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U.S. Nuclear Cooperation as Nonproliferation: Reforms, or the Devil You Know?

Jessica C. Varnum

Research Associate and Adjunct Professor, Monterey Institute of International Studies

Enrichment Cascades Enrichment Cascades
Source: U.S. Department of Energy

The United States and South Korea recently postponed further negotiation of a controversial bilateral nuclear trade agreement set to expire in March 2014, pending the results of elections in both countries.[1] The U.S. government supports a renewal agreement consistent with the current 1974 text; Seoul, however, maintains that as an advanced nuclear state and an emerging nuclear supplier it should be permitted to utilize U.S-obligated nuclear materials and technologies in an indigenous enrichment and reprocessing program.[2] After December's ROK presidential election, both governments will have to move quickly to find common ground on what has become, increasingly, a zero-sum negotiation.[3]

The U.S.-South Korean agreement is only one of many complex nuclear cooperation negotiations the Obama Administration will face in the next four years. On its docket are a large number of new or renewal 123 agreements, named after Section 123 of the Atomic Energy Act of 1954 governing the conditions for nuclear cooperation with foreign partners.[4] Most prominently, these include renewal agreements with South Korea, China, and Taiwan, and new agreements with Jordan, Vietnam, and Saudi Arabia. All will face the intensified congressional and international scrutiny that began with the U.S. government's conclusion of two very different 123 agreements in 2008 and 2009, the former a deal with India that required a special exemption from Nuclear Suppliers Group nonproliferation rules, and the latter the so-called nonproliferation "Gold Standard" agreement under which the United Arab Emirates (UAE) voluntarily forswore enrichment and reprocessing (ENR).[5]

At the heart of the reform debates is how to ensure that 123 agreements serve U.S. nonproliferation interests. Clearly, the United States faces powerful strategic and economic interests that can conflict with its nonproliferation priorities. This issue brief, however, does not wade into the debates over how many U.S. nuclear industry jobs depend on nuclear cooperation agreements, or whether and when other strategic interests should trump nonproliferation priorities in concluding 123s. It focuses instead on the question of whether reforms to the substance and/or process of concluding 123 agreements would be likely to undermine or enhance their value as U.S. nonproliferation tools.

Domestic and Global Context for U.S. Nuclear Cooperation Policies

The United States has active 123 agreements with 22 countries, plus the European Atomic Energy Community (Euratom), Taiwan, and the International Atomic Energy Agency.[6] 123 agreements form the legal basis for the most significant forms of nuclear cooperation between the United States and foreign partners—including, but not limited to, the transfer of fissile materials, nuclear reactors, and "restricted" nuclear information.[7]

However, it is important to note that 123 agreements in and of themselves are not sufficient to allow transfers of nuclear materials, reactors, and restricted information. They are "framework" agreements that help enable but do not authorize specific transfers.[8] Some of the most sensitive transfers—e.g., involving the right to enrich or reprocess U.S.-obligated nuclear materials—require a subsequent arrangement in addition to the 123. There are also less significant forms of nuclear cooperation that do not, under U.S. law, require an overarching 123 agreement. For example, certain "nuclear technology and services (as information) related to the production of Special Nuclear Material" can be transferred under a Section 810 agreement with the authorization of the Secretary of Energy.[9] Regardless of whether a 123 agreement or lesser arrangement is in place, U.S. companies must apply for and receive licenses for relevant exports, providing ongoing oversight of transfers of possible proliferation concern.

Unlike treaties, which require Senate approval, 123 agreements are congressional-executive agreements. Under the Atomic Energy Act Congress can only prevent entry-into-force of a non-exempt agreement if both houses pass a resolution disapproving it. (However, so-called "exempt" agreements, in which the prospective partner fails to meet one or more of Section 123a's nonproliferation requirements, require a joint resolution of congressional approval.) Following an executive-legislative "consultation" period of 30 days of continuous session, non-exempt agreements must sit before Congress for 60 days of continuous session; unless Congress enacts a joint resolution of disapproval during this period, the agreement automatically enters into force.[10]

The current debate as to whether the 123 process should be reformed is not without precedent. India's 1974 "peaceful" nuclear explosion convinced many in U.S. government of the need for major new nonproliferation measures, and precipitated U.S.-led efforts to establish the Nuclear Suppliers Group in 1975. Additional events—including the executive branch's interest in concluding 123 agreements with Israel and Egypt only months after the 1974 Indian nuclear explosion—created the congressional momentum for the Nuclear Non-Proliferation Act of 1978, which required countries wishing to conclude new or renewed 123 nuclear cooperation agreements with the United States to comply with much more robust nonproliferation preconditions.[11] Most other nuclear suppliers treat the less restrictive Nuclear Suppliers Group export guidelines as their preconditions for nuclear cooperation; many also operate on a transfer-by-transfer basis rather than requiring an overarching nuclear cooperation agreement.[12]

