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This blog has an enduring interest in possible parallels between the North Korean and Iranian nuclear negotiations. In my critical review of Prime Minister Netanyahu's speech before Congress, I took up the Prime Minister’s claims about the breakdown of the 1994 Agreed Framework. Netanyahu used the North Korean case to make the point that “inspectors document violations; they don’t stop them.”
I argued, however, that the breakdown of the Agreed Framework was the joint product of North Korean derogations—particularly its clandestine enrichment effort—and the US decision to respond by suspending heavy fuel oil shipments under the Agreed Framework. The tough line adopted by the Bush administration was followed by North Korea openly abandoning the Agreed Framework, throwing out inspectors, breaking IAEA seals, restarting the reactor, withdrawing from the NPT and ultimately reprocessing spent fuel into plutonium that provided the fissile material for its 2006 test; Jonathan Pollack had one of the more detailed contemporaneous analyses in a 2003 issue of the Naval War College Review. The question is whether a diplomatic strategy, enlisting Chinese support in particular, might have prevented the breakdown and kept Yongbyon frozen. As we will see, the answer to this question is highly germane to the Open Letter signed by 47 Senators on the legal status of any agreement the P5+1—not just the President—might reach.
Before returning to that question, Mark Fitzpatrick at IISS notes another way in which the DPRK-Iran analogy is misleading and it rests on incentives to enforce any agreement once reached. Fitzpatrick notes that the US willingness to respond even more forcefully to the DPRK breakout was hampered by a South Korean administration that was committed to deep engagement and dead set against military escalation (see Marc Noland’s scathing take on Roh Moo Hyun strategy toward the North here). By contrast, an Iranian effort to breakout would not be constrained by allies in a similar fashion; to the contrary, the United States would have support for tough action—and even military action—and not only from Israel but from some Gulf states as well. Fitzpatrick’s conclusions: the risks of the US doing nothing in the face of Iranian cheating are actually less than in the North Korean case.
My own view is that US options were constrained not only by politics but by the configuration of North Korean conventional forces and the proximity of the DMZ to Seoul. But Fitzpatrick raises an important question that is at the heart of the debate over the Netanyahu speech and Congressional letter: what would happen if Iran were to test the limits of any subsequent agreement or cheat on it outright?
I side with those who see the Senate letter as a virtually unprecedented effort to undermine the capacity of the President to negotiate an agreement with a foreign power. The core of the letter rests on two points. The first is that an executive agreement differs from either a congressional-executive agreement or a full-blown treaty in not requiring Congressional approval (technically “advice and consent”; at the Lawfare blog, Jack Goldstone examines the letter’s subtle misrepresentation of the ratification process). Second, the letter offers a veiled threat that the US could choose to abrogate the agreement (“The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”)
But why would the US renege on such a commitment? I can see two reasons. The first is the case made by the Prime Minister: that we should scuttle the ongoing negotiations and perhaps even a concluded agreement in order to get a “better deal.” As suggested, the history of the Agreed Framework—also a cluster of interlocking executive and multilateral agreements--is not comforting on this score. The US did not get a “better deal” following the breakdown of the Agreed Framework; in fact it has not gotten any enduring deal at all. In addition, reneging on the agreement simply to improve it would cast doubts on the integrity of US commitments, as Vice President Biden argues in his stinging rebuke. Jack Goldstone makes similar points in a follow-up post on Lawfare. In the eyes of the world—although apparently not to all members of Congress—executive agreements are in fact binding under international law; an encyclopedic treatment by the Congressional Research Service of Senate powers with respect to treaties and agreements makes this point clearly.
The second circumstance under which the US would have cause to revoke the agreement is if Iran openly violated it. Yet that might not be the best course of action even if Iran reneged. For example, it may be worthwhile to underline the continued value of the agreement while using other instruments—from sanctions to force—to encourage compliance. The US has rightly taken such a position vis-à-vis the September 2005 Joint Statement with North Korea. Despite the fact that the North Koreans have effectively renounced it, US diplomats rightly return to it as the likely cornerstone of any future progress on the issue; it is noteworthy that it clearly outlines the grand bargain of quid-pro-quos that both sides need to make.
Congressional involvement in the making of foreign policy is a complex issue and by no means settled either practically or in the law; the CRS study cited above provides an introduction to the Senate role and it runs to over 200 pages. Current legislation being advanced by Republicans would either require Congressional review of the deal—the President would veto such legislation on both constitutional and substantive grounds--or exercise influence by putting a 60-day restriction on the president's invocation of sanctions waivers previously provided by Congress. The latter exercise of Congressional power could be used to review the negotiated outcome or to scuttle it altogether by blocking the ability of the President to make the needed quid-pro-quo: the gradual relaxation of sanctions.
For those doubtful that the sanctions have had effect, the Congressional Research Service’s Kenneth Katzman has recently offered a thorough assessment. The conclusion: the sanctions have worked to get Iran to the table. This finding suggests there is at least some reason to believe that the threat of re-imposing them could hold Iran to the bargain. Were this only true with respect to North Korea.
I close with a bit of gallows humor. The Borowitz Report at the New Yorker has a pitch-perfect news flash on Kim Jong Un feeling dejected for not getting his own letter from the Republicans.
