KAKUJOHO (Nuclear Information)2007.8.26
Comparison of the US-India and US-Japan Nuclear Cooperation (123) Agreements and their relationship with US laws and international frameworks
- US-India Nuclear Agreement
- US-Japan Nuclear Cooperation Agreement (pdf)
- India - U.S. Joint Statement (July 18, 2005)
- U.S.-India Joint Statement (March 2, 2006)
- I. Basic documents
- II. Comparison of Two Agreements and related laws, etc.
I. Basic documents
1.US Atomic Energy Act (pdf)
Section 123 Cooperation with other nations (42 U.S.C.2153)
No cooperation... shall be undertaken until-
the proposed agreement for cooperation has been submitted to the President, which proposed agreement shall include the terms, conditions, duration, nature, and scope of the cooperation; and shall include the following requirements:
- (1) ....
- (2) in the case of non-nuclear-weapon states, a requirement, as a condition of continued United States nuclear supply under the agreement for cooperation, that IAEA safeguards be maintained with respect to all nuclear materials in all peaceful nuclear activities within the territory of such state, under its jurisdiction, or carried out under its control anywhere;
- (4) except in the case of those agreements for cooperation arranged pursuant to subsection 91c. and agreements for cooperation with nuclear-weapon states, a stipulation that the United States shall have the right to require the return of any nuclear materials and equipment transferred pursuant thereto and any special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive device or terminates or abrogates an agreement providing for IAEA safeguards;
Section 129 Conduct Resulting In Termination Of Nuclear Exports. (42 U.S.C.2158)
No nuclear materials and equipment or sensitive nuclear technology shall be exported to--
(1) any non-nuclear-weapon state that is found by the President to have, at any time after March 10, 1978,
- (A) detonated a nuclear explosive device; or
- (B) terminated or abrogated IAEA safeguards; or
- (C) materially violated an IAEA safeguards agreement; or
- (D) engaged 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 President's judgment, represent sufficient progress toward terminating such activities;
2. Hyde Act (Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006) (pdf)
SEC. 104. WAIVER AUTHORITY AND CONGRESSIONAL APPROVAL.
- (a) In General- If the President makes the determination described in subsection (b), the President may--
- (1) exempt a proposed agreement for cooperation with India arranged pursuant to section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153) from the requirement of subsection a.(2) of such section;
- (2) waive the application of section 128 of the Atomic Energy Act of 1954 (42 U.S.C. 2157) with respect to exports to India; and
- (3) waive with respect to India the application of--
- (A) section 129 a.(1)(D) of the Atomic Energy Act of 1954 (42 U.S.C. 2158(a)(1)(D)); and
- (B) section 129 of such Act (42 U.S.C. 2158) regarding any actions that occurred before July 18, 2005.
3. Nuclear Suppliers Group (NSG) GUIDELINES FOR NUCLEAR TRANSFERS (pdf)
- 2. Suppliers should authorize transfer of items or related technology identified in the trigger list only upon formal governmental assurances from recipients explicitly excluding uses which would result in any nuclear explosive device.
- 4. (a) Suppliers should transfer trigger list items or related technology to a non-nuclear weapon State only when the receiving State has brought into force an agreement with the IAEA requiring the application of safeguards on all source and special fissionable material in its current and future peaceful activities. ..
- 17. Unanimous consent is required for any changes in these Guidelines, including any which might result from the reconsideration mentioned in paragraph 5.
History of the NSG (NSG official site)
The NSG was created following the explosion in 1974 of a nuclear device by a non-nuclear-weapon State, which demonstrated that nuclear technology transferred for peaceful purposes could be misused.
The NSG Guidelines were published in 1978 as IAEA Document INFCIRC/254 (subsequently amended), to apply to nuclear transfers for peaceful purposes to help ensure that such transfers would not be diverted to unsafeguarded nuclear fuel cycle or nuclear explosive activities.
The endorsement at the 1995 NPT Review and Extension Conference (NPTREC) of the full-scope Safeguards policy already adopted by the NSG in 1992 clearly reflects the conviction of the international community that this nuclear supply policy is a vital element to promote shared nuclear non-proliferation commitments and obligations.
4. 1995 NPT Review and Extension Conference Decision 2.
PRINCIPLES AND OBJECTIVES FOR NUCLEAR NON-PROLIFERATION AND DISARMAMENT
- 12. New supply arrangements for the transfer of source or special fissionable material or equipment or material especially designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of the Agency's full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices.
