Over the decades, a varying number of arms control treaties and politically binding arrangements have been developed. In this research paper, three arms control regimes are subjected to a structured focused comparison: the Intermediate-range Nuclear Forces (INF) treaty, the Missile Technology Control Regime (MTCR), and the Open Skies Treaty (OST). The regimes are markedly different in geographical reach and level of institutionalization, but offer key norms and rules in their particular area, they are all in a varying state of flux, and the debates and outcomes within them offer a good indication of the overall trends in the field of arms control. In this particular realm, agreements need to be struck in “new” military spheres such as Artificial Intelligence (AI), space, as well as cyber. In all three areas, new arms control regimes are necessary, and can only be developed on the basis of shared commitment between the world’s powers. This should offer incentives to keep the existing framework of interstate cooperation in arms control in decent working order.

Introduction

The SIPRI Yearbook 2017 suggests that the number of active armed conflicts is gradually decreasing. Of the current 49 active conflicts worldwide, 47 are fought within states, mostly due to the fight against Islamist organizations.[1] This does not mean that present-day multilateral and bilateral arms control arrangements are in good shape, mainly since most are challenged by growing distrust between the West and Russia, as well as a decreased commitment to international institutions due to the rise of Realpolitik. This section examines three areas where interstate military conflict is either most likely, or where real-life consequences would be most severe: (1) weapons of mass-destruction (WMD); (2) missiles; and (3) conventional weapons.

Over the decades, a varying number of arms control treaties and politically binding arrangements have been developed. The broad area of WMD boasts a particular institutional density, ranging from the Nuclear Non-Proliferation Treaty (NPT, verified by the International Atomic Energy Agency – IAEA), to the Chemical Weapons Convention (CWC, verified by the Organization for the Prohibition of Chemical Weapons – OPCW). Regimes on missiles are in shorter supply, ranging from obligations under UN Security Council Resolution 1540 (of April 2004), to the Missile Technology Control Regime (MTCR). Conventional weapons are covered (among others) by the Conventional Armed Forces Europe (CFE) Treaty, and the Open Skies Treaty (OST). Clearly, this is a broad and somewhat eclectic spectrum involving robust treaties with almost global membership (NPT and CWC), to export control regimes (MTCR) and nigh-defunct agreements (CFE Treaty). The variety, scope and uneven potency of these regimes indicate that interstate military conflict is not governed by an institutional architecture (based on a clear design), but is akin to a security eco-system (characterized by an assembly of contending arrangements and commitments). This should not come as a surprise, since it conforms to the expectations of Krasner’s regime theory.

Multiyear Regime Analysis (10-year timespan)

In this research paper, the following three regimes are subjected to a structured focused comparison: The Intermediate-range Nuclear Forces (INF) Treaty; the Missile Technology Control Regime (MTCR); and the Open Skies Treaty (OST). These three regimes are markedly different in geographical reach and level of institutionalization. The INF Treaty implicates the US and Russia; the MTCR involves 35 industrial countries and has global implications; and the OST comprises 34 states parties within a Euro-Atlantic scope. The arguments for this selection are threefold: First, these three regimes offer key norms and rules in their particular area governing interstate military conflicts; second, these regimes are in a varying state of flux, having to prove their relevance in new geopolitical and technological situations; and third, debates and outcomes within these regimes offer a good indication of the overall trend in their particular area governing interstate military conflicts. A critical assessment of these three regimes provides a solid baseline and a good point of departure to judge the development of interstate military conflict over the next five years. It may have less relevance to intrastate military conflicts, which duly falls outside the scope of this brief analysis. The following three sections enumerate the norms and rules within these three regimes, and offer an overview of the key debates, outcomes and measures (of the past 5-10 years). It concludes with a table summarizing the main findings.