Competing Visions for the Future of U.S. Nuclear Cooperation

While the 1978 nonproliferation requirements seemed revolutionary in scope at the time, thirty-four years later some are beginning to question whether they go far enough. Both negative and positive nonproliferation experiences triggered this debate. On the one hand, the U.S. has concluded "exceptional" 123 agreements such as the U.S.-India deal that work around the spirit of the 1978 nonproliferation requirements, either through new legislation or subsequent arrangements. On the other hand, the 2008 U.S.-United Arab Emirates (UAE) agreement suggests the United States might be able to insist on even more restrictive nonproliferation preconditions from partners than required by the 1978 act. At the heart of the matter is whether the U.S. should have a consistent standard for such agreements, or discriminate in what these pacts contain.

Following President George W. Bush's 2005 announcement that the United States would conclude a nuclear cooperation agreement with India, Congress passed the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, clearing the way legally for the administration to conclude a 123 agreement with India—a non-party to the NPT—in 2008.[13] That same year, the U.S. successfully petitioned the Nuclear Suppliers Group for a similar exception to its conditions of supply. These steps were resoundingly criticized internationally for undermining the stringent nonproliferation goals the U.S. had championed for decades. Even more controversially, a U.S. subsequent arrangement to the 123 agreement granted New Delhi the right to reprocess U.S.-obligated material. The U.S. usually stipulates foreign parties must receive prior consent in order to reprocess or otherwise alter in "form or content" nuclear "material originating in the U.S. or material that has been fabricated into fuel or irradiated in a reactor with U.S. technology."[14] Controversial "blanket consent" exceptions to this rule—EURATOM, Japan, and India—created problematic precedents that countries such as South Korea are now seeking to follow.

In contrast to the permissive agreement with India, the U.S.-UAE deal was exceptional in creating a precedent for more stringent nonproliferation requirements. As part of its bilateral engagement with the United States, the UAE committed in national legislation to a policy of foregoing indigenous ENR programs, subsequently further codified in the Agreed Minute component of the 123 agreement. The Agreed Minute also contained a clause allowing the UAE to request renegotiation if other states in the region concluded 123s with more favorable terms; as such, supporters of a universal Gold Standard assert that if the United States concludes less restrictive agreements with other countries in the Middle East, it may lose the UAE commitment. Even apart from such regional considerations, however, the fact that the UAE agreed to a no-ENR provision precipitated intense bipartisan interest in requiring most if not all future U.S. 123 partners to accept the Gold Standard.

With the contrasting models of the India and UAE agreements still front and center, world events also pressured Congress and the Obama Administration into asking whether the status quo approach to nuclear cooperation was "good enough" in nonproliferation terms. Numerous countries, especially in Iran and North Korea's troubled neighborhoods, have expressed serious interest in pursuing robust nuclear power programs, perhaps in some cases as insurance to develop weapons capabilities should Tehran and Pyongyang's nuclear capabilities prove difficult to manage. This surge in would-be nuclear newcomers has intensified concern that "peaceful" nuclear programs may be used by some countries as a cover for nuclear weapons activities, the very result 123 agreements are designed to guard against.

Congressional Reform Efforts and the Administration's "Case-by-Case" Approach

Many in Congress—on both sides of the political aisle—believe nonproliferation prerequisites for nuclear cooperation are inadequate. Reform bills proposed since 2010 differ in important ways, but typically include some language on the Gold Standard—either requiring all prospective nuclear cooperation partners who do not already have ENR to forswear such capabilities, or making it easier for agreements that include the Gold Standard to receive congressional approval relative to those lacking a no-ENR provision. Support by lawmakers for such reforms is hardly universal, however; lawmakers on the other side of the debate express concern that Washington's pursuit of greater restrictions might reduce the ability of the United States to conclude 123 agreements, and lead potential partners to pursue cooperation with states requiring less stringent terms, such as Russia or France.

