TESTIMONY OF PAUL LEVENTHAL
President, Nuclear Control Institute
The U.S.-China Nuclear Cooperation Agreement
The Committee on International Relations
U.S. House of Representatives
October 7, 1997
Mr. Chairman and members of the Committee, I appreciate your invitation to "examine the issues with respect to implementation of the U.S.-China Nuclear Cooperation Agreement."
I am Paul Leventhal, president of the Nuclear Control Institute, a nuclear non-proliferation research and advocacy center here in Washington. Before establishing the Institute in 1981, I served on U.S. Senate staff and had responsibility for investigations and legislation leading to "fissioning" of the Atomic Energy Commission into separate regulatory and promotional agencies in 1974, and to enactment of the Nuclear Non-Proliferation Act in 1978. I also was co-director of a special, bipartisan Senate investigation of the Three Mile Island nuclear accident in 1979 and helped prepare the "lessons-learned" legislative package that Congress enacted the following year.
As you are well aware, implementation of the U.S.-China nuclear agreement has been a work in progress since 1985. Congress allowed the agreement---the product of a difficult 3 1/2 years of negotiations---technically to come into force despite some key provisions that failed to meet requirements of non-proliferation law. But Congress also attached to its Resolution of Approval a number of conditions that no President since then has been able to meet to activate the agreement, and Congress thereby blocked sales of civilian nuclear reactors and fuel to China.
In 1985, the Nuclear Control Institute opposed the agreement and supported the conditions. Our clear preference, however, was for Congress to reject the defective agreement by invoking authority it had to send the agreement back to President Reagan for renegotiation, or for resubmission to Congress with a waiver of statutory requirements that would have triggered an up-or-down vote on the entire agreement.1
Today, we have grave doubts that President Clinton can meet the conditions and make the certification of China's non-proliferation credentials, as required by law. I have attached to my testimony two letters to the President, one sent by the Nuclear Control Institute and the other sent jointly by nine arms-control and non-proliferation organizations, including NCI.2 These letters raise deeply troubling issues about China's proliferation record and about the risks both to U.S. supreme interests and to the global non-proliferation regime if the President permits exports of U.S. nuclear reactors and fuel to China before China demonstrates an actual halt to its proliferating ways.
My prepared testimony tracks the issues raised in these letters and concludes with some recommendations on how Congress should proceed if the President is prepared to certify China's non-proliferation commitments at this time. Our principal recommendation is that Congress enact a requirement for a waiting period of at least one year from the date of certification before China can receive nuclear goods pursuant to this agreement, and a requirement for Presidential re-certification of China each time there is an application for a major export or retransfer to China under the agreement.
I have been assisted in the preparation of the testimony I am presenting today by Daniel Horner, a senior policy analyst for NCI, and our counsel, Eldon V.C. Greenberg with the law firm of Garvey Schubert & Barer.
Overview of Key Issues
The reason Presidents Reagan, Bush and Clinton all have been unable to make the Congressionally required certification of China's non-proliferation credentials is that, since 1985, China has provided Algeria, Iran, Iraq and Pakistan with nuclear assistance applicable to the manufacture of nuclear weapons. I also have attached to my testimony a summary of these transactions and other examples of "China's Record of Proliferation Misbehavior," compiled by Steven Dolley, NCI's research director.
The question today remains the same as it was in 1985---whether a non-proliferation guarantee from the Chinese "means the same to them as it does to us," as one State Department official then expressed it to The New York Times.3
The Reagan Administration, after a number of false starts at getting a clear guarantee from the Chinese leadership, finally decided it had one from then-Vice-Premier Li Peng who said, "China has no intention, either at the present or in the future, to help non-nuclear countries develop nuclear weapons."
The U.S. negotiator, Ambassador-at-Large Richard T. Kennedy, reported in testimony before this committee
Our contacts with the Chinese, Mr. Chairman, have demonstrated clearly that they appreciate the importance we attach to non-proliferation. We are satisfied that the policies they have adopted are consistent with our own basic views. Formalizing our ties in the peaceful uses of nuclear energy through an agreement for cooperation will provide a means to advance our shared objectives.4
But China did not stop its proliferant exports when it signed the agreement in 1985---indeed, China had contracted to provide an unsafeguarded plutonium production reactor to Algeria and had begun construction of the then-secret facility during the time China was negotiating and signing the agreement with the United States.5
Now the Clinton Administration appears to be preparing a similar defense of the commitments it is now receiving from the Chinese---commitments that presumably will permit the President to certify, as required by law, that "...China has provided clear and unequivocal assurances to the United States that it is not assisting and will not assist any nonnuclear weapons state, either directly or indirectly, in acquiring nuclear explosive devices or the materials and components for such devices...."6
The Administration is presently engaged in intense negotiations with the Chinese to nail down these commitments in the apparent hope it will be able to make activation of the nuclear trade agreement with China the centerpiece of President Clinton's first summit with President Jiang Zemin just a few weeks from now. The Administration is making a commendable effort to seize what may be the best opportunity yet, in the run-up to the summit, to persuade China to provide concrete assurances that it has stopped helping other countries to get the bomb.
