As most of you probably know, the recently-announced US-India agreement to pursue nuclear cooperation still has some obstacles to overcome in Congress.
So I thought I’d provide some information from people who are way smarter than I am on this issue.
1. “This CRS report”:http://fpc.state.gov/documents/organization/50809.pdf by Sharon Squassoni.
2. The summary at the bottom of the post. Unfortunately, I am not allowed to ID the author, but please believe me when I say s/he is on top of the issue.
My .02: the possible nuclear agreements coming down the pike would be problematic for several other reasons.
*First,* they would unquestionably “violate NSG guidelines”:http://www.armscontrol.org/factsheets/NSG.asp. According “to the NSG:”:http://www.nuclearsuppliersgroup.org/PDF/infcirc539r3.pdf
bq. a full-scope safeguards agreement with the IAEA [is] a condition for the future supply of Trigger List items to any non-nuclear-weapon State.
[BTW, another good, concise summary of the NSG can be found “here”:http://www.armscontrol.org/factsheets/NSG.asp.]
As Sharon points out, this could be a problem at a time when we’re trying to tighten the NSG rules. For example, here are some “US proposals”:http://www.whitehouse.gov/news/releases/2004/02/20040211-5.html from February 2004:
* the members of the Nuclear Suppliers Group [should] ensure that states which renounce enrichment and reprocessing technologies have reliable access, at reasonable cost, to fuel for civilian reactors.
* The 40 states in the Nuclear Suppliers Group should refuse to sell uranium enrichment or reprocessing equipment or technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants.
* …all states should sign the IAEA Additional Protocol, which greatly expands the Agency’s tools to detect clandestine nuclear activities. Signing of the Additional Protocol should be a condition for countries seeking equipment for their civilian nuclear programs by next year.
*Second,* the recent agreement appears contrary to the spirit of Article I of the NPT, which reads:
bq. Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.
*Third,* it also seems to be in tension with Article III of the NPT. Here’s part of it, but go “read the whole thing:”:http://www.armscontrol.org/documents/npt.asp
1. Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agencyâ€™s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this article shall be applied to all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.
2. Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article
Needless to say, there’s a lot more to be said about this deal. And it’s pretty much all bad.
Anyway, here’s the text from the unnamed author, with some minor alterations:
*US Nuclear Cooperation with India: Legislative Implications*
*I. The Basics.* Under US law (the Atomic Energy Act), the United States can engage in nuclear cooperation with other countries only pursuant to an â€œAgreement for Cooperation”.
Nuclear cooperation in this sense covers the transfer of nuclear facilities and equipment, nuclear fuel and related nuclear materials, dual-use items, and technology (covering services, expertise, blueprints, etc).
Each of these items is licensed by a different US federal agency:
* The Nuclear Regulatory Commission licenses exports of reactors, nuclear equipment, and nuclear fuel.
* The Dept of Energy authorizes technology transfers.
* The Dept of Commerce authorizes exports of dual-use goods.
* The State Department negotiates the Agreements for Cooperation.
*II. Full-Scope safeguards*
Starting with the enactment of the Nuclear Non-Proliferation Act of 1978, â€œnon-nuclear-weapon states” (as recognized in the NPT) must have IAEA safeguards over all of their nuclear materials — this is a necessary precondition for nuclear cooperation with the United States. In 1992, the Nuclear Suppliers Group finally endorsed this standard. In 1995 and in 2000, the states parties of the NPT also endorsed this standard. Such safeguards are not required of the five recognized nuclear-weapon states (US, Britain, France, China, and Russia). The Non-Aligned Movement (NAM) has also repeatedly endorsed this standard.
*III. Agreements for Nuclear Cooperation*
Sec. 123 of the Atomic Energy Act lays out the basic requirements of US Agreements for Cooperation. Sec. 123(a)(2) requires all non-nuclear-weapon states to have full-scope IAEA safeguards. Agreements for Cooperation are negotiated by the Secretary of State, approved by the President, and sent to Congress (both houses), which has a fixed period of continuous session to review the agreement. Congress can adopt a joint resolution stating that it â€œdoes not favor” the Agreement — for agreements that the President exempts from any of the norma*l criteria (e.g. full-scope safeguards), such agreements shall not become effective without a joint resolution stating that the Congress â€œdoes favor” the agreement.
