Foreign Relations of the United States, 1977–1980, Volume XXVI, Arms Control and Nonproliferation

318. Telegram From the Department of State to the Embassy in Belgium¹

Washington, January 24, 1977, 1530Z

15111. Tovip 3. Subject: Sensitive Nuclear Exports and NPT.

Vice Presidential party, eyes only for Aaron

1. Per request transmitted by Hyland,² following is State Department evaluation of impact of NPT on sensitive nuclear exports. Text of treaty is being made available to party. As party aware, FRG Under Secretary Hermes in discussions with Secretary Vance³ cited alleged inconsistencies between US statements during NPT negotiations and US position now on sensitive transfers. As overall observation, Department would note the potential pitfalls of allowing FRG officials to engage party in narrow, legalistic debate over interpretation of NPT⁴ in context of discussion of US policy on sensitive nuclear transfers.

2. The basic objective of NPT is to prevent the further spread of nuclear weapons or other nuclear explosive devices without impeding the development, production and use of nuclear energy for peaceful purposes. Consistent with this objective, the treaty requires all parties, when acting as suppliers, to ensure that transfers of nuclear material and equipment are subject to IAEA safeguards. Article I obligates nuclear-weapon states party to the treaty “not in any way to assist, encourage, or induce any non-nuclear-weapons state to manufacture or otherwise acquire nuclear weapons or other explosive devices.” Article II obligates non-nuclear weapons states party to the treaty not to acquire nuclear weapons or explosives from any source.

3. At the same time, Article IV states that nothing in the treaty “shall be interpreted as affecting the inalienable right of all parties to the treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this treaty.” Article IV also calls for all parties to facilitate and participate in the “fullest possible exchange of equipment, materials, and scientific and technological information for the peaceful uses of nuclear energy.” Special attention was to be given to the needs of developing countries.

4. Starting in 1972 the US adopted a national policy of imposing special restraints and review procedures over requests for so-called sensitive nuclear exports, i.e., equipment and technology related to uranium enrichment, plutonium reprocessing, and heavy water production. In practice, this policy resulted in an embargo on such exports from the US. When the London Suppliers Group convened in 1975, the US sought to persuade other major suppliers to adopt a parallel policy on these exports. However, in the agreed guidelines, we were only able to obtain multilateral consensus for restraint in, but not an embargo on, sensitive transfers. If such transfers are to be made, the guidelines call for improved safeguards over such transfers going beyond NPT requirements (e.g., safeguards triggered by technology in addition to equipment and material). We have subsequently called for a three-year moratorium on such exports.

5. While the US approach to sensitive transfers has been supported by most if not all key suppliers, some suppliers and recipients have criticized this policy as incompatible with Article IV of the NPT. These nations argue that the NPT places an explicit responsibility on supplier states party to the treaty to make any and all types of peaceful nuclear assistance available to recipients party to the treaty, as long as the materials and facilities are under safeguards. To strengthen this position, these nations cite US assurances and statements to this effect issued during the treaty negotiations. For example, citations from some of these US statements appear in the FRG “Non-Paper” transmitted by Hermes to Secretary Vance at their recent meeting (we understand that Assistant Secretary Hartman is carrying this paper).

6. The US position in response to these criticisms rests on the following points:

A. We do not believe that safeguards necessarily provide an adequate basis for transfering all nuclear items, while supporting the overriding non-proliferation objective of the NPT. Transfers of sensitive equipment and technologies can lead to the direct availability of strategic quantities of weapons-usable material (notably plutonium but also highly-enriched uranium) in non-nuclear weapons states. It is presently uncertain whether safeguards could be devised and implemented to provide timely detection of diversion of these materials. Moreover, if safeguards were to be terminated or abrogated, the recipient could then rapidly utilize the materials and facilities in order to acquire nuclear explosives capacity.

