[Congressional Record Volume 141, Number 49 (Thursday, March 16, 1995)]
[Senate]
[Pages S4035-S4046]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNANIMOUS-CONSENT AGREEMENT
Mr. HATFIELD. Mr. President, I ask unanimous consent to substitute
the word ``item'' for the word ``time'' in amendment No. 329 agreed to
on Wednesday, March 8. It corrects a typographical error. This has been
cleared on both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATFIELD. Mr. President, I would like to indicate that in the
next sequence of amendments, we will have the Leahy-Jeffords amendment,
which will take perhaps a minute, and that will then be followed by a
Roth-Glenn amendment which, again, will not call for a rollcall,
according to the authors of the bill.
We are now down to about two amendments left. We understand
agreements have been worked out on the Republican side and we have
about the same number--three amendments--on the Democratic side. I
understand that those have been worked out.
So we should be at a point where we will be wrapping up the long list
of amendments and moving toward final passage. I just want to indicate
that any Member who has an amendment to be handled in any form here on
the floor, please contact us. We have about five or six that have been
cleared on both sides. At an appropriate moment, we will use as a wrap-
up those agreed to.
Mr. INOUYE. Mr. President, will the chairman yield?
Mr. HATFIELD. Yes.
Mr. INOUYE. Are we now prepared to have a time certain for final
passage?
Mr. HATFIELD. I am unable to say that, based upon the fact that on
two amendments 20 minutes to half an hour has been requested for
discussion--the Brown amendment and the Specter amendment. I am sure
they will not require a great length of time. But I hope that perhaps
in the next hour we will be able to reach final passage. I would be
hesitant to set a time certain.
Mr. INOUYE. I yield the floor.
Amendment No. 337
(Purpose: To authorize the Secretary of Transportation to issue a
Certificate of documentation for the vessel L.R. Beattie)
Mr. LEAHY. Mr. President, I send an amendment to the desk on behalf
of myself and Senator Jeffords and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Vermont [Mr. Leahy], for himself and Mr.
Jeffords, proposes an amendment numbered 337.
Mr. LEAHY. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, insert the following new title:
TITLE --MISCELLANEOUS
Sec. 01.--Notwithstanding sections 12106, 12107, and
12108 of title 46, United States Code, and section 27 of the
Merchant Marine Act, 1920 (46 App. U.S.C. 883), as applicable
on the date of enactment of this Act, the Secretary of
Transportation may issue a certificate of documentation for
the vessel L. R. BEATTIE, United States official number
904161.
Mr. LEAHY. Mr. President, I strongly support the amendment introduced
today with my friend from Vermont, Senator Jeffords. This amendment
would authorize the Secretary of Transportation to issue a certificate
of documentation to grant coasting rights to the vessel L.R. Beattie.
This certificate is commonly known as a Jones Act waiver.
The L.R. Beattie, a 500 passenger, triple deck cruise boat, was
originally built and flagged in the United States. The ship was later
brought by a Canadian company, although it was never flagged in Canada.
It has since been sold to a U.S. company and was bought last year by
Lake Champlain Shorelines Cruises of Burlington, VT.
Lake Champlain Shorelines Cruises bought the L.R. Beattie to operate
tours on Lake Champlain and plans to rename it the Spirit of Ethan
Allen II. This boat will be the showcase of a flourishing cruise
industry on Lake Champlain. This boat will support over 30 Vermonters
working on these cruises. But before this boat may begin carrying
passengers on Lake Champlain, Congress must pass a Jones Act waiver for
the L.R. Beattie because of its brief history under Canadian ownership.
A Jones Act waiver is a routine and noncontroversial bill. It does
not cost U.S. taxpayers a penny. It simply authorizes the Secretary of
Transportation to issue a certificate of documentation to allow a
vessel to operate on U.S. waters.
But a Jones Act waiver for the L.R. Beattie has languished in
Congress for more than a year. The Oceans Act of 1994, H.R. 4852, which
reauthorized Coast Guard operations, contained a Jones Act waiver for
the L.R. Beattie. The House of Representatives easily passed this bill.
Unfortunately, it died in the Senate at the end of last year's session.
This year, Senator Jeffords and I introduced legislation, S. 172, to
allow the L.R. Beattie to receive a Jones Act waiver. The Senate
Commerce Committee will soon consider this bill with other Jones Act
waivers. The time table for final passage of these Jones Act waivers,
however, may be too late for Lake Champlain Shoreline Cruises because
of the fast-approaching cruise season. Without this simple,
noncontroversial Jones Act waiver, this small business in Vermont could
go out of business, throwing over 30 Vermonters out of work.
Senator Jeffords and I have authored this amendment to respond to the
special circumstances surrounding a Jones Act waiver for the L.R.
Beattie.
I want to thank Senator Hollings, the ranking member of the Senate
Commerce Committee, and Senator Pressler, the chairman of the Senate
Commerce Committee, for their invaluable cooperation on this amendment.
Mr. JEFFORDS addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. I join my senior Senator in this amendment, which will
help make Vermont summers on Lake Champlain a little bit better.
Mr. President, I wish to thank the managers of this legislation for
accepting this important amendment. I would especially like to thank
the chairman of the Commerce Committee, Senator Pressler, and the
ranking member, Senator Hollings, for their assistance with this
measure.
Mr. President, included in the Merchant Marine Act of 1920, Jones Act
waivers allow for vessels transporting
[[Page S4036]] cargo within U.S. waters which are not U.S. built,
owned, and manned be given the right to do so. With the passage of this
amendment, the Spirit of Ethan Ellan II, which was built in the United
States and operated under Canadian ownership for a short time, will be
able to resume operations as a United States vessel on Lake Champlain
in time for the summer tourist season. The Spirit of Ethan Allen II
will provide an invaluable service to Vermonters and tourists who come
to appreciate Vermont's beautiful setting. I can think of no better way
to view this beautiful and historic lake.
This vessel will be the only one of its kind in Vermont, offering
scenic cruises, wedding and prom receptions, and dinner parties. In
addition, the Spirit of Ethan Allen II will be active in charity
fundraisers and a program called Education on the Lake, informing young
people of the geological and historical character of the Lake Champlain
area.
In addition, the Spirit of Ethan Allen II will host events for
visiting conferences and conventions in the Burlington area, enhancing
the experience of those who stay in the area's hotels and inns. Lake
Champlain Shoreline Cruises will employ over 25 people to operate the
vessel, making a significant contribution to the continuing development
of the Burlington waterfront area.
I am pleased that this legislation will ensure that the Spirit of
Ethan Allen II begins operating in time for the summer tourist season.
I yield the floor.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment.
The amendment (No. 337) was agreed to.
