Section 123 Nuclear Agreement

Nearly 13 years elapsed between President Reagan`s presentation of the current Agreement 123 to Congress in July 1985 and its implementation in March 1998 under President Clinton. Although Congress did not fully reject the agreement, it passed a joint resolution, P.L. 99-183, which requires that certain unrecast certifications be made by the President before the agreement can be implemented. P.L. 99-183 required presidential certification and a report, followed by a 30-day uninterrupted session of Congress. After the 1989 Tiananmen Crackdown, Congress imposed sanctions in P.L. 101-246, the Foreign Relations Authorization Act for fiscal years 1990 and 1991, the suspension of nuclear cooperation with China and additional presidential certification of the reliability guarantees of China`s POPULAR REPUBLIC. the theme of the agreement is unique among the peaceful nuclear cooperation agreements concluded since the 1978 Nuclear Non-Proliferation Act. This is the first such agreement with a nuclear-weapon state; with a country that, until recently, did not support any non-proliferation action. Although the agreement was signed in April 1984, we had to resolve some issues relating to the implementation of China`s nuclear policy.

These discussions concluded successfully last month. A major threat to our non-proliferation objectives is the potential of “maverick” suppliers to undermine the safeguards and other controls established by international cooperation and consensus. In the past, China has been concerned that it has not complied with this consensus and has not accepted other non-proliferation standards. [Added highlight] The construction of civilian nuclear reactors in China in Pakistan has raised another concern in Congress. Beijing has built two electric reactors in Pakistan and has agreed to build three additional reactors67. The construction of these latest reactors appears to be contrary to the nuclear suppliers Group (NSG) guidelines, as Pakistan does not have IAEA protection measures for all its nuclear facilities. At the May 2015 hearing, Vice Foreign Minister Countryman said that when China became a member of the NSG in 2004, “there was a consensus among other members on the construction of grandfathers in Pakistan, which China had initiated. But there was no agreement that it was a permanent clause. NPAS called “the ongoing construction of new nuclear power plants from China to Pakistan” “contrary to its [NSG] obligations.” The review by Congress ended on 18 March 1998, without any legislation blocking the agreement being enacted to allow its implementation. U.S. companies can apply for financing from the export import bank and NRC and DOE licenses for nuclear exports to China, and foreign companies can apply for re-export of U.S. technology. In addition, Section 123 ensures that Congress remains in a loop, as these agreements are negotiated in unusual proportions.

The President is legally obed upon to inform the House foreign affairs committee and the Senate Foreign Relations Committee “in a comprehensive and present manner of any initiative or negotiation relating to a new or amended” nuclear cooperation agreement in the nuclear field. Congress has spoken out bipartisanly in favour of supporting both the gold standard provisions and a more active role of Congress in monitoring ongoing negotiations with Saudi Arabia and the broader 123 agreements. Members of Congress expressed concern over reports of a potential conflict of interest by senior government officials in negotiating a U.S.-Saudi-Saudi nuclear cooperation agreement and the secrecy surrounding the ongoing negotiations and recent authorizations issued by the Trump administration, saying they had not been adequately evaluated under the Atomic Energy Act. According to Baker Donelson, Westinghouse`s technology transfer agreement for the AP1000 reactor grants the Chinese only a “non-exclusive license”