implement certain decisions of the treaty’s implementing body.

Treaty dispute with Russia grounded routine transparency overflights last year.

Senate Bucks Trump’s Saudi Approach


January/February 2019
By Jeff Abramson

The U.S. Senate passed resolutions last month sharply critical of ally Saudi Arabia and of the U.S. military role supporting the Saudi war in Yemen, signaling that arms sales to Riyadh will be controversial even as President Donald Trump insisted that they should not be affected by Saudi behavior.

U.S. Army Gen. Joseph Votel, commander, U.S. Central Command, welcomes Prince Khalid bin Salman, Saudi ambassador to the United States, at USCENTCOM headquarters, MacDill Air Force Base, Fla., on July 31, 2018. (Photo: U.S. Air Force)The Senate action on Dec. 13 took the rare path of invoking the 1973 War Powers Act and directed the president to remove U.S. forces not directly engaged in Yemen with al Qaeda and associated groups. The resolution cited aerial refueling, intelligence sharing, and targeting assistance provided to Saudi-led forces.

Actions by coalition partners, particularly Saudi Arabia and the United Arab Emirates, have contributed to civilian deaths and worsened a humanitarian crisis in Yemen, where a fragile, limited ceasefire was negotiated in mid-December.

The resolution is not binding without a concurring House resolution. But co-sponsor Sen. Chris Murphy (D-Conn.) said the vote was significant because it shows that “Congress has woken up
to the reality that the Saudi-led coalition is using U.S. military support to kill thousands of civilians, bomb hospitals, block humanitarian aid, and arm radical militias.”

The Senate resolution was originally introduced in February by Sen. Bernie Sanders (I-Vt.) and co-sponsored by Murphy and Sen. Mike Lee (R-Utah). An attempt to force a vote on the resolution failed in March when 44 senators sought to move it out of the Senate Foreign Relations Committee. (See ACT, April 2018.) In November, 63 senators voted to move it to full Senate consideration. Ultimately, 56 voted to approve it, including all 47 Democrats, seven Republicans, and independents Sanders and Angus King (Maine).

The resolution is expected to have enough support to pass in the new Senate even with Republicans picking
up a small number of seats in the November elections.

New House Speaker Nancy Pelosi (D-Calif.) was one of 101 co-sponsors on the version introduced by Rep. Ro Khanna (D-Calif.) in September, but she has not indicated when the House may take up the issue. A provision included in the House version of the farm bill, around the time the Senate was taking up the measure, prevented consideration of it in the last days of the previous Congress.

The controversial killing of dissident journalist and U.S. resident Jamal Khashoggi at the Saudi embassy in Turkey in early October was a spur to congressional action. Shortly after the war powers resolution passed, the Senate approved by voice vote a resolution stating that the Senate “believes Crown Prince Mohammed bin Salman is responsible for the murder,” a claim reportedly backed by U.S. intelligence assessments even as Trump said on Nov. 20 that “maybe he did, maybe he didn’t.”

Trump also argued that U.S. arms sales should not be curtailed, frequently citing the economic importance of the $110 billion in Saudi arms sales he announced in 2017. (See ACT, November 2018; June 2017.) But only about a quarter of those notional agreements have been concluded.

According to news reports, the Saudis signed a letter of offer and acceptance in late November for the largest portion so far, a $15 billion deal for seven Terminal High Altitude Area Defense radar systems and 44 launchers, which is the same number of systems that the United States currently deploys. That potential sale had been notified to Congress in October 2017.

No new arms sales to the country via the government-to-government foreign military sales process have been officially notified to Congress since April. In June, Sen. Bob Menendez (D-N.J.), ranking member of the Senate Foreign Relations Committee, effectively placed a hold on the sale of precision-guided munition kits to Saudi Arabia and the United Arab Emirates before they were publicly notified.

In explaining his December war powers vote, Menendez argued that the Trump administration view of the U.S.-Saudi relationship was “unhinged” in thinking that “selling weapons to the Saudis was more important than America’s enduring commitment to human rights, democratic values, and international norms.”

Saudi Arabia faces repercussions due to its murder of journalist Jamal Khashoggi and the civilian casualties from its war in Yemen.

