Connections: The Quarterly Journal

ISSN 1812-1098, e-ISSN 1812-2973

Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

https://doi.org/10.11610/Connections.16.3.04

Research Article

Arms Control Arrangements under the Aegis

of the OSCE: Is There a Better Way to Handle

Compliance?

Pál Dunay

George C. Marshall European Center for Security Studies,

http://www.marshallcenter.org

Abstract: The CSCE-OSCE has strong legacy in conventional arms control

both as far as limitations and reductions and constraints on military activ-

ities. Although the last two decades since 1999 did not add much to the

arms control acquis and there was a “retreat” in arms control with the

suspension of the CFE Treaty. It is Germany that keeps European conven-

tional arms control on the agenda as part of security dialogue since the

Harmel Report of 1967 and takes symbolic initiatives as a demonstration.

Although compliance is not full and some activities demonstrate the in-

tention to cheat, their level is more important as part of the communica-

tion of the main parties rather than of direct strategic significance.

Keywords: Arms Control, CFE, compliance, CSBMs, European Security,

military exercises, Open Skies Treaty, verification.

Preliminary Assumptions

• Arms control, including conventional arms control, does not constitute an

end in itself and can be seen as the outward military/technical manifesta-

tion of the inward international political climate.1

• If conventional arms control works best in an environment, which is nei-

ther characterized by animosity nor by full mutual trust, the current Euro-

pean situation is favorable to it. In the case of the former, arms control is

1 Desmond Bowen, “Restoring Peace, Security, and Stability in Europe – What Role for

Arms Control?” (London: October 2014, manuscript).

Partnership for Peace Consortium of Defense

Creative Commons

Academies and Security Studies Institutes

BY-NC-SA 4.0

Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

impossible; in the case of the latter, it is not necessary. However, as the Eu-

ropean conventional arms control arrangements agreed between 1990 and

1994 have demonstrated, the relationships must be closer to mutual trust

than to limited animosity if success is to be achieved. This requires a fur-

ther qualification of the previous assumption.

• Success in conventional arms control is frequently identified with the con-

clusion of agreements. However, this is an arbitrarily narrow definition of

the concept. Making established conventional arms control implementa-

tion fora work, transparency, compliance and, if necessary, enforcement of

obligations form part and parcel of arms control. It is more of a process

than a series of distinct points.

• Conventional arms control and confidence- and security-building measures

(CSBMs) have been separated from and contrasted with each other by the

participating states of the Organization for Security and Cooperation in Eu-

rope (OSCE). This is contrary to common sense and the observation of an-

alysts who prefer to differentiate between structural and operational arms

control.2

• Since the fundamental rearrangement of the geopolitical landscape and

power relations in Europe, associated with the end of the Cold War and the

subsequent winding up of the Warsaw Treaty and the enlargement of

NATO, no adaptation has taken place in European (Euro-Atlantic) arms con-

trol that is in force.

Characteristic Features of the Current Situation

The security perception of European states and their citizens, particularly the

overwhelming majority that confined its interests regionally, has improved dur-

ing the quarter of a century since the end of the Cold War and the middle of

the current decade. Not even the wars in the former Yugoslavia, the protracted

conflicts in the former Soviet Union, the secession of Abkhazia and South Osse-

tia and the annexation of Crimea could reverse this perception. However, these

protracted conflicts have undermined the achievement of new accords, be they

documents approved by OSCE Ministerial Councils, the Astana Summit, or a

more extensive modernization of the CSBM package.

Whereas for some participating states a significant deterioration of the se-

curity situation started in 2008, for many others the sea change occurred in

2014. Again, for some other participating states the deterioration of relations

began with the so-called Kosovo war of 1999 and was followed by the Iraq war

of 2003 (both without approval by the UN Security Council). However, it would

be difficult to argue for them to be seen as turning points because relations re-

2 Richard E. Darilek, “The Future of Conventional Arms Control in Europe, a Tale of

Two Cities,” in SIPRI Yearbook 1987: World Armaments and Disarmament (Oxford:

Oxford University Press, 1987), 339-354.

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Arms Control Arrangements under the Aegis of the OSCE

turned to cooperation later. It is certain that relations between Russia and the

West have, with significant variations, reached a new low since 2014. This

means that the external conditions for agreeing upon measures based on co-

operation are not favorable. At least one of the current conflicts, in Ukraine,

carries the danger of qualifying as ‘protracted’ and thus further increases the

prospect of more such conflicts. Political establishments in different capitals

have interpreted this conflict in different ways. Hence, it may still be possible to

have working relations irrespective of some violations at the top level in the hi-

erarchy of international law.

