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

339. Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) to President Carter¹

Washington, April 15, 1977

SUBJECT

• Proliferation Issues

There are two major issues on which there is interagency disagreement whose resolution is required before the Administration legislation package can be completed this weekend.

I. Additional Conditions to be Required in New Agreements for Nuclear Cooperation.

The following are proposed to supplement existing requirements in the negotiation of new agreements. We would also seek to incorporate these conditions in existing agreements, through renegotiation and the use of incentives.

A) Reprocessing:² U.S. consent required for reprocessing and further disposition of foreign fuel irradiated in all U.S.-supplied (including previously supplied) reactors.

B) Retransfer:³ U.S. consent required for retransfer of foreign fuel irradiated in all U.S.-supplied (including previously supplied) reactors.

C) Full-Scope Safeguards: That the recipient be required to place all its nuclear facilities and materials under IAEA safeguards.

We can anticipate significant difficulty in negotiating U.S. rights of approval over reprocessing and disposition of U.S.-supplied nuclear fuel or foreign fuel irradiated in U.S. reactors. Many countries view U.S. control of their fuel as infringement on their sovereignty and their rights to recover the residual fuel value in the spent fuel. In addition, with countries not party to the NPT, our greatest difficulty will be in attempting to negotiate a full-scope safeguards provision requiring that such recipients place all their nuclear facilities and materials under safeguards of the International Atomic Energy. This includes such countries as Spain, Brazil, Egypt, Israel, Turkey, South Africa, India and a number of Arab countries.

Issue C: Full-Scope Safeguards

Traditionally, safeguards have been required by a supplier only on nuclear material and equipment it supplies, although the 99 non-nuclear weapon states party to the NPT have agreed to accept safeguards on all their peaceful nuclear activities. Only Canada and Sweden have gone beyond this in adopting the policy of insisting on full-scope safeguards in new nuclear agreements. While the UK, USSR, and others urge this as a common supplier policy, they have heretofore been unwilling to adopt it unless all suppliers agree. In the past, the French have specifically resisted agreeing to such a safeguards requirement, arguing that it would put them in the position of requiring of non-nuclear weapon states defacto NPT adherence, a position they continue to reject as a matter of principle.

All Agencies agree that we should favor a “full-scope safeguards” policy. Agencies differ, on both the form of the full-scope safeguard commitment that should be required and whether deviations should be tolerated in exceptional circumstances.

In your San Diego speech of September 25,⁴ you said that the U.S. should make no new commitments for the sale of nuclear technology or fuel to countries which refuse to forego nuclear explosives and to place their nuclear facilities under IAEA safeguards. There is a range of formulations consistent with your San Diego statement. For example, at British initiative, and with non-NPT parties in mind, the IAEA has drafted a model NPT-type agreement under which a recipient would undertake, for a period of 25 years, to place all nuclear facilities and materials that it might acquire under IAEA safeguards which would survive any termination of the agreement.

Some favor this formulation as a fallback to our obvious first preference for NPT adherence. They believe that the NPT-type international commitment covering existing and future facilities inherent in the British formula is necessary to preclude the possibility that a country would use outside assistance while developing indigenous capabilities with intent to forego safeguards once they achieve independence. Those who support this formulation also believe that U.S. adoption of such a policy would significantly improve chances of supplier agreement at the April meeting of supplier countries to require full-scope safeguards as a condition of new supply commitments, or, failing that, of getting the French and Germans to agree not to undercut the application of such a policy by other suppliers.

Others favor (again as a fallback to our first preference for NPT adherence) a bilateral formulation. Under this formulation, the U.S. would simply require as a provision in new bilateral agreements for cooperation that the recipient have all its facilities and materials under safeguards as a continuing condition of U.S. nuclear supply. As an example, Brazil, because it presently has all its nuclear facilities and materials under safeguards, would qualify for U.S. supply under this formula. However Brazil or any other nation would not be required to make an international commitment to full-scope safeguards but would understand that U.S. nuclear supply would be terminated if it acquired any unsafeguarded nuclear facilities or materials.

Those who favor this formulation believe it achieves full-scope safeguards but avoids forcing key recipients of concern, such as Brazil and Spain, to make a highly-visable and long-term NPT type commitment which they have publicly rejected in the past. They believe that while its negotiability is uncertain, it may be more acceptable to certain countries of concern. They also believe that this approach may prove more acceptable to the French and therefore a greater chance of full supplier agreement.

Issue:

That you authorize the U.S. to require in new agreements for nuclear cooperation the proposed controls A) and B) over foreign fuel irradiated in U.S.-supplied reactors and:

i) Either NPT adherence or, failing this, a full-scope safeguards formulation along the lines of the British formula involving an international commitment to full-scope safeguards.

APPROVE ______ (ACDA)

OR

ii) Either NPT adherence or, failing that, a full-scope safeguards formulation involving a bilateral formulation between supplier and recipient.

APPROVE ______ (State and Defense)⁵

(ERDA favors neither)

II. Presidential Flexibility.

Another issue concerns the degree of flexibility we will permit in approving or disapproving new agreements, or in renegotiating existing agreements, if we fail to obtain recipient acceptance of one or more of required new conditions. Congress has taken a strong position that all nuclear cooperation should be cut off if a particular agreement does meet every single required condition. On the other hand, Executive branch agencies believe that flexibility is essential in seeking to renegotiate existing agreements where U.S. termination of supply on the grounds that new conditions are not met, could be legal grounds for a recipient to contend that in return it can legally view its safeguards commitments as lapsed.

Agencies differ on the issue of whether flexibility—in the form of exceptions to be determined by the President when he believes it would serve the national interest—should be allowed just for existing agreements or for new agreements as well.

Issue:

That you authorize us to seek in any proposed legislation of export criteria, provision for exception by Presidential determination or equivalent flexibility:

for existing as well as new agreements ______ (State, Defense)⁶

OR

for existing agreements only ______ (ACDA)

1. Source: Carter Library, National Security Council, Institutional Files, Box 60, PRC 007, 3/16/77, Nuclear Proliferation. Confidential. Sent for action.
2. Consent for US-supplied fuel is already required. [Footnote is in the original.]
3. Consent for US-supplied fuel is already required. [Footnote is in the original.]
4. See footnote 6, Document 325.
5. Carter did not check either option.
6. Carter checked this option and underneath wrote “JC.”