U.S. Withdrawal from the Open Skies Treaty: Three Legal Issues

David Koplow is my go-to guy on arms control and treaty law. David teaches at Georgetown Law. He has previously served at the Pentagon and at the Arms Control and Disarmament Agency. He knows whereof he speaks. David has kindly agreed to weigh in on the Trump administration’s withdrawal from the Open Skies Treaty. His post follows:

Donald Trump’s misguided decision to withdraw the United States from the 1992 Treaty on Open Skies has dealt a severe blow to global stability, alliance solidarity and U.S. national security. It has also raised a host of novel legal questions, three of which I explore in this posting: 1) whether the president possesses the legal authority unilaterally to withdraw the United States from a treaty in the face of congressional opposition; 2) whether the other parties to the treaty can take effective action to dodge the legal effects of the purported withdrawal; and 3) whether an expedited procedure could be invoked for the United States to rejoin the treaty, should the Biden administration decide to reverse course.

Unilateral Presidential Withdrawal from Treaties. The U.S. Constitution is oddly silent about the procedures to employ for the country to withdraw from a treaty. It thoroughly specifies the extraordinarily high bar for entering into a treaty (requiring a 2/3 vote of advice and consent in the Senate, followed by presidential ratification), but it simply overlooks the appropriate avenue for exiting an “entangling alliance.” In the 200+ years of practice, a variety of egress mechanisms has been employed: sometimes, a president has withdrawn the country from a treaty via solo action; sometimes one or both houses of Congress have participated in the process. The appropriateness of each route has habitually been politically contentious; litigation has frequently ensued.

The one occasion when the matter rose to the Supreme Court was the famous Goldwater vs. Carter case in 1979, arising from President Jimmy Carter’s withdrawal of the United States from the Mutual Defense Treaty with Taiwan, in order to recognize the Beijing government. There, an extremely divided court rejected Sen. Barry Goldwater’s contention that legislative branch participation was required – as a practical matter, the president’s unilateral withdrawal was able to proceed. But the court’s several separate opinions do not amount to a comprehensive endorsement of the unilateral process: the decisive concurring vote focused on the issue of “ripeness,” noting that the plaintiffs were only a small group of legislators acting individually, rather than the whole body acting pursuant to a bicameral enactment. The obvious negative implication was that if Congress had affirmatively legislated in opposition to the withdrawal, then the outcome might well have been different.

More recent U.S. treaty withdrawals (including several by Trump, but also by his predecessors as well) have proceeded via unilateral executive branch initiative; the occasional court challenges have been aborted. But none of them has involved a direct clash between opposing assertions of presidential and congressional constitutional authority.

The Open Skies Treaty situation, however, is dramatically different. Here, Congress has passed (with some Republican support) affirmative legislation that directly restricts a treaty withdrawal. Section 1234 of the 2020 National Defense Authorization Act mandates that the executive branch must notify Congress 120 days prior to submitting a withdrawal notification to the treaty depositaries, affirming that the withdrawal is in the best interests of U.S. national security and that the other parties to the treaty have been consulted. When Secretary of State Mike Pompeo announced the U.S. withdrawal from the Open Skies Treaty on May 21, 2020, he did not comply with that statutory requirement.

Therefore, the constitutional question is directly joined, and if either or both houses of Congress pursued the issue in court, the Supreme Court would have to resolve it as a matter of first impression. The president’s acknowledged constitutional authorities (as chief executive, as commander in chief, etc.) would be at their “lowest ebb” (to quote a different Supreme Court case regarding the separation of powers) because he would be attempting to proceed in direct opposition to Congress’s asserted constitutional powers. The outcome would be difficult to predict.

Possible (In)action by the Other Treaty Parties. The second question is whether the other 34 parties to the Open Skies Treaty – most of which quite clearly would prefer the United States to remain inside the arrangement – have any practical mechanism to blunt or delay the operationalization of the U.S. withdrawal. Here, Peter Jones, a distinguished Canadian diplomat and scholar, has offered a remarkable, highly original concept. Writing for the European Leadership Network, Jones has suggested that the remaining parties, being cognizant of the Trump withdrawal’s violation of the U.S. statute, could simply ignore it. They could pause treaty-related activities for the two months between the effective date of the Pompeo withdrawal (November 22, 2020) and the Biden inaugural (January 20, 2021).

This audacious concept – not directly resisting the U.S. withdrawal, but not immediately effectuating it, either – would buy time for the incoming Biden administration to rescind it. The new U.S. leadership – cognizant of Pompeo’s unjustified violation of the statute – could cancel the withdrawal as being beyond the legal powers of the presidency, and the treaty operations could thereafter proceed with full U.S. participation as if nothing adverse had happened.

There is no precedent for such a workaround, and there is not much indication at this point that the other parties are interested in pursuing it. Russia, in particular, has affirmed that it is keeping all its options open. But the disarming concept of simply “doing nothing” to acknowledge and effectuate an improvident and illegal withdrawal has considerable appeal.

U.S. Rejoining the Open Skies Treaty. If that non-withdrawal option does not succeed, so the United States is truly regarded as now being “out” of the Open Skies Treaty, what options would be available if the Biden administration subsequently wanted to re-join? The standard analysis would suggest that any such measure would require starting the treaty-making process all over again, with a fresh 2/3 vote in the Senate, followed by presidential ratification (or accession). However, a recent leading law review article by Jean Galbraith, a professor at the University of Pennsylvania Law School, offers a provocative alternative assessment. She suggests that the ordinary understanding should be that the original Senate vote of advice and consent would remain in place and continuously valid, despite a president’s subsequent withdrawal. Therefore, if a later president (such as Biden) sought to reverse a predecessor’s withdrawal (such as Trump’s), the return to treaty membership could ordinarily be accomplished by the new president unilaterally.

This argument has not been reliably vetted in practice, but it does suggest that the unlawful-and-awful Trump withdrawal would not provide the last word on the Open Skies Treaty and that the supermajority Senate advice and consent hurdle would not preclude a timely Biden decision to restore U.S. participation.

In sum, each of these three legal issues remains controversial; legal and political wrangling remains to be resolved. But in combination they do suggest pathways for Biden’s personal support of the Open Skies treaty to be vindicated. There is a long, ignoble tradition of an outgoing defeated president attempting to thwart his successor by entrenching policies and laws in ways that will be hard to reverse – but at least for the Open Skies Treaty, that ossification may not succeed.