Key Senator OKs Vietnam Nuclear Trade, But Moves to Limit New Pacts

Senate Foreign Relations Committee Chairman Robert Menendez during a March hearing. The New Jersey Democrat introduced legislation approving U.S. nuclear trade with Vietnam -- with an intriguing rider.
National Journal
Elaine M. Grossman
May 23, 2014, 11:04 a.m.

Sen­at­or Robert Men­en­dez (D-N.J.), who chairs his cham­ber’s For­eign Re­la­tions Com­mit­tee, on Thursday filed le­gis­la­tion to ap­prove the Obama ad­min­is­tra­tion’s May 6 nuc­le­ar trade pact with Vi­et­nam.

The pro­posed le­gis­lat­ive meas­ure also in­cludes a rider that would make it dif­fi­cult to im­ple­ment nearly any new nuc­le­ar trade deals bey­ond 30 years — a move al­most cer­tain to rile a White House that in­creas­ingly prefers no ex­pir­a­tion dates at all for such pacts.

Sen­ate staffers said they ex­pect a sim­il­ar joint res­ol­u­tion to be in­tro­duced in the House. If both bod­ies pass the le­gis­la­tion, it could ef­fect­ively cap the Vi­et­nam agree­ment’s ne­go­ti­ated “in­def­in­ite” dur­a­tion at roughly 30 years.

More broadly, it could trump a State De­part­ment de­sire to rep­lic­ate the no-ex­pir­a­tion fea­ture in forth­com­ing nuc­le­ar trade ac­cords with oth­er na­tions. One of the first af­fected pacts could be a re­new­al ex­pec­ted next year of U.S. nuc­le­ar co­oper­a­tion with China.

Nuc­le­ar trade agree­ments al­low Wash­ing­ton to share sens­it­ive nuc­le­ar ma­ter­i­als, tech­no­lo­gies and in­form­a­tion with se­lec­ted coun­tries for use in civil power gen­er­a­tion.

U.S. atom­ic co­oper­a­tion agree­ments with some na­tions and en­tit­ies would be ex­emp­ted from the 30-year cutoff: Those with NATO al­lies; the “Plus Five” al­lied na­tions of Aus­tralia, Is­rael, Ja­pan, Taiwan and New Zea­l­and; and the U.N. nuc­le­ar watch­dog or­gan­iz­a­tion, the In­ter­na­tion­al Atom­ic En­ergy Agency.

The meas­ure also would not ap­ply to any atom­ic co­oper­a­tion ac­cord — or amend­ment to such a pact — that has entered in­to force by Aug. 1 of this year.

For all oth­ers, though, the Men­en­dez joint res­ol­u­tion would block the U.S. gov­ern­ment from is­su­ing ex­port li­censes for nuc­le­ar tech­no­lo­gies 30 years after a bi­lat­er­al nuc­le­ar trade pact enters in­to force.

After year 25 of an agree­ment, a pro­vi­sion in the le­gis­la­tion would al­low Con­gress to per­mit ex­port li­censes to be is­sued for up to an­oth­er 30 years.

However, ab­sent such con­gres­sion­al ac­tion, the Men­en­dez bill would force the White House to sub­mit most trade agree­ments — even those of in­def­in­ite dur­a­tion — to Con­gress for re­new­al by year 30. Oth­er­wise, new nuc­le­ar tech­no­logy ex­ports to an af­fected coun­try would be cut off.

“We’re con­cerned about con­gres­sion­al over­sight,” said a Sen­ate staffer, one of three in­ter­viewed on Thursday who de­clined to be iden­ti­fied, lack­ing au­thor­ity to ad­dress the mat­ter pub­licly. “It seems that the ad­min­is­tra­tion — and more spe­cific­ally, the De­part­ment of State — is try­ing, with its new agree­ments, to bring them in un­der an in­def­in­ite dur­a­tion.”

A second aide said this ap­peared not to be an Obama ad­min­is­tra­tion policy de­cision, but rather a pref­er­ence at the staff level. The emer­ging State De­part­ment de­sire for in­def­in­ite nuc­le­ar trade agree­ments ap­par­ently is based on con­cern that a typ­ic­al 30-year pact could lapse be­fore a re­new­al is ne­go­ti­ated. The Obama team faced such a situ­ation last year with its South Korea ac­cord be­fore ac­cept­ing a simple two-year ex­ten­sion of the nearly ex­pired doc­u­ment.

“The prac­tic­al ef­fect of this new policy “¦ is re­gard­less of how it was in­ten­ded, it im­mun­izes nuc­le­ar co­oper­a­tion agree­ments from fur­ther con­gres­sion­al re­view in­def­in­itely,” the first staffer said. “If the agree­ment with [a coun­try] is of in­def­in­ite dur­a­tion, we don’t have a stat­utory means to re­view the co­oper­a­tion to see if it’s still ap­pro­pri­ate at a set time, which is clearly en­vi­sioned [in the Atom­ic En­ergy Act] as what Con­gress should be do­ing with re­gard to nuc­le­ar co­oper­a­tion agree­ments.”

Com­pared to the typ­ic­al 30-year time spans, agree­ing to no ex­pir­a­tion date at all “is a rather sig­ni­fic­ant change,” the aide said.