Some participating states are of the view that a rule based international or-

der cannot exist when there are prima faciae violations of its foundations such

as the territorial integrity or the political independence of states. Whereas a

change of territorial integrity can be easily attributed to external players, oth-

ers emphasize the undermining of the political independence of countries by

externally induced or actively supported measures, like the so-called color rev-

olutions. Those universal, peremptory norms cannot be disregarded with refer-

ence to claims be they founded on history, ethnic composition or the right to

self-determination. This is independent of whether any OSCE document reaf-

firms the norm or not. If this approach is interpreted strictly, no business can

be made between states that violate either of those norms. As it is highly un-

likely that some change could be reversed this would lastingly freeze relations.

Even if this view starts out from the integrity of the international legal order

and thus has internal logic, it is not realistic to assume that this would be, gen-

erally, in the long-term interest of the participating states. Other participating

states tacitly recognize the potentially detrimental consequences of such an

approach and emphasize the importance of maintaining relations, including se-

curity matters, among the OSCE. This view can be further differentiated ac-

cording to the emphasis made in overcoming the stalemate and covering the

gaps. They can be grouped as follows:

• Top down approach. Cooperation is impossible as long as a violation of

basic international legal principles continues;

• Bottom up approach. Cooperation in select areas must be possible irre-

spective of violations on other levels;

• Opening a new chapter. Create distance between the eventual non-

compliance with the arms control arrangements and the gross viola-

tion of the European peace order, and the stalemate in discussing/ne-

gotiating/agreeing upon new measures and hence make the coexist-

ence of the current situation and the opening of a new chapter pos-

sible.

The various positions go back to the assumption of how the current tension

can be overcome – (re)creating a cooperative environment in which the perpe-

trator could react constructively. The “top down approach” has been identified

59

Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

with particular emphasis upon deterrence. However, the term deterrence does

not bring us close to an accurate assessment of the purposeful line to be taken.

It is much more of a roll-back policy that requires the state that annexed and

seized territory to give up and return to the status quo ante. Irrespective of

how desirable this might be, it is hardly realistic to count on or expect such a

development. This results in a certain kind of ‘doubletalk’3 as the participating

states actually know there will be no such return. However, they use it as part

of their strategic communication and will only be ready to sacrifice it for some

compensation. This leads to a gradual increase in the number of protracted

conflicts, lasting stalemates and a crisis of classical diplomacy where every con-

structive step is a concession.

The bottom up approach addresses ‘technical’ arms control matters irre-

spective of problems on levels closer to high politics. This could make technical

discussions possible on areas such as compliance and could fill the agenda of

fora established to address implementation.

The most constructive (or apparently constructive) approach is the one that

separates the implementation of commitments from constructive arms control

dialogue among the participating states irrespective of their current compli-

ance record. Here, the smaller technical violations of living up to detailed

commitments under arms control arrangements are not the problem; it is the

larger violations that evaporate trust and confidence. This third option seems

more preferable as arms control can be regarded as “a means to build trust

where it has been lost” under the assumption that irrespective of how “deep

the rifts, we must try to build bridges.”4 This was followed by that the incoming

OSCE Troika took the commitment “to launching a structured dialogue on secu-

rity and arms control” – apparently an achievement of the outgoing German

chairmanship.5 The structural dialogue has started and certainly contributed to

professional exchanges of experts in spite of the fundamental disagreements

on major European security issues that were impossible to overcome.

Those who belong to the first group regard this as the indication of a policy

of appeasement without offering the alternative of moving the situation out of

the stalemate. Some other authorities are of the view that such an initiative

undermines the efforts of NATO members to improve transparency and guar-

antee compliance.6

3 Gerard C. Smith, Doubletalk: The Story of the First Strategic Arms Limitation Talks

(Garden City, NY: Doubleday, 1980).

4 Frank-Walter Steinmeier, “Reviving Arms Control in Europe,” Project Syndicate, Au-

gust 26, 2016, https://www.project-syndicate.org/commentary/reviving-arms-

control-in-europe-by-frank-walter-steinmeier-2016-08.

5 OSCE Twenty-Third Meeting of the Ministerial Council 8 and 9 December 2016,

Hamburg Declaration of the Incoming OSCE Troika: A Strong OSCE for a Secure Eu-

rope, MC.GAL/11/16, December 9, 2016, www.osce.org/chairmanship/307311.

6 Justyna Gotkowska, “The German Initiative for Arms Control: Time for Dialogue with

Russia,” Ośrodek Studiów Wschodnich, September 9, 2016, www.osw.waw.pl/

print/24646.