Mr. ROTH addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Amendment No. 338
(Purpose: To state the sense of the Senate that indefinite and
unconditional extension of the Nuclear Non-Proliferation Treaty is
essential for furthering the security interests of the United States
and all the countries of the world)
Mr. ROTH. Mr. President, I send an amendment to the desk. and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The bill clerk read as follows:
The Senator from Delaware [Mr. Roth], for himself, Mr.
Glenn, Mr. Helms, Mr. Levin, Mr. McCain, and Mr. Nunn,
proposes an amendment numbered 338.
Mr. ROTH. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection it is so ordered.
The amendment is as follows:
At the appropriate point, insert the following:
The Senate finds that the Treaty on the Non-Proliferation
of Nuclear Weapons, herein after referred to as the NPT, is
the cornerstone of the global nuclear non-proliferation
regime;
That, with more than 170 parties, the NPT enjoys the widest
adherence of any arms control agreement in history:
That the NPT sets the fundamental legal and political
framework for prohibiting all forms of nuclear
nonproliferation;
That the NPT provides the fundamental legal and political
foundation for the efforts through which the nuclear arms
race as brought to an end and the world's nuclear arsenals
are being reduced as quickly, safely and securely as
possible;
That the NPT spells out only three extension options:
indefinite extension, extension for a fixed period, or
extension for fixed periods;
That any temporary or conditional extension of the NPT
would require a dangerously slow and unpredictable process of
re-ratification that would cripple the NPT;
That it is the policy of the President of the United States
to seek indefinite and unconditional extension of the NPT.
Now, therefore, it is the sense of the Senate that:
(1) indefinite and unconditional extension of the NPT would
strengthen the global nuclear non-proliferation regime;
(2) indefinite and unconditional extension of the NPT is in
the interest of the United States because it would enhance
international peace and security;
(3) the President of the United States has the full support
of the Senate in seeking the indefinite and unconditional
extension of the NPT.
(4) all parties to the NPT should vote to extend the NPT
unconditionally and indefinitely; and
(5) parties opposing indefinite and unconditional extension
of the NPT are acting against their own interest, the
interest of the United States and the interest of all the
peoples of the world by placing the nuclear non-proliferation
regime and global security at risk.
Mr. ROTH. Mr. President, I rise today to propose an amendment on
behalf of myself and Senators Glenn, Helms, Levin, McCain, and Nunn,
which calls for the indefinite and unconditional extension of the
Nuclear Non-Proliferation Treaty.
In only 4 weeks, the parties to the NPT will gather in New York to
decide the future of this critical agreement. This resolution sends an
unequivocal message to all the countries of the world that this body
regards making the NPT permanent as absolutely essential. It also sends
a clear signal to any country opposing indefinite and unconditional
extension of the treaty that that nation is acting against not only
against its own interest, but also against the interest of the United
States and indeed of the people of the entire world, because their
position places the nuclear non-proliferation regime and global
security at risk.
March 5 marked the 25th anniversary of the entry into force of the
NPT. That treaty is universally regarded as the the single most
important component of the international effort to prevent the spread
of nuclear weapons. Indeed, it is the very foundation upon which the
entire global nuclear non-proliferation regime was constructed.
When the five declared nuclear weapons states ratified the NPT, they
pledged to end the nuclear arms race, to undertake measures toward
nuclear disarmament and not in any way to assist nonnuclear weapon
states in gaining nuclear weapons.
For their part, the nonnuclear parties to the treaty pledged not to
acquire nuclear weapons and to accept a system of safeguards to verify
their compliance. Thus, in joining the NPT, these countries transformed
the acquisition of nuclear weapons from an act of national pride to a
violation of international law.
Those who negotiated the NPT never expected that the treaty alone
would end the global nuclear proliferation threat. Yet, I think even
they could be surprised by its successes toward that end. Today, there
remain only 5 declared nuclear weapons states--not the 20 or 30, many
experts had once projected. There are also only three so-called
``threshold'' states.
The NPT has provided the overarching structure to end the nuclear
arms race. With the ratification of START I, and the ongoing work of my
able and distinguished colleagues in the Foreign Relations Committee on
START II, the race now is to bring down the number of nuclear weapons
as quickly, safely and securely as possible.
Another indicator of treaty's success has been the steady increase of
its membership. Today, with more than 170 parties, the NPT has the
widest adherence of any arms control agreement in history. When backed
by strong nonproliferation policies and verification measures including
international safeguards, the NPT curbs inclinations countries may have
in believing they need the bomb for safety. Thus, it advances the
security of all the world's nations.
Unfortunately, the NPT was established with a limited life-span. The
treaty provides that 25 years after its entrance into force, a
conference of the parties will be convened to decide whether the NPT
will remain in force indefinitely, for one fixed period of time or for
a series of fixed periods. The treaty further provides that the
decision on extension will be made by majority of parties to the
treaty. The result will be legally binding for all parties, whatever
vote they cast.
I believe it is beyond question that indefinite extension is
essential. The NPT must be made permanent if we are to contain the
terrible threat posed to all nations by the proliferation of nuclear
weapons.
Anything short of indefinite extension would deal a major blow to the
global nuclear nonproliferation regime because at the end of any
specified extension period, the treaty could be undermined. The global
norm prohibiting the further acquisition of nuclear weapons would thus
be destroyed.
We must never allow such an outcome that would jeopardize the entire
nuclear nonproliferation regime--so
[[Page S4037]] painstakingly crafted over the past quarter century.
In the aftermath of the cold war, the decisions we make today about
global security will dramatically affect the lives of generations to
come. No decision is more important than the one the world faces next
month on the future of the NPT.
Despite the critical need for making the NPT permanent, a number of
countries are actively opposing indefinite extension. Most troubling to
me are the strongly negative positions taken by Mexico and Egypt--two
nations which have received so much support from the United States over
the years.
Some of the countries opposing the U.S. position say that indefinite
and unconditional extension of the NPT should be made contingent on the
ratification of a comprehensive test ban treaty or an agreement to cap
the amount of material available for nuclear explosives. Others seek
universal membership in the NPT or a timetable for complete nuclear
disarmament.
By holding the NPT's future hostage to such goals, these countries
undermine the likelihood of the treaty's indefinite extension. What
they do not seem to realize, ironically, is that in doing so they also
jeopardize the very framework critical to the achievement of their own
goals.
Indefinite extension of the NPT does not preclude adjustments to the
nuclear nonproliferation regime. In fact, it would make permanent the
climate of trust conducive to more restrictive controls over weapons-
grade nuclear materials and related technologies and activities.
Given the narrow focus of the NPT conference next month, the only
question treaty parties should ask is whether the world is a safer
place with the treaty in force. I believe that the answer to that
question is unambiguously ``yes''. Indefinite and unconditional
extension is thus the only choice that makes sense.