H.R.1280 is arguably the most prominent of the reform bills, co-sponsored by House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen (R-Fla.) and ranking member Howard Berman (D-Calif.). Reported out of the Foreign Affairs committee in April 2011, the bill has since been blocked from floor consideration by the House Rules Committee, and is not expected to be acted upon before the current Congress expires next month.[15] With House Rules Committee Chairman David Dreier's retirement, Berman's electoral defeat, and Ros-Lehtinen's term limits-based replacement as Foreign Affairs chair, it is uncertain whether the bill will be reintroduced in the 113th Congress, and if so, how far it is likely to progress.[16] While H.R. 1280 is expected to die at the close of the 112th Congress, it has succeeded in generating heated and highly publicized debates. The regular statements of its sponsors and sympathizers have galvanized millions of dollars in counter-lobbying by the nuclear industry, and led to renewed debate within the Administration on what standards it should apply to 123 agreements.[17]

Bills such as H.R. 1280 are primarily controversial because of the Gold Standard requirement, but also because many include a long list of additional requirements and congressional authorities. H.R.1280, for example, would require prospective nuclear cooperation partners to be members in good standing of an extensive list of treaties and agreements beyond the nuclear realm (including, e.g., the Chemical Weapons Convention).[18] The bill would also require foreign end-users of U.S. supplied materials or technologies to receive U.S. consent prior to granting third parties access to facilities where these are used—a provision opposed by both industry and the Obama Administration. Industry argues the measure would impede the day-to-day business of its globalized sector. The administration has compellingly implied that restrictions on third-party access would both hurt nonproliferation and violate U.S. international commitments, because they "…would interfere with the application of International Atomic Energy Agency (IAEA) safeguards by asserting a right to ‘approve' Agency inspectors in other countries."[19]

However, as of the end of its first term, the Obama administration continues to struggle to define its position on whether and how U.S. nuclear cooperation agreements should be reformed. The U.S. State Department came out against H.R. 1280 in 2011, arguing that 123 agreements are, "an important element of our nonproliferation policy and their effectiveness as a nonproliferation tool would be damaged by H.R. 1280."[20] Ellen Tauscher (Undersecretary of State for Arms Control and International Security), and Daniel Poneman (Deputy Energy Secretary), articulated the results of an Obama administration internal interagency review in a January 2012 letter to Congress, asserting that, "Going forward, we think it best to judge how to deal with ENR in each 123 agreement based on its merits, taking into account a partner's domestic policies and laws, proliferation concerns, and negotiability."[21] But the administration has been far from externally consistent in articulating whether it will pursue the Gold Standard on a "case-by-case" basis as articulated in the January 2012 letter, or as a precondition for all new agreements.

Following congressional lambasting of the "case-by-case" approach, the administration embarked on a third internal review, the results of which are not yet public. CNS's Jeffrey Lewis suggests that the administration's external inconsistency has resulted in no small part from internal interagency disagreements, with key players at the Energy and State Departments, for example, favoring differing approaches to nuclear cooperation agreements.[22] It is unclear whether or how new faces in the second Obama administration might alter such bureaucratic battles. Now that the election is over, however, the administration will be forced by both Congress and prospective 123 partners, sooner rather than later, to stake out and defend a coherent position.

Debating How to Achieve Nonproliferation Outcomes

Arguments both for and against the status quo approach to bilateral 123 agreements rest on the assumption that U.S. nuclear cooperation—properly applied—can serve as a powerful nonproliferation tool. Where policymakers differ is on how best to achieve nonproliferation outcomes. It is almost universally accepted by U.S. policymakers that a world in which other countries agree to forswear enrichment and reprocessing is preferable from a nonproliferation perspective. Where disagreement arises is in considering how serious the nonproliferation fallout would be if the United States insisted on no-ENR as a condition for nuclear cooperation and some or all of its prospective foreign partners said "no."

This section assesses the nonproliferation value of status quo 123 agreements relative to likely nonproliferation outcomes should additional restrictions—and namely Gold Standard pledges—become preconditions for U.S. nuclear cooperation. Other proposed reforms could impact select U.S. 123 agreements. For example, while the Gold Standard would not impact renewal of the U.S.-China agreement, provisions in H.R. 1280 concerning Congressional certification of Chinese cooperation on various bilateral and multilateral policies could hurt renewal chances. However, the full range of reform proposals is too broad for assessment here. More importantly, the Gold Standard is the most likely of any proposed reforms to be implemented, and would have the most significant impact on the largest number of agreements. As such, the analysis focuses on nonproliferation arguments for and against its universalization.

