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– Lisa Beyer
Bloomberg News
August 27, 2018
U.S., S. Korea Find 2-Year Fix for Pact
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Daniel Horner

South Korea and the United States announced last month that they have agreed to extend for two years their current agreement for peaceful nuclear cooperation, an acknowledgment that they could not resolve contentious issues dealing with South Korea’s commercial nuclear fuel-cycle plans in time to adopt a successor agreement before the current pact expires.

The 1974 accord was set to expire next March, but because of the requirements for congressional review under U.S. law, the two sides would have had to sign a new agreement around the middle of this year to make sure U.S. lawmakers completed the review in time to prevent a lapse.

The separate but similar announcements of the extension by South Korea and the United States on April 24 came two weeks before South Korean President Park Geun-hye is to meet with U.S. President Barack Obama in Washington. Some observers had said the two sides would not want to have a divisive issue between them as they are working to demonstrate unity in the face of recent provocative actions and statements by North Korea (see). The issue pits U.S. efforts to limit the spread of sensitive nuclear fuel-cycle technologies against South Korea’s position that it should be treated not like new nuclear power states, but like Japan, which has a long-established nuclear program and has built a commercial-scale spent fuel reprocessing facility.

The U.S. statement, a press release issued by the State Department, said Seoul and Washington had made “significant progress” in the talks, but it cited “complex technical issues that will take some additional time and effort to resolve.” The two governments are “seek[ing] to work together to address common challenges, including those related to spent nuclear fuel management and reliable supplies of nuclear fuel,” the statement said.

A central issue in the negotiations is pyroprocessing, a spent fuel treatment process that South Korea is developing. The South Koreans say it is more proliferation resistant than conventional spent fuel reprocessing because, in pyroprocessing, the plutonium separated from the spent fuel is mixed with other elements. The United States has said that “pyroprocessing is reprocessing.” (See ACT, April 2011.)

Seoul also has said it needs to develop a domestic capacity to enrich uranium to ensure fuel supplies for its nuclear power program. The United States says the international nuclear fuel market, reinforced by a system of fuel supply assurances, could serve that purpose.

South Korea, an emerging supplier of reactors, also argues that the ability to enrich uranium would make it more competitive with other vendors that have that capability. Many analysts, however, say that the ability to supply fuel as part of a package to potential reactor customers is not likely to be a major factor in the buying decisions.

The current U.S.-South Korean cooperation agreement came into force, four years before passage of the U.S. Nuclear Nonproliferation Act (NNPA). The 1978 NNPA amended the 1954 Atomic Energy Act to require that cooperation agreements include more-rigorous nonproliferation provisions, such as a requirement for U.S. consent before nuclear trading partners can enrich uranium or reprocess spent fuel involving U.S.-origin material.

Under the NNPA, the congressional review process differs according to whether a nuclear cooperation agreement contains these provisions. If it meets the NNPA standards, Congress does not need to vote to approve the pact. The president submits the agreement to Congress and if lawmakers do not vote against it within 90 legislative days, it can enter into force. The new U.S.-South Korean agreement that is being negotiated would have to meet the NNPA requirements and therefore would fall into this category of review.

On the other hand, if an agreement does not meet the NNPA standards, it cannot enter into force unless Congress passes legislation approving it. Fred McGoldrick, a consultant and former State Department official whose responsibilities included negotiating nuclear cooperation agreements, and Duyeon Kim of the Center for Arms Control and Non-Proliferation wrote in a recent paper for the Korea Economic Institute of America that the extension of the U.S.-South Korean pact would be such an agreement.

In an April 25 interview, a Republican congressional staffer said he read the law the same way. The State Department announcement did not provide information on that point, saying only that the administration would “begin immediately to consult with Congress” on the extension.

In their paper, McGoldrick and Kim expressed some concerns about the congressional approval for an extension. “It is proving increasingly difficult to pass important issues through Congress,” the authors wrote, questioning whether the House and Senate would schedule a vote “on a timely basis.” Another potential pitfall, they said, is that Congress might try to add nonproliferation conditions that would be unacceptable to the Obama administration or the South Korean government.

As the Obama administration negotiates nuclear cooperation agreements with current and potential nuclear trading partners, Congress has devoted increased attention in the past few years to the question of what nonproliferation requirements, particularly with regard to enrichment and reprocessing, the cooperation agreements will include. But the congressional staffer indicated that he did not expect the interim extension of the U.S.-South Korean agreement to be controversial.

In its statement, the South Korean government said it would work to move “promptly” on the “domestic procedures” for the agreement extension, according to an unofficial translation. U.S.-based Korea analysts said it was not completely clear what procedures the National Assembly would use to consider the extension. The South Korean embassy in Washington did not respond by press time to a request for information on that point.