The U.S. government will very soon set a new policy course on the nonproliferation terms it wants to incorporate into new bilateral peaceful nuclear cooperation agreements with foreign countries.

It is likely that the administration will instruct diplomats to persuade the foreign countries with which it intends to cooperate in the future to refrain from engaging in enrichment of uranium or the reprocessing of spent nuclear fuel (ENR) on their territories if they do not already possess such capabilities. Enrichment and reprocessing are sensitive nuclear activities because they can produce nuclear materials directly usable in nuclear weapons.

Mark Hibbs
Hibbs is a Germany-based nonresident senior fellow in Carnegie’s Nuclear Policy Program. His areas of expertise are nuclear verification and safeguards, multilateral nuclear trade policy, international nuclear cooperation, and nonproliferation arrangements.
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Yet, the U.S. government should not require all foreign countries with which it concludes new nuclear cooperation agreements to legally commit themselves not to enrich uranium and reprocess spent fuel. Requiring countries to do this in all future U.S. peaceful nuclear cooperation agreements would seriously challenge the credibility of the United States to demonstrate global nonproliferation leadership.

Precedent Setting?

The issue has come to the fore now because Vietnam and the United States initialed a new bilateral agreement this week. Based on what is reported to be in that agreement, it would appear Washington and Hanoi have reached a joint political understanding that Vietnam has no intention of engaging in ENR activities. An agreement along these lines would strengthen the economic and energy ties between Washington and Hanoi, promote U.S. strategic objectives in East Asia, and reinforce the global nonproliferation regime. However, some will criticize the forthcoming U.S.-Vietnamese agreement on the grounds that it does not legally ban ENR like the U.S. agreement with the United Arab Emirates (UAE) did.

In 2009, for the first time ever in a peaceful nuclear cooperation agreement between the United States and a foreign country, the UAE made a legal commitment not to reprocess spent fuel or enrich uranium on its territory. The UAE consented to that provision and wrote it into its laws because it agreed with the United States that the expansion of these activities should be limited worldwide. What’s more, Abu Dhabi saw no need to reprocess spent fuel or enrich uranium to provide nuclear fuel for its own limited nuclear power program. 

The UAE, because of its location in a tense region with a history of clandestine nuclear activities, also understood that the United States would be more inclined to cooperate if Abu Dhabi agreed not to engage in sensitive nuclear activities. Integral to the U.S.-UAE pact, the United States confirmed that the terms and conditions in the agreement would be no less favorable in scope and effect than any future nuclear cooperation agreements that the United States might conclude with other non-nuclear-weapon states in the Middle East. The accord further provided that if Washington did not deliver on this point, the UAE could request consultations with the United States with a view toward amending the agreement. 

Some individuals inside and outside the administration argued that the no-ENR terms in the UAE agreement should be required for all new U.S. bilateral nuclear cooperation agreements. They asserted that by so doing, the United States would strengthen its nonproliferation policy because it would prevent the spread of ENR to any country that has not already acquired these capabilities. (Until now, the U.S. government has been unable to move forward on negotiations on new nuclear pacts with three countries—Jordan, Vietnam, and Saudi Arabia—for several reasons: their reluctance to agree not to enrich uranium or reprocess spent fuel, the uncertainty of the nuclear plans of some of these countries, and the absence of consensus and clear negotiating instructions.)

It is important that the United States continue to lead the world in halting the spread of these technologies and thereby contribute to maintaining an effective global nonproliferation regime. Yet, such a blanket policy barring new ENR is not necessary. On balance, the efforts of the United States and other suppliers of nuclear materials, equipment, and technologies to limit the spread of ENR without such a policy have thus far proved reasonably effective. 

The United States already has strict policies to further this nonproliferation objective. Washington requires all its cooperating partners to obtain prior approval before enriching or reprocessing nuclear material subject to U.S. agreements. The United States has also worked with members of the Nuclear Suppliers Group to impose special restraints on transfers of enrichment and reprocessing technologies.

Apart from the international opprobrium and sanctions they would encounter resulting from the discovery of clandestine enrichment and reprocessing activities, nuclear-power-generating countries are discouraged by the comparatively high costs of reprocessing spent fuel and enriching uranium to produce fuel for power reactors. The presence of a competitive market for enrichment services also discourages new entrants into this business. 

As a result, only a handful of countries possess enrichment or reprocessing capabilities, and almost all of these are either nuclear-weapon states or have advanced civil nuclear programs.

For over three decades, with extremely few exceptions, no member of the Nuclear Suppliers Group has transferred such technologies to countries that did not already possess these capabilities. During this period, the only countries that have launched enrichment and reprocessing programs have done so through clandestine means. 

U.S. Interests at Stake

Using U.S. bilateral agreements as a lever to limit the spread of ENR may sound like a good idea. But for a number of reasons, insisting that all countries legally forgo ENR for all future U.S. peaceful nuclear cooperation agreements risks undermining U.S. nonproliferation interests.

First, that policy course would likely meet strong resistance from states that wish to purchase nuclear supplies from abroad and nuclear supplier states. Many non-nuclear-weapon states, particularly developing countries that are parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), have already publicly opposed such restrictions as conflicting with their rights under the treaty. They charge that such regulations break a bargain that the United States and other nuclear-armed powers made with non-nuclear-weapon states in negotiating the treaty. By insisting that countries legally commit themselves to abandon ENR, Washington would be telling NPT parties who play by the rules that the United States will supply nuclear items to them only if they further restrict their sovereign rights enshrined in the NPT to acquire nuclear facilities or capabilities that are dedicated for peaceful use and put under International Atomic Energy Agency safeguards. 