I yield the floor.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, I ask unanimous consent to include my name
as a cosponsor of the amendment offered by my colleague and friend from
Delaware, the chairman of the Governmental Affairs Committee, Senator
Roth, expressing the sense of the Senate on the future of the Treaty on
the Non-Proliferation of Nuclear Weapons, better known as NPT, which
entered into force on March 5, 1970.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN. Mr. President, next month, representatives of the 173
members of the NPT will gather in New York to determine how long the
treaty shall remain in force.
I support this amendment because I believe that the NPT, despite some
shortcomings--and it has been far from perfect--still continues to
advance U.S. national security interests and a peaceful world order.
Accordingly, I urge all my colleagues to join in a sense of the
Senate in favor of an indefinite and unconditional extension of the
NPT. The NPT has come under attack over the years for not having fully
halted the global spread of nuclear weapons, particularly in the case
of certain NPT parties, with Iraq, Iran, and North Korea being the most
celebrated examples.
Some critics say the NPT gives too much emphasis on promoting
peaceful uses of nuclear technology and not enough on its safeguards
system. This argument has been directed specifically at the enforcement
of the primary goal of safeguards; namely, the timely detection--timely
detection--of the diversion of a significant quantity of special
nuclear material for nuclear explosive uses. Simply put, the more
countries come to engage in large-scale commercial uses of bomb-usable
materials, the more likely it will be that some such materials will
wind up in the hands of black marketeers or terrorists or nations bent
on proliferation and getting their own nuclear weapons capability.
Other criticisms, particularly coming from certain developing
countries, have alleged that the NPT focuses too much on preventing the
global spread of nuclear weapons and not enough on promoting nuclear
disarmament. Anti-NPT propagandists have condemned the treaty's alleged
system of atomic apartheid and its hidden purpose of, as they say,
disarming the unarmed.
Other critics have found fault with the treaty's easy exit clause,
permitting a State to leave the treaty on 90 days' notice. The treaty
does not define certain key terms like nuclear explosive device and
manufacture. Nor does it prohibit exports of sensitive nuclear weapons-
related technology.
Mr. President, I ask unanimous consent to insert in the Record at the
end of my remarks an analysis prepared by Dr. Leonard Weiss, the staff
director for the minority of the Committee on Governmental Affairs,
which describes and assesses these and several additional criticisms of
the NPT.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. GLENN. Mr. President, why should the United States press for an
indefinite extension of such an imperfect treaty?
Rather than rebut all of the allegations made by the treaty's
critics, or recount all of the many arguments used on behalf of the
treaty by its proponents, I would like to summarize briefly my own
views on why the NPT should be extended indefinitely.
First, to the ends. The world community needs a formal legal
instrument to give form and substance to the international effort to
reduce and eliminate nuclear weapons. Given its near-universal support
in the world community, the NPT helps to delegitimize the further
proliferation--and, ultimately, the possession--of nuclear weapons. It
contributes to a global nonproliferation ethic that is invaluable to
international security. Any short-term extension or extensions would
only weaken the incentives of the nuclear-weapon states to expedite
their nuclear disarmament activities. Such short-term extension options
amount, in my opinion, to NPT confidence-reduction measures.
Now, as to the means. The NPT was never intended as a silver bullet,
as something magic. Nobody expects the NPT to act as a panacea to the
global nuclear weapons proliferation threat. The NPT works best when it
is supported by complementary national policies of its parties. For
example, the United States, the United Kingdom, France, Russia, and
China have undertaken binding legal obligations that they will not in
any way assist the proliferation of nuclear weapons. Each of these
nuclear-weapon states must promulgate domestic laws and regulations to
ensure this commitment is being upheld. At a time when each of these
countries--including most particularly our own country--is experiencing
great pressure to relax export controls under the false flag of
economic competitiveness, now is not the time to abandon or weaken an
obligation that serves to preserve responsible national systems of
sanctions and export controls. Without the NPT, the world nuclear
market would become a free-for-all--the new motto of the so-called
post-cold war world order would soon become, ``Sell what you can while
you can. At the same time prepare for the worst.''
As to fairness, the NPT involves reciprocal duties on the parts of
the nuclear-weapon states and the non-nuclear-weapon states. The former
have no choice. They must not assist other countries to get the bomb,
they must negotiate in good faith to curb the nuclear arms race, pursue
nuclear disarmament, and work toward a treaty on general and complete
disarmament. The latter also have no choice: they must not acquire the
bomb, they must agree to safeguards over the full scope of their
activities involving nuclear material, and also pursue global
disarmament objectives. Though these are very different types of
obligations, it is not correct to condemn the treaty as simply
discriminatory. I doubt that this treaty would have 173 parties, 173
nations all signed up, if those nations truly believed that this treaty
was discriminatory. If the treaty--backed by strong national
nonproliferation policies--helps to prevent the spread of nuclear
weapons, all nations stand to gain the freedom from fear of regional or
global nuclear wars.
Now what are our next steps? The NPT is not a quick fix. It must be
supplemented by strong national leadership and international
cooperation. Here are just a few suggestions of some
[[Page S4038]] specific initiatives that are needed to complement the
NPT regime.
No. 1. Increased efforts by all countries to integrate fundamental
NPT obligations into domestic laws and regulations of all states party
to the treaty. I have proposed legislation in our own country here and
sent a bill, S. 102, that seeks to bring U.S. controls over exports of
nuclear dual-use goods into line with U.S. obligations under the NPT
and nuclear supplier guidelines. Now, I urge my colleagues to support
this effort and to examine very closely the various pending proposals
to reauthorize the Export Administration Act to ensure that these bills
will advance rather than undercut our international nonproliferation
commitments.
For those who may think my use of the term ``undercut'' is a bit
harsh, I would encourage them to read a report prepared last year by
the General Accounting Office at my request. The report is entitled
``Export Licensing Procedures for Dual-Use Items Need to be
Strengthened.''
No. 2. Pursuit of an international moratorium, preferably a ban, on
the commercial sale, production, or use of separated plutonium or
highly enriched uranium. In other words, bomb-rich material. A partial
ban on the production of such materials for weapons or outside of
safeguards is--assuming for now that it would not amount to a license
to produce such materials under safeguards--a useful first step but is
by no means a substitute for this more important goal. We cannot for
long sustain an international arrangement that smiles upon large-scale
commercial uses of such materials in certain privileged states while
frowning upon such activities elsewhere. In other words, we need
consistency of our policy.
No. 3. Reaffirmation by the nuclear weapon states of their intention
to live up to their obligation under article 6 of the NPT. In
particular, we need rapid progress both on START II and on further
reciprocal and verifiable cuts of strategic nuclear arsenals around the
world, including those of France, the United Kingdom, and China. The
nuclear-weapon states must devote less effort to attacking the basic
goal of nuclear disarmament and more effort to exploring the means by
which this objective can be achieved.
