The President submitted the renewed U.S. agreement for peaceful nuclear cooperation with Taiwan to Congress on January 7.  Presumably, Vietnam’s new agreement will soon be submitted as well.  You can read the Taiwan package, including the agreement, here.

Bottom line up front:  Congress ought to approve the Taiwan agreement.  But it should make clear that a trend in these agreements is not consistent with the Congressional role in current law in approving or disapproving these pacts.  The trend arises out of the fact that the Taiwan agreement (similar to Japan’s agreement) is of indefinite duration.  While Japan’s 123 did have a duration specified, it however also included language that has a negative effect on Congressional review.  Unless there is a major renegotiation, or new agreement to replace the Taiwan or Japan agreements for some reason, Congress only ever reviews nuclear cooperation one time with them under review provisions enacted in 1978.  The President can do this–nothing in the law says he cannot.  However, it would appear to be inconsistent with the intent of all major nuclear cooperation laws enacted by Congress, going back to first Atomic Energy Act (of 1946) that provide a strong legislative role.

These are not treaties under U.S. law.  They are Executive agreements that Congress must approve or disapprove.  Treating them as indefinite U.S. commitments and obligations for civilian nuclear assistance is unwise.  And yes, I can already hear the interagency reply:  ”Indefinite duration does not mean infinite duration; we can cease cooperation at any time.”  Yes, we know that.  But that’s not why the Executive (or our allies) favor this trend.  Consistent with former Secretary of Defense Bob Gates’ recently public view of Congress, it’s just another case of Executive power growing where Congress does not do enough oversight.

The Japan Agreement’s Duration

Article 16 of the 1987 US-Japan agreement set a precedent that is now replicated in the Taiwan text.

Article 16 states (in full):

1. This Agreement shall enter into force on the thirtieth day after the date on which the parties exchange diplomatic notes informing each other that their respective internal legal procedures necessary for entry into force of this Agreement have been completed and shall remain in force for a period of thirty years, and shall continue in force thereafter until terminated in accordance with the provisions of paragraph 2 of this Article.

2. Either party may, by giving six months written notice to the other party, terminate this Agreement at the end of the initial thirty-year period or at any time thereafter.

3. Notwithstanding the suspension or termination of this Agreement or any cooperation hereunder for any reason, Article 1, paragraph 4 of Article 2 and Articles 3, 4, 5, 6, 7, 8, 9, 11, 12 and 14 shall continue in effect to the extent applicable.

4. At the request of either party, the parties shall consult with each other whether to amend this Agreement or to replace it with a new agreement.

While the legislative history provides no clear view of the USG or the US Congress regarding this unique construction, it is clear that, unless the USG or Japan gives 6-months’ notice under 16.2, or either decides that an amendment is needed under 16.4, then the agreement itself continues for an indefinite period of time, never again coming back to Congress for review.

The TECRO Agreement’s Duration

Paragraph (3) of Article 15 of the Taiwan agreement is a shorter formulation of the Japan language, but with the same effect:

This Agreement shall remain in force indefinitely unless terminated by either Party on one year’s written notice to the other Party.  Prior to termination of this Agreement, the Parties shall review this Agreement in accordance with the provisions o f Article 12.2.

Interpretation

Unlike other 123 agreements, which contain fairly standard duration, termination and entry-into-force requirements, the effect of these provisions could be that the US Congress would not again review an agreement even after it expired (there being no decision by either party under 16.2 or 16.4), in Japan’s case.  Japan won an indefinitely extendable agreement that cut Congress out of future review.  Japan’s nuclear cooperation with the United States isn’t given the benefit of the review contemplated by the Nuclear Nonproliferation Act of 1978 (Public Law 95-242), despite the fact that it, like the India 123 and the US agreement with EURATOM, involves substantial retransferring and reprocessing of US material.  That means that Congress only got a notional picture of the Japanese fuel cycle in 1987–not the the fuel cycle it actually has now.  Many of these agreements negotiated since the Japan pact contemplate no clear need to return to Congress for review.  Even the India agreement (which, apart from the US-Australia agreement, permits the United States to transfer sensitive nuclear technology, in that case, to India, in the other, from Australia to the United States (for SILEX)) has a duration of 40 years, but then includes rolling 10-year extensions that are not clearly subject to Congressional re-approval once the pact’s set duration expires.

Other allies in Asia will seek similar treatment, now that Taiwan got it.  Notably, South Korea will now push (for reasons of prestige and regional competition) for an identical provision in its agreement since Japan and Taiwan now have it.