One can wish that this effort will succeed and contribute to the broader objective of normalizing relations with China. But it is difficult to imagine how Chinese assurances can be squared with the CIA's recent finding that, in the second half of 1996, "China was the single most important supplier of equipment and technology for weapons of mass destruction" and also the primary nuclear supplier of Iran and Pakistan.7
The House International Relations Committee is to be commended for holding a hearing on this urgent issue---and for doing so while the Clinton Administration is still considering whether to make the required non-proliferation certifications to activate the 1985 agreement, rather than after the fact. Historically, U.S. non-proliferation efforts have benefitted greatly from active Congressional involvement---even if the Executive Branch has not always appreciated it.
A key problem, however, is that if U.S. nuclear trade is to proceed with China, it will do so in the context of a weak, deeply flawed agreement negotiated more than a decade ago. Specifically, the agreement
- does not contain the safeguards requirements on U.S. nuclear transfers found in all other U.S. nuclear- cooperation agreements;
- does not assert U.S. prerogatives to withhold consent for separation and use of plutonium from U.S.- supplied fuel.
Thus, the agreement fails to come to grips with the need for effective internal controls over transferred U.S. nuclear reactors and fuel inside China. Weak internal controls over Chinese use of U.S. low- enriched uranium (LEU) fuel might be deemed tolerable by some because LEU is not a direct-use, weapons material and because China is already a nuclear-weapon state. But the same rationale cannot be applied to plutonium obtained by China through reprocessing of irradiated, U.S.-supplied LEU fuel. This plutonium is a direct-use weapons material if diverted to China's military program. Consequently, the agreement is doubly deficient in not requiring effective safeguards, and in not asserting the U.S. right to say no to Chinese use of U.S.-origin plutonium, inside China.
In addition, the agreement does not address the need for effective external controls over Chinese nuclear transfers to other nations (other than establishing controls on retransfers of U.S.-origin technology and materials outside of China).
Fortunately, Congress established a means to resolve a core concern about China's nuclear export policy. China refuses to require recipients of its nuclear transfers to open their entire nuclear programs to international inspections and audits---so-called "full scope safeguards." The Congressionally mandated Presidential certification process provides an effective counter to China's policy against full-scope safeguards if the President is prepared to exercise it. Specifically, the President should not certify China's non-proliferation credentials (and thereby authorize nuclear trade with China) until China agrees to require full-scope safeguards as a condition of its supplying nuclear-related items to non-nuclear weapon states.
The significance of China as the only major nuclear supplier that today does not require full-scope safeguards on all nuclear exports can be seen in Pakistan. As I elaborate later, even if China lives up to its May 1996 commitment not to supply unsafeguarded nuclear facilities, there remains the possibility of diversion of Chinese exports from safeguarded to unsafeguarded facilities in Pakistan.
Of particular concern is the possibility that China is knowingly supplying more heavy water than Pakistan needs to make up operating losses at Pakistan's safeguarded Kanupp electrical-power reactor. Such an over-supply of heavy water would establish a surplus of this essential material that Pakistan needs to start up its unsafeguarded Khushab plutonium-production reactor for its nuclear weapons program. China was the supplier of this military reactor to Pakistan and has been asked by the United States not to supply the heavy water Pakistan must have to begin operating the reactor.
However, Chinese over-supply of heavy water could provide a form of indirect military assistance to Pakistan, especially if inspectors from the International Atomic Energy Agency are unable, as some safeguards experts believe, to detect a diversion by Pakistan of heavy water from its safeguarded power reactor to its unsafeguarded military reactor.
It would be a serious embarrassment to the United States, and a major blow to U.S. non-proliferation leadership, if the U.S.-China agreement were activated and subsequently a Pakistani weapons-production reactor were started up through the use of Chinese-supplied heavy water. Even if the President certifies China's non- proliferation commitments at the present time, he might well find it impossible to re-certify China in the future under such circumstances.
Such abuses are possible because of China's refusal to require recipients of its exports to accept full- scope safeguards. The United States should be pressing China to join the Nuclear Suppliers Group and to require full-scope safeguards on its exports, and thereby cut off all nuclear transfers to Pakistan unless Pakistan accepts full-scope safeguards. (It should be noted that since 1995, China also has been supplying low-enriched uranium to India's U.S.-supplied Tarapur nuclear-power station without requiring full-scope safeguards8---an arrangement in which the United States quietly acquiesces.)
The President is not explicitly required by law to obtain a full-scope-safeguards commitment from China, but one cannot but wonder how he could certify China's non-proliferation credentials without one. China is a party to the Nuclear Non-Proliferation Treaty (NPT) and was among the parties that embraced the "principle and objective" of full-scope safeguards when the Treaty was extended indefinitely in 1995. China should now be prepared to make such a commitment. Without it, the chances of future shock from Chinese supply arrangements in Pakistan will be all the greater.