The Intermediate-range Nuclear Forces Treaty (INF)

In 1987, US and Soviet leaders signed the INF Treaty, which requires both countries to scrap more than 2,600 ground-based ballistic and cruise (nuclear and conventionally armed) missiles with ranges between 500 and 5,500 kilometers. These weapons are considered destabilizing since they can launch a (nuclear) strike without early warning. The INF Treaty introduced a rigorous verification regime (including on-site inspections). A Special Verification Commission (SVC) was established to address and resolve possible compliance concerns. On-site inspection activity ended in 2001 (in accordance with the Treaty), and the last SVC meeting took place in December 2017.

Today, the future of the INF Treaty is bleak. Over the past decade, both Russia and the US have made ardent allegations that the other party has violated Treaty provisions, culminating in the October 2018 announcement of the US Trump administration to withdraw from the INF Treaty. In 2014, the US State Department already claimed that Russia violates its obligations not to “possess, produce, or flight-test” missiles prohibited by the Treaty. In December 2017, the claim was substantiated by pointing (amongst others) at Russia’s SSC-8 (or as Russia labels it: 9M729) cruise missile. The US Obama administration has worked (unsuccessfully) to persuade Russia to halt this program. Russia rejected this claim and instead pointed to the US deployment of MK-41 launchers (capable of launching offensive missiles) at the missile defense site in Romania (in February 2010). Russia further claimed that some US armed drones are effectively banned cruise missiles. Both the US and Russia have denied these allegations, and experts have called for both the US and Russia to continue using the SVC to resolve problems, in a last-ditch effort to keep the Treaty afloat.

Early-2018, the US Trump administration proposed a new R&D program on medium-range missiles, intended to counter Russia’s alleged violations of the INF Treaty. Ironically, this section in the new US defense bill is called the “Intermediate-Range Nuclear Forces (INF) Treaty Preservation Act of 2017”. Most nuclear weapons policy experts claim that development of this new missile would violate the INF Treaty, although R&D itself would not breach Treaty provisions. At that time, the Pentagon indicated that it was prepared to halt this specific R&D program were Russia to return to verifiable compliance with the INF Treaty. In December 2017, the US Department of Commerce imposed sanctions on two Russian firms due to their involvement in the development of (prohibited) missile systems. In June 2018, the US Senate adopted the “National Defense Authorization Act” (FY 2019), which stipulates that “In light of the Russian Federation’s material breach of the INF Treaty, the United States is legally entitled to suspend the INF Treaty in whole or in part for so long as the Russian Federation continues to be in material breach of the INF Treaty.” During the US-Russian Helsinki Summit of June 2018, Presidents Trump and Putin also addressed the issue of “strategic stability” (a catch-all term for nuclear arms control). This already indicated that the INF Treaty (as well as the New START, which expires in February 2021) could be up for renegotiation.

Although the INF Treaty is a bilateral US-Russia agreement, the probable demise of the Treaty is of key strategic interest to Europe and beyond. With the INF Treaty on the way out, the New START will likely collapse, which does not bode well for conventional arms control. As a worst case scenario, a new (conventional and nuclear) arms race could ensue, with global ramifications. Another external variable is presented by the growing strategic threat of China and Iran. Both countries are developing (nuclear and conventional) missile capabilities within the INF Treaty-prohibited range. Russia is clearly concerned by the real threat posed by intermediate-range missiles of its eastern and southern neighbors. Options have been floated to either renegotiate the INF Treaty, to bring China into a new INF Treaty, or to seek a similar (but separate) kind of Treaty with China. Such an outcome would clearly be preferable.

Although it was expected that Presidents Trump and Putin would discuss the INF Treaty during the 11 November 2018 Paris Armistice commemoration, no actual progress was made. The final decision on the future of the INF Treaty is likely to be made during the (scheduled) Putin visit to Washington, early-2019.

