Section 123a.(7) of the Act, 42 U.S.C. 2153(a)(7), requires that agreements for cooperation specify that U.S.-origin fissile material may not be "reprocessed, enriched or ... otherwise altered in form or content without the prior approval of the United States." Article 8(2) of the EURATOM Agreement, however, provides that reprocessing and alteration in form or content "may be carried out pursuant to this Agreement within the territorial jurisdiction of either Party in facilities forming part of the delineated peaceful nuclear programs described in Annex A."

Annex A to the Agreement does contain a list of facilities in EURATOM constituting a "Delineated Peaceful Program". It might at first blush seem that the authorization for reprocessing and alteration in form or content is therefore limited. In fact, it is open-ended.

Paragraphs B.6 and 7 of the Agreed Minute provide that EURATOM, in its sole discretion and without need for any U.S. approval, may add facilities to its "delineated program" anywhere within its territorial jurisdiction at any time, simply by so notifying the United States in writing and providing certain minimal information, i.e., name, type and location, together with a confirmation that safeguards and physical security measures will be applied. As a practical matter, therefore, EURATOM countries (including any new members in the future, such as former East Bloc countries) are free, without U.S. "approval", to conduct reprocessing operations anywhere they choose at any time during the term of the Agreement. This freedom goes considerably beyond that afforded to Japan in 1988, since, in the Japanese case, under the terms of the U.S.-Japan "Implementing Agreement", new facilities must at least conform with agreed "safeguards concepts" -- concepts spelled out in some detail for specified facilities in the accord itself. See H. Doc. No. 128 at 42-43, 98-144. See also NPAS at III-7-8, H. Doc. No. 138 at 128-129. No such detail governing safeguards is included in the EURATOM Agreement.

(c) Storage of Plutonium and Highly Enriched Uranium

Section 123a.(8) of the Act, 42 U.S.C. 2153(a)(8), provides that agreements for cooperation must include a guaranty that plutonium and highly enriched uranium "will [not] be stored in any facility that has not been approved in advance by the United States." Article 8(3) of the Agreement imposes some minimal protections on facilities where such material may be stored in EURATOM, i.e., application of minimal physical protection levels established by the International Atomic Energy Agency, but otherwise imposes no restrictions, other than a simple notification requirement, on the nature and location of facilities, including a multitude of reactors, within EURATOM where fuel cycle activities involving U.S.-origin plutonium and highly enriched uranium may occur. Indeed, the only obligation is that EURATOM "record its facilities on a list, made available" to the United States. It can make changes to that list at any time, and the United States has no power to veto storage in any particular facility. In short, plutonium and highly enriched uranium will be able to flow freely to any facilities within EURATOM's jurisdictional confines, including countries from the former East Bloc which are not now EURATOM members but which may become members in the future. In such circumstances, in no way can the United States be said to have retained advance approval rights, as required by the NNPA, over the facilities in which these highly dangerous materials may be kept.

(d) Sensitive Nuclear Technology

Section 123a.(9) of the Act, 42 U.S.C. 2153(a)(9), specifies that agreements for cooperation must include a guaranty that all the requirements of Section 123 will apply to any special nuclear material, production facility or utilization facility produced or constructed through the use of "sensitive nuclear technology" supplied by the United States. The EURATOM Agreement contains no such guaranty. At the same time, a "Side Letter" to the Agreement affirms that such technology "may be transferred to the Community" in some fashion that is outside the terms of the Agreement. "Sensitive nuclear technology" (defined in Section 4(a)(6) of the NNPA) is technology "which is not available to the public and which is important to the design, construction, fabrication, operation or maintenance of" enrichment, reprocessing and heavy water production facilities -- facilities which pose the greatest proliferation risk. It was meant to be subject under the Act to the same controls applicable to facility and fuel exports. The clear suggestion in the EURATOM Agreement that, despite the absence of such controls in the Agreement, sensitive nuclear technology still might be transferred to EURATOM negates the very purpose of the statutory provision and is flatly contrary to the NNPA.