Comparing Supply and Demand Nonproliferation Leverage

Under the status quo, countries concluding 123 agreements with the United States must comply with robust nonproliferation requirements. Some, such as adherence by non-nuclear weapon states to full-scope safeguards, apply whether or not the country ultimately engages in nuclear cooperation with the United States. Other conditions only apply to U.S. transfers of nuclear materials, technologies, or know-how. As such, their nonproliferation utility rests on an assumption of active bilateral nuclear cooperation. This is problematic vis-à-vis many countries, and especially nuclear newcomers, because the role of U.S. industry in the global nuclear market has declined precipitously in recent decades—to such an extensive degree that U.S. industry is heavily import dependent.[23]

Some analysts argue that this sharp drop in global market share does not bode well for the Gold Standard. According to this reasoning, U.S. industry's minor role in global supply implies a declining marginal benefit to nuclear cooperation with the United States. Thus if the United States increases prerequisites for 123 agreements, it will have many fewer 123 partners and reduced leverage over fuel cycle decision-making. Assuming the United States remained the only nuclear supplier to require the Gold Standard, U.S. restraint would have questionable nonproliferation utility, because it would not prevent countries from finding alternative suppliers. Some proponents of the Gold Standard advocate ways around this weakness that involve coercing or compelling the other suppliers into adopting similar policies, for example, by conditioning foreign access to the U.S. nuclear energy market, including loan guarantees and other incentives, on acceptance of the Gold Standard as a condition for supply to third parties. Henry Sokolski argues, "It's pretty clear that leading and leaning on key nuclear suppliers to adopt the Gold Standard is our only option."[24] It is unclear whether countries such as France would see such threats as credible (given the interdependence of nuclear supply relationships); it is also important to note that if such a policy was viewed as a threat rather than an incentive, it could have negative spillover effects for other dimensions of the U.S. relationship with the supplier countries in question.

However, many proponents of reform believe even with a Gold Standard that lacked broad supplier support, there would still be strong demand for 123 agreements—primarily because of countries' desire for positive relations with the United States and the value associated with a U.S. stamp of approval. The cost-benefit analysis will of course differ in each case. For Taiwan, absent viable alternatives to nuclear cooperation with the United States, a Gold Standard outcome is highly likely.[25] Relations with other potential partners are likely to be less dramatically asymmetric, but there will be numerous cases where the U.S. will have to decide whether the finite influence it has vis-à-vis a particular country is best put to use compelling a Gold Standard commitment.[26] As CNS's Chen Kane argues, "ANY nuclear cooperation agreement with the United States is about why the country needs or wants the U.S. blessing or cooperation for its nuclear energy program and what leverage the United States has over these countries."[27]

Jodi Lieberman argues there is a degree of déjà vu about concerns in the U.S. policy community that a new Gold Standard would lead to a significant decline in 123 agreements. Similar arguments were made concerning the nonproliferation restrictions of the 1978 Nuclear Nonproliferation Act, but "Despite executive branch concern over the possible impact of NNPA provisions and other export restrictions on the viability of civilian nuclear trade with other countries, the United States successfully concluded or renegotiated 123 agreements with many countries after its enactment."[28] It is also worth noting that most Gold Standard reforms envision the possibility for agreements to be concluded without a no-ENR provision. The reforms would simply set a much higher congressional approval bar for exceptions to the Gold Standard, making concluding such 123s a significant and potentially insurmountable challenge.

However, there will be—likely unassailable—resistance to a Gold Standard norm from some countries, and even from close U.S. allies. The 2008 U.S.-Turkey 123 agreement is a thought-provoking example of a case in which U.S. nonproliferation influence was likely greater under the status quo approach than it would have been with a Gold Standard requirement. Like many other non-nuclear weapon states, Turkey believes in an NPT Article IV-based "fundamental right to enrichment." U.S. efforts to coerce or cajole countries into giving up these rights are perceived in Turkey as discriminatory, hypocritical, thinly veiled forms of economic protectionism. Moreover, although Turkey does not have a near-term interest in ENR, one Turkish interlocutor explained that there are issues of intergenerational equity to consider, because the development needs of future generations may only be met through widespread nuclear power. Thus it would be unjust for Ankara to make decisions that exclude future generations from choosing whether they will build ENR facilities.[29] Extensive research of the Turkish case study, including interviews in Ankara and Istanbul, convinced this author that while Turkey placed high priority on concluding a 123 agreement with the United States, its government would not have signed onto the Gold Standard as a condition for cooperation.[30]

Arguably, why is it good for nonproliferation that an agreement went forward? Early in its 123 negotiations with the Clinton Administration, Turkey was invited to join the Nuclear Suppliers Group. It appears to have done so in order to strengthen its nonproliferation bona fides, given that Ankara had begun to come under fire for questionable export controls—a situation that would be worsened by subsequent revelations implicating Turkish nationals in the activities of Pakistan's AQ Khan network.[31] As such, the 123 agreement did not enter into force until 2008, when the U.S. government was satisfied that Turkey had taken appropriate remedial actions through cooperation with the U.S. Export Control and Related Border Security Program, and the establishment of catch-all export control legislation. Whether explicit or implied, U.S. conditionality of nuclear cooperation with Turkey on improvements to its nonproliferation credentials demonstrated that there are cases in which the United States wields significant nonproliferation leverage through cooperation, rather than through denial or coercion strategies.