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Arms Control Arrangements under the Aegis of the OSCE

It is clear that the difference between the various groups is gradual. In fact,

no state wants to arrive at a situation that contributes to antagonistic opposi-

tion. It is more a question of which areas could be exempted in order to con-

tinue to foster cooperation. It might be confined to those areas in which the

declared adversary has something indispensable to offer, like nuclear weapons,

countering terrorism, or in certain local conflicts. The fact that European arms

control does not fit into this category limits the freedom of cooperation among

the participating states. However, not attributing more importance to conven-

tional arms control partly fits with the agenda of some participating states.

They seem to prefer some rebalancing between various dimensions of the

OSCE, thereby attributing more importance to the politico-military dimension

on the agenda of the OSCE and relegating arms control to one of its important

topics. However, such a ‘rebalancing’ between different dimensions has al-

ready taken place due to increased attention being paid to some conflicts, pre-

dominantly on the territory of Ukraine. Indeed, no state going through large-

scale modernization of its armed forces (that is not confined to the replace-

ment of armaments and equipment by a new generation of weapons), but also

entails the need to carrying out significantly more military exercises, would like-

ly be monitored closely. Consequently, in this phase it is, understandably, not

interested in more transparency.

The idea to develop so-called ‘status neutral’ arms control has been dis-

cussed for some time. It appeared, and gained some popularity, in the context

of post-2008 Georgia.7 This was because the challenge to the territorial integ-

rity of the South Caucasian state and the Russian recognition of the statehood

of its two separatist entities required a highly innovative approach to avoid a

full arms control blockade. However, despite the frantic efforts of diplomats

and scholars, the concept did not get very far. Difficulties arise whenever con-

tested states are obliged to provide information about their armaments and

military activities. When they carry out on-site inspections or host outside ob-

servers, it is impossible to overcome the problem of which country has the sov-

ereign right to order or give permission for these inspections. It is for this rea-

son that status neutral arms control rapidly clashes with status related matters

and can only work alongside political solutions for the status of contested terri-

tories. Consequently, as status neutral arms control did not achieve much in

the recent past, it is unlikely that it will in the foreseeable future either.

In light of the changed security landscape, analysts started to take a fresh

look and were critical of those many actors “in Berlin apply a Cold War ap-

7 Sergi Kapanadze, Ulrich Kühn, Wolfgang Richter, and Wolfgang Zellner, “Status-Neu-

tral Security, Confidence-Building and Arms Control Measures in the Georgian Con-

text,” Working Paper 28 (Hamburg: The Centre for OSCE Research (CORE), January

2017), https://ifsh.de/file-CORE/documents/Working_Papers/CORE_WP28_en_.pdf.

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Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

proach to arms control that no longer suits” the new security environment.8

Innovative approaches of analysts, opening avenues in arms control that have

been attempted a number of times, like addressing technological innovations

and quality of forces, pop up again. However, some major powers neither in-

tend to discuss arms control formally based on the old agenda, nor want they

to change it for an unexplored one.

The Compliance Record

OSCE-related arms control, be it structural or operational, has occasionally at-

tempted to be enriched by elements other than the “Holy Trinity” of The Treaty

on Conventional Armed Forces (CFE), Confidence- and Security-Building Meas-

ures (CSBMs) and The Open Skies Treaty. However, in terms of visibility it has

remained unsuccessful because the political leadership of the participating

states has continued to identify European arms control with those three sets of

documents. Consequently, the compliance record is based primarily on their

implementation.

The sparse literature and official documents give testimony to the fact that

the number and significance of violations do not give reason for large-scale

strategic concerns. Although they indicate that some parties do not intend to

comply fully with their commitments, concerns related to non-compliance can

be interpreted as more worrisome in the light of broader international con-

cerns that stem from the systematic violations of the basic principles of inter-

national law. They occur in areas that are associated with the use of force by

OSCE participating states. A deteriorating atmosphere and the consequent loss

of trust is the result. Where non-compliance with the letter of legally or politi-

cally binding agreements cannot be substantiated, states move to the violation

of their spirit. When they cannot prove the former, states create a revolving

door and they challenge their partners on the latter. As every major party plays

this not at all innocent game, each mix fairly strong claims with rather weak

ones (substantiated stricto sensu violation by the other party mixed with be-

havior that may not fit entirely with the spirit although cannot be challenged

on the letter of the accord).