Assessing China's Current Non-Proliferation Behavior
Although China, as noted above, has engaged in nuclear trade with a number of aspiring nuclear-weapon states since 1985, it has also made some welcome progress in recent years in moving closer to global non- proliferation norms. This progress includes its ratification of the NPT in 1992, its apparent willingness to join the NPT's Zangger Committee on nuclear exports, its commitment in May of last year not to be a supplier of or to unsafeguarded nuclear facilities, its recent issuance of export-control regulations, and its possible willingness (still unconfirmed) to abandon plans to export power reactors and a uranium-conversion plant to Iran.
In each case, however, these progressive steps seemed to come in response to heavy pressure from the United States, rather than spontaneously, and in each case the commitment is less than optimal. Congress, therefore, should examine very closely whether these steps meet the requirements for Presidential certification, as stipulated by Congress in 1985 and 1990.9
As already noted, China's commitments to the NPT and the Zangger Committee do not include a commitment to full-scope safeguards. Further, China's commitment not to engage in unsafeguarded exports is mandatory anyway under the NPT and suggests that China violated the NPT if it transferred unsafeguarded items for nuclear use after 1992. Its new export control system also lacks a commitment to full-scope safeguards and remains to be implemented and tested. (For example, its list of controlled, non-nuclear dual use items still has to be evaluated and compared with the list used by the Nuclear Suppliers Group.) And while China may be prepared to withhold reactors and a uranium-conversion plant from Iran, the military potential of what it is still supplying Iran must be carefully evaluated. Given China's past record of violating or inadequately enforcing its nonproliferation commitments, implementation of each of these steps remains a very large question mark.
Nuclear-trade advocates argue that the President should make the certification now, even though China might not be meeting all the requirements of law, and thereby continue to "engage" China on non-proliferation matters. An ongoing commercial relationship will provide us with the leverage we need, this argument runs. But the opposite may be true. As supply contracts move forward, and the money begins to flow and build, it will be increasingly difficult for the United States to break off nuclear trade.
The certification requirements provide the United States with the only effective means for persuading China to strengthen its nuclear non-proliferation efforts. It is fair to ask whether China would be making the progress it has, or whether the Administration even would be pressing China, if Congress had not enacted the certification requirements.
By making the certification prematurely, the President could be throwing away a singular opportunity to bind China to the non-proliferation community of nations. The progress that China now is making is testament to the non-proliferation benefits of the certification requirements and an argument for Congress to maintain a strong, continuing oversight role in U.S. nuclear trade relations with China.
There is a clear danger to U.S. security interests if the President prematurely lifts the restrictions on nuclear trade with China. If China gets the green light to receive U.S. nuclear goods before its illicit nuclear commerce with countries such as Pakistan and Iran has ended and before its internal and external nuclear controls are put in place and shown to be effective, U.S. nuclear technology and materials could wind up in the nuclear-weapons programs of countries hostile to the United States. Sending reactors and fuel to China before outstanding proliferation questions have been resolved could have another undesirable effect---signaling to other nations that the United States is prepared to bend its own law and policy to accommodate recalcitrant nuclear trading partners.
Assessing China's New Export Control System
In May 1996---following public disclosure of China's export of 5,000 specialized ring magnets to Pakistan's unsafeguarded uranium-enrichment program---China made a commitment to the United States to halt exports to unsafeguarded nuclear installations and to develop a national system of export controls. As discussed below ("Assessing Exports to Pakistan"), it is not at all clear that China is fully complying with its pledge to stop unsafeguarded exports. As for the export-control law, China, to its credit, has adopted a new regime. But it is not publicly known how China will implement the law.
For example, the Chinese export-control system must effectively cover "dual-use" as well as nuclear- specific exports. In Senate testimony in April, Deputy Assistant Secretary of State Robert Einhorn cited this area as a particularly weak element of Chinese export-control efforts. The new law's "Nuclear Exports Control List" still must be compared with the list employed by the United States and the other members of the Nuclear Suppliers Group to determine its comprehensiveness. To be effective, the system China puts in place also must have sufficient technical and financial resources and political authority to engage in effective monitoring and real control of nuclear-related exports.
Until the President can find that China's development and implementation of such a system are effective, U.S. export prohibitions should remain in effect. Beyond the Presidential certifications required by law, the President is also required to submit to Congress "a report detailing the history and current developments in the non-proliferation policies and practices" of China. To be credible, any certification of China's cessation of assistance to other countries to acquire nuclear weapons must be backed up by a report citing clear evidence that China's establishment of an effective, enforceable export-control system, as described above, is complete and functioning well.
Assessing China's Approach to Safeguards
There are two basic concerns regarding safeguards arrangements with China. The first applies to internal controls in China to ensure that U.S. nuclear assistance is utilized solely for peaceful purposes. The second concern applies to China's refusal to require nations to which it sends nuclear-related items to accept safeguards on all their nuclear facilities---so called "full-scope safeguards."
