Updating Nonproliferation Criteria for U.S. Nuclear Trade

By Daryl G. Kimball, Executive Director Arms Control Association

Prepared Comments for Nonproliferation Policy Education Center and the Foreign Policy Initiative Forum on
“Tightening Nuclear Nonproliferation Rules: What Congress’ Role Should Be”
May 16, 2012

Since the beginning of the nuclear age, efforts to exploit nuclear technology for energy and for profit have complicated the task of reducing the nuclear weapons threat.

The 1968 nuclear Nonproliferation Treaty (NPT) grants states the “right” to pursue nuclear technology for peaceful purposes, so long as states forswear nuclear weapons and comply with safeguards against the diversion of nuclear technology and materials for weapons purposes. The NPT also obliges the nuclear weapon states not to assist—directly or indirectly—other states’ with the pursuit of nuclear weapons.

The United States has long sought to improve international safeguards standards and prevent the spread of the most sensitive dual-use nuclear technologies—particularly enrichment and reprocessing technologies.

The U.S. Atomic Energy Act (AEA) and the 1978 amendments have set an important global benchmarks for the terms under the United States and others should enter into peaceful nuclear cooperation agreements. And as matter of policy, the United States has sought to prevent the transfer of enrichment or reprocessing technology, which can be used to make nuclear bomb material.

With renewed interest in nuclear energy and the possibility that still more states may wish to pursue enrichment or reprocessing capabilities, it is time to:

  • update the U.S. standards for civil nuclear trade to raise the barriers against proliferation, and
  • ensure that those standards apply to all states with whom we negotiate or renegotiate so-called 123 agreements.

The current policies of the Barack Obama administration to pursue nuclear cooperation agreement on a case-by-case basis creates an uneven set of standards and a mixed-message that undermines the administration’s own efforts to establish tougher nonproliferation rules that apply to all states.

The administration is currently engaged in discussions with several states on possible bilateral nuclear cooperation agreements, seeking somewhat different nonproliferation standards and guarantees with each. That is a mistake.

With the ill-conceived U.S.-Indian civil nuclear cooperation deal, we have already seen how the exemption created for India from the global nonproliferation rules has given others a cynical excuse to break the rules and lobby for their own exemptions. And we have seen no new action by India to improve its nonproliferation and disarmament record as a result.

It is time to reconsider and pursue a better way for future nuclear cooperation deals.

H.R. 1280, authored by Representatives Ileana Ros-Lehtinen, Howard Berman, Brad Sherman and others, offers a very useful way forward.

It is not perfect, but it is something the administration should support and work with Congress to improve.

The bill would add several new requirements to the nine key requirements already in Section 123 of the AEA.[i] Among the most important new requirements that would be added are:

  • the application of the IAEA additional protocol. Dozens of states have not yet approved an additional protocol, including Algeria, Egypt, South Korea, and Saudi Arabia, whose ambassador to Washington recently threatened that his country would build nuclear weapons if Iran does; and
  • a pledge not to acquire enrichment or reprocessing capabilities/facilities.

I would also suggest that the bill should be strengthened by:

  • clarifying that the recipient state must allow for the application of its Comprehensive Safeguards Agreement (CSA) under the terms of the most up-to-date IAEA revisions, which today are known as code 3.1. Why is this important? Some states, including Iran, have a CSA in place but don’t allow IAEA to operate under the updated code 3.1 revisions;
  • requiring termination of U.S. nuclear cooperation in the event the recipient state conducts a nuclear test explosion, is found to be in violation of its IAEA safeguards obligations, or acquires enrichment or reprocessing equipment from sources other than the United States.

H.R. 1280 would not require that states renounce their option to pursue enrichment or reprocessing—which some refuse to do because they claim it is their right under the NPT to do so—but would incentivize those that do by “fast tracking” the Congressional review and approval process for civil nuclear cooperation agreements with countries that meet the new and higher set of standards, including a no enrichment or reprocessing pledge, as the United Arab Emirates has done.

Agreements with states that cannot meet the higher set of standards would be subject to a more rigorous process requiring affirmative Congressional approval.

Article IV of the NPT may, in the view of some states, give them a “right” to pursue peaceful nuclear technology, but the United States also has a right, an NPT responsibility, and an interest not to engage in civil nuclear trade that don’t meet a higher set of standards than those spelled out in the 1968 NPT.

Some nuclear energy industry lobbyists suggest that because states will not want to give up their option to pursue enrichment or reprocessing in the future, H.R. 1280, if enacted, would drive these countries seek nuclear commerce from other nuclear suppliers and put U.S. firms at a competitive disadvantage.

That’s farfetched and it suggests that we should lower the bar against proliferation in order to simply give them a perceived competitive edge.

H.R. 1280 is a very reasonable and common sense approach that would simply put into U.S. law the standards that all nuclear supplier states have already agreed are essential to preventing future proliferation.

In addition, the new and important NSG rule adopted in June 2011—that bars enrichment and reporcessing technology transfers to states without CSAs, have not joined the NPT, do not have an additional protocol in force, or to states in proliferation sensitive regions—makes it highly unlikely that other nuclear suppliers can even offer to transfer enrichment or reprocessing technology or equipment to these states.

For instance even in the case of India, which is actively seeking more advanced enrichment and reprocessing technology and which could use it for its nuclear weapons program, cannot obtain such technology from the U.S., France or Russia under the new NSG rule.

If we are to succeed in limiting the number of states capable of producing nuclear bomb material, all states must be willing to provide responsible leadership and restraint. In the near future, there is no economic rationale for new states to enter the civil uranium-enrichment or plutonium-separation arena.

It is time for the Congress to act and for the Obama administration to provide pragmatic input rather than stiff resistance to this bill, which is fully consistent with the President’s broader nonproliferation strategy and goals.




[i] Section 123(a) lists nine criteria that an agreement must meet unless the President determines an exemption is necessary. These include guarantees that:

  • Safeguards on transferred nuclear material and equipment continue in perpetuity;
  • Full-scope IAEA safeguards are applied in non-nuclear weapon states;
  • Nothing transferred is used for any nuclear explosive device or for any other military purpose, except in the case of cooperation agreements with nuclear weapon states, in which the United States has the right to demand the return of transferred nuclear materials and equipment, as well as any special nuclear material produced through their use, if the cooperating state detonates a nuclear explosive device, or terminates or abrogates its IAEA safeguards agreement;
  • There is no retransfer of material or classified data without U.S. consent;
  • Physical security on nuclear material is maintained;
  • There is no enrichment or reprocessing by the recipient state of transferred nuclear material or nuclear material produced with materials or facilities transferred pursuant to the agreement without prior approval;
  • Storage for transferred plutonium and highly enriched uranium is approved in advance by the United States; and
  • Any material or facility produced or constructed through use of special nuclear technology transferred under the cooperation agreement is subject to all of the above requirements.