Key takeaway: the INF Treaty is a regime between two Great Powers (the US and Russia) which no longer seems to satisfy their current strategic needs, and (as a corollary) with limited cooperation (due to the current marginal role of the SVC). The US withdrawal from the INF Treaty may result in the breakdown of overall nuclear arms control, but may also kick-start negotiations on nuclear arms control involving other Great Powers (notably China).

The Missile Technology Control Regime (MTCR)

The MTCR was set up by G7-members (in 1987) to limit transfers of missiles that could deliver WMD. The MTCR is a voluntary association of (now 35) states applying a uniform set of standards (MTCR Guidelines) governing the exports of missiles, components and related equipment and technology. MTCR Guidelines are frequently modified, calling for “particular restraint” on delivery systems able to deliver a 500-kilogram payload to a distance of 300 kilometers (the so-called 300/500 standard). The MTCR notably covers unmanned aerial vehicle (UAV) systems, including cruise missiles and (target and reconnaissance) drones. Over the past three decades, MTCR membership has increased markedly. Numerous states are now formally regarded as “unilateral adherent” to the MTCR Guidelines (Estonia, Kazakhstan and Latvia). Israel has pledged adherence, which also exempts it from potential sanctions under the “US Arms Export Control Act” (of 1976). China’s application to the MTCR is under review.

The MTCR adopts a technology denial strategy, based on (national) export controls. This also involves active engagement with (potential) transit countries used by (known) proliferators. Despite numerous challenges, the MTCR is not in crisis mode. Criticism has focused on three elements of the MTCR. First, the MTCR is often depicted as a discriminatory club of (mainly) Western countries, geared towards maintaining a de facto missile cartel. Critical outsiders therefore resemble the MTCR to the NPT which is also based on (nuclear) “haves” and “have nots.” Second, the MTCR is considered to be inherently unverifiable as a result of the dual-use nature of much of its regulated technology. This criticism has become more pronounced due to the surge in drones (see below). Other than the application of national export control laws, verification is non-existent. Moreover, violations of MTCR Guidelines are rarely punished. And third, many key missile producers (like China, Iran, North Korea and Pakistan) remain outside the MTCR and the regime offers little in the way of incentives to these “outsiders”.

Today, drone proliferation weakens the MTCR, mainly since the regime purports to control drones (traditional parameters like range and payload apply), but with limited success. Moreover, new advances in (missile and drone) technology raise questions about the practical possibility (and even strategic significance) of maintaining an export control regime based on physical restrictions (like customs and border protection). The onset of so-called “Intangible Transfer of Technology” (ITT), which includes electronic transfer through email attachments and cloud computing, is particularly relevant here. Together with the rise of Additive Manufacturing (AM) and nanotechnologies, the MTCR’s overall effectiveness and relevance is challenged.

In August 2016, US officials presented details of a “Proposed Joint Declaration of Principles for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Systems (UAS)” during the Arms Trade Treaty (ATT) Review Conference in Geneva. The US pushed this new Joint Declaration as a first step in a two-stage process to establish a new export control arrangement for the export and use of drones. This initiative was billed as a first step towards a robust but voluntary Code of Conduct on UAVs for exporting and importing countries. In October 2017, the US floated a non-paper at the 31^st MTCR Plenary (in Dublin) proposing that air vehicles flying under 650 kilometers per hour would no longer be subject to a “strong presumption of denial”, but only to approval on a case-by-case basis. For now, plans for a new UAV-regime are on a (temporary?) hold. Instead, in April 2018, the US government introduced new rules for missiles and drones exports. US companies can now use the (simpler and swifter) Direct Commercial Sales (DCS) process to sell drones to allies and partners. The US government also changed export control rules on armed drones, aimed at increasing US competitiveness. Furthermore, in March 2018, US Congress approved US$ 11.5 billion for the Missile Defense Agency, amongst others aimed at strengthening the US Ground-Based Midcourse Defense system.

Key takeaway: the MTCR is a regime comprising heterogeneous states, with some degree of conflict over norms and growing conflict over rules, and with a high level of cooperation (although not institutionalized).