No. 4. Negotiation at the earliest possible date of a verifiable--
underline verifiable--permanent comprehensive ban on the testing of
nuclear explosive devices, with emphasis on those words ``verifiable,''
``permanent,'' ``comprehensive,'' and ``ban.''
No. 5. Increased transparency both of the size and disposition of
existing nuclear arsenals around the world, along with the size and
disposition of existing stockpiles of weapons-usable nuclear material,
including so-called civilian material. The ability of the United States
to monitor the ultimate disposition of its own nuclear materials in
international commerce is badly in need of improvement, as the GAO
recently concluded in its report ``U.S. International Materials
Tracking Capabilities are Limited.'' That report was prepared at my
request, also. The longer such shortcomings are permitted to exist, the
sooner the NPT will find itself in the position of the emperor with no
clothes.
No. 6. Strengthen both the capabilities and finances of safeguards
implemented under the NPT. The Nuclear Proliferation Prevention Act,
enacted last year as title 8 of the foreign Relations Authorization Act
for fiscal years 1994 and 1995, Public Law 103-236, contains a sense of
the Congress urging 24 specific improvements in these safeguards. As
the author of those provisions, I intend to monitor closely U.S.
efforts to advance these much-needed reforms in the months ahead.
No. 7. Reaffirmation of the prevention, not management, of
proliferation as the foremost goal of U.S. nonproliferation policy.
I see a great deal of attention being directed to implementing
military responses to proliferation. The more I see of these efforts,
however, the more convinced I become that the best defense against such
weapons is to redouble our efforts to prevent their proliferation in
the first place. One single attack using a biological or nuclear weapon
could destroy virtually any city anywhere, regardless of the best of
defenses. Stopping proliferation is somewhat analogous to fighting
cancer: A few ounces of prevention will yield many kilograms of cure.
Mr. President, in conclusion, even if these and other proposals were
to be implemented today and even if the NPT is finally extended
indefinitely, we will still have to live with a global nuclear weapons
proliferation threat. I would prefer to address this threat, however,
having a permanent NPT and these supplementary measures in my
diplomatic tool kit rather than not having them.
Accordingly, I hope that all my colleagues will join me in supporting
the amendment of my distinguished colleague from Delaware on behalf of
an indefinite extension of the NPT. Let us just get on with the
business of nonproliferation.
Mr. President, one additional remark. If we did not have the NPT, I
think we would have to invent it. This is a group of 173 nations that
gradually, over a series of 5 years, since back in the early 1970's,
has come together to say that they forswear the development of nuclear
weapons in return for our cooperation in the peaceful uses of nuclear
energy. We have supported that. We have been actively pursuing that.
I do not believe that we need any more of these 5-year period
reviews. I would like to see this extended indefinitely, and that is
what the U.S. policy is trying to do as the 173 nations meet at the
U.N. in New York next month, and I hope that they pass this as an
indefinite extension of the NPT to show we are truly serious about this
matter.
Mr. President, I yield back the remainder of my time and yield the
floor.
Exhibit 1
The Nuclear Non-Proliferation Treaty: Strengths and Gaps
(By Leonard Weiss)
I. Introduction
The evolution of a strong nonproliferation ethic in the
world is, ultimately, the best stable long-term tool to
prevent the spread of nuclear weapons. Such an ethic can
stimulate, and is, in turn, stimulated by the creation of
international institutions incorporating the notion of
nonproliferation at their core. The Nuclear Non-Proliferation
Treaty\1\ (NPT), despite the confused philosophy of its
provenance, has become such an institution and has
demonstrated its value especially during the past few years.
It remains, however, a flawed institution that requires
considerable tending to, including constant efforts to obtain
a consensus of its parties concerning evolving
interpretations of its provisions in order to maintain its
effectiveness as a nonproliferation tool, if not its survival
altogether.
Footnotes at end of article.
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It should not come as a surprise that the Treaty is an
imperfect nonproliferation instrument. It was created in
response to nonproliferation concerns arising from burgeoning
nuclear trade accelerated by a misguided atoms-for-peace
policy, trade promoted aggressively by nuclear policymakers,
technocrats, and diplomats whose visions of nuclear
technology-generated prosperity obscured the very real
national and international security problems being created.
Those problems, when they emerged, seem to have been viewed
as much in terms of the threat to future nuclear commerce as
they were in terms of the threat of life. Accordingly, the
Treaty was designed to endorse and encourage the spread of
nuclear technology for peaceful purposes at the time it was
to constrain, indeed prevent, the development and manufacture
of nuclear weapons.
The incompatibility of these aims became apparent after the
Treaty went into effect in 1970 as some nuclear suppliers,
particularly Germany and France (one an NPT party and the
other pledged at the time to act as an NPT party) prepared to
export technology and equipment for production of fissionable
material, albeit under safeguards administered by the
International Atomic Energy Agency (IAEA), to countries that
either were not NPT parties and were embarked on secret
military programs to develop nuclear weapons (Pakistan and
Brazil) or were NPT parties whose nonproliferation
credentials were suspect at the time (South Korea).
What followed over the next few years, and is continuing
today, was the development
of other institutions outside NPT designed to patch the
omissions, ambiguities, ill-conceived constraints and
other flaws in the Treaty. Thus, we now have nuclear
supplier agreements, bilateral agreements, national and
multinational export controls, national technical means of
surveillance and international intelligence links, and
positive and negative security assurances to assist us in
keeping genie in the bottle. These tools, along with the
NPT and the associated IAEA safeguards system, are
referred to, collectively, as the nuclear nonproliferation
regime, a regime that is still evolving in the direction
of greater effectiveness, but is not yet at the point
where any of the nuclear weapon states would be prepared
to put their nuclear arsenals aside with confidence.
[[Page S4039]] Why is this so, and why has it been
necessary to create all these auxiliary tools to combat
proliferation? What have we learned over the past 25 years
that, had we known it in the 1960s, would have enabled us to
construct a better NPT and a better safeguards system? And,
in the end, does it matter, i.e., would a stronger NPT enable
us to rely for our security on this institution?
ii. a review of the major elements of the treaty
A. Articles I and II
Article I mandates that each nuclear-weapon-State Party to
the Treaty may not transfer to any recipient nuclear weapons
explosive devices or control over such weapons or explosive
devices directly or indirectly; and may not in any way
assist, encourage, or induce any non-nuclear-weapon State to
manufacture or otherwise acquire nuclear weapons or other
nuclear explosive devices, or to obtain control over such
weapons or explosive devices. Article II prohibits non-
nuclear-weapon-States from receiving those things which
weapon-States are prohibited in Article I from giving, and
are specifically prohibited from manufacturing or otherwise
acquiring nuclear explosive devices.