Mine Ban Nears 20th Anniversary

 

With the Mine Ban Treaty approaching its 20th anniversary in March, delegates to the annual meeting of states-parties in November welcomed progress on many treaty requirements and again “condemned the use of anti-personnel mines by any actor” as they reaffirmed their “aspiration to meet the goals of the [treaty] to the fullest extent possible by 2025.”

A fighter with Yemen’s Tariq Salah forces, a militia aligned with the Saudi-backed government, shows landmines reportedly found in September at an outpost of the Houthi rebels.  (Photo: Andrew Renneisen/Getty Images)According to the “Landmine Monitor” report, only one country could be confirmed to have used landmines in the previous year, which was Myanmar, a state not among the 164 parties to the treaty. Nonstate armed groups used mines in at least eight countries, frequently employing improvised devices, according to a report from the International Campaign to Ban Landmines released just prior to the Nov. 26–30 meeting in Geneva. For the third year in a row, the report also identified atypically high numbers of casualties due to landmines, cluster munition remnants, and other remnants of war. Of 7,239 casualties recorded in 2017, more than 4,200 occurred in Afghanistan and Syria, and more than 2,700 casualties worldwide were due to improvised mines.

The November meeting celebrated declarations from Mauritania that it had completed landmine clearance and from Oman that it had finished destroying its landmine stockpile, steps required under the treaty. The report also noted that international support to efforts to prevent and address problems due to mines reached a record $670 million in 2017.—JEFF ABRAMSON

Mine Ban Nears 20th Anniversary

Murder Puts Heat on Saudi Arms Deals


A protester dressed as Saudi Arabian Crown Prince Mohammad bin Salman demonstrates with members of the group Code Pink on October 19 outside the White House in the wake of the killing of Saudi Arabian Jamal Khashoggi. (Photo: Win McNamee/Getty Images)U.S. President Donald Trump said any U.S. penalties in response to the Saudi killing of dissident journalist and U.S. resident Jamal Khashoggi should not include curtailing planned and potential U.S. arms sales, even as some U.S. lawmakers and human rights advocates have advocated that they should. The United States is Saudi Arabia’s largest arms supplier, and Trump cited varying inflated figures for the dollar value and U.S. jobs at stake, as well as noting the importance of maintaining the historic alliance with a country that is an oil power and bulwark against Iran. Even so, Saudi arms deals may face tougher scrutiny in Congress, where opponents critical of Saudi conduct of its war in Yemen unsuccessfully sought last year to block the sale of $500 million in precision-guided munitions to the kingdom. The European Parliament on Oct. 25 overwhelmingly approved a nonbinding measure for its member states urging them to halt sales of weapons and surveillance technology to the Saudis, which may have little practical impact. German Chancellor Angela Merkel on Oct. 22 vowed to halt German arms exports to Saudi Arabia until the Khashoggi case is “cleared up,” but officials were uncertain whether that applies to existing or only future sales. Like Trump, UK Prime Minister Theresa May was wary of actions that could cost domestic jobs, hurt the economy, and complicate relations with a key Middle Eastern ally.—TERRY ATLAS

Murder Puts Heat on Saudi Arms Deals

REMARKS: Banning ‘Killer Robots’: The Legal Obligations of the Martens Clause


October 2018
By Bonnie Docherty

For five years, states have highlighted the host of problems with lethal autonomous weapons systems, including legal, moral, accountability, technical, and security concerns. It is time to move on and take action.

(Photo courtesy of Bonnie Docherty)Human Rights Watch supports the proposal for a mandate to begin negotiations in 2019 on a legally binding instrument to require meaningful human control over the critical functions of lethal autonomous weapons systems. Such a requirement is effectively the same as a prohibition on weapons that lack such control.

We were pleased to hear so many states—the vast majority of states—express support for a legally binding instrument prohibiting these systems. We hope that high contracting parties set aside significant time in 2019 to fulfill that mandate—at least four weeks, so that the negotiations could be concluded within one year.

Several states have said the Convention on Conventional Weapons (CCW) discussions should focus on the compliance of lethal autonomous weapons systems with international law and particularly international humanitarian law. We agree that compliance with rules of proportionality and distinction is critical, and we question whether this technology could comply.

