Obama’s end-run around the nuclear non-proliferation treaty

In an article for Forbes, Harold Furchtgott-Roth argues that President Obama’s executive agreement with Iran violates and/or modifies the Nuclear Non-Proliferation Treaty of 1969. Thus, it cannot lawfully take effect without true congressional approval (as opposed to the process established by the Corker-Cardin legislation). Furchtgott-Roth’s article appeared about a month ago, but has only recently come to my attention.

It is axiomatic, I should think, that an executive agreement cannot supersede a treaty. As Furchtgott-Roth explains, treaties are the law of the land and have the status of federal statutes. As such, they cannot be overridden by executive action.

The Iran deal is not a treaty, nor is it a statute. It will not even muster the level of congressional support sufficient to enact a statute.

To be sure, Congress through the Corker-Cardin legislation agreed to process by which the Iran deal could take effect with less than majority support. It did so before it had seen the terms of the deal. Thus, says Furchtgott-Roth, it had no reason to believe that the terms would violate the Nuclear Non-Proliferation Treaty. Indeed, the public statements of John Kerry indicated that there would be no clash.

In any event, the Corker-Cardin bill established a process to review an executive order, not a treaty amendment. I doubt that Congress can bind itself in advance (or at all) to a process to create or amend a treaty that differs from the one established by the Constitution.

The question thus becomes whether the Iran deal modifies the Nuclear Non-Proliferation Treaty. Furchtgott-Roth presents a good case that it does:

1. Under Article I of the NPT, “Each nuclear-weapon State Party to the Treaty [US] undertakes … not in any way to assist, encourage, or induce any non-nuclear weapon State [Iran] to … otherwise acquire nuclear weapons or other nuclear explosive devices, or control [ICBMs] over such weapons or explosive devices.”

Yet the entire Iran Deal is a road map for Iran to obtain devices that provide “control over such weapons or explosive devices.” The Iran Deal lifts embargoes on missiles that could be used for nuclear weapons. The deal ends prohibitions on nuclear weapons after a fixed number of years. The deal gives access to Iran to hundreds of billions of dollars immediately, all or part of which can finance the acquisition of nuclear weapons or related components.

Thus the Iran Deal modifies or violates U.S. responsibilities under Article I of the NPT.

2. Under Article II of the NPT:

“Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”

Yet there is nothing in the Iran Deal that limits its ability ultimately to obtain nuclear weapons and various related control devices such as ICBMs. The Iran Deal merely places a timeline on that acquisition. The Iran Deal modifies Article II of the NPT.

3. Under Article III of the NPT:

“Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.”

The Statute of the IAEA. . .states. . .:

[T]he Agency [IAEA] shall have the … responsibilities…To send into the territory of the recipient State or States inspectors, designated by the Agency after consultation with the State or States concerned, who shall have access at all times to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities which are required by this Statute to be safeguarded…

Press accounts suggest that the Iran Deal does not provide for IAEA inspection “at all times to all places and data and to any person…” Partly, there is a 24-day notice and review requirement before any inspection. That is inconsistent with the NPT. Neither the Iran Deal nor press accounts indicate that IAEA inspection will be “at all times to all places.”

The Iran Deal modifies Article III of the NPT.

4. Article VIII of the NPT provides in detail a method to modify and amend the NPT. That is not the process used for the Iran Deal. Thus the Iran Deal modifies or violates U.S. responsibilities under Article VIII of the NPT. . . .

Assuming that this analysis is sound, i.e., that Obama’s deal modifies a treaty, the questions become: what can Congress do about it and what is Congress prepared to do?

I doubt that Congress is prepared to abandon the Corker-Cardin procedure. To my knowledge, there has been no sign of willingness to do so in the month since Furchtgott-Roth’s article appeared.

I also believe that if Congress did ditch Corker-Cardin and treated the deal as a treaty amendment (two-thirds vote needed in the Senate; no vote in the House), Obama would thumb his nose at Congress and proceed to implement his deal.