Most Republicans in the House and Senate seem to have accepted that President Obama has won in his quest to enact the nuclear agreement between the P5+1 and Iran. Indeed, earlier efforts to block the deal on Capitol Hill have failed. Even Israeli Prime Minister Netanyahu seems resigned to the deal’s inevitability. But not everyone has given up. Several Republican presidential candidates have promised to nix the deal once they get to the White House. And indeed they should.
No other arms control or nuclear non-proliferation agreements have played out so publicly and divisively. The negotiations produced a tome — the Joint Comprehensive Plan of Action (JCPOA) — whose every word will be studied and parsed by governments, international organizations, military officers, academics, think tanks, non-governmental organizations, and others.
It is unusual for American negotiators to work so diligently, yet obtain an agreement that we would be better off without. Why, you ask? First, the deal provides international legal cover for Iran that will expedite its quest for nuclear weapons. Second, the United States will not know precisely when Iran possesses nuclear weapons unless it tests them. Third, the JCPOA should have been a treaty requiring Senate advice and consent rather than an executive agreement. Fourth, the most important commitment in the agreement is placed in such a manner that it would be irrelevant even if the agreement were legally binding. And finally, Iran freely violates treaty obligations, so will not likely observe a mere political commitment. Let’s go over each of these in more detail.
1. The agreement is legal cover for the bomb
The Obama administration asserts that the JCPOA will prevent Iran from building a nuclear weapon for 15 years. Instead, the agreement will facilitate Iran’s path to a nuclear weapon, while unwisely providing international legal cover for its entire nuclear program. The agreement breaks with decades of consistent, bipartisan nonproliferation policy. That understanding concerns an interpretation of the Nuclear Nonproliferation Treaty (NPT) in which states party to the treaty are entitled to the peaceful uses of nuclear energy, but not to enrichment and reprocessing technologies, which provide a clear route to nuclear weapons. This agreement announces to the world that it is fine to allow Iranian enrichment of uranium, even though we have not conceded that right to many allies (although we have done so indirectly with India). Iran will use this deal to keep the world focused in one direction, allowing inspections at declared facilities where nothing is happening, while pursuing its nuclear weapons goals at undeclared sites as it did, at a minimum, from 1985 to 2003. Iran knows how to play this sort of shell game.
Iran, of course, has no peaceful need for nuclear power, as it is sitting on a sea of oil — but let’s pretend that it does. Iran deems the offer of an international nuclear fuel bank — an alternative to its own nuclear program — as “nuclear apartheid” and refuses to support such a concept. But why would it refuse offers to have fuel rods shipped in and spent fuel removed from its reactors? This would not only save it the significant effort and expense of enrichment, but would also simultaneously remove all suspicion regarding intent to build nuclear weapons, because it is impossible to build them indigenously without enrichment of uranium or reprocessing of spent fuel to extract plutonium. That such a limitation is unacceptable to Iran only makes sense if Tehran is seeking a clear path to nuclear weapons acquisition. Further, only enrichment will permit Iran to build multiple nuclear weapons.
A state, as opposed to a terrorist group (although in the case of Iran, it is hard to tell the difference at times), requires more than one nuclear weapon, unless it is willing to use a very crude design. Otherwise, it requires a nuclear weapons program, allowing for several nuclear tests of a basic design, followed by manufacture of nuclear weapons based on a proven design. But we really don’t know what direction Iran will take to the bomb. By enriching uranium far in excess of the permissible 3.67 percent under the JCPOA, Iran could secretly expand its program to a point at which it has the requisite amount of highly enriched uranium to assemble a nuclear weapon in short order without nuclear testing. Estimates vary about how long this will take, but Iran already has the nuclear weapon designs. We don’t know if Iran has learned how to produce warheads able to withstand the rigors of ballistic missile flight and atmospheric re-entry, a technical achievement necessary to hold Israel or the United States at risk.