But another provision of international humanitarian law must also be considered. The Martens clause, which appears in the Geneva Conventions, Additional Protocol I and the preamble of the CCW, creates a legal obligation for states to consider moral implications when assessing new technology. The clause applies when there is no specific existing law on a topic, which is the case with lethal autonomous weapons systems, also called fully autonomous weapons.

The Martens clause requires in particular that emerging technology comply with the principles of humanity and dictates of public conscience. Fully autonomous weapons would fail this test on both counts. The principles of humanity require humane treatment of others and respect for human life and dignity. Weapons that lack meaningful human control over the critical functions would be unable to comply with these principles.

Fully autonomous weapons would lack compassion, which motivates humans to minimize suffering and killing. They also would lack the legal and ethical judgment necessary to determine the best means for protecting civilians on a case-by-case basis in complex and unpredictable combat environments. As inanimate machines, fully autonomous weapons could not appreciate the value of human life and the significance of its loss. They would base life-and-death determinations on algorithms, objectifying their human targets, whether civilians or combatants. They would thus fail to respect human dignity.

The development of weapons without meaningful human control would run counter to the dictates of public conscience. Many states have called for a prohibition on the weapons. Virtually all states speaking at the CCW meeting have stressed the need to maintain human control over the use of force. Collectively, these statements provide evidence that the public conscience favors human control and objects to fully autonomous weapons.

Experts and the general public have reached similar conclusions. Thousands of artificial intelligence and robotics researchers, along with companies and industry representatives, have called for a ban on fully autonomous weapons. Traditional voices of conscience—faith leaders and Nobel Peace Prize laureates—have echoed those calls, expressing moral outrage at the prospect of losing human control over the use of force. Civil society and the International Committee of the Red Cross have emphasized that law and ethics require human control over the critical functions of a weapon.

In conclusion, the rules of law and morality demand the negotiation of a new legally binding instrument on fully autonomous weapons. An assessment under the Martens clause of the technology shows there is a gap in international law that needs to be filled. Concerns related to the principles of humanity and dictates of public conscience show that the new instrument should ensure that meaningful human control over the use of force is maintained and the development, production, and use of fully autonomous weapons are prohibited.


Bonnie Docherty is a senior researcher in the arms division of Human Rights Watch and a lecturer on law at Harvard Law School’s International Human Rights Clinic. This is adapted from her remarks August 29 to the Convention on Conventional Weapons Group of Governmental Experts on Lethal Autonomous Weapons Systems.

 

For five years, states have highlighted the host of problems with lethal autonomous weapons systems, including legal, moral, accountability, technical, and security concerns. It is time to move on and take action.

U.S., Russia Impede Steps to Ban ‘Killer Robots’


October 2018
By Michael Klare

The latest effort toward imposing binding international restrictions on so-called killer robots was thwarted by the United States and Russia, pushing off the divisive issue to a November meeting of states-parties to the Convention on Certain Conventional Weapons (CCW).

Participants at a Geneva meeting in August on lethal autonomous weapons systems, held under the auspices of the Convention on Certain Conventional Weapons, called for future talks after failing to reach consensus on imposing international restrictions. (Photo: United Nations Office at Geneva)For five years, officials representing member-states of the CCW, a 1990 treaty that seeks to outlaw the use of especially injurious or pernicious weapons, have been investigating whether to adopt a ban on lethal autonomous weapons systems. In late August, a group of governmental experts established by the CCW met to assess the issue, but it failed to reach consensus at a Geneva meeting and called instead for further discussions.

The impasse reflects the tensions over an advancing set of technologies, including artificial intelligence and robotics, that will make possible systems capable of identifying targets and attacking them without human intervention.

Opponents insist that such weapons can never be made intelligent enough to comply with the laws of war and international humanitarian law. Advocates say autonomous weapons, as they develop, can play a useful role in warfare without violating those laws.

Concern over the potential battlefield use of fully autonomous weapons systems has been growing rapidly in recent years as the pace of their development has accelerated and the legal and humanitarian consequences of using them in combat have become more apparent. Such systems typically combine advanced sensors and kill mechanisms with unmanned ships, planes, or ground vehicles.