Nonproliferation Norm Building: Upholding Old Norms vs. Creating New Ones

Norms play a vital role in the nonproliferation regime. Proponents of the Gold Standard argue that as more countries agree to no-ENR pledges, new norms involving responsible use of the fuel cycle will emerge, so that it becomes increasingly less legitimate for countries to insist on a right to the full fuel cycle. Consistent application of a principle over time can contribute to its universalization and legitimation as a norm. The problem with the Obama administration's "case-by-case" approach in this respect is that it amounts, substantively, to "same-old, same-old" U.S. inconsistency. Jeffrey Lewis argues that the "case-by-case" approach "…amounts to having no standard at all."[32] Many therefore argue that there would be an inherent nonproliferation value to U.S. 123 reforms if they result in a universal, "fair," and consistent approach, offering all nuclear cooperation partners equal terms. This is in some respects (regionally) implicit to the U.S.-UAE 123, as the Agreed Minute asserts that the "terms and conditions…shall be no less favorable in scope and effect than those which may be accorded…to any other non-nuclear weapon State in the Middle East in a peaceful nuclear cooperation agreement."[33]

Various reform scenarios, including universalization of a Gold Standard, would hypothetically introduce consistency. But it is unclear how such future policies could be reconciled with the large number of existing "exceptional" agreements. Turkey and Egypt have 123 agreements with the United States that do not hold them to the "gold standard." How, therefore, can nearby countries such as Jordan be held to a different standard? India, Euratom, and Japan all have agreements with the United States permitting them to reprocess U.S.-obligated materials, yet a consistent U.S. policy would withhold this consent from all future partners. Because many older agreements are indefinite or self-renewing, it is unlikely true consistency would ever be an achievable goal.[34]

In the views of many countries, U.S. insistence on the Gold Standard would violate Article IV of the NPT, which requires nuclear weapon states to share peaceful technology with non-nuclear weapon states in compliance with the treaty. Opponents of a universal Gold Standard also ask what policy problem it would solve. Today, the major nuclear suppliers are unlikely to provide ENR technologies to countries that do not already have them—it was primarily countries such as Turkey, rather than possessors of ENR technology, who objected to changing NSG ENR supply rules. There are no new legitimate transfers of ENR technology pending, and as Fred McGoldrick writes, "…for the past 30 years, no member of the NSG has transferred enrichment or reprocessing technologies to countries that did not already possess these capabilities."[35] Recent programs of concern have obtained the most sensitive technologies through a combination of illicit procurement and indigenous development—Iran, for example, did not import centrifuge technology from a legitimate supplier. Ultimately, it is unclear that proposed 123 reforms could solve the most serious nonproliferation challenges, since the key countries of concern today would not have been stopped by changes to the rules governing legitimate nuclear commerce.

Conclusions

Given the imperfect nature of the status quo approach to 123 agreements, there are compelling reasons to favor some type of reform. The question becomes how to minimize negative nonproliferation consequences and maximize nonproliferation benefits. One possibility would be for U.S. policymakers to negotiate rather than unilaterally impose certain reforms in order to give them broader multilateral legitimacy and normative potential. For example, Mark Hibbs has suggested that the United States use a compromise in the U.S.-Canada 123 as a precedent. Hibbs asserts, "Ottowa overcame an impasse with the United States on this issue [of the "gold standard"] by voluntarily suspending its freedom to import enrichment technology for a limited period of time pending successful negotiation of global ENR trade rules… Incorporating ENR terms into side-letters or preambles may be less offensive. That approach would also more easily facilitate including reciprocal commitments by the United States into its 123 bargains with foreign countries."[36] In a similar vein, some experts have suggested that nuclear suppliers offer spent fuel take-back as a carrot for countries who agree not to engage in reprocessing—though given that the nuclear suppliers have spent fuel disposal challenges of their own, most would likely be unwilling to do this.

