Obama Cannot Alter Non-Proliferation Treaty By Executive Order by Harold Furchtgott-Roth
http://www.forbes.com/sites/haroldfurchtgottroth/2015/07/27/obama-cannot-alter-non-proliferation-treaty-by-executive-order/
The United States ratified the Nuclear Non-Proliferation Treaty (NPT) in 1969 after the U.S. Senate advised ratification in accordance with the U.S. Constitution, and the treaty went into effect in 1970. Can the administration issue by itself an order that conflicts with that treaty?
This question has not been raised, much less answered. The Iran Deal, formally known as the Joint Comprehensive Plan of Action and signed by the administration, conflicts repeatedly with U.S. obligations as a signatory of the NPT.
The issue is not whether the executive can without a treaty enter into agreements with foreign governments. Of course it can. That happens often from negotiating minor details of landing rights to major agreements. But these executive agreements are done consistent with treaty obligations, or certainly not in conflict with them. The Iran Deal conflicts with the NPT.
Treaties are the law of the land and have the status of federal statutes. They do not trump either the Constitution or subsequently enacted statutes. As a statute, however, a treaty would supersede a regulation, an executive order, or an executive-signed agreement. If an executive agency or an independent agency has the latitude to issue orders or sign agreements that conflict with treaty obligations, then treaties ratified by the United States have little if any enforceability.
In the United States, the administration or an independent agency cannot simply write an order that conflicts directly with a statute. The rule of law flows insists on no less. Why should a treaty, the NPT have lesser status?
The Iran Deal will not have the status of even a statute. As currently planned, it will not be subject to the constitutionally mandated process for Senate consent for a treaty. Nor will the Iran Deal become a statute even under the Corker-Cardin process of Congressional review. Moreover, as seems likely, the Iran Deal will result in a joint resolution that will have the support of fewer than half of the members of either house of Congress, hardly the foundation for a statute.
Congress had not seen the Iran Deal before the Corker-Cardin process was enacted and had no reason to believe that it would violate the NPT. On April 27 just before the Corker-Cardin bill was approved, Secretary Kerry remarked at the 2015 NPT meeting that “nonproliferation must be non-negotiable. There is no room under the NPT for a country to negotiate its way into becoming a nuclear-armed state … “[A]ny deal with Iran will rely not on promises, non on words, but on proof…verification is at the heart of the NPT.”
The Corker-Cardin bill established a process to review an executive order, not review a treaty amendment. No one has put forth an argument that Congress can bind itself in advance to a process to create or amend a treaty by a process different from that stated in the constitution.
Perhaps most troubling is that the Iran Deal conflicts with—indeed, violates—the NPT, an international treaty to which the United States is a signatory. Consider the following:
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 can be found at https://www.iaea.org/about/statute.
It states as follows under Article XII of the IAEA Statute:
“[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.
5. The preamble to the NPT explains the reasons for entering into the NPT including the horrors of a nuclear war. Those horrors are not limited to large-scale conflicts. The reasons for the United States and other countries adopting the NPT were precisely to avoid situations of non-nuclear countries such as Iran obtaining nuclear weapons.
Some observers have argued that, precisely because the Iran Deal is just an executive agreement, it has limited authority. A new president could simply issue a new and different executive order countermanding the Iran Deal. There are at least five problems with this approach.
First, for some period of time, the United States government will have lent its good name and that of the American people to an agreement without legal authority. Second, Iran will have benefited during that time period and will be little constrained by a future president willing to abide by American law. Third, other nations, whether allies or rogues, will not be able to rely on America as a treaty partner. Indeed, they will see Iran rewarded with hundreds of billions of dollars in unfrozen accounts as part of a package of America changing its treaty obligations.
Fourth, the loss is to the American public is great. We elect governments to represent our interests. Our government does not enter into treaties such as the NPT lightly, and when they do, it is for good reason. The NPT aims to limit nuclear proliferation; the Iran Deal provides a road map for Iran to acquire nuclear weapons. All Americans are injured.
Fifth, the rule of law loses. If an administration can unilaterally modify a treaty through executive action, it can likely do the same with statutes. Yes, subsequent presidents may change the executive order to its liking. America is a better country than one that invents a new set of laws with each new administration.
America watches Congress as it reviews the Iran Deal under the Corker-Cardin process. Perhaps Congress will find two-thirds votes in both chambers to block the agreement. More likely, it will not.
But few are asking the salient question about the legitimacy of this entire process: Can the administration or an independent agency issue an order that conflicts with a ratified treaty? The answer is surely “No.”
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