BACKGROUND PAPER

Greenpeace/NCI Press Conference--September 30, 1999

The U.S.-Japan Nuclear Cooperation Agreement

In 1988, the U.S. and Japanese governments concluded their renegotiation of the U.S.-Japan Agreement for Peaceful Nuclear Cooperation. Among other issues, this Agreement addresses control and transfer of plutonium which has arisen due to Japan's use of U.S.- supplied uranium and nuclear technology. Under terms laid out in Annex 5.B.of this Agreement, and an October 18, 1988 side-letter, the maritime transfer by vessels carrying mixed plutonium/uranium oxide (MOX) reactor fuel from Britain and France to Japan was authorized pending US review of the proposed Japanese transport plan. Given that the plutonium contained in these sea shipments is direct-use nuclear weapons material, the Agreement requires that such sea shipments must be conducted with armed escort vessels "on government service".

Japan Acts in Breach of U.S.-Japan Nuclear Cooperation Agreement

In 1998 and early 1999, the Japanese Government, with the involvement of the UK government, developed a radically different sea transport plan for moving plutonium from Britain and France to Japan (this plutonium has been separated at the British and French state-controlled "reprocessing" plants from other nuclear waste by-products contained in spent fuel from Japanese nuclear reactors). In this plan, Japan proposed to move its plutonium in the form of fabricated MOX reactor fuel on two lightly armed civilian freighters traveling in tandem but with no dedicated, armed escort vessel. This proposal radically diverged from the only other plutonium shipment under the 1988 Agreement, the controversial "Akatsuki Maru" shipment of 1992. The 1992 shipment involved a commercial freighter transporting the plutonium, escorted by a dedicated, high speed Japanese Maritime Safety Agency (MSA) gunboat armed with cannons, machine guns, two helicopters, and launchable light boats.

In order to defend this new, deficient transport plan, Japanese authorities argued that the two commercial freighters would be "on government service" to the UK and beside their civilian crew, there would be a contingent of armed UK Atomic Energy Agency constables. But, according to two legal memos prepared for Greenpeace by the international law firm Watson, Farley & Williams in London, the contention that the ships are "on government service" is "erroneous". In addition, according to written answers to questions posed by a British parliamentarian, the British Minister of State for Energy and Industry has stated: "The vessels are civilian vessels engaged in commercial cargo operations. They have no special status." This statement, on behalf of the government for whom the ships are supposedly operating, certainly refutes the Japanese government's contention that this shipment involves an escort "on government service." Given that the plutonium shipment was envisioned and carried out without escort "on government service", the Japanese government is obviously in breach of the U.S.- Japan Agreement.

The State Department Misled the Congress about Japanese Compliance with the Agreement

The U.S. State Department was the lead agency with which the Japanese government negotiated its controversial transport plan. These negotiations involved both numerous personal meetings and the exchange of numerous transport plan drafts. In the Spring of 1999, under pressure from Members of Congress, the State Department provided briefings about these negotiations. In the course of these written and oral briefings, State Department officials promised Congress that "The two armed vessels will be "on government service," as required by a 1988 side letter to the US-Japan Agreement...." (April 27, 1999 memo from Barbara Larkin, Assistant Secretary, Legislative Affairs, US State Department to Representative Benjamin A. Gilman, Chairman, Committee on International Relations, House of Representatives). Despite the glaring security shortcomings of the plan, and despite the fact that the plan did not meet the requirement that the escort be "on government service", the State Department informed Congress that the transport plan ""satisfies all requirements of the 1988 U.S.-Japan Agreement, including the requirements of adequate physical protection...." (April 27 memo).

Briefing Paper/Page 2

Concerned about the apparent failure of the transport plan to comply with the "on government service" requirement, Senator Daniel A. Akaka of Hawaii wrote to the State Department on August 3, 1999 requesting that they explain the situation. The State Department response of September 10 amounts to an blatant attempt to retroactively revise and reinterpret the U.S.-Japan Agreement. According to this note, the State Department claims that the term "on government service" was not meant as a technical legal term despite the fact that they themselves confirm that it has a "particular meaning under the international law of the Sea.". In defense of this statement, the State Department has said that an unnamed official involved in the negotiations says that that was the case. The State Department can neither cite nor reference any negotiation record nor definitions section to support this remarkable after-the-fact reinterpretation of language which has a common meaning and recognizable international legal significance.

Legal analysis by Eldon V.C. Greenberg for Nuclear Control Institute concludes that the State Department position is "indefensible". Greenberg argues that the term "on government service" is effectively a term of art with meaning under international law of the sea and that the State Department's attempt to reinterpret that phrase is "...contrary to basic principles of treaty interpretation and statutory construction." Greenberg further concludes that the statement of an unnamed official, unsubstantiated by any text or drafting history of the Agreement, deserves little consideration. Finally, Greenberg states that assuming that the Agreement contemplated use of an armed escort vessel "on government service" was necessary to ensure that "adequate physical security will be maintained" for MOX transport, as required under the U.S. Atomic Energy Act, it could well be considered that the failure to adhere to the terms of the Agreement would be in violation of the Act.

Conclusion

• The Japanese and US Governments have failed to meet their security obligations as laid out in the U.S-Japan Agreement for Peaceful Nuclear Cooperation. The Japanese government, with the involvement of the UK and French governments, has undertaken its first plutonium fuel shipment in clear violation of the security requirements of the Agreement.

• The State Department agreed to a security plan which was in breach of the U.S.-Japan Nuclear Cooperation Agreement. The State Department misled Members of the U.S. Congress in written and verbal briefings in which they guaranteed that the transport plan was in compliance with the Agreement. And, the State Department, in its September 10 memo to Senator Akaka, has sought to justify this arrangement by retroactively reinterpreting language in the Agreement.

• The U.S. government and Congress should bar further transfers of plutonium to Japan pending resolution of all outstanding security and safety issues including the use of a dedicated, separate armed escort vessel.

• Congress should thoroughly investigate the process by which the State Department assessed and approved the current, inadequate transport plan. This investigation should also identify and deal with those responsible for misleading the Congress.

• The ongoing, initial shipment of plutonium fuel has been made despite strong international opposition in response to inadequate safety and security procedures. The U.S. government should not confirm any future plutonium transfers to Japan absent resolution of these glaring inadequacies.

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For More information or to request copies of documents cited in this paper, please contact Damon Moglen, Greenpeace, ++1-202-319-2409 or Paul Leventhal, Nuclear Control Institute, ++1-202-822-8444.

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