Even if states have no plans to acquire these facilities or capabilities, U.S. demands for additional restrictions on their declared nuclear activities strike most NPT parties as unfair. Their view is reinforced by the perceived failure or reluctance of the United States and other nuclear-armed states to ratify the 1996 Comprehensive Nuclear-Test-Ban Treaty and to take other concrete steps toward the elimination of nuclear weapons. Pursuit of legally binding no-ENR terms for all U.S. peaceful nuclear cooperation agreements would inevitably diminish U.S. influence within the NPT regime and weaken the already-fragile bonds that hold the treaty together. 

Second, other nuclear supplier states will not follow the U.S. lead and impose these conditions on their prospective cooperating partners. Forcing countries to abandon their future fuel cycle options has no chance of becoming a global norm and thus of achieving the objectives supporters of that proposed policy seek. The U.S. nuclear industry has not built a new nuclear power plant in the United States in over three decades. In the meantime, countries interested in launching peaceful nuclear programs are turning to other suppliers, such as Russia, South Korea, China, and Japan, to purchase reactors and fuel while resisting efforts by the United States to limit their future policy options. Should Washington persist and this become a trend, the result would be to push the United States out of many nuclear markets. That would cost the United States trade benefits and deprive it of an important bilateral legal instrument to influence other countries’ nuclear behavior.

When the NPT was negotiated in the 1960s, countries joining the treaty followed the United States on nonproliferation because the United States led the world in the development of nuclear technology. They believed they would tangibly benefit from uniquely U.S. know-how. Today, and increasingly into the future, NPT parties can attain their nuclear power goals by cooperating with others. If the United States aims to compel these countries to restrict their activities without offering incentives, they won’t be interested.

Third, trying to force future cooperating partners to not enrich and reprocess would do nothing to address the risk of additional clandestine enrichment and reprocessing. It would be more fruitful for the United States to encourage its foreign partners to help curtail international black market nuclear procurement and universalize the Additional Protocol to International Atomic Energy Agency safeguards agreements. Where appropriate, Washington could also demonstrate through sanctions—such as those imposed on Iran and North Korea—that egregious safeguards violations related to enrichment and reprocessing have consequences. A U.S. effort to force countries not to enrich uranium or reprocess spent fuel will make it more difficult to forge a consensus in favor of such improvements in the international nonproliferation regime.

Fourth, requiring that all nuclear cooperation partners formally abandon their ENR options is not smart policy. The U.S. Atomic Energy Act lays down a range of requirements for all U.S. peaceful nuclear cooperation agreements. While all U.S. agreements contain these requirements (with the exception of the pact with India), the United States has always followed a case-by-case approach to its handling of enrichment and reprocessing. That approach depends on a number of factors, including a country’s overall relationship with the United States, the size and nature of the country’s nuclear program, and the country’s nonproliferation commitments as well as regional security concerns. 

In most cases, the United States has not given its approval to enrichment and reprocessing by its cooperating partners, and most partners have not expressed interest in ENR. However, the United States has granted long-term advance consent to reprocessing and enrichment to its close allies in the European Atomic Energy Community and to Japan, which have large and advanced nuclear programs and solid nonproliferation credentials. At the same time, the United States has included special constraints in its agreements with countries located in volatile regions, for example Egypt and the UAE. 

More Effective Policy

A realistic and flexible approach to enrichment and reprocessing in U.S. nuclear cooperation agreements may lead to greater overall effectiveness of U.S. civil nuclear energy and nonproliferation policies.

Ever since U.S. President Jimmy Carter abandoned reprocessing of spent reactor fuel in the United States in 1977 and in so doing challenged U.S. allies’ resolve to separate and reuse the plutonium from their U.S.-origin nuclear fuel, a certain tension has existed between U.S. nonproliferation aspirations and the U.S. endorsement of bilateral and multilateral nuclear energy cooperation—formulated as Atoms for Peace by President Dwight Eisenhower. U.S. policies in these two areas seriously bifurcated in 2004. Then, the United States announced it aimed to ban ENR beyond a handful of states already enriching and reprocessing while also sponsoring a new Global Nuclear Energy Partnership and participating in the Generation IV International Forum, which supported the development of technologies, including more proliferation-resistant reprocessing and fast reactors. The ban on ENR was rejected by both major nuclear states and developing countries. In 2008 the United States finally abandoned its goal of banning the export of ENR in favor of a criteria-based approach preferred by all other participating governments in the Nuclear Suppliers Group.

U.S. credibility and interests vis-à-vis its international partners are better served by reducing the potential conflicts in these policy objectives than by imposing an ENR ban on its future cooperating partners. 

Washington’s policy on bilateral cooperation needs to be based on a clear and realistic appreciation of the particular circumstances of each country with which it negotiates a civil nuclear cooperation agreement. In some cases, such as with countries in areas of political instability or of high proliferation risk, this may prompt the U.S. to negotiate new agreements containing legal commitments to abstain from enrichment and reprocessing. But in some instances the United States will not be able to persuade countries to forgo or forswear future nuclear fuel cycle options. The proposed solution to this issue in the U.S.-Vietnamese agreement is both realistic and meets U.S. nonproliferation objectives. In other cases, countries may be more willing to abstain from ENR if the United States works with them to lease or take back their spent nuclear fuel, or if the United States effectively promotes the establishment of multilateral fuel cycle enterprises. 

Either way, there is no compelling reason for the United States to reject its long-standing differentiated approach on ENR in favor of a one-size-fits-all recipe.

Fred McGoldrick held senior positions in the U.S. Department of Energy and the U.S. Department of State, where he negotiated peaceful nuclear cooperation agreements and helped shape U.S. policy to prevent the spread of nuclear weapons.