Internal Controls: One of the certifications the President must make is that "reciprocal arrangements made pursuant to Article 8 of the Agreement have been designed to be effective" in ensuring that U.S. exports are used only for peaceful purposes. While this article does not mandate the application of "safeguards," there is no provision that precludes a Chinese commitment to accept safeguards. There is a provision stating that "bilateral safeguards are not required," but this language does not bar a voluntary arrangement to apply them. The agreement is silent on the subject of multilateral IAEA safeguards.
There are several compelling reasons for the United States to insist on safeguards. First, in light of China's record of diverting U.S. non-nuclear exports to military applications---specifically machine tools and a supercomputer---there is a substantial basis for concern that China might violate the peaceful-use requirements for U.S. nuclear exports as well. In short, events since 1985 have only served to reinforce the arguments made at that time for requiring safeguards on U.S. nuclear exports to China.
Second, since the agreement was signed in 1985, China has joined the Nuclear Non-Proliferation Treaty (NPT) and should now be asked to embrace the NPT safeguards regime---or at least to accept comparable nuclear-materials accounting and control arrangements for facilities and fuel transferred under the U.S.-China agreement. Also, since joining the NPT, China has joined the other nuclear-weapon states in a voluntary undertaking to accept IAEA safeguards on some civilian facilities.
Third, the Nuclear Non-Proliferation Act specifically requires safeguards, without regard to whether the cooperating party is a weapon state or a non-weapon state. All other U.S. trading partners---including weapon states France and Great Britain through the U.S.-Euratom agreement---have accepted the application of safeguards on transfers of U.S. materials and equipment. Similarly, China has accepted the application of safeguards in its nuclear-cooperation agreements with Argentina, Brazil, Japan, and, most recently, with respect to a purchase of two reactors from Canada. Thus, the absence of safeguards arrangements in the U.S.- China agreement is anomalous.
External Controls: The other matter of concern is China's refusal to require full-scope safeguards as a condition of its nuclear-related transfers to other nations. In the declaration of "Principles and Objectives for Nuclear Non-Proliferation and Disarmament" that accompanied the indefinite extension of the NPT in 1995, all parties to the Treaty, including China, agreed on the importance of acceptance of "IAEA [International Atomic Energy Agency] full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices" by non-nuclear-weapon states receiving nuclear fuel, reactors, and other major nuclear items.
The Clinton Administration should not open the door to large-scale nuclear commerce with China before China has agreed to require full-scope safeguards as a condition of supply. To do otherwise, the United States could undercut universal acceptance of full-scope safeguards and thereby devalue the overall NPT Principles and Objectives agreement. Furthermore, China would become the only U.S. nuclear trading partner among active nuclear suppliers that refuses to require full-scope safeguards for its nuclear-related exports.
China has stated it has decided to join the NPT's Zangger Committee on export controls and to adopt an identical commodity-control list ("trigger list").10 But the Zangger Committee is now preparing to conform to the Principles and Objectives agreement by embracing full-scope safeguards by the year 2000. We are concerned, therefore, that once China joins the Zangger Committee it will block consensus on the full-scope safeguards requirement---an outcome that would present a serious setback for U.S. non-proliferation policy and the NPT/IAEA safeguards regime. Indeed, a senior Western export control official recently expressed concern that "letting China into Zangger now will virtually torpedo a full-scope safeguards rule" unless China changes its position.11
Further, the export-control standards of the Zangger Committee are less stringent and comprehensive than the ones accepted by the Nuclear Suppliers Group. The NSG includes the world's leading nuclear-supplier nations and all the nuclear-weapon states, except China. In addition to requiring full-scope safeguards as a condition of supply of nuclear reactors, fuel and major components, members of the Nuclear Suppliers Group also have agreed to impose export controls on an extensive list of dual-use items that could make a major contribution to the development of nuclear weapons. We believe that U.S. nuclear cooperation with China should not be implemented until China agrees to join the Nuclear Suppliers Group, or at least to adhere to its export-control standards.
Assessing Chinese Exports to Pakistan
In May 1996, after disclosure of its transfer of ring magnets to Pakistan, China pledged not to engage in further exports to unsafeguarded nuclear facilities (after refusing to require full-scope safeguards). However, there are significant indications that China has not adhered to that pledge. In response to press reports about a year ago that China had transferred a high-tech furnace and diagnostic equipment to an unsafeguarded Pakistani facility, Clinton Administration officials contended that the transfer had taken place prior to the pledge. But it remains unclear whether this particular transfer took place before or after the pledge.
Last summer the CIA reported:
During the last half of 1996, China was the most significant supplier of WMD [weapons of mass destruction]-related goods and technology to foreign countries. The Chinese provided a tremendous variety of assistance to both Iran's and Pakistan's ballistic missile programs. China also was the primary source of nuclear-related equipment and technology to Pakistan, and a key supplier to Iran during this period. Iran also obtained considerable CW [chemical- weapons]-related assistance from China in the form of production equipment and technology. (Emphasis supplied.)12
Even if China is now adhering to its pledge, there is a large potential for proliferation as long as it refuses to require Pakistan, and all other nuclear customers, to accept full-scope safeguards. As long as China requires safeguards only on the particular facility receiving an export, the possibility of diversion of Chinese exports from safeguarded to unsafeguarded facilities is a real threat. For example, Pakistan could divert Chinese-supplied heavy water from the safeguarded Kanupp electrical-power reactor to the unsafeguarded Khushab plutonium-production reactor.