As far as the CFE Treaty and its adaptation agreement are concerned, the

situation is clear. The operation of the original treaty, signed in November 1990

and brought into force in 1992, was suspended in 2007 by Russia and, after a

long period of hesitation, members of the Atlantic Alliance also stopped sharing

information. Delegates, according to their instruction, will not have to agree

about the legality of the suspension. However, in concord with the letter of the

treaty based on the Roman law dictum “argumentum a maiori ad minus” (Who

has the right to the more, has the right to the less) the legality of this action can

8 Claudia Major and Christian Mölling, “How Germany Should Change Its Approach to

Arms

Control,”

Carnegie

Europe,

accessed

September

7,

2017,

http://carnegieeurope.eu/strategiceurope/73031.

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Arms Control Arrangements under the Aegis of the OSCE

hardly be denied. The adaptation agreement has not entered into force and

thus the obligations of the parties have never exceeded those under a signed

but not ratified treaty. (Confined to: “Not to violate the object and purpose of

the treaty.”) The sustained position of the suspending party was demonstrated

by its interpretative statement made at the Hamburg meeting of OSCE foreign

ministers and extensive comments of the Russian foreign minister on the topic.

There, Sergey Lavrov called the attention to the fundamental change of circum-

stances in the strategic landscape (non-ratification of the CFE adaptation agree-

ment by NATO members for ten years, the enlargement of NATO and the ex-

tension of alliance infrastructure to the vicinity of the Russian Federation). In-

directly Russia has excluded to return to discussing conventional arms limita-

tions.9 Regrettable though this may be politically, and detrimental strategically,

there is no reason to involve the CFE with the compliance record as there is no

legal commitment against which it could be examined. In light of this, the com-

pliance record should be measured on the basis of the Vienna Document (VD)

and the Open Skies Treaty.

It is noticeable though that non-compliance cases cannot be confined to the

state party that suspended the CFE Treaty but also should include some states,

that are engaged in sub-regional military rivalry in the South Caucasus. How-

ever, this attracts less attention as the CFE regime does not function.

Different participating States are, to some extent, transparent about com-

pliance with conventional arms control, including the VD and the Open Skies

Treaty. Furthermore, when going public, they understandably provide more in-

formation about other countries that are not their allies or close friends. Con-

sequently, it is difficult to develop a comprehensive and reliable picture about

compliance and eventual violations. However, cases of non-compliance can be

divided into three groups:

1. Non-compliance during conflict and due to the change of the territorial

status quo

2. Non-compliance associated with protracted conflicts

3. Insufficient transparency and other violations.

Compliance with the Vienna Document

Since the Stockholm breakthrough of 1986, Confidence- and Security-Building

Measures (CSBM) have developed significantly. However, there are still many

measures that address the security concerns that dominated the Cold War

agenda, like rapid mobilization, concentration of forces for surprise attack,

practicing offensive actions at exercises, which may need to be applied in the

9 Foreign Minister Sergey Lavrov’s statement and answers to media questions at a

news conference following the 23rd OSCE Ministerial Council meeting, Hamburg,

December 9, 2016, http://www.mid.ru/en/press_service/minister_speeches/-

/asset_publisher/7OvQR5KJWVmR/content/id/2556212.

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Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

future or, in the case of large-scale ones, could immediately evolve into them.

The end of the Cold War modernization of the CSBM packages addressed stra-

tegic ambiguity by introducing risk reduction, including the procedures in case

of so-called unusual military activity. It also recognized the growing importance

of mobility when it introduced visits to air bases. The 1999 package was the

most important in that it recognized that the security needs of different parts

of the OSCE area may vary and hence different measures may be relevant,

agreed and applicable.

The most important weaknesses of the Vienna Document, in all its varia-

tions, are as follows:

• Crisis related weaknesses, such as the fair-weather character of the

document that results in ineffectiveness (though not inapplicability)

during conflicts

• Contextual weaknesses in terms of the inability to avoid the artificial

linkages with other political divergences, like protracted conflicts

• Early warning/prevention weaknesses related to too high and/or obso-

lete thresholds.10

Even though the first and second points may be closely linked, the three

points above provide a focused overview of the VD’s main shortcomings and

weaknesses. Some measures tend to regain their relevance and cause concerns

under current conditions again. The level of force concentration, once ad-

dressed by CSBMs, has declined and no participating state, nowadays, carries

out many exercises on a scale that would make mandatory long-term advance

announcement necessary and require the invitation of observers. Moreover,

participating states with the largest armed forces (the United States, the Rus-

sian Federation and Turkey) among the 57, have the possibility to conduct ex-

ercises on their own territory, which is outside of the area of application of the

Vienna Document.

