"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."

– Joseph Biden, Jr.
January 28, 2004
Vietnam Pact Nears End of Hill Review

Daniel Horner

A U.S.-Vietnamese agreement for civilian nuclear cooperation is on the verge of clearing its main hurdle in the United States, as Congress seems unlikely to complete the action it would need to take to block or revise the pact in the little remaining time left to do so.

Legislation that would have altered the duration of the Vietnam pact and some other agreements passed the Senate, and when the Senate Foreign Relations Committee had marked up the legislation, it considered but did not approve amendments that would have made changes that are more far-reaching.

In interviews since then, congressional staffers indicated that although the Senate bill is very unlikely to become law during the current Congress, its key provision and the amendments considered by the committee could resurface in some form. That is because they set standards for nuclear cooperation agreements rather than specifically changing the Vietnam accord, the staffers said.

Under current law, nuclear cooperation agreements that meet nine basic nonproliferation requirements can enter into force without a congressional vote of approval if they lie before Congress for 90 days of so-called continuous session without Congress blocking them. Most agreements, including the one with Vietnam, are in this category.

The 90-day clock for the Vietnam pact began when President Barack Obama submitted the agreement to Congress on May 8 and ran until Congress adjourned for its August recess, leaving only two of the 90 days when Congress returns in early September, according to congressional sources. House action on the legislation within that time is seen as extremely unlikely.

The agreement with Vietnam is the first in what could be a series of agreements with countries that are considering launching nuclear power programs. For nonproliferation advocates in Congress and elsewhere, a key issue is how hard the United States should press these countries to forgo uranium enrichment and spent fuel reprocessing, activities that are considered sensitive because they can be used to produce nuclear explosive material.

The legislation approved by the Senate would require most new agreements to be reviewed by Congress every 30 years. The Vietnam agreement has an initial duration of 30 years “and shall continue in force thereafter for additional periods of five years each.” Either party can terminate the agreement at the end of those periods.

Changes Contemplated

When the Foreign Relations Committee marked up legislation July 22, it considered amendments by Sens. Bob Corker (R-Tenn.) and Edward Markey (D-Mass.) that would have made broader changes in U.S. law.

Corker’s amendment would have added a 10th item to the nonproliferation list, a “guaranty” that the country would not “engage in activities related to the enrichment or reprocessing of material.”

At the markup, Corker noted that adding the language does not mean that countries necessarily would be required to forgo enrichment and reprocessing. But if they did not agree to that condition, the agreement would require congressional approval, a much higher political hurdle than lying before Congress for 90 days without being disapproved.

Markey’s amendment would bar funding for U.S. nuclear cooperation with countries that take certain actions, including pursuing development of enrichment and reprocessing programs unless such programs are authorized by the country’s nuclear cooperation agreement with the United States.

Markey’s amendment failed by a vote of 11-5; Corker’s lost on a voice vote. Committee Chairman Robert Menendez (D-N.J.) told Corker and Markey that he supported their “aspirations” but not the amendments. He said he would be willing to work with the two lawmakers to come up with language that was more likely to win support in the Senate. Menendez is the author of the language requiring the 30-year review, which was incorporated into a resolution of approval for the Vietnam agreement.

In an Aug. 6 interview, a senior Senate staffer said the resolution had been crafted to recognize the different roles of Congress and the administration. Negotiating agreements is the responsibility of the executive branch, and it is “not our job to change the agreement that is negotiated,” he said. Congress has “other powers,” namely the ability to establish in law the standards that agreements must meet, he said.

Seeking Clarity

Late last year, the Obama administration completed a three-year internal review of its policy on civilian nuclear cooperation. A senior administration official last December described the policy as “principled...but also pragmatic and practical.” (See ACT, January/February 2014.) The administration did not issue the documents that typically accompany such a policy announcement, leading to questions in Congress and elsewhere about the specifics of the policy.

At a Jan. 30 Foreign Relations Committee hearing, Menendez and Corker pressed administration witnesses to provide a clear explanation of the U.S. policy on nuclear cooperation, particularly with regard to restricting enrichment and reprocessing.

Menendez said he wanted to know what criteria the administration would be using to determine whether to push a country to refrain from enrichment and reprocessing activities. Corker said there was a “great inconsistency across agreements.”

In the Aug. 6 interview, the staffer said the absence of clearly articulated criteria means that Congress has no baseline for judging if the administration “got as much as [it] could” in negotiating nonproliferation conditions with other countries. “We don’t enjoy that,” he said.

At a July 10 hearing before the House Foreign Affairs Committee, Daniel Lipman of the Nuclear Energy Institute argued against “inflexible preconditions to U.S. nuclear cooperation with potential partners, especially nontraditional preconditions that potential partners refuse to accept and other supplier nations do not require,” a description that would apply to the proposals to press countries to renounce enrichment and reprocessing activities. Lipman, the institute’s executive director for policy development and supplier programs, said enrichment- and reprocessing-related provisions in U.S. nuclear cooperation agreements should “reflect the unique circumstances of each bilateral relationship.”

But he said that the nuclear industry “has no quarrel” with a 30-year limit on the duration of civilian nuclear agreements. The most important issue with regard to the term of the agreements is that renewal negotiations begin early enough to avoid situations in which “an agreement is ready run out” and the renewal agreement has not been completed. “The term to us is, to some degree, immaterial,” he said.

Congress is in the midst of a wave of new and renewed nuclear cooperation agreements. Renewal agreements with Taiwan and the International Atomic Energy Agency recently entered into force. Earlier this year, the United States and South Korea agreed to a two-year extension while they sought to resolve issues preventing a longer-term agreement.

The United States also is in various stages of negotiations with a number of other countries, including China, Jordan, and Saudi Arabia. China’s agreement expires next year; the ones with Jordan and Saudi Arabia would be new ones.