(2) The Absence of Meaningful Suspension Rights

Compounding the deficiencies of the EURATOM Agreement in the area of consent rights, the Agreement does not reserve to the United States any realistic possibility of obtaining a suspension of activities within EURATOM that turn out to pose unreasonable proliferation risks or threats to U.S. national security. In a May 26, 1988, letter to former Congressman Stephen Solarz, then Deputy Secretary of State John Whitehead affirmed that long-term consents for fuel cycle activities provided in connection with the nuclear cooperation agreement with Japan were subject to a "unilateral and unambiguous right [of the United States] to suspend." Such an asserted right provided some comfort to the Congress in acquiescing to the terms of the Japan agreement. No equivalent right, however, can be found in the EURATOM Agreement.

First, there are no consent right provisions as such in the proposed EURATOM Agreement. Consequently, there is no consent that can be given and then be suspended. In the case of Japan, the United States could simply suspend the so-called "Implementing Agreement". The terms of cooperation would then revert to those of the underlying agreement (including case-by- case consent rights). In the case of EURATOM, the United States must fall back on the general provisions (embodied in Article 13(A) of the Agreement, subject to the gloss of the Agreed Minute), which provide either for cessation of further cooperation in toto or for suspension or termination of all or part of the Agreement itself -- a situation which would leave the United States with less, rather than more, control over reprocessing and plutonium use in EURATOM.

Second, under Article 20(2) of the Agreement, purported suspension rights do not cover non-U.S.-origin uranium irradiated in the future in U.S. reactors supplied prior to December 31, 1995. See NPAS at II-26, H. Doc. No. 138 at 119. This leaves the Europeans free in the future to arrange for reprocessing vast amounts of uranium fuel enriched in Europe, even when that fuel may eventually be burned in U.S.-supplied reactors, without any risk that reprocessing might be suspended.

Third, any U.S. right to suspend or terminate activities authorized under the Agreement is severely restricted. Article 13(A) of the Agreement, which specifies the conditions for suspension or termination, essentially limits U.S. rights to the most extraordinary and unlikely situations -- a material violation of the Agreement, abrogation of safeguards, or unlawful detonation of a nuclear explosive device. In fact, these are nothing more than the statutory conditions for termination of cooperation set forth in Section 129 of the Act, 42 U.S.C. 2158, which the President has no power to trade away in any event, except through a formal waiver process subject to Congressional review and override authority. The Agreement, in short, provides no suspension or termination rights beyond those which are already statutorily-mandated.

Fourth, in those situations described in Article 13(A) where suspension would be justified and where return of U.S.-origin materials might consequently follow in the normal course, the Agreement specifies that, to require return, the United States must "compensate promptly the party for the fair market value thereof and for the costs incurred as a consequence of such removal". See Article 13(B)(9). The Agreement thus imposes an obstacle that is likely to make suspension impossible for all intents and purposes.

Fifth, the limited ability of the United States to exercise its suspension right under Article 13 of the Agreement is further circumscribed, rather than expanded, under the attached Agreed Minute. Paragraphs B.8-13 of the Agreed Minute deal with the suspension of "nuclear fuel cycle activities" under Article 8(2) of the Agreement. Paragraph B.8A.(a) nominally provides that suspension can be ordered on the basis of a judgment that continuation would result in "a serious threat to the security" of the United States or "a significant increase in the risk of proliferation." However, the limitations on the actual exercise of this judgment are manifold:

-- The list of the types of activities which could trigger suspension essentially mirrors the highly restrictive Article 13 criteria, expanded only marginally to include situations of "war", "serious internal disturbances" and "serious international tension constituting a threat of war" (Paragraph B.8A.(a)(vi)) -- situations in which the suspension right is likely inherent in any event under the well-recognized principle of international law, rebus sic stantibus. See Rest. 3rd, Restatement of the Foreign Relations Law of the United States 336. While the Administration asserts that this list is "illustrative only", NPAS at III-5, H. Doc. No. 138 at 126, it is hard to imagine what other events could have the "same or greater degree of seriousness" justifying suspension.

-- Suspension rights are limited by their terms to activities involving reprocessing and alteration in form or content authorized under Article 8(2). The Agreement provides no express authority for the United States to suspend the authorization under Article 8(3) for the Europeans to store plutonium and highly enriched uranium essentially anywhere they wish. In other words, even if the United States could suspend the Agreement's authorization for reprocessing in a meaningful way, it has no ability to stop the continued commerce in and circulation of previously-recovered plutonium or highly enriched uranium throughout the Community.