The exercise program of states in the area of application are also used for

public diplomacy, propaganda and have been made part of blaming games. It is

sufficient to mention the Russian-Belarus exercise, Zapad-2017 and the at-

tempts to create various impressions around it. The western image focused on

the strategic significance of the exercise, contextualizing it around the neigh-

borhood of Ukraine and the size of the exercise in the vicinity of NATO mem-

ber-states, adjacent to Belarus. Even experts tended to speak about the largest

ever exercise since the end of the Cold War, a statement that would have been

difficult to substantiate by facts. The Russian Federation, on its side, was not

tempted to contribute to transparency and supplied data on the number of

troops and vehicles involved in the exercise that seemed to have been deliber-

10 Iztok Prezelj and Daniel Harangozo, “Effectiveness of the Vienna Document CSBM

Regime: Assessment of Experts’ Perceptions,” OSCE Network (Ljubljana: University of

Ljubljana, Faculty of Social Sciences, Defence Research Centre, 2014).

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Arms Control Arrangements under the Aegis of the OSCE

ately reduced to less than 13’000 soldiers, the level that would have required

the implementation of the mechanism for observation of exercises provided for

in the Vienna CSBM Document. This meant that the politicization of the matter

resulted in its contribution to political discourses and thus deprived it of its

core military professional content.11

When the status of a territory changes between two states without their

mutual agreement, it often entails the employment of military force in one

form or the other. Bearing in mind the nature of such an operation and the un-

conditional prohibition of the use of force under international law, no state

would use military force openly. During the high intensity phase of such a con-

flict, the threshold of notifiable and observable activities may be violated. Lat-

er, various methods might be applied to reduce the availability of accurate in-

formation.

As far as rules of the Vienna Document are concerned, the following meth-

ods are applied in such situations:

• Resubordination of personnel, armaments and equipment so that their

activities would not be subject to notification and observation. This

method has a long-standing history in arms control and the violations

that have occurred on a larger scale in the past.

• In this context, sometimes troops and forces have been mobilized that

are subordinated to different commands so that the individual units

that are activated for an exercise do not reach the threshold of notifi-

cation and observation individually. Hence, the figures, if communi-

cated at all, are shared as a goodwill gesture only. Goodwill gestures

may alleviate concerns. However, they are easy to ignore or revoke. In

other cases, some activities may reach the notifiable level but not the

level subject to observation. It can be stated that the thresholds are

too high particularly when taking into consideration increased mobility,

connectivity and units capable of cross-border combat from their

permanent peacetime location including boundaries with de facto

states.12

• It is more difficult for a state to legitimize the non-provision of data on

armed forces when they are in an area that it has declared unilaterally

to be under its sovereignty. Sovereignty, irrespective of whether other

participating states recognize it, is accompanied by responsibility. It is

objective and, hence, the participating state cannot be in breach of its

11 For an example see: Andrzej Wilk, “The Zapad-2017 exercises: the information war

(for

now),”

OSW

Commentary,

accessed

September

4,

2017,

https://www.osw.waw.pl/en/publikacje/osw-commentary/2017-09-04/zapad-2017-

exercises-information-war-now.

12 Gregory G. Govan, “Conventional Arms Control in Europe: Some Thoughts About an

Uncertain Future,” Deep Cuts Issue Brief #5 (July 2015), http://deepcuts.org/files/

pdf/Deep_Cuts_Issue_Brief5_Conventional_Arms_Control_in_Europe%281%29.pdf.

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Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

obligations. When a state’s government declares a change in its na-

tional territory, the argument for not notifying the size of its armed

forces occupying the new territory is void unless it is below the limit

and hence not subject to notification. However, other states, which do

not recognize such a change, could face a delicate situation when de-

manding notification from the state that has, according to their opin-

ion, annexed a territory belonging to another participating state. This

could result in a situation in which the participating state, a part of

whose territory has been annexed by another, may continue to pro-

vide information about forces on the territory that it claims to be its

own.

• It defeats the object and purpose of confidence- and security-building

if a state simply denies that its forces are present on the territory of

another. It has the effect of eroding confidence irrespective of whether

the number of troops, their equipment and activity exceed the notifia-

ble level. In the light of such a denial, no risk reduction measure is ap-

plicable and no question can be raised concerning unusual military ac-

tivity as it clashes with the denial. An arms control regime that starts

out from the principle that participating states are honest about their

military capabilities, the location of their troops and their military ac-

tivities cannot manage such a situation.

