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THE NUCLEAR ACT OF 1 9 7 8 NON-PROLIFEWION The materials, technologies , equipment, and facilities associated with civilian nuclear power programs could be of use in the production of nuclear weapons. It is generally accepted that, for this reason, the global spread of nuclear power adds to the risk of proliferation of nuclear weapons. But views differ strongly on the magnitude and signifitance of this incremental risk, and on whether it outweighs or is outweighed by the benefits of various kinds of nuclear power programs. Much of the United States’ policy for dealing with the linkage between nuclear power and nuclear proliferation is embodied in the Nuclear Non-Proliferation Act of 1978. Because the United States is a leading supplier of equipment and services in the nuclear field, this legislation will affect directly or indirectly most of the nuclearpower programs in the non-communist world. In the four essays which follow, the nonproliferation policies reflected in the Act are described and analyzed by an American author and reacted to by contributorsfrom the Federal Republic of Germany, India, and fapan. -The Editors 44 TheUnited States Congress and Nonproliferation ficant recent assertions of Congressional power over 1 O n e of the most signiU .S. foreign policy culminated on March 10, 1978 in the signing of the Nuclear Non-Proliferation Act of 1978.l This new law, primarily intended by Congress to reform U.S. nuclear export practice, carries with it severe restrictions on the civil nuclear programs of other countries. Provisions of the Law As it emerged from a lengthy process of negotiation, compromise, and amendment in the U.S. Congress, the Nonproliferation Act represents an uncertain composite of two very different approaches to the nuclear proliferation problem: 1)the internationalist approach which commits the U.S. to negotiations and international initiatives, relying heavily upon incentives for cooperative effort; and 2) the unilateralist approach, relying heavily on U.S. intervention and control through export restrictions. Unfortunately, despite considerable attention to international cooperation in the nuclear fuel cycle, the real heart of the new law liesin its restrictive, unilateralist export control provisions. The law defines four major mechanisms for the control of nuclear exports.2 The first of these codifiesand upgrades requirements for newly negotiated Agreements for Cooperation-bilateral intergovernmental agreements which are the basic vehicle of international nuclear commerce with the United States. In accordance with preexisting practice, new Agreements must be submitted for approval to Congress, which may veto by majorities of both chambers within 60 days. In a change from past practice, the second mechanism requires existing Agreements for Cooperation to be renegotiated to comply with the statutory criteria for new Agreements. Third, the Act creates a procedurally bewildering scheme for the issuance of Export Licenses for individual exports of nuclear items and commodities pursuant to Agreements for Cooperation. Finally, the Act establishes procedures for obtaining U.S. assent, which will be required by Agreements for Cooperation 1. Public Law No. 95-242 (March 10, 1978). Referred to hereafter as the Act or the NonProliferation Act. 2. These mechanisms are amendments to the existing Atomic Energy Act of 1954, Public Law No. 83-703 (1954) (as amended)which already governsnuclearexports. Frederick Williams was a Research Fellow, Program for Science and Znternational Affairs, Hamard University, during 1977-1978. He is a nuclear physicist and-a practicing attorney. 45 lnternational Security I 46 and Export Licenses, for certain recipient country activities with exported fuel, including further enrichment, reprocessing, retransfer to third parties, physical security measures, and safeguards arrangements. These required permissions are to be known as "subsequent arrangements." Nonprbliferation Criteria Agreements for Cooperation and Export Licenses must conform to two nearly identical sets of substantive criteria which embody the Congressional statement of U.S. nonproliferation policy. Ostensibly the criteria apply immediately to Agreements for Cooperation, and of course new Agreements will observe them as negotiated, but it will be some time before renegotiation can bring existing Agreements into line with the criteria. For Export Licenses the criteria apply in two phases, the first phase effective immediately and the second in two years. The main difference between the two sets of criteria are that those applied to Agreements for Cooperation attach...

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