Whether one supports or opposes the Hibbs or related proposals, there is a useful policy lesson: U.S. decision-makers may need to think creatively beyond the black and white alternatives of the status quo vs. a universal Gold Standard—but perhaps also beyond the "case-by-case" approach, which merely defers the challenges of establishing a coherent U.S. nuclear cooperation policy to future administrations. Given the large volume of 123 agreements under consideration, the United States can ill afford to defer such decisions, as it will have to live for a long time with the precedents set by agreements concluded in the next four years. Crafting a strategically coherent U.S. policy on nuclear cooperation that minimizes negative nonproliferation consequences, and also respects broader U.S. economic and strategic interests, will therefore be one of the key nonproliferation challenges facing the Obama administration in its second term.

Sources:

*Thanks to Jon B. Wolfsthal and Miles A. Pomper of the Center for Nonproliferation Studies for their helpful suggestions and peer review of drafts. Any errors or omissions are my own.

[1] "South Korea, U.S. Suspend Negotiations on New Civilian Atomic Pact," Global Security Newswire, 1 October 2012, www.nti.org/gsn.
[2]
South Korea is specifically interested in pyroprocessing rather than conventional reprocessing methods such as PUREX, but Richard Stratford (the U.S. State Department official responsible for negotiating 123 agreements), asserted at the Carnegie International Nuclear Policy Conference in 2011, "DOE states, frankly and positively, that pyroprocessing is reprocessing. Period. Full-stop." Jeffrey Lewis, "Pyroprocessing is Reprocessing," Arms Control Wonk, 30 March 2011, http://lewis.armscontrolwonk.com.
[3]
According to a CRS report, U.S. prior consent limitations apply to the majority of South Korea's spent fuel inventory. In a separate publication, Miles Pomper asserts that "Failure to reach a deal would threaten billions of dollars in nuclear commerce between the two countries. It would also threaten Seoul's $20 billion contract to supply reactors to the United Arab Emirates (UAE), since those reactors contain parts and design information imported to South Korea from the United States…" See: Mark E. Manyin, Emma Chanlett-Avery, Mary Beth Nikitin, "U.S.-South Korea Relations," Congressional Research Service Report for Congress, 15 May 2012, p. 28, note 67, http://fpc.state.gov; and Miles A. Pomper, "How to Unsnag US-South Korea Nuclear Negotiations," Bulletin of the Atomic Scientists, 25 September 2012, http://thebulletin.org.
[4] "The Atomic Energy Act of 1954, As Amended, Section 123 Cooperation with Other Nations," in Nuclear Regulatory Legislation, Nuclear Regulatory Commission, Vol. 1, No. 9, January 2011, NUREG-0980, pp. 59-64, www.nrc.gov.
[5]
According to a CRS report, then-State Department Spokesperson P.J. Crowley coined the "Gold Standard" term in an August 2010 press briefing. Paul K. Kerr, Mark Holt, Mary Beth Nikitin, "Nuclear Energy Cooperation with Foreign Countries: A Primer," Congressional Research Service Report for Congress, 11 July 2011, p. 17, www.fas.org.
[6]
Particularly in the earliest decades of nuclear cooperation, the United States concluded agreements with a longer list of countries. For a variety of reasons, including evolving U.S. nonproliferation prerequisites for 123 agreements, some of these were permitted to lapse (or in the case of the Iran and Cuba agreements, were terminated). The U.S. National Nuclear Security Administration maintains a list of current nuclear cooperation agreements; note, however, that its website has not been updated to include the U.S.-Russia and U.S.-UAE agreements. U.S. National Nuclear Security Administration, "123 Agreements for Peaceful Cooperation," accessed 4 November 2012, http://nnsa.energy.gov. For a more comprehensive list of U.S. agreements up to 2009 (including 123s that have lapsed or been terminated, and other non-123 agreements), see: James F. Keeley, "A List of Bilateral Civilian Nuclear Co-operation Agreements, Volume IV: Saudi Arabia-Zambia," 2009, http://dspace.ucalgary.ca.
[7]
According to a CRS Report, "A nuclear cooperation agreement is not required for transmission of nuclear-related information, except for restricted data. The term ‘restricted data,' as well as other terms used in the statute, is defined in 42 U.S.C. §2014." For additional details, see: Paul K. Kerr and Mary Beth Nikitin, "Nuclear Cooperation with Other Countries: A Primer," Congressional Research Service Report for Congress, 19 June 2012, p. 1, note 2, www.fas.org.
[8]