5. UN Security Council Resolution 1172 (1998) (pdf)
- 7. Calls upon India and Pakistan immediately to stop their nuclear weapon development programmes, to refrain from weaponization or from the deployment of nuclear weapons, to cease development of ballistic missiles capable of delivering nuclear weapons and any further production of fissile material for nuclear weapons, to confirm their policies not to export equipment, materials or technology that could contribute to weapons of mass destruction or missiles capable of delivering them and to undertake appropriate commitments in that regard;
- 8. Encourages all States to prevent the export of equipment, materials or technology that could in any way assist programmes in India or Pakistan for nuclear weapons or for ballistic missiles capable of delivering such weapons, and welcomes national policies adopted and declared in this respect;
II. Comparison of Two Agreements and related laws, etc.
1. Testing related issues
◊ Japan-US Agreement (pdf)
- 1. If either party at any time following entry into force of this Agreement:
- (a) does not comply with the provisions of Article 3, 4, 5, 6, 7, 8, 9 or 11 of this Agreement or the decisions of the arbitral tribunal referred to in Article 14 of this Agreement; or
- (b) terminates or materially violates a safeguards agreement with the Agency, the other party shall have the rights to cease further cooperation under this Agreement, terminate this Agreement and require the return of any material, nuclear material, equipment or components transferred pursuant to this Agreement or any special fissionable material produced through the use of such items.
- 2. If the United States of America detonates a nuclear explosive device using material, nuclear material, equipment or components transferred pursuant to this Agreement or nuclear material used in or produced through the use of such items, the Government of Japan shall have the same rights as specified in paragraph 1 of this Article.
- 3. If Japan detonates a nuclear explosive device, the Government of the United States of America shall have the same rights as specified in paragraph 1 of this Article.
- 4. Before either party takes steps to cease cooperation under this Agreement, to terminate this Agreement, or to require such return, the parties shall consult for the purpose of taking corrective steps and shall carefully consider the economic effects of such actions, taking into account the need to make such other appropriate arrangements as may be required.
- 5. If either party exercises its rights under this Article to require the return of any material, nuclear material, equipment or components, it shall compensate the other party or the persons concerned for the fair market value thereof.
1) Termination issue
◊ US-India Agreement
ARTICLE 14 - TERMINATION AND CESSATION OF COOPERATION
- 1. Either Party shall have the right to terminate this Agreement prior to its expiration on one year's written notice to the other Party. A Party giving notice of termination shall provide the reasons for seeking such termination. The Agreement shall terminate one year from the date of the written notice, unless the notice has been withdrawn by the providing Party in writing prior to the date of termination.
- 2. Before this Agreement is terminated pursuant to paragraph 1 of this Article, the Parties shall consider the relevant circumstances and promptly hold consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination. The Party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations. The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.
- 3. If a Party seeking termination cites a violation of this Agreement as the reason for notice for seeking termination, the Parties shall consider whether the action was caused inadvertently or otherwise and whether the violation could be considered as material. No violation may be considered as being material unless corresponding to the definition of material violation or breach in the Vienna Convention on the Law of Treaties. If a Party seeking termination cites a violation of an IAEA safeguards agreement as the reason for notice for seeking termination, a crucial factor will be whether the IAEA Board of Governors has made a finding of non-compliance.
◊ NSG Guidelines (pdf)
- 16. (a) Suppliers should maintain contact and consult through regular channels on matters connected with the implementation of these Guidelines.
- (b) Suppliers should consult, as each deems appropriate, with other governments concerned on specific sensitive cases, to ensure that any transfer does not contribute to risks of conflict or instability.
- (c) Without prejudice to subparagraphs (d) to (f) below:
-- In the event that one or more suppliers believe that there has been a violation of supplier/recipient understanding resulting from these Guidelines, particularly in the case of an explosion of a nuclear device, or illegal termination or violation of IAEA safeguards by a recipient, suppliers should consult promptly through diplomatic channels in order to determine and assess the reality and extent of the alleged violation. Suppliers are also encouraged to consult where nuclear material or nuclear fuel cycles activity undeclared to the IAEA or a nuclear explosive activity is revealed.
--Pending the early outcome of such consultations, suppliers will not act in a manner that could prejudice any measure that may be adopted by other suppliers concerning their current contacts with that recipient. Each supplier should also consider suspending transfers of Trigger List items while consultations under 16(c) are ongoing, pending supplier agreement on an appropriate response.
-- Upon the findings of such consultations, the suppliers, bearing in mind Article XII of the IAEA Statute, should agree on an appropriate response and possible action, which could include the termination of nuclear transfers to that recipient.