The first problem with Articles I and II is that it is
unclear what constitutes ``assistance'', ``encouragement'',
or ``inducement'' to a non-nuclear-weapon-State; the second
problem is that it is unclear what constitutes
``manufacture'' of a device; the third problem is that it is
unclear what constitutes a nuclear device because there is no
consensus on the definition of a nuclear explosion; and the
fourth problem is that there is no prohibition on a non-
weapon-State assisting another non-nuclear-weapon-State to
acquire nuclear weapons.
George Bunn and Roland Timerbaev, who were among the
negotiators of the text of the NPT, have written on the
question of what constitutes ``manufacture''\2\, and quote
the testimony of the Chief of the American delegation,
William C. Foster, before the Senate Foreign Relations
Committee. Foster said that ``the construction of an
experimental or prototype nuclear explosive device would not
be covered by the term `manufacture' as would be the
production of components which could only have relevance to a
nuclear explosive device''. He also made reference to
``activities'' by a non-weapon-State that would ``tend'' to
put the Party in noncompliance of Article II if the purpose
of those activities was the acquisition of a nuclear
explosive device.\3\
In order to allay concerns about how one would determine
the purpose of certain fuel cycle activities that could be
peaceful or weapons-related, Foster added that: ``Neither
Uranium enrichment nor the stockpiling of fissionable
material in connection with a peaceful program would violate
Article II so long as those activities were safeguarded.''
The reference to safeguards in his statement is immaterial,
because if a program is, indeed, peaceful, then there is no
violation of Article II even if the activity is
unsafeguarded. (In that case, the Party would be in
noncompliance with Article III, but that is another matter).
This points up a problem that runs throughout the NPT--lack
of definitive interpretation. Bunn/Timmerbaev write that the
Foster criteria for manufacture have generally been accepted
as authoritative interpretations by historians of the NPT
negotiations, but whether all current Parties to the NPT
would agree with those interpretations is unclear. It is
important to note that until the Iraq situation arose, there
was no indication that many of the Parties to the NPT viewed
the International Atomic Energy Agency as an appropriate
verification instrument to ensure that non-nuclear
weaponization activities weren't being carried out. Indeed,
there were debates in the past as to whether IAEA inspectors
were obligated to report any untoward activities they
observed (e.g., noting the presence of bomb components such
as machined hemispherical metal shells somewhere on the
premises) that were unrelated to the negotiated safeguards
agreement.
However, the Iraq situation and the South African decision
to abandon its nuclear weapons program has allowed the IAEA
to put its toe in the water on non-nuclear weaponization
activities. In the case of Iraq, the agency has been provided
information by the U.N. Special Commission (UNSCOM) regarding
the Iraqi program and in the case of South Africa, the IAEA
was invited to examine with full transparency the scope,
nature, and facilities of the weapon program after
dismantlement. This included some non-nuclear weapon
components. This coupled with the acceptance by the NPT
members of the IAEA's ability to do ``special inspections''
in the wake of the Gulf War is a start toward significant
reform.
By contrast, one may also note that the U.S./North Korea
Framework Agreement makes no mention of any non nuclear
weaponization activities or the disposition of any weapon
components that North Korea may have manufactured, and the
IAEA considers North Korea not in compliance with its
safeguards obligations because of its failure to allow
inspection of two nuclear waste sites. Ostensibly, if North
Korea were to allow these inspections and the result were to
show that all the plutonium in North Korea can be accounted
for, North Korea would then be considered by the IAEA an NPT
Party in good standing since there are not other allegations
officially pending regarding its NPT commitments.
Since the existence of a North Korean nuclear weapons
program in an assumption shared by most observers of the
scene, it is hard to believe that some weapon components have
not been manufactured by North Korea. However, it appears
that the IAEA will ignore this possible violation of the NPT,
at least for the time being, until it can account for all the
nuclear material in North Korea.
Another issue concerning manufacture is that of R & D,
particularly design information. Japan, in 1975, submitted a
paper to the Geneva Disarmament Conference arguing that the
NPT does not explicitly prohibit weapons-oriented R & D short
of actual production of nuclear explosive devices.\4\ In
rebuttal, much has been made of a statement made by the
drafters during the NPT negotiations that receipt by a non-
weapon-State of ``information on design'' of nuclear
explosives is barred by virtue of the probibition on
assistance in the ``manufacture'' of such explosives\5\;
however, it is unclear whether this can be extended to
prohibit a non-weapon-State from doing its own design without
external assistance.
It is a stretch to argue that the Foster criteria barred
such activity based on an assumption that the only purpose of
design is to acquire a nuclear explosive device. Some years
ago, Los Alamos asked some recently hired young physicists
with no weapons background to design a weapon based on the
open literature to see if it could be done and thereby to
gauge the possible extent of proliferation by this route. The
purpose of the activity was not to manufacture nuclear
weapons. The Treaty's vague language on ``manufacture'',
unless appropriately interpreted, would appear to allow
anyone to design weapons using the Los Alamos experiment and
rationale without violating the Treaty.
Once again, however, even if the Treaty were to be air
tight on this issue, verification of compliance would be
virtually impossible.
It is evident the Foster criteria do not settle the
question of what constitutes ``manufacturing''. The criteria
also don't settle some other important questions that arise
from consideration of the safeguards regime. Such
consideration will also reflect on the question of what
constitutes direct or indirect assistance or encouragement to
manufacture or otherwise acquire nuclear weapons which are
discussed in a later section.
B. Article III
Article III has four parts. Article III.1 begins by
requiring Non-weapon-State Parties to accept safeguards, ``as
set forth in an agreement to be negotiated and concluded''
with the IAEA in accordance with the IAEA's statute and
safeguards system, ``for the exclusive purpose of
verification of the Parties' NPT obligations with a view to
preventing diversion of nuclear energy from peaceful uses to
nuclear weapons''.
The remainder of Article III.1 states that safeguards
procedures shall be followed with respect to all source or
special fissionable material in all peaceful nuclear
activities within the territory of the State, under its
jurisdiction, or carried out under its control anywhere.
Note that while there is nothing in this language
explicitly referring to the effectiveness of safeguards,
effectiveness is to be inferred from the context. That is
because the Treaty cannot be an effective non-proliferation
instrument if it allows equipment, material, and technology
that could be used for nuclear explosive purposes to be
transferred with
ineffective safeguards attached. Unfortunately, this point
was not explicitly addressed by the drafters, and the
question of the relationship of trade to effectiveness of
safeguards (as opposed to the mere attachment of
safeguards) has accordingly become a contentious issue.