The situation with regard to the Kanupp and Khushab reactors is of particular proliferation significance. A shortage of heavy water is the principal obstacle to start-up of the nearly complete unsafeguarded Khushab reactor, which Pakistan has built with Chinese assistance for its military program.13 Authoritative reports in the McGraw-Hill Nuclear Publications14 indicate that China is supplying heavy water to the safeguarded Kanupp reactor at a rate to make up heavy-water losses of 2 to 4 percent a year. Although the Kanupp reactor had large reported losses of heavy water in its early years of operation, the facility was recently upgraded through an international assistance program intended to bring this Candu reactor into conformity with current industry operating standards---including a heavy-water loss rate of only one percent a year.
Thus, China may now be supplying Pakistan with up to nearly four metric tons more heavy water per year than it needs for its safeguarded power reactor, leaving open the possibility of diversion of surplus heavy water to Pakistan's unsafeguarded plutonium-production reactor. We understand this reactor needs only 5 tons of heavy water to start up and 15 tons to operate at full power.
Before proceeding with Presidential non-proliferation certification of China, the United States should independently establish the current heavy-water requirements for the Kanupp reactor to ensure against the supply of a diversion-prone surplus, as well as determine whether IAEA safeguards are in fact adequate to detect diversions of heavy water from a safeguarded to an unsafeguarded reactor in Pakistan. As noted above, start-up of a Pakistani weapons-production reactor through use of Chinese-supplied heavy water would be a serious embarrassment to the United States, and a major blow to U.S. non-proliferation leadership, in the wake of Presidential certifications activating the U.S.-China nuclear agreement.
Our concern is prompted in part by the following response by then-Assistant Secretary Winston Lord to questions from the Senate Foreign Relations Committee in June 1996: "We have concerns about China's nuclear cooperation with Pakistan beyond the ring magnet transfer, including concerns related to both weapons development and production of unsafeguarded nuclear materials. We have made our concerns known to the Chinese government." (Emphasis supplied.) Any report from the Executive Branch to Congress in support of a Presidential certification should include China's response to the concerns expressed by the United States, and the current status of China's involvement in Pakistan's nuclear weapons program.
Assessing Exports to Iran
China entered into a nuclear cooperation agreement with Iran in 1985 and has been annually exporting over $60 million worth of nuclear technology. China's exports to Iran have included a research reactor and a calutron, the latter being the same type of machine used by Saddam Hussein as the principal means of enriching uranium for Iraq's atom-bomb program.
Under intense U.S. pressure, China may now be prepared to abandon plans to supply Iran with two nuclear power reactors and a plant to convert enriched uranium from gaseous to metallic form. If true, this would be a welcome development, but China's ongoing supply arrangements with Iran must be fully assessed in view of the CIA's description of China as a "key supplier" of nuclear assistance to Iran in the latter half of 1996.
One of the certifications the President must make is that China "is not in violation of paragraph (2) of section 129 of the Atomic Energy Act of 1954." Section 129(2)(B) bars nuclear transfers to any country that is found by the President to have
assisted, encouraged, or induced any non-nuclear-weapon state to engage in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices, and has failed to take steps which, in the President's judgment, represent sufficient progress toward terminating such assistance, encouragement, or inducement.15
Since the U.S. holds the position that Iran is embarked on a nuclear weapons program, despite Iran's non- weapons pledge as a party to the NPT, it is difficult to conceive how the President could certify China as long as China remains a key nuclear supplier to Iran. Even a commitment by China not to supply power reactors or a uranium conversion plant to Iran could not be deemed "significant progress" toward terminating weapons- related assistance under Section 129 if other significant Chinese nuclear assistance is still going to Iran. (It also should be noted that Chinese supply of nuclear-related items to Iran's nuclear weapons program would be a violation of the NPT, on which the language of Section 129 is based.) It is imperative, therefore, that China agree to terminate all significant nuclear-supply commitments to Iran, especially since the United States now requires other countries to commit not to supply Iran, as a condition of their receiving U.S. nuclear assistance.
Assessing China's Reprocessing Plans
The failure of Article 5 of the agreement to provide, in accordance with the NNPA, the unqualified and unambiguous right of the United States to approve or deny requests for reprocessing is one of the major defects of the agreement. The provision in the agreement that "the parties undertake the obligation to consider such activities favorably" is particularly egregious. Congress sought to address the problem by including in its conditional approval of the agreement a requirement that the President certify that "the obligation to consider favorably a request to carry out activities described in Article 5(2) of the agreement shall not prejudice the decision of the United States to approve or disapprove such a request."