As Paul Kerr observes, "Such agreements for cooperation are "framework" agreements—they do not guarantee that cooperation will take place or that nuclear material will be transferred, but rather set the terms of reference and provide authorization for cooperation." Paul K. Kerr, "U.S. Nuclear Cooperation with India: Issues for Congress," Congressional Research Service Report, 26 June 2012, p. 20, www.fas.org.
[9]
See "Civil Nuclear Exporters Guide," U.S. Department of Commerce Powerpoint, May 2009, slide 3, http://ita.doc.gov.
[10]
For greater detail on the congressional review process, see: Paul K. Kerr and Mary Beth Nikitin, "Nuclear Cooperation with Other Countries: A Primer," Congressional Research Service Report for Congress, 19 June 2012, www.fas.org.
[11]
The 1978 NNPA significantly amended Section 123 of the Atomic Energy Act. Key nonproliferation provisions in Section 123a as amended include: "nine criteria that an agreement must meet unless the President determines an exemption is necessary. These are listed in Section 123 a., paragraphs (1) through (9), 42 U.S.C. 2153. They are guarantees that (1) safeguards on nuclear material and equipment transferred continue in perpetuity; (2) full-scope safeguards are applied in non-nuclear-weapon states; (3) nothing transferred is used for any nuclear explosive device or for any other military purpose; (4) the United States has the right of return if the cooperating state detonates a nuclear explosive device or terminates or abrogates an IAEA safeguards agreement; (5) there is no transfer of material or classified data without U.S. consent; (6) physical security is maintained; (7) there is no enrichment or reprocessing by the recipient state without prior approval; (8) storage is approved by United States for plutonium and highly enriched uranium; and (9) anything produced through cooperation is subject to all of the above requirements." Paul K. Kerr, "U.S. Nuclear Cooperation with India: Issues for Congress," Congressional Research Service Report, 26 June 2012, p. 21, www.fas.org. See also: Sharon Squassoni, "Looking Back: The 1978 Nuclear Nonproliferation Act," Arms Control Today, December 2008, www.armscontrol.org.
[12]
James A. Glasgow, Elina Teplinsky, and Stephen L. Markus, "Nuclear Export Controls: A Comparative Analysis of National Regimes for the Control of Nuclear Materials, Components and Technology," Pillsbury Winthrop Shaw Pittman LLP for the Nuclear Energy Institute, October 2012, www.nei.org.
[13]
Paul K. Kerr, "U.S. Nuclear Cooperation with India: Issues for Congress," Congressional Research Service Report, 26 June 2012, www.fas.org.
[14]
Mark E. Manyin, Emma Chanlett-Avery, Mary Beth Nikitin, "U.S.-South Korea Relations," Congressional Research Service Report for Congress, 15 May 2012, p. 28, note 67, http://fpc.state.gov.
[15]
Elaine M. Grossman, "Nuclear Trade Reform Bill Faces Hostile Lobbying, as Obama Team Renews Policy Review," Global Security Newswire, 4 May 2012, www.nti.org/gsn.
[16]
Bills not passed by the close of a Congressional term (2 years), die, and must be reintroduced in order to be considered by a subsequent Congress. For more information, see: "Basic Information About Congress," The Dirkson Congressional Center, www.congresslink.org, accessed 25 November 2012.
[17]
Elaine M. Grossman, "Bipartisan House Report Castigates Obama Nuclear Trade Policy," Global Security Newswire, 27 April 2012, www.nti.org/gsn.
[18]
"H.R. 1280: To amend the Atomic Energy Act of 1954 to require congressional approval of agreements for peaceful nuclear cooperation ..." 112th Congress, 2011–2012, Text as of Oct 01, 2012 (Reported by House Committee), www.govtrack.us.
[19]
"Fact Sheet: Administration Views on H.R. 1280," U.S. State Department Bureau of International Security and Nonproliferation, 15 July 2011, www.state.gov.
[20]
"Fact Sheet: Administration Views on H.R. 1280," U.S. State Department Bureau of International Security and Nonproliferation, 15 July 2011, www.state.gov.
[21]
The full text of the letter is included at the end of the article. See: Elaine M. Grossman, "Administration Letter Promises ‘Case-by-Case' Approach to Nuclear Trade Deals," Global Security Newswire, 23 January 2012, www.nti.org/gsn.
[22]
Jeffrey Lewis, "It's Not as Easy as 1-2-3," Foreign Policy, 1 August 2012, www.foreignpolicy.com.
[23]