In their deconstruction of the language of Article III.1,
Bunn/Timerbaev argued that Article III.1 authorizes the IAEA
to verify that non-nuclear components for nuclear weapons are
not being manufactured.\6\ It would not be a difficult case
to make if the Article did not contain so much emphasis in
connecting safeguards to nuclear materials rather than
equipment (either nuclear or non-nuclear). As a result, Bunn
and Timerbaev lean part of their argument on an
interpretation of the phrase stating the purpose of
safeguards as ``verification of the fulfillment of (the
State's) obligations assumed under this Treaty with a view to
preventing diversion of nuclear energy * * *'' Bunn and
Timerbaev connect the clause ``with a view to preventing
diversion * * *'' to the State's obligations under the Treaty
not to manufacture weapons, but an equally if not more
plausible interpretation is that the antecedent of this
clause is safeguards, and that the clause has been added to
provide focus as to how safeguards relate in a practical way
to the State's NPT obligations. (Indeed, under the Bunn/
Timerbaev interpretation, Article III.1 would put States
under an NPT obligation to establish effective physical
security over nuclear materials. That it does not was
recognized and remedied by the voluntary (!) Physical
Security Convention developed by the IAEA and adopted by many
(NPT and non-NPT) countries with nuclear programs).
This is not to say that a case can't be made for safeguards
applying to non-nuclear weaponization activities, and Bunn/
Timerbaev have made the best case possible. It is just that
the emphasis in Article III on material safeguards along with
the history
[[Page S4040]] of safeguard negotiations and agreements
provide no confidence that a majority of members of the IAEA
that are State Parties to the NPT share this broad view of
safeguards. Taking the broadest view of the stated purpose of
safeguards as ``verification of the fulfillment of a (Non-
weapon-State's) obligations'' under the NPT could arguably
subject to inspection the agreements and arrangements by
which non-weapon-States allow weapon-States to place nuclear
weapons on their territory (Inspections of the agreements
could ensure that there were no protocols under which
transfer of authority or control over the weapons could take
place). Whether the weapon-States would agree to have the
IAEA inspectors examine these arrangements is, one suspects,
more than problematical.
Article III.2
This Article provides that suppliers Party to the Treaty
shall not provide nuclear materials or equipment for
processing, use or production of such materials to a non-
weapon-State unless safeguards are attached. Over a period of
years, it became apparent that a more detailed and finer
screen for nuclear transfers than this had to be devised in
order to ensure uniformity of compliance by suppliers. The
result was the so-called ``Zangger'' list of nuclear items to
which safeguards must be attached, and, more recently, a list
of dual-use items requiring safeguards as well. In addition,
the Nuclear Suppliers Group (NSG) has identified nuclear
export items requiring consideration of ``restraint'' and
``consultation'' before the item is sent.\7\
Article III.3
This Article is designed to ensure that safeguards
arrangements will not intrude on the ability of non-weapon-
States to obtain assistance for or otherwise develop their
nuclear energy activities. It references Article IV which has
been the basis for many complaints over the years regarding
the policies of the suppliers, particularly the U.S. Article
III.3 reflects the mindset of the nuclear establishments and
the non-weapon-States at the time of the drafting of the
Treaty, which was that the Treaty was also to be an
instrument for facilitating international nuclear commerce.
This mindset resulted in a safeguards system that was
designed more for its nonintrusiveness than for its
effectiveness. This is still a problem despite the
improvements in the wake of the Gulf War.
Article III.4
Provides for a timetable by which States Party to the
Treaty must enter into appropriate safeguards arrangements.
This timetable has not been met many times in the past, but
the most egregious example was that of North Korea, which
took six years to enter into a safeguards agreement with the
IAEA. No sanction was imposed on North Korea or other
violators of this provision.
The Safeguards System of the IAEA
The IAEA was established in 1957 in the wake of the U.S.
Atoms-for-Peace initiative and began operating an inspection
program in the early 60's designed to detect diversions of
significant quantities of nuclear material. The NPT expanded
the scope of the agency's work significantly, and in
response, the IAEA developed a model safeguards agreement for
NPT Parties contained in the document INFCIRC/153.
In this document, the IAEA states that the goal of
safeguards is the prevention of proliferation by ``the timely
detection of diversion of significant quantities of nuclear
material from peaceful nuclear activities to the manufacture
of nuclear weapons or of other explosive devices or for
purposes unknown, and the deterrence of such diversion by the
risk of detection''.
This was adopted in 1970 at a meeting of the so-called
Committee of the Whole which deliberated for 11 months before
the text of INFCIRC/153 was approved. Mr. Rudolph Rometsch
was the head of the IAEA's Department of Safeguards at the
time, and he was recently quoted in an interview saying that
the 1970 Committee meeting led to ``a sort of dogma for field
work--if not to a taboo. It was a question whether inspection
should be designed also to detect undeclared facilities. The
conclusion was clear at the time: looking for clandestine
activities was out of the question and the inspection system
was designed accordingly''\8\.
Thus, inspectors paid attention only to activities or
structures within defined strategic points, and were
discouraged from asking questions about anything else lest
they become persona-non-grata with the State (which had the
right to refuse an inspector) and perhaps ultimately at IAEA
headquarters.
INFCIRC/153, in addition to laying out the obligation on
the part of the State to have safeguards apply to all its
peaceful nuclear activities (so-called ``full scope
safeguards''), also stresses the importance of protecting
industrial and commercial secrets, not interfering in
peaceful nuclear activities, and not hampering economic and
technological development in the safeguarded state. This is
in keeping with the Agency's dual role. Its charter makes it
a promoter of nuclear energy at the same time it is to verify
that no diversions have taken place.
As a result, much negotiation follows the signing of the
main Safeguards Agreement between the IAEA and the State to
be inspected. The main agreement is followed (ostensibly
within 90 days) by Subsidiary Arrangements that specify what
the Agency and the State have to do in order for safeguards
to be applied. Nuclear installations must be listed, and
requirements for reporting to the Agency are specified in
negotiated detail. These subsidiary arrangements are not
published.
The most specific safeguards documents are the facility
attachments to the Subsidiary Arrangements. These state
exactly what will be done at each facility containing nuclear
material, and lay out the ``Material Balance Areas'' the
Agency will establish for accounting purposes. The flow of
nuclear material across these areas must be reported to the
Agency. The facility attachments also specify the points at
which measurements can be taken or samples withdrawn, the
installation of cameras, the access to be afforded to
inspectors, the records to be kept, and the anticipated
frequency of inspections. These negotiated arrangements are
also not published.\9\
Some years ago, the Agency developed internally a set of
technical objectives that provide a guideline for determining
the level of inspection and reporting that would ensure that,
at least for declared facilities in an NPT State, the goal of
timely detection by any diversion of a significant quantity
of nuclear materials would be met. Concern by inspected
States about intrusiveness has resulted in negotiated
safeguards agreements that do not come close to meeting these
technical objectives, and therefore cannot be said to be
producing effective safeguards by any objective criterion.
Inspected States have also leaned on the Agency to not even
exercise its full rights under the Agreements. In some cases,
the Agency itself refrains from exercising its full rights in
order to conserve resources.