- (d) If a recipient is reported by the IAEA to be in breach of its obligation to comply with its safeguards agreement, suppliers should consider the suspension of the transfer of Trigger List items to that State whilst it is under investigation by the IAEA. For the purposes of this paragraph, "breach" refers only to serious breaches of proliferation concern;
2) Return issue
◊ US-India Agreement
ARTICLE 14 - TERMINATION AND CESSATION OF COOPERATION
- 4. Following the cessation of cooperation under this Agreement, either Party shall have the right to require the return by the other Party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use. A notice by a Party that is invoking the right of return shall be delivered to the other Party on or before the date of termination of this Agreement. The notice shall contain a statement of the items subject to this Agreement as to which the Party is requesting return. Except as provided in provisions of Article 16.3, all other legal obligations pertaining to this Agreement shall cease to apply with respect to the nuclear items remaining on the territory of the Party concerned upon termination of this Agreement.
- 5. The two Parties recognize that exercising the right of return would have profound implications for their relations. If either Party seeks to exercise its right pursuant to paragraph 4 of this Article, it shall, prior to the removal from the territory or from the control of the other Party of any nuclear items mentioned in paragraph 4, undertake consultations with the other Party. Such consultations shall give special consideration to the importance of uninterrupted operation of nuclear reactors of the Party concerned with respect to the availability of nuclear energy for peaceful purposes as a means of achieving energy security. Both Parties shall take into account the potential negative consequences of such termination on the on-going contracts and projects initiated under this Agreement of significance for the respective nuclear programmes of either Party.
◊ Hyde Act
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
As further clarified in the section-by-section analysis included in this report, the conferees believe that there should be no ambiguity regarding the legal and policy consequences of any future Indian test of a nuclear explosive device. In that event, the President must terminate all export and reexport of U.S.-origin nuclear materials, nuclear equipment, and sensitive nuclear technology to India. The conferees expect the President to make full and immediate use of U.S. rights to demand the return of all nuclear-related items, materials, and sensitive nuclear technology that have been exported or reexported to India if India were to test or detonate, or otherwise cause the test or detonation of, a nuclear explosive device for any reason, including such instances in which India describes its actions as being "for peaceful purposes." This legal condition is further strengthened in the Conference agreement beyond section 129 of the AEA by a provision that the waiver authority in this legislation terminates with any Indian test. The conferees believe that termination would include the suspension and revocation of any current or pending export or reexport licenses, and that the return of U.S.-origin items and materials should extend to any special nuclear material produced by India through the use of any nuclear materials, equipment, or sensitive nuclear technology exported or reexported to India by the United States.
3) Supply guarantee issue
◊ US-India Agreement
- (a) The United States has conveyed its commitment to the reliable supply of fuel to India. Consistent with the July 18, 2005, Joint Statement, the United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. As part of its implementation of the July 18, 2005, Joint Statement the United States is committed to seeking agreement from the U.S. Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations.
- (b) To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps:
- i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement on peaceful uses of nuclear energy under Section 123 of the U.S. Atomic Energy Act, which would be submitted to the U.S. Congress.
- ii) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.
- iii) The United States will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors.
- iv) If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.
- (c) In light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.
Prime Minister Manmohan Singh's Statement (March 6, 2006)
- One of the major points addressed in the Separation Plan was the need to ensure reliability of fuel supplies, given our unfortunate past experience with regard to interruption in supply of fuel for Tarapur. We have received commitments from the United States for the reliable supply of fuel to India for reactors that will be offered for safeguards. The United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for such reactors. Under the July 18 Joint Statement, the United States is committed to seeking agreement from its Congress to amend domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international market for nuclear fuel, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations. This has been reflected in the formal understandings reached during the visit and included in the Separation Plan.
- To further guard against any disruption of fuel supplies for India, the United States is prepared to take other additional steps, such as:
- 1. I) Incorporating assurances regarding fuel supply in a bilateral Indo-US agreement on peaceful uses of nuclear energy which would be negotiated.
- II) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.
- III) The United States will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors.
- IV) If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.
◊ Hyde Act
SEC. 103. STATEMENTS OF POLICY.
- (a) IN GENERAL.--The following shall be the policies of the United States:
- (6) Seek to prevent the transfer to a country of nuclear equipment, materials, or technology from other participating governments in the NSG or from any other source if nuclear transfers to that country are suspended or terminated pursuant to this title, the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), or any other United States law.
2. Safeguards issue
◊ US-Japan Agreement
- 2. Cooperation between the parties as specified above shall be subject to the provisions of this Agreement, and the applicable treaties, laws, regulations and license requirements in force in their respective countries and shall require, in the case of cooperation envisaged in sub-paragraph (a)(iii) of paragraph 1 above, the application of safeguards by the Agency:
- (a) with respect to all nuclear material in all nuclear activities within the territory of Japan, under its jurisdiction or carried out under its control anywhere, when the recipient is the Government of Japan or its authorized persons. Implementation of the agreement between the Government of Japan and the Agency in connection with the Non-Proliferation Treaty shall be considered as fulfilling this requirement; and
◊ US-India Agreement
Article 5 (6)
- c) In light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.
