Did Russian use of an Iranian base constitute the supply, sale or transfer of combat aircraft to Iran?
Posted: August 22, 2016 Filed under: Nuclear 4 CommentsIn a weird development last week, Russia is widely reported to have used the Nojeh military base in Iran as a staging point for airstrikes by Russian military aircraft in Syria. This was, apparently, the first time since World War II that any foreign military had been allowed to, at least temporarily, station military assets at an Iranian military base. The most recent reports are that Russia is no longer making use of any facility in Iran for this purpose.
What interested me about this story was the criticism forthcoming from U.S. State Department spokesman Mark Toner, who said in a press conference that Russia’s use of this Iranian military facility may constitute a violation of U.N. Security Council 2231’s prohibition on the “supply, sale and transfer of combat aircraft to Iran unless approved in advance by the U.N. Security Council.” He appears here to have been referring to Annex B, paragraph 5 of UNSCR 2231.
I may be one of the few people on earth whose mind would work this way, but when I heard this criticism, I immediately thought of the issue of the stationing by the U.S. of nuclear weapons at military facilities of Non-nuclear Weapon States in Europe – an issue that received some attention lately when, during the recent coup attempt in Turkey, the power was cut off to Incirlik air force base where some 80 of these U.S. nuclear weapons are housed.
Now, anyone who has read Article I of the NPT knows that this provision prohibits the “transfer to any recipient whatsoever [of] nuclear weapons or other nuclear explosive devices” by a Nuclear Weapon State, such as the U.S. In my 2009 book (pgs 13-15), I argued that the U.S. policy of stationing nuclear weapons on the territory of Non-nuclear Weapon States in Europe does violence to both Articles I & II of the NPT.
Doesn’t it seem like the State Department, in its criticism of Russia’s stationing of its combat aircraft at an Iranian military base as an unlawful “transfer” of combat aircraft to Iran, is essentially endorsing my reading of NPT Article I and my argument that U.S. stationing of nuclear weapons on NNWS military bases is an unlawful “transfer” of those weapons pursuant to NPT Article I?
That’s how I’ll choose to see it.
Arms Control Law 
Dan,
Interesting line of thinking. To what extent has a transfer actually taken place in both cases?
Could it be argued that no transfer has taken place, given that the US retains complete operational control over the nuclear weapons (doesn’t POTUS have the final say whether they can be used?); and Russia has control over the opertaional deployment of the fighter jets? Or does transfer also include the stationing of items subject to NPT in the territory of another sovereign state? Would this also apply to for instance the temporary sojournment of naval vessels or military aircraft containing items subject to NPT with the permission of the host nation?
Hi Maurits,
You’re certainly right about the details of “transfer of control.” And this is the argument the US makes, i.e. that the US NW are always under US control, up to the point at which their use – potentially by the military assets of the friendly NNWS – is authorized. And at that point, there would be an armed conflict. Therefore, goes the argument, the NPT wouldn’t be operative because of the armed conflict.
There are several things to say about this argument. First, note that the NPT forbids the transfer of NW to any recipient whatsoever. Thinking about the object and purpose of the NPT, which should inform the interpretation of these terms, one important element of the NPT’s object and purpose was the nonproliferation of nuclear weapons. I think that part of this idea of nonproliferation was that nuclear armed states shouldn’t proliferate the placement of their nuclear weapons outside of their own territory. I’m thinking of the Cuban missile crisis of 1962, and how destabilizing it was for the USSR to place its nuclear weapons in a third country so close to US territory. Now, those nuclear weapons were (as far as I know) always under USSR operational control. Nevertheless the situation almost caused a war.
Thinking about the Article I prohibition on transfer in light of that recent experience of the NPT negotiating parties in 1968, I think it’s meaningful that Article I prohibits BOTH transfer of nuclear weapons AND control over nuclear weapons. That says to me that it’s possible for NW to be transferred to a recipient WITHOUT control over those NW being handed over, and for that transfer itself to be prohibited.
So yes, I would argue that the meaning of “transfer” in NPT Article I includes placing nuclear weapons on the territory of third countries, even if those nuclear weapons remain within the operational control of the sending state.
Let me just add quickly that the analysis in my previous comment only applies to NPT Article I. I think the legal analysis of UNSCR 2231 would be very different, and my own assessment would be that Russia’s use of an Iranian military base for a few days of air strikes definitely does not constitute a transfer of combat aircraft to Iran, as prohibited by UNSCR 2231.
it occurred to me last week as well, and then I thought, well, it is the State Department after all, and their trade is nothing, if not hiprocisy