This is a basic problem in that the IAEA's safeguards
agreements do not provide for the agency to inspect any
location--declared or undeclared--at any time (outside of
regularly scheduled routine inspections) without some
evidence that the site should be subject to inspection. Nor
do the agreements provide for IAEA inspectors to verify use
of any material formally exempted from safeguards. Thus, when
inspectors doing a routine inspection in Iraq
before the war were asked about buildings adjacent to an
Iraqi reactor, they were told it was used for nonnuclear
research. Since they were undeclared sites and IAEA had no
evidence of suspect activity, the agency had no basis to
inspect the building, which, as it turned out, contained a
radiochemical laboratory used for research on plutonium
separation.
Furthermore, the safeguards agreements ensure that there is
no such thing as a surprise inspection, even though, in
principle, IAEA has the right to make ``unannounced'' or
short-notice inspections. Routine inspections must provide
the state with at least 24 hours notice, and IAEA must advise
the State periodically of its general program of announced
and unannounced inspections, specifying the general period
when inspections are foreseen. Hence, States generally know
when and where inspections will occur, and in any case, have
control over the timing of admission of inspectors to the
country and to the facility.
The Gulf War has produced a situation where the IAEA has
successfully used its authority to conduct special
inspections in Iraq backed up by U.N. authority, and has
received voluntary offers from a number of states to allow
such inspections of declared or undeclared facilities. One of
those states was North Korea, which afterward withdrew its
offer after the agency demanded to inspect two sites the
North Koreans didn't want inspected. Those sites will be
inspected at some time in the future (at least 5 years) under
the U.S./North Korea framework agreement, which has the
unfortunate effect of leaving the agency holding the bag
despite its claims of access.
The IAEA has also not resolved the problem that it cannot
verify the peaceful use of nuclear materials exempted by the
agency from inspection. Such materials may involve (1)
special fissionable material in gram quantities used for
instrumentation; (2) nuclear material for production of
alloys or ceramics in non-nuclear applications; (3) plutonium
(Pu) of a certain isotope concentration (e.g., high in Pu-
238); or (4) limited quantities ranging from 1kgm of Pu to 20
tons of depleted uranium. Iraq used an exemption for a spent
fuel assembly to conduct research on separating plutonium
without informing the agency. The agency had no authority to
routinely verify what Iraq said it was doing with the spent
fuel assembly.
It should be emphasized that the IAEA's problems are not
only with the Iraqs of the world. It has problems with many
states who are not suspected of weapons development. As
Lawrence Scheinman has pointed out; ``Over the past twenty
years, the Agency has experienced restraints on its right of
access, on the intensity and frequency of inspection efforts,
and even on the extent to which it could exercise its
discretionary judgment in planning, scheduling, and
conducting inspection''\10\.
To this should be added that the Agency's technical
objectives are themselves unrealistic because they are based
on ``significant quantities'' of fissionable material that
are at least twice as large as the amounts that a non-weapon-
State might need to construct its first nuclear explosive
device.
Why doesn't the IAEA lower the amount it considers a
``significant quantity''? Because inspections would then have
to be more frequent and more intrusive, and the agency
[[Page S4041]] currently has neither the financial nor the
political support to make this move.
Raising the financial question exposes the agency's ``dirty
little secret''. Because safeguards are supposed to be
applied nondiscriminatively, much of the Agency's safeguards
budget goes to safeguards in Germany, Japan, and Canada,
while the largest current proliferation concerns are
elsewhere. The agency, which has been on a zero-growth budget
for the better part of a decade, attempts to address its
budget problems by slacking off on some inspections of
facilities it considers not of proliferation concern. But in
so doing it converts its nondiscriminatory character to the
status of myth and risks internal political turmoil. It
cannot help this because the cost of safeguarding bulk-
handling nuclear facilities such as enrichment, reprocessing,
or fuel fabrication plants is enormous, requiring, in most
cases, on-site location of inspectors and much better
instrumentation and measurements. While the IAEA has only
been required to safeguard small reprocessing plants thus
far, the ability of the agency to safeguard effectively
(leaving aside the expense) a commercial scale reprocessing
plant, such as the one being built at Rokkasho in Japan, has
been called into question by many people over the years. A
very interesting analysis done by Marvin Miller11 for
the Nuclear Control Institute shows that, for a reprocessing
plant with an 800 tonne/yr. capacity and an average plutonium
content of 0.9%, with a (1)% uncertainty in the
input measurement of plutonium (and assuming this dominates
the error in measuring MUF); and with a material balance
calculation done once a year, the absolute value of the MUF
variance (i.e., the error in measuring MUF) will be 72 kgm/
yr. In that case, the minimum amount of diverted plutonium
that could be distinguished form this measurement ``noise''
with detection and false alarm probabilities of 95% and 5%
respectively is 246 kgm or more than 30 significant
quantities.
No other conclusion is admissible than that ``timely
detection'' of plutonium diversion from a reprocessing plant
is an oxymoron. This problem was recognized during
consideration of the Nuclear Non-Proliferation Act (NNPA) of
1978 where the concept of ``timely detection'' of a diversion
was translated into the concept of ``timely warning'' of
weapons development or construction. The intent of the
authors was that, from a technical point of view, timely
warning was unavailable in the case of plutonium diversion if
it is assumed that the non-nuclear elements of the bomb have
been constructed or assembled a priori. The NNPA provided
that the President could still allow U.S.-origin spent fuel
to be reprocessed in a foreign country if political factors
make the risk of proliferation sufficiently low even though
``timely warning'' of weapons construction would not be
available to the United States. Not wanting to admit that
reprocessing, especially commercial scale reprocessing, was a
dangerous, not effectively safeguardable, activity, Reagan
Administration officials boldly and falsely interpreted the
NNPA language as incorporating political factors into the
definition of timely warning, thereby depriving the concept
of any objective meaning. (See 12 for a full discussion
of the history of the ``timely warning'' criterion in the
NNPA).
In like manner, the IAEA insists that bulk-handling
facilities can be effectively
safeguarded, but Miller's analysis shows that this is not
the case, and if the definition of a ``significant
quantity'' of plutonium were to be changed (i.e., the
amount lowered), the inability to do ``timely detection''
would become still worse.
The response to these practical problems from within the
agency has been dismaying. Some have advocated lowering the
technical objectives, i.e., moving the goalposts so that
effectiveness of safeguards couldn't be so easily challenged.
To be sure, the agency has been chastened by its Iraq
experience, and is currently crafting a new safeguard
approach that aims to detect tiny amounts of fissile material
through environmental monitoring techniques such as wall
swabs and water samples. This will undoubtedly raise the cost
of safeguards and it remains to be seen how well these
proposals will be received by the members of the IAEA and the
signatories of the NPT.