At the time, the Executive Branch downplayed the issue with the assertion that China had no plans to pursue reprocessing. Indeed, the agreement states
Neither party has any plans to enrich to twenty percent or greater, reprocess, or alter in form or content material transferred pursuant to this agreement or material used or produced through the use of any material or facility so transferred....In the event that a party would like at some future time to undertake such activities, the parties will promptly hold consultations to agree on a mutually acceptable arrangement.
But the issue takes on immediate significance because China is now constructing a reprocessing plant at Lanzhou and actively considering reprocessing as a source of both plutonium and highly enriched uranium.16 The fix that Congress applied in 1985 could prove inadequate to compensate for the fundamental weakness of the agreement regarding reprocessing.
The United States should seek a commitment from China to refrain from reprocessing spent fuel or utilizing recycled plutonium in its civilian nuclear power program. Obtaining such a pledge would represent an important achievement for President Clinton's 1993 Nonproliferation and Export Control Policy, which stated that the United States "does not encourage the civil use of plutonium...." and "will seek to eliminate where possible the accumulation of stockpiles of highly enriched uranium or plutonium...."
China still has not made a formal commitment to reprocess commercial spent fuel. An express Chinese commitment to a "once-through" fuel cycle would avoid future problems in implementing the U.S.-China nuclear agreement. Such a commitment also would put China in the forefront of nations opposed to use of weapons-usable nuclear materials in civilian nuclear programs and would establish China as a role model for nations that might otherwise be prepared to embark on reprocessing and plutonium recycle programs.17 Thus, while a Chinese commitment to forgo reprocessing and use of plutonium is not a stipulated requirement for Presidential certification to activate the agreement, it is worth pursuing given the relatively early stage of development of China's civilian program and the powerful non-proliferation precedent such a commitment would set.
In addition, the United States should engage China in discussions of its plans to reprocess and re-use highly enriched uranium (HEU) for its research-reactor program. The reprocessing plant China is constructing is intended to reprocess HEU fuel from research reactors. But China will have no clear need for recycling this weapons-usable fuel if it converts its research reactors to use low-enriched fuel unsuitable for weapons. The United States has entered into an agreement with China to help develop fuel for such conversion of research reactors operating in and supplied by China, and China is now designing its next large research reactor to use low-enriched fuel.18 A Chinese decision to reprocess HEU and continue to operate HEU-fueled research reactors would seriously undermine the 20-year international effort led by the United States to end civilian use of HEU.
Conclusions and Recommendations
At the end of July, 62 Members of the House, 36 Democrats and 26 Republicans, sent a letter to President Clinton urging that he not make the certifications that are the subject of this hearing. The letter cited China's history of supplying unsafeguarded facilities and questioned the reliability of Chinese assurances. A "senior U.S. official" was quoted in the trade press as dismissing the letter because it "looks to the past and goes over old ground."19 This official seems to be missing the point.
It is precisely because of China's record of inadequate enforcement or outright violation of its past nonproliferation commitments that there is so much uncertainty about the validity of its present commitments. In my view, there is legitimate concern that the Administration, in order to satisfy commercial interests and to meet the artificial deadline of the upcoming summit, may be prepared to activate the agreement largely on the basis of Chinese promises rather than on hard evidence.
As noted earlier, the United States has been burned more than once by broken Chinese promises. China's export of a secret, unsafeguarded plutonium production reactor to Algeria at the same time China was negotiating and signing the nuclear agreement with the United States in 1985 is one remarkable example. Nor did Chinese unsafeguarded exports to Pakistan cease after China became a party to the Nuclear Non- Proliferation Treaty in 1992. As noted earlier, the recent CIA report suggests that such illicit transfers continued at least through the second half of last year.
China's record over the past 12 years shows that the skepticism Congress expressed in 1985 in the face of Executive Branch assurances was warranted. Ambassador Kennedy's assurances to the Committee in 1985, quoted earlier, should have special resonance as the Committee prepares to consider the assurances of the present Administration with regard to China's non-proliferation commitments.
The position of advocates of nuclear trade with China---that we should begin sending reactors and fuel to China knowing that we can cut off the trade if China is found to be violating the agreement---both ignores the past and oversimplifies the future. A further flaw in this pro-trade approach is that China may well be interested in acquiring only one or two reactors from the United States and then using the acquired technology as the basis for building and exporting their own.20 Thus, cutting off trade at that point could be a nuclear version of "locking the barn door after the horse is stolen."
Based on China's past record and on the need to test present commitments, we recommend a different, more cautious approach. Congress should enact legislation requiring, for any nuclear-cooperation agreement subject to subsequent Presidential certification, that there be a waiting period of one year before any Nuclear Regulatory Commission license for export (pursuant to Section 126 of the Atomic Energy Act) or Department of Energy approval of transfers or retransfers (pursuant to Section 131 of the Act) could be issued under the terms of the agreement.
