The advance consent arrangements subject to criticism in the past, for all their legal infirmities, were at least entered into incidentally to new agreements for nuclear cooperation whose underlying text appropriately mirrored the guarantees required by Section 123. Indeed, until now, every new agreement for cooperation, even when accompanied by advance, programmatic consent arrangements, has on its face been consistent with the mandate of the NNPA. This includes agreements with Japan, Sweden, Norway, Finland, Hungary, the Czech and Slovak Republics, Poland and South Africa. To the extent any guarantee has not been included, e.g., a guarantee with respect to the use and retransfer of U.S.-origin "sensitive nuclear technology", the Administration has affirmed that the activities which would otherwise necessitate such a guarantee would not be permitted. See, e.g., H. Doc. No. 163, 98th Cong., 2d Sess. 6, 71, 87-88 (January 26, 1984) (U.S.-Sweden Agreement); H. Doc. No. 128, 100th Cong., 1st Sess. 9, 229 (November 9, 1987) (U.S.-Japan Agreement).

The EURATOM Agreement goes far beyond any prior accord in loosening U.S. controls, abandoning any textual pretense of complying with the NNPA. The new EURATOM Agreement represents a frontal assault on the basic U.S. consent rights regime. Although the Administration throughout the NPAS and DOE Analysis persistently characterizes the provisions of the Agreement as providing U.S. "consents" for various EURATOM activities, this is to engage in a semantic sleight of hand. In fact, the EURATOM Agreement on its face does not reserve U.S. consents over retransfers out of EURATOM and reprocessing and plutonium use within EURATOM. Instead, its clear text, with no reservation of consent, provides authorizations, good for the life of the Agreement, for retransfers and for fuel cycle activities within EURATOM that by law should be subject to consent rights. Indeed, as a practical matter, the Agreement delegates to the Europeans the power to determine whether any particular activity would or would not be consistent with basic U.S. non-proliferation standards.

At the same time, the Agreement essentially disables the United States from intervening in the operation of the Agreement by such means as suspending U.S. consents for activities whose proliferation risks turn out to be unacceptable. Indeed, since there are no "consents" to be "suspended", the only option available to the United States in such circumstances is suspension of cooperation itself, in whole or in part, with all EURATOM members, not just suspension of activities at particular facilities or with particular countries. The net result is that the EURATOM countries effectively will be free to go their own nuclear way, utilizing U.S.-origin nuclear facilities, equipment and fuel, with little or no oversight or control by the United States.

Given the anticipated expansion of EURATOM to include a number of Eastern European nations which will then enjoy the full array of rights and privileges accorded under the Agreement with regard to U.S.-origin, weapons-usable nuclear materials, it is obvious that the legal deficiencies of the Agreement are not merely technical in nature but carry with them serious national security implications for the United States.

The Specific Legal Deficiencies of the EURATOM Agreement

Furthermore, the Agreement fails to protect key U.S. non- proliferation interests. Thus, it does not secure perpetuity of some of the few critical controls over future uses that it has, e.g., the prohibition on enrichment of U.S.-origin uranium above 20% without U.S. consent. NPAS at III-9, H. Doc. No. 138 at 130. Its controls likewise do not apply to previously supplied reactors (and thus to non-U.S. material used in or produced through the use of such reactors), except to the extent identical controls existed under prior agreements. NPAS at II-26, III-8-9, H. Doc. No. 138 at 119, 129-130. In addition, it "does not contain the standard provision that all cooperation thereunder is subject to applicable treaties, laws, regulations and license requirements in force for the respective parties," NPAS at III-10, H. Doc. No. 138 at 131, thus putting the United States in a potential breach situation should the Congress in the future make statutory changes that would require more rigorous controls to be imposed. Indeed, Article 13(A)(1)(b) of the Agreement effectively gives EURATOM the right to consider its obligations terminated should the United States impose new conditions which result in any "prevention of nuclear trade envisaged under this Agreement." See NPAS at III-11, H. Doc. No. 138 at 132.

