Nuclear Revisionism: The United States and the Nuclear Non-Proliferation Act of 1978'

This is a revised version of a paper originally presented to the Arms Control Study Group, of the British International Studies Association, at a meeting in London in July of 1978. I am indebted to several people who provided substantive comments on the earlier draft. In particular I wish to thank Dr. Warren Donnelly of the U.S. Congressional Research Service; Dr. John Simpson, my supervisor; and Professor Steven Warnecke, presently at the International Institute for Strategic Studies. One other mention should be made and that is of the Social Science Research Council which provided me with finance to undertake field research in the United States during Easter 1978. This article is a spin-off from that research.

Address by President Eisenhower Before the United Nations General Assembly, December 8, 1953.

Statement by the President on His Decisions Following a Review of U.S. Policy, April 7, 1977.

This discussion is based upon PL 83-703 Atomic Energy Act of 1954, sections 123, 54, 101, 102, 103; and the Code of Federal Regulations 10CFR-110, 50, 70.

See United States Agreements for Co-operation in Atomic Energy, an analysis prepared for the Committee on Government Operations, U.S. Senate by the CRS January, 1976. (U.S. GPO Washington D.C. 1976), pp. 40-43.

This discussion is based entirely on the Nuclear Non-Proliferation Act of 1978, PL95-242, Titles I to V. Specific sections of the Act are not cited for reasons of brevity. The most important sections are 104, 201, 207, 303, 304, 305, 306, 401, 403, 404, 502.

That new structure is not discussed in detail here. Suffice it to note that before an export can be made it requires NRC and Department of State approval. Should they disagree, the President has final authority subject to Congressional approval.

This period can be extended annually by the President upon expiry but only subject to Congressional approval.

See S. Rippon , " International Agreements will never be the same again," Nuclear News, May 1978, p. 60.

The double-labelling issue first arose as a major contention in U.S.-Japanese-Canadian nuclear relations when the Canadians, in line with the new export policy, desired approval rights over Canadian supplied fuel. This created problems for Japan as the U.S. simultaneously held approval rights over the same SNM since it was enriched in the U.S. After considerable discussion amongst the parties an agreement was reached whereby Canada would relinquish its approval rights in return for an undertaking from the U.S. that it consult with the Canadians when approval requests were filed. See Nuclear Engineering International, January 1978, pp. 6-7. There is now an NSG Study Group examining the problem of multiple labelling.

This was first recognised by W. Bader in The United States and the Spread of Nuclear Weapons (Pegasus, 1968). See also W.H. Donnelly , Indications of Congressional Interest and Concern over the Proliferation of the Ability to Make Nuclear Weapons, Congressional Research Service, April 1976; M.A. Bauser , " United States Nuclear Export Policy: Developing the Peaceful Atom as a Commodity in International Trade," Harvard International Law Journal, Vol. 18, No. 2, 1977, pp. 227-272; W.H. Donnelly , " Congress and Non-Proliferation, 1954-77," August 1977 , mimeo.

See H.P. Green and A. Rosenthal , Government of the Atom ( New York: Atherton Press, 1963), pp. 133-146.

The first Congressional move was by the Joint Committee on Atomic Energy in amending section 123d of the 1954 Act to give Congress 60 days to consider a proposed agreement for co-operation and the power to veto it. More detailed discussion of the Congressional initiatives can be found in: W. H. Donnelly, "Congress and Nuclear Safeguards," April 1975, prepared for the Atomic Industrial Forum's Workshop on Plutonium, Safeguards and the Breeder.

See Export Reorganization Act 1976—Hearings before the Committee on Government Operations on S1439 (U.S. GPO Washington, 1976).

The nuclear export procedural changes were essentially a codification of the informal arrangements (in the form of an Executive Order ! 1902) arrived at in the SubGroup on Nuclear Export Control (SNEC comprised State, NRC, ERDA, Commerce, ACDA, and DOD) in 1975. Sec: " Statement of Facts on Nuclear Export Licensing." prepared for the Committee on Government Operations by the GAO. Reprinted in Export Reorganization Act 1976—Hearings before the Committee on Government Operations on S1439 (U.S. GPO Washington D.C., 1976), pp. 882-889.

" Executive Order 11902," February 2, 1976, reprinted in Nuclear Proliferation Factbook printed for the use of the Committee on International Relations, U.S. House of Representatives and the Committee on Governmental Affairs, U.S. Senate (U.S. GPO Washington D.C., 1977).

See Nuclear Non-Proliferation Act of 1977, Hearings before the Sub-committee on Energy, Nuclear Proliferation and Federal Services of the Committee on Governmental Affairs, U.S. Senate, April 1977. (U.S. GPO Washington D.C., 1977), p. 248.

This is borne out by the details of a recent Japanese application to transfer spent fuel from Japan to the U.K. for reprocessing in the new THORP plant. The discussion over its approval reflected a divergence of opinion between Congress and the Administration over whether THORP was a " grandfathered facility " or not (i.e. whether it had been approved previously since Windscale was an approved facility). The issue was not conclusively resolved although the transfer was agreed to if only not to affect INFCE.

" Statement by the President ..." loc. cit.