This uncertainty highlights the importance of the documents that the International Atomic Energy Agency (IAEA) seeks from Iran regarding the “possible military dimensions” of its program. Coming clean could well reveal a separate nuclear weapons bureaucracy in Iran, rather than mere development of a parallel nuclear fuel cycle. Iran has not yet produced those documents.
2. We won’t know Iran has the bomb ‘til they do
Thanks to the JCPOA, Iran may now go about its business in a manner that permits the maintenance of plausible deniability regarding its true intent. After all, why should anyone be concerned about Iran pursuing peaceful nuclear power? That right is guaranteed by the NPT, although Iran also insisted on enriching uranium, a right not specified in the NPT — at least according to the United States. The U.S. view on this matter is now a minority view in the international community, with most states, including Iran, believing that the NPT confers the right to enrichment.
The trouble with a surreptitious weapons program is that, like a thief in the night, it creeps up on you very slowly, not announcing itself, even once it has arrived. And Iran is studiously practiced at secrecy, evasion, and the art of denial on the international stage. We will surely fail to know if Iran elects to conduct a nuclear test, given the failure of the U.S. intelligence community to catch the nuclear tests conducted by India and Pakistan in 1998. Why are we so confident that effective monitoring of Iranian nuclear programs is possible now? Such certainly seems highly misplaced. American inspectors will not even be permitted inside Iran pursuant to the JCPOA, since citizens from states that do not have diplomatic relations with Iran are not allowed to join IAEA inspection teams in Iran.
3. It should have been a treaty
International agreements that enter into force for the United States after two-thirds of the Senate provides advice and consent are known as treaties. International agreements that enter into force for the United States without the advice and consent of the Senate are executive agreements. Typically, international agreements of major import are submitted to the Senate. No U.S. president has ever claimed the authority to negotiate such a highly controversial arms control or non-proliferation agreement unilaterally as an executive agreement. Usually, only minor agreements that attract little interest in the nonproliferation and arms control spheres have been concluded as executive agreements. Yet the JCPOA is of vital importance and produced major international attention and debate. It stands to re-shape the balance of power in the Middle East, and yet here we are with an executive agreement. Bruce Fein writes that the JCPOA is clearly a treaty pursuant to the U.S. Constitution and that the administration “mischaracterized the JCPOA as an executive agreement to avoid the necessity of Senate approval … (that is) beyond his political reach.” Because this is not a treaty, it is not legally binding and therefore stands as a mere political commitment.
4. The strongest language is in the least binding part of the agreement
The JCPOA’s preamble reads, “Iran reaffirms that under no circumstances will Iran ever seek, develop, or acquire any nuclear weapons.” After reading that, one might conclude that there is no need to delve any further into the cumbersome document, since the entire subtext of the agreement was to prevent Iranian acquisition of nuclear weapons. Given Iran’s willingness to make that commitment, why not just stop there? Unfortunately, this declaration only appears in the preamble and is therefore nearly irrelevant, as any international agreements lawyer will tell you.
International agreements typically have two major components: the preamble and operative clauses. Operative text is legally binding. In non-legally binding agreements such as the JCPOA, the operative text still constitutes the content the parties are substantively agreeing to, and is therefore politically binding. By contrast, text in the preamble is not legally binding and often represents ideas or concepts that are merely aspirational or that the parties were unable to agree to. Such language commits no party to do or refrain from doing anything.
Similar language occurs in the “preface” — whatever that is. I have never heard of a preface in an international agreement. But since the preface is not an operative part of the agreement, Iran need not act on it. If a preamble has no legally or politically operative meaning, then surely a preface does not either. The bottom line here is that even non-legally binding agreements such as this are still politically binding. But in the JCPOA, the critical binding language is placed to ensure that Iran need not follow it.