According to the GAO, the U.S. "share of global exports of nuclear material, reactors, and components has declined in the last 15 years. …the amount of U.S. exports of sensitive nuclear material such as natural and enriched uranium remained stable, while the U.S. share of global exports for these materials decreased significantly, from 29 percent to 10 percent, from 1994 through 2008. The United States also imports sensitive nuclear materials, nuclear reactors, major components and equipment, and minor reactor parts from other countries. GAO found that in sum, the United States was a net importer of nuclear components and materials, which may indicate a lack of comparative advantage in this industry." U.S. Government Accountability Office, "Nuclear Commerce: Governmentwide Strategy Could Help Increase Commercial Benefits from U.S. Nuclear Cooperation Agreements with Other Countries," GAO-11-36, November 2010, from preface "What GAO Found," www.gao.gov.
[24]
Henry Sokolski, "Obama's Nuclear Mistake," National Review Online, 7 February 2012, www.nationalreview.com/blogs.
[25]
Mark Hibbs, "Taiwan and the ‘Gold Standard,'" Arms Control Wonk, 23 July 2012, http://hibbs.armscontrolwonk.com.
[26]
As Richard Cleary observes regarding the mixed record of U.S. influence on nonproliferation, "The U.S., though constrained or empowered by circumstance, can exert considerable sway in nonproliferation matters, but often elects not to apply the most powerful tools at its disposal for fear of jeopardizing other objectives." Richard S. Cleary, "Chapter 4: Persuading Countries to Forgo Nuclear Fuel-Making: What History Suggests," in Nuclear Nonproliferation: Moving Beyond Pretense, July 2012, p. 84, www.npolicy.org.
[27]
Chen Kane, "U.S. Nuclear Cooperation Agreements and the Middle East," Arms Control and Regional Security for the Middle East (professional blog), August 2012, www.middleeast-armscontrol.com.
[28]
Jodi Lieberman, "Nonproliferation, Congress, and Nuclear Trade: Plus ça change, plus c'est la même chose," 15 November 2011, Center for Strategic and International Studies Policy Perspectives, http://csis.org.
[29]
Turkish Interlocutor, Not-for-attribution U.S.-Turkey Dialogue on Nuclear Weapons Policy, Nonproliferation and Disarmament, Convened by the Center for Strategic and International Studies (CSIS) and the Economic Policy Research Foundation of Turkey (TEPAV), Ankara, August 2012.
[30]
Based on a number of not-for-attribution 2012 interviews in Ankara and Istanbul, and on research in support of a 2010 case study on Turkey and nuclear proliferation. See: Jessica C. Varnum, "Turkey in Transition: Toward or Away from Nuclear Weapons?" in Forecasting Nuclear Proliferation in the 21st Century: Volume 2, A Comparative Perspective, eds. William C. Potter and Gaukhar Mukhatzhanova (Stanford, CA: Stanford University Press, 2010), pp. 229-254.
[31]
Sammy Salama and Cameron Hunter, "Companies Reported to Have Sold or Attempted to Sell Libya Gas Centrifuge Components," CNS Issue Brief for the Nuclear Threat Initiative, 1 March 2005, www.nti.org.
[32]
Jeffrey Lewis, "It's Not as Easy as 1-2-3," Foreign Policy, 1 August 2012, www.foreignpolicy.com.
[33]
The text of the nuclear cooperation agreement is inclusive of the Agreed Minute: "Agreement for Cooperation Between the Government of the United States of America and the Government of the United Arab Emirates Concerning Peaceful Uses of Nuclear Energy," December 2009 entry-into-force, www.nti.org.
[34]
For example, Cole Harvey observes, "The U.S.-Japan and U.S.-Euratom 123 agreements are ‘self-renewing,' so these nuclear trading partners would not be subject to the pending legislation's new requirements." Cole J. Harvey, "House Committee Adopts Tough New Rules for Nuclear Trade Agreements," WMD Junction, 1 July 2011, http://wmdjunction.com.
[35]
Fred McGoldrick, "The U.S.-UAE Peaceful Nuclear Cooperation Agreement: A Gold Standard or Fool's Gold?" Center for Strategic and International Studies Policy Perspectives, 30 November 2010. www.csis.org.
[36]
Mark Hibbs, Negotiating Nuclear Cooperation Agreements," Nuclear Energy Brief, 7 August 2012, http://carnegieendowment.org.

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This material is produced independently for NTI by the James Martin Center for Nonproliferation Studies at the Monterey Institute of International Studies and does not necessarily reflect the opinions of and has not been independently verified by NTI or its directors, officers, employees, or agents.

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Several U.S. bilateral nuclear cooperation agreements are set to expire in the next four years, and a long list of nuclear newcomers are interested in concluding new agreements with the United States. Jessica C. Varnum examines the debate over whether stricter nonproliferation preconditions for concluding these new and renewal "123" nuclear cooperation agreements with the United States would enhance or undermine their value as instruments of U.S. nonproliferation policy.

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