Sec. 129 spells out certain actions that would constitute â€œconduct resulting in termination of nuclear exports” . These include the following standards to apply to any non-nuclear-weapon state that has at any time since 10 March 1978 — (a) detonated a nuclear explosive device (India claims it detonated five in 1998); (b) terminated or abrogated IAEA safeguards (Indiaâ€™s 1974 test involved the use of plutonium from uranium and heavy that were covered by a â€œpeaceful use” pledge); (c) materially violated an IAEA safeguards agreement; or (d) â€œengaged in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices, and has failed to take steps which, in the Presidentâ€™s judgment, represent sufficient progress toward terminating such activities.”
*IV. Nuclear facilities, equipment, fuel, and materials*
The Atomic Energy Act provides the basic legal authority for the NRC to authorize the export of nuclear facilities, equipment, fuel, and materials. Sec. 126 outlines the basic export licensing process and Sec. 127 contains some specific criteria governing the approval of such exports.
Sec. 127(1) requires IAEA safeguards as required by Article III(2) of the NPT; it also prohibits the use of any exported item â€œfor any nuclear explosive device or for research on or development of any nuclear explosive device.”
Sec. 128 states specifically that full-scope IAEA safeguards shall be â€œa condition of continued United States export of source material (e.g. uranium), special nuclear material (e.g. plutonium or enriched uranium), production or utilization facilities (e.g. fuel cycle plants or reactors), and any sensitive nuclear technology to non-nuclear-weapon states”. The specific licensing regulations published pursuant to this law are found in 10 Code of Federal Regulations Part 110. Sec. 110.42 spells out the criteria the NRC uses in issuing licenses — the first criterion is that IAEA safeguards â€œas required by Article III(2) of the NPT will be applied”; for non-nuclear-weapon states, full-scope IAEA safeguards are explicitly required in sec. 110(42)(a)(6). The criteria also provide that no export shall be used â€œfor any nuclear explosive device or for research on or development of any nuclear explosive device.”
*V. Activities of US Citizens*
When other countries seek technical advice from US citizens relating to the use of nuclear materials, such individuals may provide such assistance but only as authorized by the US Secretary of Energy, pursuant to the terms of sec. 57(b) of the Atomic Energy Act. This law specifically makes it illegal for any person â€œto directly or indirectly engage in the production of any special nuclear material outside of the United States” except as specifically authorized under an agreement for cooperation and upon authorization by the Secretary of Energy.
The Department of Energy has issued regulations pursuant to this law in 10 Code of Federal Regulations, Part 810. These regulations provide the details of the licensing process, including the criteria that the Secretary â€œwill take into account” in making the authorizations. The first such criterion is the existence of an agreement for cooperation. The second is whether the country is a party to the NPT. The third is whether the country has full-scope IAEA safeguards.
*VI. Dual-Use Goods*
Sec. 309(c) of the Nuclear Non-Proliferation Act of 1978 required the President to publish regulations to be implemented by the Department of Commerce for the control of the export of all items (except those that are NRC-licensed) that â€œcould be, if used for purposes other than those for which the export is intended, of significance for nuclear explosive purposes.” These include so-called â€œdual-use” goods like special computers, lab equipment, machine tools, etc.
According to the â€œCommerce Country Chart” (15 CFR 738, suppl 1), exports to India are controlled for the following reasons (among others): chemical and biological weapons; nuclear non-proliferation; national security; missile tech; and regional stability. The Dept of Commerce has published several licensing standards governing the export of such items; these appear in 15 Code of Federal Regulations, Part 742.3. The items themselves are collectively called the â€œNuclear Referral List” — these are simply goods that the Commerce Dept licenses that are controlled for nuclear non-proliferation reasons.
The specific licensing criteria appear in 15 CFR Part 742.3(b). Among these criteria to be applied are â€œthe nonproliferation credentials of the importing country”, which are based on several factors, including: whether the state is a party to the NPT; whether it has full-scope IAEA safeguards; whether it has an agreement of cooperation with the US; whether the government of the importing country has policies that â€œare in support of nuclear nonproliferation”; the degree to which the government of the importing country â€œcooperates in non-proliferation policy generally”; and â€œinformation on the importing countryâ€™s nuclear intentions and activities.” In addition, goods may not be transferred if they â€œwill be used directly or indirectly in any nuclear explosive activity or in any unsafeguarded nuclear activity (15 CFR 744.2).