“This res­ol­u­tion of ap­prov­al provides a path for­ward for main­tain­ing high non­pro­lif­er­a­tion stand­ards, sup­port­ing United States in­dustry, and en­sur­ing Con­gress con­tin­ues to ful­fill its vi­tal over­sight du­ties of these agree­ments,” Men­en­dez told Glob­al Se­cur­ity News­wire on Fri­day in an emailed state­ment.

His joint res­ol­u­tion es­sen­tially is “about as­sur­ing a con­gres­sion­al role in gov­ern­ing nuc­le­ar trade in the fu­ture, and a warn­ing shot not to try to block [con­gres­sion­al over­sight of] fu­ture agree­ments with such auto­mat­ic ex­ten­sions,” Miles Pom­per of the James Mar­tin Cen­ter for Non­pro­lif­er­a­tion Stud­ies said in an email re­sponse to ques­tions.

Miss­ing from the Men­en­dez joint res­ol­u­tion is any dir­ect ref­er­ence to the chair­man’s con­cerns about the lack of a bind­ing com­mit­ment by Vi­et­nam not to pro­duce nuc­le­ar fuel. U.S. of­fi­cials have said Vi­et­nam would agree only to of­fer a polit­ic­al state­ment in the agree­ment’s pre­amble, stat­ing that it would re­frain from en­rich­ing urani­um or re­pro­cessing plutoni­um do­mest­ic­ally. However, Hanoi would not in­clude such a pledge in the form­al agree­ment text.

The two fuel­mak­ing activ­it­ies can be use­ful for com­mer­cial nuc­le­ar power, but also have ap­plic­a­tions in build­ing nuc­le­ar arms. Vi­et­nam has stated out­side of the U.S. bi­lat­er­al agree­ment that it would use for­eign sup­pli­ers to build re­act­ors and sup­ply nuc­le­ar fuel.

Men­en­dez and oth­er com­mit­tee mem­bers voiced con­cern about the lack of a bind­ing Vi­et­namese non­pro­lif­er­a­tion com­mit­ment of this kind — some­times called the “gold stand­ard” for nuc­le­ar trade pacts — dur­ing a Janu­ary hear­ing.

“That any­one wants to le­gis­late on these top­ics is great news. It shows signs of con­gres­sion­al life after dec­ades of in­at­ten­tion,” said Henry Sokol­ski, ex­ec­ut­ive dir­ect­or of the Non­pro­lif­er­a­tion Policy Edu­ca­tion Cen­ter. “I think, however, we need to step up our game to push more con­gres­sion­al over­sight of deals that fail to meet the gold stand­ard.”

Sen­ate staffers said on Thursday, though, that any at­tempt now by Con­gress to in­sist that the Vi­et­nam ac­cord con­tain a leg­al ob­lig­a­tion not to pro­duce nuc­le­ar fuel would re­quire rene­go­ti­ation of the agree­ment and could be un­at­tain­able. The Obama team sub­mit­ted the pact on May 8 for re­view in 90 days of con­tinu­ous le­gis­lat­ive ses­sion.

“Hanoi has already con­cluded ne­go­ti­ations with Rus­sia and Ja­pan on buy­ing re­act­ors without the gold stand­ard, so we don’t have lever­age in the nuc­le­ar sphere,” Pom­per told GSN.

While some non­pro­lif­er­a­tion ex­perts have ar­gued that the Obama ad­min­is­tra­tion should push harder for a fuel­mak­ing re­nun­ci­ation in all new co­oper­a­tion pacts around the globe, Pom­per said it prob­ably won’t mat­ter much when look­ing solely at the situ­ation in Hanoi.

“I think there is little in­clin­a­tion that Vi­et­nam wants to en­gage in nuc­le­ar fuel­mak­ing,” he said. “The polit­ic­al com­mit­ments it has made are a step for­ward from what you would get in the ab­sence of the cur­rent agree­ment.”

In fact, he said, Hanoi might ob­ject to the 30-year re­view date for ex­ports em­bod­ied in the Men­en­dez le­gis­la­tion. U.S. of­fi­cials are con­cerned that if the joint res­ol­u­tion be­comes law, Vi­et­nam might “de­mand rene­go­ti­ation” of the ac­cord, Pom­per said.

“Vi­et­nam cer­tainly is a coun­try whose in­tent with re­gard to de­vel­op­ing nuc­le­ar weapons op­tions could very eas­ily change in 30 years,” Sokol­ski said in a Fri­day tele­phone in­ter­view. He noted that Hanoi today is build­ing up its con­ven­tion­al mil­it­ary, to in­clude pur­chases of ad­vanced fight­er jets from Rus­sia.

In the re­cent past, Men­en­dez also has cri­ti­cized Vi­et­nam’s spotty hu­man rights re­cord. The com­mit­tee chair­man said in Janu­ary that he ex­pec­ted to en­dorse the pact with Hanoi only if it is ac­com­pan­ied by “a par­al­lel res­ol­u­tion on hu­man rights as part of our com­pre­hens­ive part­ner­ship un­der­stand­ing.”

Sen­ate aides an­ti­cip­ate that the New Jer­sey law­maker will of­fer the sep­ar­ate hu­man rights res­ol­u­tion some­time next month. Men­en­dez will seek co­spon­sors on both sides of the aisle for each of the two meas­ures, ac­cord­ing to the staffers.

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