Nuclear Non-Proliferation Act (1978)

David A. Koplow

The Nuclear Non-Proliferation Act (P.L. 95-242, 92 Stat. 120) is the central act in a family of statutes intended to control the spread of nuclear weapons materials and technology. Congress found that the dissemination of such items "poses a grave threat to the security interests of the United States and to continued international progress toward world peace and development." This complex and controversial act relies on a variety of legal strategies to stop the spread of the most hazardous weapons-related items while allowing access to nuclear power used for peaceful purposes.

Many nuclear fuels, facilities, components, and technologies are "dual capable." In other words, they can be useful (indeed, essential) in peaceful civilian applications of nuclear energy, such as electrical power generation, and in potentially aggressive or hostile military applications, including explosive weapons. The challenge for policy makers—especially in the United States, traditionally the world's leading supplier of these items—is to develop a method of promoting the peaceful atomic uses while preventing or at least inhibiting hostile uses.

BACKGROUND

In the 1970s many countries, reeling from the shock of the 1973 Arab oil embargo, were exploring non-fossil fuel sources with renewed interest. Some turned toward the promise of safe, cheap, reliable, and clean nuclear energy. At the same time, the dangers of nuclear weapons proliferation were never more apparent. In 1974 India announced a test detonation of a nuclear device, expanding the "club" of states acknowledged to possess nuclear weapons.

Congress also recognized another fundamental political and economic reality: the importance of enhancing the reputation of the United States as a reliable supplier of nuclear materials. For countries that have chosen to adopt nuclear power plants as a component of their national energy production plans, stability of access to fuels, replacement parts, and expertise is essential. If the United States threatens to restrict or cut off supplies, those countries will be driven to greater reliance on their own sources. In the short run, this fallback plan might inhibit a country's nuclear ambitions. But in the longer term, such a strategy might lead to greater independence in nuclear matters, reducing America's ability to steer nuclear programs toward exclusively peaceful directions.

Finally, Congress was aware that the United States would soon no longer hold total control as a supplier of nuclear materials. Additional countries were entering the market. If the United States were to attempt to impose strict unilateral controls for non-proliferation or other reasons, potential purchasers would readily switch to other, less careful sources. International cooperation among all suppliers, therefore, had to be a hallmark of future policies. Some efforts had already been undertaken in that direction, such as the convening of the London Suppliers Group in 1974 to coordinate export policies.

FEATURES AND GOALS OF THE ACT

The Nuclear Non-Proliferation Act (NNPA), championed by Senators John Glenn, Democrat of Ohio, and Charles Percy, Republican of Illinois, addressed all these concerns in several ways. First, Congress endorsed the International Nuclear Fuel Cycle Evaluation (INFCE) program of study, which had been initiated by President Jimmy Carter shortly before the NNPA was passed. With forty-one countries participating over three years, the INFCE was a major international assessment of ways to reduce opportunities for the diversion of materials and technology from civilian to weapons purposes.

Next, Congress committed itself to strengthening the International Atomic Energy Agency (IAEA), a watchdog on nuclear safety and security. The act pledges additional financial and technical assistance for IAEA's safeguards programs, as well as cooperation in data-sharing and other areas. In succeeding years, the annual U.S. Program on Technical Assistance to Safeguards has contributed more than $150 million in support of the IAEA.

On the domestic side, the NNPA revised the existing hodgepodge of U.S. law related to export controls on nuclear facilities, equipment, materials, and technology. For example, several executive branch agencies (the Departments of State, Defense, Energy, and Commerce, the Arms Control and Disarmament Agency, and the Nuclear Regulatory Commission, among others) all provide input on nuclear matters. The NNPA formalized the process of coordinating the information provided by these agencies, making it quicker and more efficient.

"AGREEMENTS FOR COOPERATION"

The NNPA also mandated the renegotiation of most existing "agreements for cooperation." These agreements (there were 22 at the time the NNPA was enacted) are the basic device through which the United States exports nuclear-related items to purchaser countries. Each individual agreement for cooperation is a legally binding treaty that specifies the rights and responsibilities of each country, and details, in particular, the assurances against diversion of the transferred materials into weapons uses. By 1978, Congress was dissatisfied with the strictness of some of those assurances, and demanded an across-the-board toughening. This process has required several years of painstaking country-by-country negotiation.