The phenomenon of so-called protracted conflicts presents other challenges

than the territorial conflicts that are still in the active phase. Although some

conflicts outlined above carry the danger to morph into protracted conflicts, it

would present a philosophical problem to speak about a potentially protracted

conflict. How long a time period should pass before we may safely conclude

that a conflict is protracted? It presents a further problem that some so-called

protracted conflicts have arrived at a new status quo whereas others continue

to threaten with volatility and their moving from a ‘frozen’ phase to one of high

intensity.

The existence of de facto states, statelets, or pseudo-states, as different au-

thors call them, presents a problem as they are sovereign entities without suf-

ficiently wide-ranging international recognition and thus have no participation

in international regimes or membership in international organizations. It should

be worrying that the number of such ‘states’ has been on the rise for nearly

three decades consecutively. It is understandable that no information is pro-

vided by such de facto states about their own armed forces or their activities.

They are not participating states of the OSCE and have not taken part in the Vi-

enna Document. It is a different matter when a participating state stations

forces and conducts military activities on a ‘ de facto’ state’s territory and does

not provide information about it. The problem then arises as to whether it is a

non-compliance case or not, and whether it is in the area of application? For

most participating states it is, as the territory legally belongs to another partici-

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Arms Control Arrangements under the Aegis of the OSCE

pating state. For a minority of participating states it is not, as it is on the territo-

ry of a non-participating state.

In some cases, violations may reach the level of absurdity. For example,

when a participating state does not provide notification of activities, that

should be subject to notification, while it informs its own public about them by

providing the media with numbers that leave no doubt about activities that

should be subject to both notification and observation. Although such cases are

not frequent, they are all the more regrettable.

Last, but not least, there are participating states that do not provide CSBMs

with data on their armed forces. These participating states can be divided into

two categories. There are small states with extremely limited state capacities,

weak governance and poor organization that probably, incidentally, do not

provide information when it is regularly required. But there can be others that

systematically avoid providing information. Whereas in the case of the former,

it would be difficult to attribute this behavior to concealment measures, in the

case of the latter it may well be their intention to gain some marginal ad-

vantage from non-compliance.

Compliance with the Open Skies Treaty

Whereas in the area of CSBMs the West is perceived to be in the position of

demandeur, compliance with the Open Skies Treaty presents a more complex

picture. Once again most of the non-compliance issues are related to ongoing

conflicts or the changing of hands of territories. With the latter, they are re-

garded as having arrived at a new status quo for some states but not for others,

and therefore have unsettled territorial status of some parts of the treaty’s ar-

ea of application and the pending protracted conflicts.

Beginning with the purpose of the Open Skies Treaty, its objective is to pro-

vide for military transparency. Hampered by a history of using overflights for

complementing information gained by other intelligence means (using U-2

flights, for example), some parties, understandably, want to exempt certain

sensitive areas where overflights must not be allowed, should be restrained or

the use of highest quality equipment/sensors ought to be curtailed.

Difficult relations generate the temptation to create complications in order

to prevent the treaty from functioning properly. In some cases, states use the

unregulated status of a territory to exempt it from overflights; in others, states

argue on the basis of the ‘independent statehood’ of a territory, and so they

impose technical conditions, which make full access to a territory impossible.

In case of the South Caucasus, the situation, with reference to separatist en-

tities, is based on the claim that for one participating state (irrespective of

which name the different participating states use) they are independent states,

not participating states of the OSCE and not parties to the Open Skies Treaty ei-

ther. As they are not parties to the Open Skies Treaty they must not be over-

flown. In accordance with the rules of the Treaty, their borders shall not be ap-

proached within ten kilometers. The disagreements over this matter are de-

rived from the larger political issue of the ‘independent statehood’ of the two

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Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

entities and can hence only be resolved by addressing the root cause. A state’s

reluctance to allow overflights by a participating treaty member that has been

backing the independence of the two statelets since 2012 is one example 13

and

can be regarded as a counter-measure to the flight ban in the vicinity of their

border.

The situation that has emerged since 2014 that allows scheduled flights of

one state’s air company to fly within the airspace of another does not prevent

the parties conducting overflights under the Opens Skies Treaty. However,

claims from one conflicting party for prepayment of the costs of the flights

from the other is not in accord with the decision of the OSCC and is also an un-

friendly gesture. Similarly, flights in the border area between a treaty party and

its non-treaty party neighbor can be constrained and it will need the root cause

of the problem to be addressed in order to overcome this difficulty. Conven-

tional arms control treaties, including transparency measures, are really peace-

time measures and are not meant for situations in which a part of the area of

application of the treaty is a war zone.