Lastly, the Agreement runs counter to the Administration's stated non-proliferation policy not to "encourage" reprocessing and to "seek to eliminate where possible the accumulation of stockpiles of highly-enriched uranium or plutonium" in civil programs. 29 Weekly Comp. of Pres. Doc. 1901 (September 27, 1993). In fact, the Administration acknowledges, "Use of U.S.- obligated plutonium throughout the Member States of EURATOM will ... follow as a natural and foreseeable result from ... the Agreement." DOE Analysis at 52, H. Doc. No. 138 at 211. Although the Administration pledged in its non-proliferation policy statement to "maintain existing commitments", nonetheless, the Administration's protestations to the contrary notwithstanding, neither the expiring 1960 agreement with EURATOM nor negotiating offers of prior Administrations can credibly be claimed to constitute "existing commitments".

For all these faults, the most fundamental deficiencies of the Agreement still lie in (1) its failure to secure necessary consent rights and, relatedly, (2) its failure to secure meaningful rights to suspend authorized fuel cycle activities such as reprocessing and plutonium use. As a result of these failures, the Agreement is not in compliance with the requirements of Section 123 of the Act.

(1) The Absence of Consent Rights

The gross deficiencies in the EURATOM Agreement in failing to provide for U.S. consent rights are apparent upon even the most superficial examination. The Agreement manifestly does not contain four of the nine specific guaranty provisions mandated by Section 123 of the Act.

(a) Retransfers

Section 123a.5 of the Act, 42 U.S.C. 2153(a)(5), requires that new agreements for nuclear cooperation include a guaranty that U.S.-origin facilities, materials and equipment "will not be transferred ... beyond the jurisdiction or control of the cooperating party without the consent of the United States." Article 8(1)(C) of the EURATOM Agreement confounds this requirement. It simply authorizes retransfers "according to procedures set out in the Agreed Minute." Paragraph B of the Agreed Minute, in turn, provides that retransfers by EURATOM are permissible, for the life of the Agreement and without further notification, as long as they are to countries identified as authorized transferees in certain lists provided by the United States.

Several sorts of retransfers are contemplated. An initial list, provided by the United States to EURATOM upon entry into force of the Agreement, will permit transfers of "low enriched uranium, non-nuclear material, equipment and source material" ("8(1)(C)(i) transfers"). Agreed Minute, Paragraph B.2. If requested by EURATOM, the United States must also provide a subsequent list which will permit transfers of "irradiated nuclear material" and "other nuclear material", inter alia, for fuel cycle activities such as reprocessing and plutonium use ("8(1)(C)(ii) and (iii) transfers"). Agreed Minute, Paragraph B.3.

There are minimum requirements for inclusion of a country on the lists of authorized transferees. For example, the third country must be a party to an agreement for cooperation with the United States (Agreed Minute, Paragraph B.2). Further, the United States does retain the power to delete countries from its lists of authorized transferees (Agreed Minute, Paragraph B.4); and, as affirmed by the Administration, preparation of a list for 8(1)(C)(ii) and (iii) transfers will entail a subsequent arrangement under Section 131 of the Act. See NPAS at II-11, 14, House Doc. No. 138 at 104, 107.

Nevertheless, it is apparent that the effect of these provisions, once a list is provided by the United States, is to allow EURATOM essentially to retransfer without further U.S. oversight and control, i.e., without U.S. "consent". It is pure sophistry to claim, as the Administration does, that "consent" is maintained, simply because transfers must take place "according to the procedures set out in the Agreed Minute." NPAS at II-9, H. Doc. No. 138 at 102. In fact, since an initial list has already been provided, freedom to transfer will commence, for 8(1)(C)(i) transfers from EURATOM, with the entry into force of the Agreement and may continue over a period of thirty years or more. See Draft U.S. Note Regarding Third Countries Authorized to Receive Retransfers, H. Doc. No. 138 at 245.

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