Theoretically, fully autonomous weapons of this sort can be programmed to search within a predesignated area for certain types of threats—tanks, radars, ships, aircraft, and individual combatants—and engage them with onboard guns, bombs, and missiles on their own if communications are lost with their human operators. This prospect has raised the question whether these weapons, if used in a fully autonomous manner, will be able to distinguish between legitimate targets, such as armed combatants, and noncombatant civilians trapped in the zone of battle. Likewise, will they be able to distinguish between enemy combatants still posing a threat and those no longer capable of fighting because of injury or illness?

Humans possess the innate capacity to make such distinctions on a split-second basis, but many analysts doubt that machines can ever be programmed to make such fine distinctions and so should be banned from use.

Under the terms of the CCW, the 120 signatory states, which include China, Russia, and the United States, can negotiate additional protocols prohibiting certain specific classes of weapons. So far, five such protocols have been signed, including measures banning landmines, incendiary weapons, and blinding lasers.

Starting in 2014, some member states have sought to initiate negotiations leading to a similar protocol that would ban the development and use of fully autonomous lethal weapons. Others were resistant to moving directly toward negotiations, but agreed to a high-level investigation of the issue. For that purpose, CCW member states established the experts group, comprised largely of officials from those states, to assess the implications of fielding autonomous weapons and whether starting negotiations on a protocol was justified.

In the discussions that followed, several distinctive positions emerged. About two dozen countries, including Argentina, Austria, Brazil, Chile, China, Egypt, and Mexico, advocated for a legally binding prohibition on use of such weapons. A number of civil society organizations, loosely allied through the Campaign to Stop Killer Robots, also urged such a measure.

Another group of states led by France and Germany, while opposing a legally binding measure, support a political declaration stating the necessity of maintaining human control over the use of deadly force.

Wherever they stand on the issue of a binding measure, nearly every country represented in the experts group at the August meeting expressed opposition to the deployment of fully autonomous weapons. Nevertheless, a small group of countries, including Israel, Russia, South Korea, and the United States, rejected a legal prohibition and a political declaration, saying more research and discussion is necessary.

For the United States, the resistance to a declaration or binding measure on autonomous weapons can be read as instinctive hostility toward any international measure that might constrain U.S. freedom of maneuver, a stance visible in the Trump administration’s animosity towardother multilateral agreements, such as the Iran nuclear deal.

Further, U.S. opposition stems from another impulse: many senior U.S. officials believe that leadership in advanced technology, especially artificial intelligence, cyberoperations, hypersonics, and robotics, is essential for ensuring U.S. success in a geopolitical contest with China and Russia. “Long-term strategic competition, not terrorism, is now the primary focus of U.S. national security,” Defense Secretary Jim Mattis told the Senate Armed Services Committee on April 26.

“Our military remains capable, but our competitive edge has eroded in every domain of warfare,” he said. To reclaim that edge, the United States must restore its advantage in all areas of military competency, including through “research into advanced autonomous systems, artificial intelligence, and hypersonics.”

U.S. policy requires that a human operator be “in the loop” when making decisions before a weapons system, such as a missile-carrying drone, fires at a target.

Still, the determination to ensure U.S. dominance in artificial intelligence and robotics virtually guaranteed U.S. opposition to any outcome of the experts group that may hinder progress in developing military applications of machine autonomy. “We believe it is premature to enter into negotiations on a legally binding instrument, a political declaration, a code of conduct, or other similar instrument, and we cannot support a mandate to enter into such negotiations,” Joshua Dorosin, deputy legal adviser at the State Department, said at the experts group meeting Aug. 29.

Because decisions of the group are made by consensus, U.S. opposition, mirrored by Russia and a few other countries, prevented it from reaching any conclusion at its meeting other than a recommendation to keep talking.

Follow-up steps will be determined by CCW states-parties. They are due to meet in Geneva on Nov. 21–23, although it is unlikely they will reach consensus on anything beyond continuing discussions.

Member organizations of the Campaign to Stop Killer Robots are lobbying participating delegations to act more vigorously and to consider a variety of other pathways to banning the development of fully autonomous weapons systems, perhaps outside the CCW framework.

The impasse reflects the tensions over advancing technologies for systems capable of autonomously identifying and attacking targets.

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