Attempts to prevent the treaty from functioning as it was intended, are

more conspicuous when a state has introduced regulations that prevent the

overflight of a fully strategically sensitive area. Irrespective of whether the nec-

essary information can be collected and verified by other means, it is not prac-

tical to accept this erosion of the treaty regime as it may serve as point of ref-

erence to undermine compliance further. The fact that there are no overflights

conducted by NATO member-states among themselves curtails the access of

other states to raw data among others.14 Again, it is the sovereign choice of

members of an alliance to follow such practice, although there might be cases

when reasons to reconsider it may prevail.

There are several technical issues that the state parties ought to discuss in

order to find constructive solutions, if necessary, in the framework of classical

tit-for-tat bargaining. These include the use of sensors in some areas, the tech-

nical conditions at certain airfields (apron, length of runways) and the number

of permitted landings for refueling, for example. Although the violations may

be numerous, none of them ought to cause existential security concerns.

Conclusions

After an interval of more than two decades, military security has returned to

the political agenda in Europe. The illusion that many have pursued, that secu-

rity is guaranteed for most European states, turned out to be unfounded and

temporary. The revival of military security is at odds with an arms control re-

gime that has not been successfully adjusted to the changes since the begin-

ning of the post-Cold War era. Due to the unadjusted (and partly outlawed)

arms control regime, violations of the letter of various accords have remained

13 Shakirov, “Kontrol’ nad obychnymi vooruzheniyami v Evrope,” 33.

14 Shakirov, “Kontrol’,” 33.

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Arms Control Arrangements under the Aegis of the OSCE

limited. Violations gain significance in conjunction with crises, real or potential,

protracted conflicts and the strategic reassessment of the importance of cer-

tain areas in the application of the treaties. It is important to closely monitor

the so-called ‘norm challenging behavior’ as it prepares for norm erosion and

increases the danger of institutional decay.15 It is irresponsible to create a situa-

tion in which participating states or state parties could mutually refer to each

other’s violations of commitments. On a larger scale with respect to some ma-

jor conflicts (Kosovo, Iraq, Georgia, Ukraine) this has been going on for nearly

two decades without anybody providing reasons why one state’s violation le-

gitimizes that of another state or, to put it more bluntly: Why states have to fol-

low each other into the mud.

In spite of the quest to make arms control measures not only applicable in

fair weather, this request has remained only partially fulfilled. Some measures

have been introduced in the CSBM packages of the early 1990s in order to ad-

dress this matter.16 The measures have also been applied under stressful cir-

cumstances, like the so-called Kosovo war of 1999. Still, further measures may

be necessary to advance the applicability of CSBMs in other difficult circum-

stances.

The current fora should be adequate to address compliance matters unless

they are being obstructed by some participating states or state parties. How-

ever, because of their politicization, some fora (like the Forum for Security Co-

operation (FSC) or the Open Skies Consultative Commission (OSCC)) are used

for megaphone diplomacy in which delegates make statements and use harsh

rhetoric in order to demonstrate their toughness to their own masters rather

than conducting dialogue with their partners. This, inevitably, reduces the rele-

vance and usefulness of these fora. Consequently, there are working bodies like

debates on Open Skies in a smaller framework or the Structured Dialogue,

which take the place of the larger fora. They function as genuinely multilateral

fora even though NATO assembles 29 allied nations from among them. Howev-

er, the expectation that the smaller members will simply accept positions about

which large parties persuade them or which are imposed upon them by larger

ones even when it is not in their national interests, reflects a way of thinking

not shared by every participating state.

The current thresholds for notification and observation are too high and can

be misused. The violation of their spirit can start by not providing sufficient

transparency and then simultaneously mobilizing units for so-called snap exer-

cises. It is understandable that some armed forces will have to catch up after a

period in which they did not take training sufficiently seriously and did not allo-

15 Ulrich Kühn, “Cooperative Arms Control in Europe: The Consequences of Complexity,

Decay, Power, and Norms” (Presentation to the Expert Roundtable on Conventional

Arms Control and Confidence-Building Measures in Europe, OSCE Security Days, Vi-

enna, November 10, 2014), 6.

16 “Vienna Document 1990,” Organization for Security and Co-operation in Europe, No-

vember 17, 1990, Chap. III.

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Pál Dunay, Connections QJ 16, no. 3 (2017): 57-71

cate adequate resources to defense, like the Russian Federation in the 1990s.

However, providing information on a voluntary basis must be possible in order

to alleviate concerns even if a new set of confidence- and security-building

measures cannot be agreed upon. Such a step would be contingent upon an

improved or at least more relaxed political atmosphere.

