E

Nuclear Cooperation Agreement Details

There are nine requirements for nuclear cooperation agreements (NCAs), with additional conditions, tailored in specifics through negotiations (see Table E-1). The Department of State leads NCA negotiations under the interagency guidance of the National Security Council, with assistance and concurrence of the Department of Energy and in consultation with the U.S. Nuclear Regulatory Commission. The President shares any proposed agreement for consultation to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations along with an unclassified Nuclear Proliferation Assessment Statement (NPAS) with a classified annex, which then goes to Congress as a whole, and the agreement goes into effect unless Congress issues a Joint Resolution of disapproval (CRS 2021; GAO 2020). The length of time for the negotiations among the parties to the agreement varies considerably, as they depend on the availability of the negotiating resources and the levels of interest. They average 400 days from an initial memorandum to entry into force up to a decade or more for agreements with new partners. The NCA Agreements, referred to in the United States as “123 Agreements,” typically have a time limit, requiring renegotiation for extension and the cooperating parties have a safeguards agreement with the IAEA and are parties to the Additional Protocol for the Convention on Physical Protection of Nuclear Materials (CPPNM/AP). Pursuant to the 123 Agreement, the United States also negotiates “subsequent arrangements” on implementing the agreement, such as duration or physical protection requirements, and can cover any other arrangement for nonproliferation purposes (CRS 2021).

Under the “Additional Restrictions” condition, in its 123 Agreement with the United Arab Emirates (UAE), the United States developed a “gold standard” where the cooperating party applies all the conditions, including no enrichment or reprocessing without U.S. consent, to any special nuclear materials or nuclear facilities under its jurisdiction, whether they stem from the items transferred under the 123 Agreement or not. The United States has sought similar commitments in its subsequent 123 Agreement negotiations, along with the requirement for adopting the Additional Protocol, which has proved difficult in some negotiations (GAO 2020). However, the negotiations elaborate how the parties will meet the nine conditions, including the gold standard, which allows the Department of State to seek palatable alternatives that not only achieve the nonproliferation and national security aims of the conditions, but address U.S. geostrategic objectives of nuclear cooperation. For example, the agreements with the UAE and Taiwan contain legally binding commitments against enrichment activities, while the agreements with Mexico and Vietnam contain political commitments to obtain fuel only from the international market, thus forsaking enrichment activities.

TABLE E-1 The Nine Conditions for 123 Agreements

SOURCE: J. Warden, 2021, “U.S. Agreements for Peaceful Nuclear Cooperation (123 Agreements),” presented to the committee on October 4, 2021. Available by request through PARO@nas.edu.

The Department of State perceives the 123 Agreements as having an agnostic perspective on their application to new and advanced reactors and their related technologies (Warden 2021). Nonetheless, the conditions may prove more problematic for some reactor types, such as U.S. consent for enriching fuels for any reactors in their jurisdiction requiring HALEU, and to negotiations involving any of the more than sixty countries yet to ratify the Additional Protocol (IAEA 2022). The gold standard and other 123 Agreement conditions have prompted some to suggest reforming the agreements to rely more on greater inspector access and better tools and practices for verification and monitoring and viewing favorably “black box” or “design, build, operate,” particular for transfers of new and advanced civilian nuclear power reactors (Nephew 2020).

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