One key feature of the revised agreements for cooperation is consent to "full scope safeguards." This means that the international protections against diversion to weapons uses must apply not only to the specific materials, equipment, and other items supplied by the United States, but to all peaceful nuclear activities undertaken in the country, regardless of their origin. These safeguards, typically administered by the IAEA, have not proven to be "airtight" in thwarting a recipient's nuclear weapons ambitions (as revealed by the violations detected in the 1990s in Iraq and North Korea). Nonetheless, they are the best and most up-to-date means we have of ensuring non-proliferation. Under the act, if the president finds that a recipient country has violated the IAEA safeguards, all U.S. cooperation with that state is to be terminated (with the possibility of a presidential waiver of termination).

"SUBSEQUENT ARRANGEMENTS"

The NNPA also regulates "subsequent arrangements," covering a wide variety of actions such as retransfers (shipping nuclear items from the original recipient to someone else); storage or disposal of nuclear fuel after irradiation in a power reactor (demanding a U.S. approval right for storage of U.S.-supplied items); and appropriately strict standards for the physical protection and security of facilities and materials (often a sensitive matter, considered to infringe on a recipient country's control over security operations inside its own territory).

One important category of subsequent arrangements is the "reprocessing" of spent fuel. Reprocessing offers the potential of extracting additional energy from the fuel and perhaps reducing the cost of generating electrical power. But it does so at the price of creating additional quantities of plutonium, a particularly dangerous substance with direct weapons applications. The NNPA explicitly states that a condition of U.S. supply of nuclear materials is a U.S. veto over any reprocessing.

ENSURING COMPLIANCE BY NUCLEAR NATIONS

As an enforcement measure, the NNPA also terminates nuclear cooperation with any country that has conducted a nuclear explosion or "engaged in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices." In essence, these provisions virtually require each recipient country to join the 1968 Non-Proliferation Treaty (NPT), under which they would renounce possession of nuclear weapons. In 1978 the majority of countries in the world had accepted the obligations of the NPT. By the beginning of the twenty-first century, virtually all states (with the conspicuous exceptions of North Korea, India, Israel, and Pakistan) have done so. The global consensus against the further spread of nuclear weapons has been repeatedly reaffirmed at the highest levels.

The NNPA also calls for multilateral negotiations and cooperation among suppliers (such as the INFCE). In addition, the act aims to unite the supplier countries behind a program of enhanced export controls and, through the coordination of international efforts, to preempt a dangerous competition among sellers that could lead to looser constraints. The act therefore directs the president to "take immediate and vigorous steps to seek agreement from all nations" to apply full-scope safeguards requirements as conditions for their nuclear exports. Similarly, the NNPA calls for negotiation among all nations with nuclear capabilities to strengthen physical security standards.

THE ROLE OF CONGRESS IN SECURITY MATTERS

The NNPA requires that the executive branch keep Congress more fully informed about non-proliferation activities and dangers. In particular, section 601 calls for a wide-ranging annual report covering ongoing U.S. nonproliferation policy and accomplishments, including the negotiations toward improved agreements for cooperation, an assessment of the success of U.S. policy, and information on which countries have complied with American and IAEA standards. These reports allow the executive branch to review the year's non-proliferation successes and failures. They have also proven quite useful in advising the Congress and the general public about unfolding events.

The NNPA also gave Congress a more important role alongside the executive branch in security matters. Injecting itself directly into the international arena, Congress called for negotiation or renegotiation of a whole series of important international agreements. After the NNPA was enacted, Congress monitored more closely than before both the internal and the international operations of the U.S. government in this critically important security area.

THE IMPORTANCE OF NON-PROLIFERATION

The NNPA made the United States much more assertive in combating the spread of nuclear weapons capability. Although this issue had always been a significant American concern, the technical and diplomatic complexity of the task had frustrated many policy makers. Competing priorities had sometimes required compromise of non-proliferation policies. Through the NNPA, the United States elevated non-proliferation as a fundamental policy goal and emphasized the importance of the problem. Non-proliferation became an issue that the United States cared even more about, and to which the country was prepared to devote more technical and political resources.

See also: Arms Control and Disarmament Act and Amendments; Weapons of Mass Destruction Control Act.

BIBLIOGRAPHY

Bettauer, Ronald J. "The Nuclear Non-Proliferation Act." Law and Policy in International Business 35 (1978): 1105–1180.

Franko, Lawrence. "U.S. Regulation of the Spread of Nuclear Technologies through Supplier Power: Lever or Boomerang?" Law and Policy in International Business 35 (1978): 1181–1204.