-- Under the provisions of Paragraph B.13, suspension rights do not extend to the reprocessing of fuel received in EURATOM under the terms of the prior agreements, i.e., to the vast majority of fuel within EURATOM as of December 31, 1995, unless EURATOM, in its sole discretion, so elects. EURATOM in fact has the option -- an option which it would undoubtedly exercise -- to "continue to reprocess or alter this 'old' nuclear material." See NPAS at II-26, III-5, H. Doc. No. 138 at 119, 126. Since most, if not all, Japanese spent fuel contracted for reprocessing in Europe has already been shipped to European facilities, and since relatively little low-enriched uranium fuel of U.S.-origin is likely to be sent to EURATOM in the future, this lack of retroactivity guts the effectiveness of any suspension and renders purported suspension rights a nullity.

-- Only the President can make a suspension decision (Paragraph B.8C.), and, even then, the decision can be taken "only in the most extreme circumstances of exceptional concern from a non-proliferation or security point of view" (Paragraph B.12).

-- Perhaps most important, Paragraph B.8D. deprives the United States of the ability to make a facility-specific or activity-specific suspension but instead requires that any decision with respect to activities involving reprocessing/alteration in form or content "apply to the activities of the other party...taken as a whole." In other words, the Agreement would require that the U.S. suspend all nuclear cooperation with respect to these activities with all members of EURATOM in order to respond to problems at a single facility -- a virtual political impossibility which, when considered in tandem with the other limitations discussed above, renders any suspension right illusory. While the Administration contends that this provision affords the United States greater leverage ("significant additional control") over the Europeans, NPAS at II-17, H. Doc. No. 138 at 110, its candid admission that the Europeans, not we, sought its inclusion give the lie to this assertion. NPAS at III-5, H. Doc. No. 138 at 126.

Conclusion -- Options for the Congress

The Congress wanted uniform and unambiguous controls over U.S. exports. The proposed EURATOM Agreement provides nothing of the sort. The Congress, in such circumstances, should not acquiesce in the Administration's assertion that the Agreement fully complies with the requirements of the NNPA.

Congressional rejection of the Agreement as being inconsistent with the NNPA does not leave the Administration without options. The NNPA recognizes that special circumstances might warrant waiver of some NNPA statutory guarantees for individual agreements for cooperation. Thus, Section 123 specifically allows the President to exempt a new agreement from any of its requirements "if he determines that inclusion of any such requirement would be seriously prejudicial to the achievement of United States non-proliferation objectives or otherwise jeopardize the common defense and security." In that case, as noted above, an affirmative vote of the Congress is necessary to bring an agreement into force.

The provisions of the 1985 "Proxmire Amendment" to the Act, Pub. L. No. 99-64, 301, 99 Stat. 159 (July 12, 1985), provide a basis for the Congress now to request that the Administration proceed in this fashion, or renegotiate the Agreement. The Proxmire Amendment was intended to reestablish the proper balance of authority between the Executive Branch and the Congress following the Supreme Court's Chadha decision invalidating legislative vetoes. The Conference Report on the Proxmire Amendment makes it clear that if, during the initial consultation period of not less than thirty days with the Foreign Relations and International Relations Committees under Section 123b. of the Act, either Committee deems any provision of an agreement inconsistent with the Act, the President is "expected" to respond either by renegotiating it or resubmitting it with a waiver of statutory requirements. H.R. Rep. No. 180, 99th Cong., 1st Sess. (1985), reprinted in, 131 Cong. Rec. H. 4905, H. 4919- 4920 (daily ed., June 25, 1985).

If the Administration deems EURATOM to be a special case, it should so indicate in a forthright manner, and the Agreement should be resubmitted with an appropriate waiver determination. Such an approach would require the Administration to deal honestly with the ways in the EURATOM Agreement varies from statutory requirements and to justify the Agreement in political terms, rather than to do violence to the basic legal framework of non-proliferation controls established by the NNPA. In the same vein, acceptance by the Congress of the Administration's assertion that the EURATOM Agreement is consistent with all parts of Section 123 would entail acceptance of the Administration's tortured logic and a contorted interpretation of statutory language and legislative history. Such an outcome would fundamentally compromise the integrity of the NNPA and create a precedent that could have disastrous future consequences for U.S. non-proliferation efforts and for supreme national security interests.

Eldon V. C. Greenberg
Garvey, Schubert & Barer

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