It is essential to see that some of the notification and observation measures

were agreed as long ago as 1986 so that they would not be applicable to the

then most frequent Warsaw Treaty exercises using mechanized divisions. Clear-

ly, many of our concerns reappear faster and are more vivid when they are

grounded in Cold War history. Diplomats need to know that analysts are well

aware that the current heating up of tension, partially grounded in objective

reality, is complemented by the fact that today’s re-emerging adversary is a

state that is often regarded as being identical with the old familiar Cold War

adversary. It makes drawing conclusions rapid and simple without much con-

sideration being given to the major differences between the two periods.

Arms control has changed a lot over the last decades in Europe. Still, there

are matters in which no change is apparent. There are still participating states

with significantly larger military capabilities than others. Although all regimes

are required to meet the same normative obligations, the strategic importance

of compliance focuses mainly on a few states. The agreements provide tools to

observe eventual violations of one sort or another. However, there are difficul-

ties in taking action in the light of detected violations. When Fred Ikle wrote his

seminal article in 196117 concerning the dilemma states were facing when they

detected the violation of an arms control accord by a party whose participation

was essential to the accord, he raised the ultimate question of what to do

about the violator. What means the other parties have (not in the sense of in-

ternational law as that is fairly clear) beyond publicly ‘naming and shaming’ the

violator is open to conjecture. In the end, expelling the pivotal partner from the

arrangement with reference to its massive or systematic violation does not

solve the problem; it simply gives a free hand to the violator to get rid of the

commitments that it was previously obligated to obey. Fortunately, there are

no premeditated, concerted, large-scale, systematic violations of strategic sig-

nificance nowadays and, hence, the unresolved dilemma is not high on the

agenda of interested parties. This is the case even though some military experts

and diplomats, for tactical reasons, may make attempts to portray the differ-

ences as strategic in the area of compliance with arms control.

It seems, under the current conditions, that there is no chance to negotiate

new, substantive arms control measures. Even those initiatives that were put

on the table have been taken back or meant more for strategic ‘ sondage’ than

anything else. It has usually been a question of whether there is a resolve to

free some small area of conventional arms control from strategic counter-in-

17 Fred Charles Iklé, “After Detection – What?” Foreign Affairs 39, no. 2 (January 1961):

208-220.

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Arms Control Arrangements under the Aegis of the OSCE

terest on a higher level. This would require visionary statesmen/women on a

higher political level than the present managers and power perpetuating ego-

ists. However, history never ends. If there is little chance for new arrangements

to agree upon, states have to decide on what to do next by focusing on the

process and leaving the outcomes for better times. It seems that what is being

done is precisely what may help under the current conditions:

1. Not seeking to negotiate any new document on European arms control

due to the unfavorable atmosphere and the conflicts that impose

themselves on European security nowadays

2. Maintaining dialogue on a professional level to discuss items of rele-

vance

3. Decoupling the process of forward looking considerations from some

of those established frameworks (JCG, OSCC) that have lost some of

their relevance as fora for professional exchange due to the historical

burden of formal exchanges

4. Keeping watch on compliance in order to prevent further erosion and a

growing irrelevance of the existing arms control regimes.

The lasting stalemate results in an increasingly busy expert community try-

ing to address and contribute to its resolution. Most of their efforts will not

bring about immediate results but may contribute to creating a depot of intel-

lectual ammunition that can be explored when the opportunity arises.

It is essential to reassess the situation objectively and to conclude whether

the overwhelmingly technical violations can be separated from the eventual

strategic discord. It will also be essential to leave the professionals to gain more

autonomy so that they can act in the best interests of their nations rather than

having to meet the expectations of certain groups, which may wish to impose

their ill-informed positions upon them.

Disclaimer

This paper is based on information in the public domain and on interviews with

delegates of eight participating States who were kindly available during my visit

to Vienna in July 2017. The asymmetry of publicly available information could

influence the analysis. It goes without saying that the responsibility for the con-

tent rests with the author.

About the Author

Dr. Pal Dunay is Professor of NATO and European Security Issues at the Mar-

shall Center and Academic Advisor of its Central Asia program, PASS, ESS-E, and

SES courses. E-mail: pal.dunay@marshallcenter.org.

71

Document Outline

- Preliminary Assumptions

- Characteristic Features of the Current Situation

- The Compliance Record

- Compliance with the Vienna Document

- Compliance with the Open Skies Treaty

- Conclusions

- Disclaimer

- About the Author

Table of Contents

Preliminary Assumptions

Characteristic Features of the Current Situation

The Compliance Record

Compliance with the Vienna Document

Compliance with the Open Skies Treaty

Conclusions

Disclaimer

About the Author