The Turkish Air Force’s first F-35A fighter made its maiden flight on May 10, 2018. US threats to expel Turkey from the program over its purchase of Russian S-400 air-defense missiles may not be legally possible because of the program’s bylaws. (LM photo)
Even though the US are paying most of the costs, and are buying most of the production run, the JSF program is structured as a cooperation among equal partners, none of which has more power than any other partner.
“The United States cannot unilaterally remove Turkey from the F-35 fighter jet program as the partnership agreement does not allow it,” Turkey's head of Defense Industries Directorate, İsmail Demir, said on June 21, 2019, according to a Reuters report. “No single country can say they don't want you and then remove you from the program," Ismail Demir told reporters.
"This isn't part of the agreement; this isn't something you can just say 'I exclude you' about. The F-35 project is a partnership and nowhere in the agreement does it allow a unilateral removal of one country," Demir added.
But the United States are keeping the pressure on Turkey. “The United States will stop Turkish forces flying and developing its F-35 stealth jets if Ankara goes ahead with the purchase of a Russian air defense system, Kay Bailey Hutchison, the U.S. ambassador to NATO, said in Brussels on Tuesday. “There will be a disassociation with the F-35 system, we cannot have the F-35 affected or destabilized by having this Russian system in the alliance,” she told reporters.
Program bylaws support Turkish position
A review of the agreements governing the Joint Strike Fighter (JSF) program, the latest of which is the Memorandum of Understanding for the Production, Sustainment and Follow-on Development (PSFD) phase signed by most of the member nations on Feb. 07, 2007, seems to support Turkey’s position.
Section XIX of this document sets out the conditions for the “Amendment, Withdrawal, Termination, Entry into Effect and Duration” of the agreement, but makes no provision for expulsion of a partner nation.
Article 19.2 states that “…this MoU may be amended by the mutual written consent of the Participants,” while Art. 19.3 adds that “This MoU may be terminated at any time upon the written consent of the Participants,”
“Any Participant may withdraw from this MOU upon 90 days written notification of its intent to withdraw,” adds Art. 19.4, but no provision is made for a participant’s expulsion from the program, or for a non-voluntary departure.
A separate section (Section XVII) of the MoU covers the “Settlement of Disputes.” It stipulates that “Disputes among the Participants arising under, or relating to, will be resolved only by consultation among the Participants and will not be referred to an individual, to a national court, to an international tribunal, or to any other person or entity for settlement/b>.” (Emphasis added—Ed.)
This last clause seems to conclusively rule out US President Donald Trump (“a person”) or the US government (an “entity”) taking a unilateral decision on a dispute like the one arising from Turkey’s purchase of the S-400 – these can be “resolved only by consultation among the Participants.”
These procedures were not modified by the two Amendments to the PSFD agreement, signed in December 2009 and April 2010, so the program bylaws clearly seem to support Turkey’s position, and make its unilateral expulsion by the United States impossible.
US may consult Partner nations
Nothing rules out a consultation of its program partners by the United States, which would probably result in a joint decision to expel Turkey, but the JSF bylaws certainly limit Trump’s ability to act unilaterally to enforce the expulsion threats he has been making for months.
But it is not clear that all Participants would necessarily agree that the S-400 would be a sufficient cause to expel Turkey as its immediate neighbor, Greece, has bought an earlier Russian air-defense system, the S-300. Arguing that one NATO ally can operate a Russian system but another cannot would be hard to justify from a legal standpoint.
Another factor is likely to support Turkey’s position: the fact that the United States had originally refused to sell Patriot systems to Turkey, which then opted first for the Chinese-made HQ-9 and then for the S-400.
Speaking at a June 24 news conference Ankara, Foreign Minister Mevlut Cavusoglu said partner nations in the F-35 jet program do not support the steps taken by the United States to halt pilot training, Reuters reported. He added that the United States is isolated as it also squeezes Turkey on F-35 jets, but provided no proof to support his assertion.
Cavusoglu added that “All decisions should be taken by consensus,” reiterating that Turkey is also a partner in the program and has made large contributions.
Former acting U.S. Secretary of Defense Patrick Shanahan has informed his Turkish counterpart that Turkey’s participation in the F-35 program will cease on July 31 if Turkey deploys Russian S-400s on its soils.
The Pentagon’s ultimatum was outlined in a June 7 press briefing by Under Secretary of Defense for Acquisition and Sustainment Ellen M. Lord and Acting Deputy Assistant Secretary of Defense for European and NATO Policy Andrew Winternitz.
“These kinds of steps taken by the U.S. are not compatible with the partnership agreement or the law,” Çavuşoğlu said, adding that Washington failed to agree with any of Turkey’s proposals to resolve the dispute.
Turkish President Tayyip Erdogan said on June 20 that he would discuss the issue with U.S. President Donald Trump at the G20 summit in Japan this week, and this is probably how the issue will be resolved, given that the unilateral ejection threatened by Trump is in all likelihood impossible.
-ends-
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