The Open Skies Treaty (OST)

The OST entered into force in 2002 and has 32 States Parties. It aims to increase confidence and transparency of military activities by allowing unarmed aerial surveillance flights over the territory of its participants (with only 24 hours’ notice of the intended flight plan). States Parties have equal yearly quotas for overflights and must make the information they acquire available to all Treaty members. Since 2002, more than 1,000 cooperative aerial overflight missions have been conducted. The OST has a Consultative Commission which deals with practical and technical matters.

Although Moscow continues to implement the OST, it has (since 2014) unilaterally imposed restrictions on the conduct of observation flights within 500 kilometers of the Kaliningrad Oblast. The US considers this a breach of the OST, particularly since sophisticated weapon systems (including short range surface-to-air missiles, air defense systems and shore-based anti-ship missiles) are supposedly stationed there. Russia also imposes minimum altitude restrictions on observation flights over Moscow, and restricts observation flights within a 10 kilometers corridor along Russia’s border with the Georgian conflict regions of Abkhazia and South Ossetia. It has also (improperly) invocated force majeure, making last moment changes to observation flights. Although Russia has (since 2014) also imposed some restrictions on Ukraine’s rights under the OST, Russia continues to observe the Treaty, although not always in the full spirit of transparency that the Treaty was intended to promote. Although the rationale of the OST remains largely undisputed, Russian behavior has damaged the regime by putting key rules into question.

Numerous practical problems have emerged, mainly due to the breakdown of trust between the West and Russia. Since 2015, a US-Russia disagreement over access to airfields as well as the partial closure of airspace for Open Skies overflights has escalated. In 2017, the US announced plans (starting January 2018) to close airspace over the US states of Alaska and Hawaii to Russian Open Skies flights, and limit the range of these flights. Russia decided to limit the number of airfields available to US OST surveillance aircraft as of 1 January 2018. The on-going tit-for-tat posturing between the US and Russia is mainly political, since both countries can fall back on sophisticated national satellite imaging technology.

In May 2018, the Open Skies Consultative Commission (in Vienna) decided to consider Moscow’s request to certify the installment of sophisticated digital electro-optical sensors on its surveillance aircraft, which could (of course) also be used on its scheduled surveillance flights over US territory. This may have rubbed Washington the wrong way, since the US has yet to make a decision to modernize its two ageing OC-135’s (which are converted Boeing 707 aircraft) that remain in use for its Open Skies missions. The US Congress remains reluctant to make the requisite (modest) investment, and has struck funding in the FY2019 “Defense Authorization Act” for the replacement of two Open Skies aircraft and upgraded sensors. Although the US may easily do without the OST (given its national satellite system), European allies rely on the OST for access to information on military activities in Russia. Without OST data, Europe will become (even more) reliant on US for intelligence, which is problematic given the state of today’s transatlantic relations. Most of these compliance hitches could be fixed if US-Russian relations would improve. Then again, the current imbroglio could escalate and throw even more sand in the already fragile and delicate Open Skies mechanism. Given the fragile political confidence and military transparency in the Euro-Atlantic region, this would harm regional security and stability.

Key takeaway: the OST is a regime comprising heterogeneous states, with no conflict over norms and modest conflicts over rules, and with a modest level of cooperation (due to the practical/technical role of the Consultative Commission).

Implications and outlook

The approaching multipolar world will undermine the already brittle setup of treaties and politically binding agreements dealing with interstate (military) conflict. Existing regimes are weakened by the end of US hegemony and the impact of globalization. The main challenge is to avoid the breakdown of interstate cooperation, also since future agreements need to be struck in “new” military spheres such as Artificial Intelligence (AI), space, as well as cyber. In all three areas, new arms control regimes are necessary, and can only be developed on the basis of shared commitment between the world’s Great Powers. This should offer additional incentives to keep the existing framework of interstate cooperation in arms control in decent working order.