ARTICLE 10 - IAEA SAFEGUARDS
- 1. Safeguards will be maintained with respect to all nuclear materials and equipment transferred pursuant to this Agreement, and with respect to all special fissionable material used in or produced through the use of such nuclear materials and equipment, so long as the material or equipment remains under the jurisdiction or control of the cooperating Party.
- 2. Taking into account Article 5.6 of this Agreement, India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of nuclear material, non-nuclear material, equipment or components so transferred shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA [identifying data] and an Additional Protocol, when in force.
- 3. Nuclear material and equipment transferred to the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of any nuclear material, non-nuclear material, equipment, or components so transferred shall be subject to the Agreement between the United States of America and the IAEA for the application of safeguards in the United States of America, done at Vienna November 18, 1977, which entered into force on December 9, 1980, and an Additional Protocol, when in force.
◊ IAEA Additional Protocols: State Department Fact Sheet(May 14, 2002)
The Additional Protocol is designed to improve the Agency's ability to detect clandestine nuclear weapons programs in non-nuclear weapons states by providing the IAEA with increased information about and expanded access to nuclear fuel cycle activities and sites.
Implementation of Additional Protocols, based on the Model Additional Protocol issued by the IAEA, in non-nuclear weapon states will improve international confidence that non-nuclear weapon State Parties to the Treaty on the Nonproliferation of Nuclear Weapons are not misusing nuclear materials to develop nuclear weapons and to reduce further the risk of nuclear proliferation. The Model Additional Protocol is designed to provide the IAEA with increased information about and expanded access to their nuclear fuel cycle activities and sites.
While under no obligation to do so, the United States negotiated and signed an Additional Protocol with the IAEA. On May 9, 2002, the President submitted that Protocol to the Senate for its advice and consent to ratification. By taking this step, the Administration underscores U.S. commitment to combating the potential spread of nuclear weapons, as well as demonstrates that that adherence to the Model Protocol does not place other countries at a commercial disadvantage. The U.S. Additional Protocol is identical to that which non-nuclear weapons states are being asked to accept, with the exception that that the U.S. Protocol does not obligate the United States to apply the Protocol to activities or locations of direct national security significance to the United States.
◊ Strengthened Safeguards System: Status of Additional Protocols
The latest status report, as of 13 June 2007
Strengthened Safeguards System: States with Additional Protocols State Board Approval Date signed In Force 55. Japan 25 November 1998 4 December 1998 16 December 1999
◊ Implementation of the India-United States Joint Statement of July 18, 2005: India's Separation Plan (pdf)
◊ IAEA Safeguards Overview: Comprehensive Safeguards Agreements and Additional Protocols
◊ IAEA Safeguards Legal Framework
◊ MODEL PROTOCOL ADDITIONAL TO THE AGREEMENT(S) BETWEEN STATE(S) AND THE INTERNATIONAL ATOMIC ENERGY AGENCY FOR THE APPLICATION OF SAFEGUARDS (pdf)
◊ Status of Safeguards Agreements & Additional Protocols [pdf]
3. Recycling right issue
◊ US-Japan Agreement
- l. Nuclear material transferred pursuant to this Agreement and special fissionable material used in or produced through the use of material, nuclear material or equipment so transferred may be reprocessed if the parties agree.
- 2. Plutonium, uranium-233, high enriched uranium and irradiated nuclear material transferred pursuant to this Agreement or used in or produced through the use of material, nuclear material or equipment so transferred may be altered in form or content by irradiation. Such special fissionable material may otherwise be altered in form or content if the parties agree.
In order to facilitate activities subject to Articles 3, 4 and 5 of this Agreement, the parties shall make, consistent with the objective of preventing nuclear proliferation and with their respective national security interests, and perform in good faith separate arrangements that will satisfy the requirements for mutual agreement set forth in those Articles on a long-term, predictable and reliable basis, and in a manner that will further facilitate peaceful uses of nuclear energy in their respective countries.
◊ US-India Agreement
ARTICLE 6 - NUCLEAR FUEL CYCLE ACTIVITIES
iii) With a view to implementing full civil nuclear cooperation as envisioned in the Joint Statement of the Parties of July 18, 2005, the Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement and nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred. To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility.