5. Iran will probably not take political commitments seriously
The JCPOA is a political commitment that can be changed at any point in time. Indeed, that is why most states have a strong preference for legally binding commitments over politically binding ones. Legally binding agreements typically have withdrawal clauses and provisions for entry-into-force, duration, amendment, and the like. For example, NPT Article X permits a state party to withdraw from the treaty if “extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” Such clauses in arms control agreements usually require the withdrawing state to offer a rationale for its actions. Even though this is generally a subjective requirement, it nonetheless demands that a rationale be provided. Withdrawal clauses normally require 90-day notice to the other treaty parties (which, in important agreements, means notice to the world), prior to actual withdrawal.
So what the JCPOA boils down to is a statement by Iran that it won’t do certain things, such as enrich uranium above 3.67 percent for 15 years, unless the ayatollahs change their minds. And then it may do so. Upon expiration of that term, Iran could have everything it needs to make a nuclear weapon if it successfully cheats using multiple undeclared facilities where the JCPOA’s protections are the weakest. And what about Iran’s international behavior makes anyone think they won’t try to cheat and won’t be able to do so at least with partial success?
And that’s only if Iran purports to stick by its commitments.
Iran may very well manufacture some real or perceived grievance to withdraw from the JCPOA as well as from the NPT, claiming that the latter was signed during the Shah’s regime and must therefore be abrogated. It could manufacture similar excuses to withdraw from its commitment not to violate the object and purpose of the Comprehensive Nuclear Test Ban Treaty (CTBT), which it only signed and has not ratified, thus limiting its obligations. There is abundant precedent in Iranian behavior for breaking its commitments as a state, such as secret nuclear sites, threats to the existence of a UN member state, intercontinental ballistic missile programs, violation of its legally binding safeguards agreement, and a failure to provide information of the “possible military dimensions” of its nuclear programs.
A Really Bad Deal
Given the politically binding nature of this agreement, one might justifiably wonder why Iran presumably insisted that its promise not to seek nuclear weapons should be contained in what would normally be considered the non-binding portion of the JCPOA — the preamble. It is curious, is it not? Did Iran need this extra assurance that it could not in any way be held to observe this commitment? In fact, since Iran is a state party to the NPT, in which it made a legal commitment not to pursue nuclear weapons, one might ask what benefit the JCPOA confers at all, other than allowing IAEA inspectors back into Iran. But Iran is a big state and the IAEA has limited resources. Or are we hoping that the JCPOA will be taken more seriously than the legal commitment that Iran undertook with the NPT? Something is seriously out of kilter here.
Politically binding agreements are often still useful, and I don’t intend to demean such agreements unfairly. If politically binding agreements are reached with states that will observe them, they may be of great value. The United States typically treats its political commitments as it does its legally binding obligations — it scrupulously observes them, as most Western states do. In such cases, political commitments have clear value. But the JCPOA was not concluded with Belgium or Switzerland. Iran, which does not even follow certain legally binding commitments, such as its safeguards agreement with the IAEA, will not feel so constrained with a mere political commitment, an agreement of a lower order. A political commitment may be revoked by a simple statement from the president himself, or an executive branch official. Indeed, several GOP candidates for the White House have promised to nix the agreement and any president would have the clear authority to do so. Once a president states that America is no longer bound by the deal, the commitment is effectively terminated. An Iranian official may make a similar statement at any time and the JCPOA would become a dead letter.
How comfortable should we be with this commitment from Iran? It should give all of us pause.
David S. Jonas is a retired Marine Corps lieutenant colonel. He concluded his military service as nuclear nonproliferation planner for the Joint Chiefs of Staff. He was a member of the career Senior Executive Service and served as General Counsel of the National Nuclear Security Administration and the Defense Nuclear Facilities Safety Board. He teaches Nuclear Nonproliferation Law & Policy at Georgetown and George Washington University Law Schools and has also taught that subject at the U.S. Naval War College. He has negotiated dozens of international nuclear agreements, including the U.S.–India Civil Nuclear Agreement. He is widely published and is a frequent speaker on nuclear nonproliferation matters.