Updating Nonproliferation Criteria for U.S. Nuclear Trade

By Daryl G. Kimball, Executive Director Arms Control Association
Prepared Comments for Nonproliferation Policy Education Center Forum Dec. 11, 2013
Washington, D.C.

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 United States and other possessors of enrichment and reprocessing technology have appropriately sought to deny the transfer of sensitive nuclear technologies—particularly enrichment and reprocessing technologies, which can be used to make nuclear bomb material—to states that do not already possess the technology through the terms of our nuclear cooperation agreements, which are based on the requirements in the 1978 Amendments to the Atomic Energy Act.

In addition, the new and important NSG rule adopted in June 2011—that bars enrichment and reprocessing technology transfers to states without comprehensive safeguards agreements, 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.

This week, the Obama administration is expected to roll out its revised policy regarding civil nuclear cooperation agreements. It expected that the policy will continue to encourage higher standards in U.S. nuclear cooperation partner countries but will not require that every U.S. civil nuclear cooperation agreement is exactly the same.

Some members of Congress, including Sen. Corker (R-Tenn.), have complained that the Obama administration’s revised policy on nuclear cooperation agreements is “inconsistent” because it does not require that all states foreswear enrichment and reprocessing.

It is important that the United States use every tool it has to prevent the spread of enrichment and reprocessing technology, but requiring that states foreswear enrichment and reprocessing as a condition for a U.S. civil nuclear cooperation agreement is not practical in every case.

If Congress wants a greater degree of consistency and higher nonproliferation standards, it can strengthen the leverage of the executive branch by legislating higher standards that should be sought in nuclear cooperation agreements with the United States and if those standards are not all achieved, Congress should revise the process by which such agreements should be considered for approval or disapproval by the Congress.

In other words, it is time for Congress to revisit, update, and strengthen the Atomic Energy Act standards and procedures for peaceful nuclear cooperation agreements.

H.R. 1280, authored by Representatives Ileana Ros-Lehtinen, Howard Berman, Brad Sherman and others, and introduced in 2011 offers a framework useful to build on.

H.R. 1280 would not require that states adopt the so-called “Gold Standard:” the renunciation of their option to pursue enrichment or reprocessing before the United States enters into a nuclear cooperation agreement or renews an existing agreement—which some refuse to do because they claim it is their right under the NPT.

Instead the bill would add several new requirements to the nine key requirements already in Section 123 of the AEA[i] that, if met, would “fast track” that country’s nuclear cooperation agreement for approval.

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

Among the most important new requirements for “fast track” approval 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, 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.
  • 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.

A modified version of 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.

The Case of Iran

Would adopting tougher standards for U.S. nuclear cooperation have helped prevent Iran from acquiring enrichment technology? Probably not, because we are not engaged and will not in the future become engaged in formal nuclear cooperation with Iran.

And because Iran acquired its enrichment technology on the black market via Pakistan’s A.Q. Khan, tougher global standards would likely not have been able to head off the transfer of the technology to Iran.

The best way to limit Iran’s fissile material production capacity is to implement the Nov. 24 P5+1/Iran agreement to pause it nuclear program and negotiation a final-phase deal that significantly reduces its enrichment capacity and bars any reprocessing capability.

If we are to succeed in limiting the number of states capable of producing nuclear bomb material in the future, the executive branch and the Congress can and should work together to update the terms for civil nuclear agreements as outlined in the Atomic Energy Act.


[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.