B. Regarding the meaning of Article IV of the NPT, we would note that the rights under this article apply only to NPT parties, and not to non-parties, (such as Brazil and Pakistan). Moreover, this provision was not intended to create any new “inalienable right” for NPT parties. It simply states that nothing in the treaty should be interpreted to affect the rights that would have existed in the absence of the treaty, and goes on to point out that any exercise of such rights must be “in conformity with Article I and II of this treaty.” Furthermore, the Article IV language calling for the “fullest possible exchange” of nuclear assistance among parties must also be viewed in the light of the basic NPT objectives as reflected in Articles I and II. In any case, our policies on sensitive nuclear exports are not predicated on any interpretation of the NPT; they are supplemental measures based on our interest in taking all appropriate steps to avert the further proliferation of nuclear explosives capability as technological developments increase the risks of such proliferation.

C. We currently see little or no economic justification for acquisition of enrichment and reprocessing facilities by non-nuclear weapons states outside the OECD area. In our view, the overall intent of Article IV is to ensure that parties in a position to do so will help other parties to enjoy the benefits of nuclear power for peaceful purposes. This does not, however, oblige them to make transfers that are not economically justified in the recipient country, especially where such transfers might also incur increased risks of proliferation. Rather, the US believes that the spirit and letter of Article IV can and should be met by the provision of non-sensitive fuel supplies and fuel cycle services from supplier states, since this can be more economic than small-scale fuel cycle plants and would significantly reduce proliferation risks. We are, of course, interested in exploring other alternatives, when justified, such as regional, multinational fuel cycle centers.

D. As a nuclear-weapons state, the US sees an overriding obligation in Article I of the NPT not to “in any way” assist non-nuclear weapons states to manufacture or acquire nuclear explosives. We believe that sensitive transfers, without economic justification and before we have had an opportunity to explore alternatives, could contravene these obligations. We further believe that non-nuclear weapons states party to the treaty, when supplying nuclear assistance, should feel bound to act in accordance with the intent of Article I, since it reflects the essential non-proliferation thrust of the NPT.

7. FYI. While FRG concerns are focused primarily on their agreement with Brazil,⁵ they also are very concerned with the implications of US non-proliferation policy for their own development of sensitive technology. Discussions of such implications are best avoided at this point. If pressed, we recommend line that USG is currently developing a program to evaluate risks and alternatives associated with back-end fuel cycle activities, has reached no RPT no conclusions regarding same, and we expect early and full discussions with FRG as US evaluation activities progress. Similar considerations apply in the case of Japan.

8. If issue of amending NPT arises in connection with discussions of US export policy, Department suggests that US position strongly opposing this approach as impracticable, undesirable, and unnecessary be reaffirmed. Such an approach would be impracticable, since it would involve reconsideration of NPT by almost 100 legislatures. It would also seriously endanger future viability of treaty by raising devisive questions and risking weakening of the NPT. This is why we and others strongly resisted all moves at NPT review conference to amend treaty. Further, we believe that policies US have proposed in context of nuclear suppliers discussions are supplementary to, and not in conflict with, the NPT. End FYI.

Vance

1. Source: National Archives, RG 59, Central Foreign Policy File, P840084-0745. Secret; Immediate; Nodis. Also sent immediate to Bonn. Drafted by Jerome Kahan (S/P); cleared by Louis Nosenzo (PM), Edward McGaffigan (T), Charles Van Doren (ACDA), and Peter Sebastian (S/S); and approved by Bartholomew (S/P).
2. Not found.
3. No record of a meeting between Vance and Hermes was found. According to the German documentary record, Hermes visited Washington and delivered a Non-Paper on non-proliferation to Mondale on January 16. See Akten zur Auswärtigen Politk der Bundesrepublik Deutschland, 1977, Part One, p. 16. The Non-Paper was not found.
4. The Treaty on the Non-Proliferation of Nuclear Weapons or Non-Proliferation Treaty (NPT) was signed on July 1, 1968 by 56 nations, including the United States, the United Kingdom, and the Soviet Union. The U.S. Senate ratified the Treaty on March 13, 1969, and it entered into force on March 5, 1970. See Document 250 in Foreign Relations, 1964–1968, vol. XI, Arms Control and Disarmament.
5. The Carter administration criticized the Federal Republic of Germany’s 1975 sale of a nuclear reactor and plutonium technology to Brazil. For more on this see Documents 397, 398, 399, 400, 401, 402, 403, 404, 405, and 406.