On ENR

The Taiwan agreement contains a fairly clear prohibition on any enrichment and reprocessing (ENR) activities in Taiwan, subject to certain conditions that cover routine things like post-irradiation examinations (PIEs) of material and etc.  Defined term (T) of Article 1 includes a new term, and definition, to wit, “(T) ‘Sensitive nuclear facility’ means any facility designed or used primarily for uranium enrichment, reprocessing of nuclear fuel, heavy water production, or fabrication of nuclear fuel containing plutonium[.]”  Taiwan shall not have these as Article 7 makes it plain that:

TECRO….shall not possess sensitive nuclear facilities or otherwise engage in activities related to the enrichment or reprocessing of material or to the alteration in form or content (except by irradiation or further irradiation or, if agreed by the Parties, post-irradiation examination or spent fuel stabilization) of plutonium, uranium-233, high enriched uranium or irradiated source material or special flssionable material.

Section 3 of the Agreed Minute also appears to make clear that retransfers of U.S. material from Taiwan to other locations require case-by-case consent.

What happens to Taiwan’s spent fuel?  France, inter alia.  Paragraph (a) of Section 3 of the Agreed Minute to the agreement states that:

The Parties agree that irradiated source material or special fissionable material subject to Article 5 and Article 6 of the Agreement may be transferred from the territory of the authorities represented by TECRO to France, or other countries or destinations as may be agreed upon in writing by the Parties for storage and reprocessing.  All such transfers described in this paragraph a. of Section 3 shall be in compliance with the policies, laws, and regulations of the recipient country or destination, including any requirement that indicates a provisional period for the receipt and treatment of such irradiated source material or special fissionable material or that the waste produced as a result of the reprocessing be returned to the territory of the authorities represented by TECRO.

Fuel Supply Commitment

Article 2 contains a relatively unconditional commitment from the United States to TECRO that it will cooperate in “Promotion of the establishment of a reliable source of nuclear fuel for future civil nuclear reactors deployed within the territory of the authorities represented by TECRO[.]”  It might have made sense to tie this commitment to other provisions regarding nonproliferation; reading it as a piece of the whole however, a question arises whether we are committed thusly for a very long time.

Weighing the Issues

On balance, despite the fact that the Taiwan agreement could be read as a limitation on Congressional power, it is still a good agreement.  As you can read it, there is a long enumeration of things related to fuel-cycle nonproliferation contained in it (Articles 2 and 3).

It’s version of the Gold Standard passes the test imposed by many nonproliferation advocates.  No transfers of sensitive nuclear technology nor of restricted data are included (humor aside, we never would).

However, we now have several items in play.  Discretely, issues arise combining the questions related to ENR under US 123 agreements and the role Congress has in policy concerning peaceful nuclear cooperation agreements, generally.  Is it a reward to Taiwan for adopting the Gold Standard that its agreement has an indefinite duration?  Certainly that did not and could not apply to Japan, which has indefinite duration and broad consent rights involving U.S. material in Japan.  Would it a be reward for South Korea if it sticks to the 1992 commitments it made on ENR?  Regarding Vietnam, does it get an indefinite agreement even though it did not agree to the Gold Standard?

In Taiwan’s case, the original 1972 123 agreement was never renegotiated despite the plain command in the NNPA that it should have been, and not 40 years later.  Neither was South Korea’s agreement ever renegotiated, and it now must be extended for two years as it expires in less than 90 days.  But Taiwan has something else in common with South Korea besides old agreements–neither nation’s program ever had a Nuclear Proliferation Assessment Statement (NPAS) submitted to Congress regarding its nuclear programs (all of them).  Now that Taiwan’s NPAS is with Congress, it will certainly include the complex history of Taiwan’s nuclear weapons effort.  Congress would do well to take a long look at the National Security Archive record to which I have linked.  It demonstrates a few lessons that were apparently never learned, or are ignored, in other countries.  Classified oversight in closed spaces should be used to riddle out what the open record has never shown on US-Taiwan nuclear cooperation, in the past.  But significantly, Congress needs to focus on what is and is not included in these NPAS documents and Taiwan’s history will provide Congress with a unique chance to see how much the State Department includes in rendering judgments about a particular country’s proliferation past.  It might even lead somebody to finally decide what should and should not be included in an NPAS–something the NNPA, as enacted, never did.

As for South Korea, I recommend against inclusion of indefinite duration in any new 123 agreement–whatever it says about ENR unless it can motivate negotiators to think about things other than the pending extension and pyroprocessing.  The forces of change shaping Asian nuclear calculations are in significant flux.  China’s 123 will expire in 2015–a year before the South Korean pact will expire, if it is extended, in 2016.  That’s no time to take Congress out of the loop on US assistance to foreign nuclear energy programs.