Consultations on arrangements and procedures will begin within six months of a request by either Party and will be concluded within one year. The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. These arrangements and procedures shall include provisions with respect to physical protection standards set out in Article 8, storage standards set out in Article 7, and environmental protections set forth in Article 11 of this Agreement, and such other provisions as may be agreed by the Parties. Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards.
Implementation of the India-United States Joint Statement of July 18, 2005: India's Separation Plan (pdf)
- ii) Fast Breeder Reactors: India is not in a position to accept safeguards on the Prototype Fast Breeder Reactors (PFBR) and the Fast Breeder Test Reactor (FBTR), both located at Kalpakkam. The Fast Breeder Programme is at the R&D stage and its technology will take time to mature and reach an advanced stage of development.
- iii) Future Reactors: India has decided to place under safeguards all future civilian thermal power reactors and civilian breeder reactors, and the Government of India retains the sole right to determine such reactors as civilian.
4. Sensitive technology transfer issue
◊ US-Japan Agreement
- 1. (b) Notwithstanding the provisions of sub-paragraph (a) above, restricted data and sensitive nuclear technology shall not be transferred under this Agreement.
- (j) "Sensitive nuclear technology" means any data which are not available to the public and which are important to the design construction, fabrication, operation or maintenance of enrichment, reprocessing or heavy water production facilities, or such other data as may be so designated by agreement of the parties.
The IAEA and the NPT Safeguards Regime: An Impossible Task, Shaun Burnie
Request for Prompt Action on Sensitive Nuclear Technology (SNT) Guidelines (To: DOE Secretary O'Leary; From: Paul Leventhal, et al.)
◊ US-India Agreement
2. Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties' respective applicable laws, regulations and license policies.
◊ Hyde Act
(B) REQUIREMENTS FOR APPROVALS.-Exports, reexports, transfers, and retransfers referred to in subparagraph (A) may only be approved if-
- (i) the end user-
- (I) is a multinational facility participating in an IAEA-approved program to provide alternatives to national fuel cycle capabilities; or
- (II) is a facility participating in, and the export, reexport, transfer, or retransfer is associated with, a bilateral or multinational program to develop a proliferation-resistant fuel cycle;
- (ii) appropriate measures are in place at any facility referred to in clause (i) to ensure that no sensitive nuclear technology, as defined in section 4(5) of the Nuclear Nonproliferation Act of 1978 (22 U.S.C. 3203(5)), will be diverted to any person, site, facility, location, or program not under IAEA safeguards; and
- (iii) the President determines that the export, reexport, transfer, or retransfer will not assist in the manufacture or acquisition of nuclear explosive devices or the production of fissile material for military purposes.
5. 1963 Agreement issue
- U.S.-Indian Nuclear Agreement: A Bad Deal Gets Worse (Background Memo by Daryl G. Kimball & Fred McGoldrick)says:
Agreement Does Not Address Material Covered Under Prior Agreement: Under an earlier 1963 U.S.-Indian nuclear cooperation agreement, the United States supplied India with nuclear power reactors at Tarapur and fuel for those reactors. The spent fuel from those reactors is in storage and contains "reactor grade" plutonium. India has said it will reprocess the used fuel to extract plutonium for use as fuel for civilian power reactor fuel. But such reactor-grade plutonium, once separated, can also be used for nuclear explosive devices and there is enough plutonium from Tarapur's spent fuel for hundreds of them. Under the 1963 agreement, India must get U.S. approval to reprocess the spent fuel, but India has taken the position that since the agreement has expired, it is not legally obliged to maintain any of its nonproliferation commitments under that agreement.
The non-proliferation assurances and conditions in the new agreement should apply to the nuclear materials and equipment for the Tarapur reactors and nuclear material that the United States supplied under the 1963 U.S.-Indian agreement, which expired in 1993. The Indians refused to place items supplied under the expired agreement under the nonproliferation controls of the proposed new agreement, including peaceful nuclear use assurances and safeguards.
◊ US-Japan Agreement
- 1. The previous Agreement shall terminate on the date this Agreement enters into force.
- 2. Cooperation initiated under the previous Agreement shall continue under this Agreement. The provisions of this Agreement shall apply to nuclear material and equipment subject to the previous Agreement. Should the separate. arrangements called for in Article 11 of this Agreement be suspended with respect to such nuclear material or equipment, they shall be subject to the provisions of this Agreement during the suspension only to the extent covered by the previous Agreement.
◊ Atomic Energy Act
Sec. 127.Criteria governing United States nuclear exports (42 U.S.C.2156)
(2) No such material, facilities, or sensitive nuclear technology proposed to be exported or previously exported and subject to the applicable agreement for cooperation, and no special nuclear material produced through the use of such materials, facilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device.