Negotiating Nuclear Cooperation Agreements- Mark Hibbs

The United States is currently negotiating bilateral agreements for peaceful nuclear cooperation under Section 123 of the U.S. Atomic Energy Act—so-called 123 agreements—with Jordan, Saudi Arabia, South Korea, and Vietnam. At some point—thus far no decision has been taken when—the United States will begin a fifth such negotiation, with Taiwan.

The negotiations with South Korea and Taiwan are to renew agreements set to expire in 2014, while the others are new. All five states want to deploy nuclear power reactors for electricity generation in the coming years and they seek benefits that would accrue from a formal legal framework for conducting its nuclear trade and diplomacy with the United States.

Although the Atomic Energy Act establishes criteria that 123 agreements must meet in order to conform to U.S. law without special Congressional consideration, for all of these negotiations to succeed the language and terms written into the five agreements will have to differ quite significantly. Why? Because the interest calculus and leverage balance of the two parties in each case won’t be the same.

Progress in negotiating these agreements has been held up because of a contentious two-year interagency debate in the United States over how to proceed in trying to limit the spread of uranium enrichment and spent fuel reprocessing (so-called ENR) capabilities worldwide. In 2009, the United Arab Emirates (UAE) concluded a 123 agreement that said it would not “engage in activities within its territory” for ENR. The UAE agreement also indicated that the no-ENR provision was to be included in future 123 agreements for countries in the Middle East.

Some administration officials, supported by lawmakers, sought to universalize the UAE no-ENR provision as a “gold standard” for all future agreements, but others preferred instead to apply it on a limited case-by-case basis. More