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This is now the second or third time I have seen this theory, ie, that if Trump submitted to one of the Depositaries (Canada and Hungary) a formal US withdrawal from the Open Skies Treaty pursuant to Article XV, Biden (presuming) could take it back. Not a settled matter./1 https://twitter.com/NilsSchmid/status/1247105963750043648
Firstly, Open Skies withdrawals don't work like they do for bilateral arms control as in the case of the INF Treaty. Article XV.3 provides that a Conference of States Parties meet to consider "the effect of the withdrawal." US would still be a Party and would still participate./2
They cannot nullify the choice, or even effect of the US withdrawal, which is the exclusive sovereign right of the United States of America. Period. BUT...they can ask questions, air views, yell at each other, and generally vent. Or not. Heard of the pandemic?/3
Temptation One: Since the Depositaries could well say a Conference of States Parties cannot be held due to the global pandemic, would not having one render a US withdrawal ineffective, or defective? I don't know, so I am asking here, for more than a few friends./4
Temptation Two: If not all the States Parties attended, or some even blocked that Conference of States Parties, it's not clear at all the text means the withdrawal is ineffective. Here, I defer to @Andreas_Persbo and others who will recall issues around DPRK NPT withdrawal./5
My own view is that withdrawal is effective for the US on its own terms, but since this is a multilateral treaty with more than one step, and recalling CFE experience, and INF experience, too (INF WAS NOT A BILATERAL TREATY EITHER), I just will leave "effectiveness" here./6
Now, if, between US administrations, the effective submitting a formal legal declaration to a treaty depositary can be revoked rescinded, modified or itself withdrawn, what are the precedents, if there are any? How do they compare, here? And what are the issues associated?/7
It's not an easy thing to answer, so any real lawyer would probably limit the discussion strictly to Open Skies since delving into this would mean breaching limits of speculation that are uncomfortable. Nada stops a president asking. Everything might stop a president-elect./8
Of course, a President Biden could ask to rejoin, but wouldn't that mean Senate advice and consent? I have no idea because I have never had to plot these steps before, and yet I am absolutely certain others are, right now./9
Of course, Parties can meet virtually. But that's up to them, and the Depositaries. The most important issue is how Russia will respond to the withdrawal. Ryabkov clearly said they would have to take steps given that US Allies would keep sharing OS information with the US./10
Russia could opt not to withdraw, or merely suspend as it has in other cases, like CFE, pending a choice to withdraw. Of course, then the last big issue is New START. But only one crisis per thread is a good policy./11-FIN-
**Mean to say in #2 "Open Skies withdrawals don't work like they do for bilateral arms control as in the case of New START, or even in case of INF Treaty." Thus the jibe about INF not being bilateral, later.