In addition, the legislation should require that after the one-year waiting period has elapsed and at such time as an application is made to the NRC for an export license or to DOE for approval of a transfer or retransfer, the President shall reaffirm that the original Presidential certifications that activated the underlying agreement continue to be valid and that the recipient country is not engaged in nuclear cooperation with a nation (or group of nations) determined by the President to be pursuing a nuclear weapons program. The President would submit the re-certification simultaneously to the agency involved and to the Congress. The re- certification would have to lie before Congress for review for 30 days of continuous session, and NRC or DOE could not act on the application until this period had elapsed.
Furthermore, it is appropriate for Congress and the Executive Branch, in deciding whether to engage in nuclear trade with China, to take into account Chinese exports that assist other countries in developing missiles, or chemical or biological weapons. In this regard, we would support a provision in the same legislation linking continued U.S. nuclear assistance to any nation (or group of nations) to that nation's (or group of nation's) compliance with international agreements restricting transfers of missiles and chemical and biological weapons technologies.
In this way, Congress would establish a statutory basis for maintaining effective oversight of the implementation of the nuclear-trade agreement with China or any agreement that requires Presidential certification to be activated. (The provision linking continued U.S. nuclear trade with compliance with missile and chemical and biological weapons agreements should apply to all nuclear trading partners of the United States.) It is essential that Congress and the Executive Branch ensure that China adheres to its commitments and especially that China follows up on its new export law by implementing a system that effectively controls exports in a manner consistent with those commitments.
It is especially important that Congress play an effective oversight role now, prior to any submission by President Clinton of the certifications required to activate the agreement with China.
Congress should make clear, for example, that Presidential certification of China's non-proliferation credentials should include a commitment obtained from China that it will join all the other major nuclear exporters by becoming a member of the Nuclear Suppliers Group, or at least by adopting the NSG's requirement of full-scope safeguards and its agreed list of dual-use items for export control. Congress also should make clear that certification be based on a commitment from China to accept "safeguards" on its nuclear imports from the United States. U.S. law and China's record of diverting U.S.-origin, non-nuclear items to military use argue strongly for this provision.
Of course, the question of non-proliferation certification is properly seen as part of a larger debate over the future of U.S.-China relations. The solution, however, is not to accommodate bad behavior or uncertain commitments in the larger interest of constructive engagement. Any cutting of corners or abandoning of requirements of U.S. law to reach an accommodation with China on nuclear trade could, in the long run, undercut the U.S. position in other negotiations with China.
Such accommodation could threaten vital U.S. security interests, as well. Certification of China is not a question of adhering to legal niceties. Decisions on whether and when to implement the U.S.-China nuclear agreement will play a large role in determining when and if Iran acquires nuclear weapons, in my view.
For all these reasons, the President and his negotiators should be urged in the strongest terms to give national security clear priority over commercial interests in deciding whether the required determinations can be made. Presidential certification of China should await hard evidence that China has in fact changed its proliferating ways. In any event, Congress should delay the start-up of nuclear trade with China until after a "decent interval," and then only if the President can re-certify the validity of Chinese non-proliferation commitments.
Thank you for your attention.
End Notes1. For a detailed analysis of the issues at the time of consideration of the 1985 agreement, see Daniel Horner and Paul Leventhal, "The U.S.-China Nuclear Agreement: A Failure of Executive Policymaking and Congressional Oversight," Fletcher Forum, Volume 11, No. 1 (Wiinter 1987), pp. 105-122. Back to document
2. The eight other organizations signing the letter were the British American Security Information Council, Committee to Bridge the Gap, Council for a Livable World, Institute for Science and International Security, Natural Resources Defense Council, Physicians for Social Responsibility, Henry L. Stimson Center, and Union of Concerned Scientists. The text of the letter and of the other attachments to this testimony are available from the Nuclear Control Institute's web site (http://www.nci.org/nci-usc.htm). Back to document
3. Bernard Gwertzman, "U.S. Official Reporting Gains on a Chinese Nuclear Accord," New York Times, July 10, 1985. Back to document
4. Hearing and Mark-up before the Committee on Foreign Affairs, House of Representatives, Ninety-ninth Congress, First Session on H.J. Res. 404, July 31; November 13, 1985. Back to document
5. Vipin Gupta, "Algeria's Nuclear Ambitions," International Defense Review, #4, 1992, pp. 329-330. Back to document
6. The law in question is the "Tianamen Square Legislation" [Section 902 of Pub. L. No. 101-246], which incorporates the requirements of the Joint Resolution of Approval [Pub. L. No. 99-183] and imposes additional requirements. See n. 9. Back to document
7. CIA Nonproliferation Center, "The Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Chemical Munitions," 1997 [hereafter "CIA report"], p. 5. This unclassified report was mandated by Congress in Section 721 of the FY 1997 Intelligence Authorization Act. Back to document
8. Mark Hibbs, "Reported VVER-1000 Sale to India Raises NSG Concern on Safeguards," Nucleonics Week, January 12, 1995, p. 13. Back to document
9. The Joint Resolution approving the 1985 U.S.-China Agreement for Nuclear Cooperation, Pub. L. No. 99-183 (Dec. 16, 1985) requires the President to make three certifications to Congress as a precondition to the transfer or retransfer of facilities, components, and fuel to China under the U.S.-China Agreement for Nuclear Cooperation:
(A) the reciprocal arrangements made pursuant to Article 8 of the Agreement have been designed to be effective in ensuring that any nuclear material, facilities, or components provided under the Agreement shall be utilized solely for intended peaceful purposes as set forth in the Agreement;The certification, and the required accompanying report on China's nonproliferation policies and practices, must lie before Congress for 30 days of continuous session.
