Foreign Policy Blogs

House Foreign Relations Action to help make U.S. Nonproliferation Policy Consistent

My very first post for this blog, on February 24th, discussed the need for consistency in U.S. policy regarding prevention of proliferation.  I’d like to return to that subject to review recent Congressional action which, to my mind, helps to institutionalize some much-needed consistency in the context of Agreements for Cooperation, so-called 123 Agreements.

The Chair and Ranking Member of the House Foreign Relations Committee, Congresswoman Ileana Ros-Lehtinen and Congressman Howard Berman, separately introduced bills that would amend the Atomic Energy Act of 1954.  Ros-Lehtinen’s bill, H.R. 1280, requires Congressional approval of agreements for peaceful nuclear cooperation with foreign countries, prohibit assistance to countries, other than humanitarian assistance, to countries that withdraw from the NPT (Note: This would not apply to North Korea as the provision is not retroactive), and would require the return of all U.S.-origin materials and equipment provided to that country if it withdraws.

The somewhat lengthier Berman bill, H.R. 1320, titled the “Nuclear Nonproliferation and Cooperation Act of 2011”, complements Ros-Lehtinen’s bill, but goes further.  It requires that the U.S. consider whether or not a country to which it provides assistance under the Foreign Assistance Act of 1961 or the Arms Export Control Act has ratified the Additional Protocol to its safeguards agreement with the IAEA.  It also requires that the President, in submitting a 123 Agreement to Congress, certify that the cooperating country “has not engaged in a significant transfer of material, equipment, or technology for the production of nuclear, chemical, or biological weapons to another country; has cooperated with U.S. efforts to halt the proliferation of such material, equipment or technology; has not engaged in significant transfers to the Guidelines of the Nuclear Suppliers Group or the Australia Group; and has established an effective export control system to guard against illicit transfers or such material, equipment, or technology.”

All good stuff.  But, here’s my favorite part: the bill also provides a corollary to the State Department’s State Sponsors of Terrorism list called the “State Sponsors of Proliferation of Weapons of Mass Destruction” list.  In so doing, the bill prohibits any assistance to any country determined by the Secretary of State to have repeatedly provided support for acts of proliferation of equipment, technology, or materials to support the design, acquisition, manufacture, or use of weapons of mass destruction.  Such determinations would be published in the Federal Register for all to see.

IMHO, this is a really creative and much-needed measure which elevates the profile of such acts of proliferation.  If the U.S. is serious about preventing the proliferation of WMD, then we need a bit more horizontal enforcement, and we need to up the embarrassment factor.  I think this measure helps to do that.  Well done Mr. Berman!

In an April 14th markup, the Committee agreed to an Amendment in the Nature of A Substitute which uses H.R. 1280 as its basis and integrates a number of provisions in H.R. 1320, including the State Sponsor section.  It also incorporates a measure which enables 123 agreements in which the cooperating country forswears ENR technology to go into effect after 90 days of continuous session.  But, if an agreement does not have this “gold standard” provision, it is then subject to an up or down vote of both chambers.  This was necessary because the Administration was reluctant to commit to making future agreements require the same provision. Sorry, but I just don’t get this.  If you are serious about preventing the spread of technologies that can be used in a covert nuclear weapons program, then facilitating trade in technologies that can easily be used to produce weapons-grade uranium or separate plutonium is probably not a great idea.

Predictably, the nuclear industry is up in arms over this bill.  When the bill was reported favorably out of Committee, Alex Flint, senior veep for government affairs at the Nuclear Energy Institute (NEI) said the following: “The bill represents a significant challenge to U.S. influence in nuclear safety and nonproliferation matters globally and threatens thousands of American jobs and billions of dollars in exports by U.S. companies.”  Cry me a river Alex.  Its called corporate responsibility.

He continues:  “There is no compelling reason to amend current consent provisions and significantly delay or limit the number of agreements without any benefit to U.S. foreign policy goals.”  Excuse me, but I thought that preventing proliferation of materials and technologies that could be used in covert nuclear weapons programs WAS a U.S. foreign policy goal.  Oh, and the fact that illicit transfers of such items continue to be registered in the IAEA database, in addition to the continued discovery of covert nuclear facilities and ongoing actions of countries like North Korea and Syria ARE, to my mind, compelling reasons for trying to plug more holes in the nonproliferation system.

I think we all know that industry loathes being regulated, but, in this case, these folks need to swallow that bitter but entirely necessary pill.  H.R. 1280 helps the AEA address 21st century realities.  Unfortunately, while this bill, if enacted, enables the U.S. to lead by example, other countries may not follow suit.  This is why the Administration AND Industry need to grow a pair and get other supplier countries to emulate the approach codified in H.R. 1280 as reported out of HFAC.   Yes, it will be difficult.  But if the U.S. really means what it says and really, really wants to prevent proliferation globally, than they must take this very necessary step.  Doing so will not only bolster nonproliferation efforts worldwide, but it will also help to level the playing field for the nuclear industry.

H.R. 1280 allows the U.S. to plug some important holes in the nonproliferation system.  By not enacting the measures in this bill, the U.S. risks abdicating responsibility in its bid to set a strong example in the prevention of the spread of nuclear weapons technologies and weapons-usable materials.  So, when Sig Hecker returns to North Korea to discover that the enrichment facility at Yongbyon has some startlingly new machinery, and pundits again charge that the nonproliferation system is broken, we should not wonder why:  its because measures like those in the HFAC bill were not taken.  Lets belly up to the bar and plug those gaps which nuclear supplier countries or “state sponsors of proliferation” continue to exploit, either intentionally or not.

For more on the HFAC measures:

HR 1280 Ros Lehtinen Bill

HR1320 Berman Bill

NEI release on Berman Bill

Elaine Grossman Global Security Newswire Piece

Arms Control Today Dan Horner Piece



Jodi Lieberman

Jodi Lieberman is a veteran of the arms control, nonproliferation, nuclear terrorism and nuclear safety trenches, having worked at the Departments of State, Energy and Nuclear Regulatory Commission. She has also served in an advisory capacity and as professional staff for several members of Congress in both the House and Senate as well as the Senate Homeland Security Committee. Jodi currently spends her time advocating for science issues and funding as the Senior Government Affairs Specialist at the American Physical Society. The views expressed in her posts are her views based on her professional experience but in way should be construed to represent those of her employer.

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