(B) the Government of the People's Republic of China has provided additional information concerning its nuclear non-proliferation policies and that, based on this and all other information available to the United States Government, the People's Republic of China is not in violation of paragraph (2) of section 129 of the Atomic Energy Act of 1954 [which calls for a cut-off of U.S. nuclear cooperation if the President finds that a U.S. nuclear partner is assisting the nuclear-weapons program of another country]; and
(C) the obligation to consider favorably a request to carry out activities described in Article 5 (2) of the Agreement [which concerns reprocessing and other proliferation-sensitive activities] shall not prejudice the decision of the United States to approve or disapprove such a request.
In addition, Section 902 of the FY 1990 and 1991 Foreign Relations Authorization Act, Pub. L. No. 101-246 (Feb. 16, 1990), the "Tianamen Square Legislation," was enacted in the wake of the violent suppression of the 1989 demonstrations in Tianamen Square. This legislation stopped certain U.S. nuclear exports (that were outside the scope of the agreement for cooperation) that China had been receiving and stipulated that neither they nor the exports pursuant to the agreement could be sent to China until three conditions had been met:
(i) the President certifies to the Congress that the People's Republic of China has provided clear and unequivocal assurances to the United States that it is not assisting and will not assist any non-nuclear-weapon state, either directly or indirectly, in acquiring nuclear explosive devices or the materials and components for such devices;Back to document
(ii) the President makes the certifications and submits the report required by Public Law 99-183; and
(iii) the President makes a report under subsection (b)(1) or (2) of this section, relating respectively to a finding that China has "made progress on a program of political reform throughout the country, including Tibet," or to a finding that "it is in the national interest of the United States to terminate...a suspension or disapproval" of nuclear trade with China.
10. "The control list is identical to the 'trigger list' of the 'Zangger Commission'....China has decided to join the Zangger Commission.' Foreign Ministry spokesman Cul Tiankai, quoted in Beijing Xinhua Domestic Service, September 15, 1997 (FBIS). Back to document
11. Mark Hibbs, "China to Join Zangger Committee, But Not With Full-Scope Safeguards," Nucleonics Week, October 2, 1997, p. 1. Back to document
12. CIA Report, p. 5. Back to document
13. Mark Hibbs, "Bhutto May Finish Plutonium Reactor Without Agreement on Fissile Stocks," Nucleonics Week, October 16, 1994, p. 10. Back to document
14. Mark Hibbs, "China May Continue D2O, Reactor Exports to Pakistan After U.S. Certification," NuclearFuel, August 11, 1997, p. 1; Mark Hibbs and Abdul Rauf Siddiqui, "Khushab Reactor Said Started, But Lacks Heavy Water Supply," Nucleonics Week, June 19, 1997, p. 15; Mark Hibbs, "Incident in Pakistan Raises Questions About Source of Heavy Water Supply," Nucleonics Week, May 29, 1989, p. 8. Back to document
15. 42 U.S.C. 2158 (2) (B). Back to document
16. Mark Hibbs, "Chinese Separation Plant to Reprocess HEU Spent Fuel," NuclearFuel, January 13, 1997, p. 3. Back to document
17. China feels threatened by the military potential of the large civilian stockpiles of plutonium being accumulated by two of its neighbors, Japan and India. Thus, abstention from a domestic reprocessing program and support for a comprehensive ban on fissile materials (one that eliminates civilian as well as military stocks of weapons-usable forms of plutonium and uranium) could be seen by China as being in its own security interest. See Paul Leventhal, "The Plutonium Industry and the Consequences for a Fissile Materials Cutoff," Oxford Research Group in cooperation with the Chinese People's Association for Peace and Disarmament, Oxford University, April 28-30, 1997. Back to document
18. Shi Yongkang et al., "The China Advanced Research Reactor Project," and Yuan Luzheng et al., "Preliminary Study of Core Characteristics for the Scheduled CARR," presented at the Fifth Meeting of the Asian Symposium on Research Reactors, Taejon, Korea, May 29-31, 1996. Back to document
19. Mark Hibbs, "Move to Block China Certification Doesn't Concern Administration," Nucleonics Week, August 7, 1997, p. 1. Back to document
20. For a recent version of this argument, see Frank Gaffney, "Nuclear Power for the U.S., Not China," Washington Times, September 27, 1997, p. A17. Financial difficulties also are likely to limit China's purchases of foreign reactors; see Mark Hibbs, "Financial Growing Pains Dent China's Self-Sufficiency Bid," Nucleonics Week, October 17, 1996, p. 11. Back to document
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