Back in 1981, when the Reagan Administration was
formulating its non-proliferation policy, the Department of
Defense, in an interagency memo, expressed concern about the
IAEA's ``susceptibility to Third World * * * politics, its
lack of an intelligence capability and the limits of its
scope and jurisdiction''. While some of this complaint is
being addressed in the wake of the Gulf War (the IAEA is
considering how to use intelligence information brought to it
by member States), the Pentagon's 1981 warning ``against
undue reliance on the IAEA by those responsible for national
security'' within the U.S. government has as much resonance
today as in 1981 and will continue especially for as long as
production of fissile materials continues.
C. Article IV
This article incorporates, in paragraph 2, one aspect of
``the NPT bargain'' in which non-weapon-States Party to the
Treaty, in return for their adherence, ``have the right to
participate in the fullest possible exchange of equipment,
materials and scientific and technological information for
the peaceful use of nuclear energy''. The same paragraph also
calls on parties of the Treaty to cooperate in contributing
``to the further development of the applications of nuclear
energy for peaceful purposes, especially in the territories
of non-nuclear-weapon States Party to the Treaty, with due
consideration for the needs of the developing areas of the
world''.
In past years, the major complaints about the NPT by non-
weapon-States have centered on this Article. these complaints
range from a generic one that the technologically advanced
States have not provided technical assistance or have not
sufficiently shared their nuclear know-how with others, to
specific complaints that the Nuclear Suppliers Group, and
especially the United States, in seeking to control nuclear
and dual-use exports or to exercise consent rights in nuclear
agreements, are engaged in willful and systematic violation
of Article IV.
There are a number of things to say about this. First,
Article IV does not modify the
requirements of Articles I and II not to assist or receive
assistance respectively in the manufacture of nuclear
explosive devices. Second, as indicated earlier,
verification of NPT obligations under Article III ``with a
view to preventing diversion of nuclear energy from
peaceful uses to nuclear weapons'', cannot be effectively
carried out at this time for enrichment and reprocessing
facilities under the safeguards system that is the
instrument for the implementation of Article III.
Accordingly, the transfer of facilities, equipment, or
technology to a non-weapon-State for the production of highly
enriched uranium or plutonium should be interpreted as not in
keeping with Article III's implicit qualification that
effective safeguards must be applied to all peaceful nuclear
activities. Otherwise, nuclear-weapon-States making such
transfers could find themselves in violation of Article I,
and the NPT would become an instrument for proliferation.
Indeed, it is apparent that some States--Iraq, Libya among
them--signed the NPT because they saw Article IV as a
possible route to obtaining nuclear weapons-related
technology and equipment.
To date, there has been no formal resolution of the
argument over Article IV, but one can interpret the Nuclear
Suppliers Agreement to exercise restraint in nuclear trade
involving export of reprocessing or enrichment technology as
recognition that Article IV should not be interpreted as
liberally as it appears to read. Unfortunately, the potential
recipients of such trade do not accept this tightened
interpretation, and were it not for the fact that the
economics of the back end of the fuel cycle have become so
egregious, the argument might well be as loud today as it was
in 1977 when the Carter Administration began moving away from
the earlier policy of relatively unrestricted nuclear trade.
It is ironic that the Carter Administration and the U.S.
Congress were roundly denounced in 1978 for requiring, in the
NNPA, that Full Scope Safeguards be a nuclear export
criterion. With few exceptions, the nuclear suppliers refused
to go along despite the inferral that their opposition meant
they put export profits above support for the NPT. Eventually
all came around and adopted the criterion themselves, but it
took the Gulf War to do it.
Finally, it is unfortunate, if understandable, that Article
IV is so fixated on nuclear technology cooperation. Assuming
the need for tangible incentives to produce NPT signatories
in the first place a much better NPT would have resulted if
Article IV had made cooperation in every development (not
just nuclear) the quid pro quo for an NPT signature. That
way, the fight over Article IV might have been avoided, and
it would have made the phrase ``with due consideration for
the needs (emphasis added) of the developing'' world more
trenchant.
D. Article VI
Article VI expresses the second part of the ``NPT bargain''
(Article IV expresses the first part). In this Article,
``each of the Parties to the Treaty (especially including the
weapon-States)'' undertakes to pursue negotiations in good
faith on effective measures relating to cessation of the
nuclear arms race at an early date and to nuclear disarmament
under strict and effective international control''.
Let us begin by noting that, at least in quantitative
terms, the nuclear arms race, as usually defined, that
included the U.S., the Former Soviet Union, Great Britain,
and France is over. None of these countries is increasing
their stockpile of nuclear arms (that may also be true of
China, but evidence is not forthcoming). If one defines the
nuclear arms race as including weapons modernization, even if
the numbers aren't going up, then the race may not yet be
over. It is to this issue that a Comprehensive Test Ban
Treaty (CTBT) is most relevant, not to mention the fact that
a CTBT is referenced in the Preamble to the NPT. Without
testing, radical new designs of nuclear weapons are
problematical, although simulation codes are now very highly
advanced. Therefore, the insistence by some non-weapon-State
Parties of the NPT that a CTBT be a short-term goal of the
NPT weapon states to fulfill part of their Article VI
responsibilities is not unreasonable. A CTBT would have other
non-proliferation benefits in that it would raise the
political barriers to overt testing by nuclear states not
Party to the NPT. Thus, the NPT is playing a useful role by
providing a forum
[[Page S4042]] and a rationale for those countries interested
in having a CTBT to push the weapon-States, particularly the
U.S., into a serious negotiation to formalize the current
moratorium. Some members of the Treaty are taking the
position that they will refuse to vote for indefinite
extension unless and until further progress is made toward
nuclear disarmament. Despite this threat, it is hard to
escape the conclusion that if the Cold War hadn't ended, the
prospect of a CTBT being completed in the near future, let
alone substantial progress toward nuclear disarmament, would
be poor despite the pressure on the weapon-States stemming
from their desire for an indefinite extension of the NPT when
the decision comes up at the 25-year Review Conference in
April, 1995.
But the Cold War is over, and the U.S. now finds itself in
the ironic position of possibly being outvoted on the
extension issue by a group of countries who want progress in
nuclear disarmament, perhaps don't mind at the same time
discomfiting the weapon-States, and perhaps also enjoy the
fact that many of them were asked by the U.S. to sign the NPT
during the 80s despite their having no nuclear energy program
or prospects whatsoever.
Could the NPT unravel over this issue? Hardly. There is no
serious current prospect of any NPT Party leaving the Treaty
or organizing a movement to terminate the Treaty. A majority
vote to recess the Review Conference for one or more years
while a CTBT is negotiated is possible. A limited extension
of the Treaty is also a possibility, in accordance with the
language of Article X (discussed in the next section). This
limited extension (which could be for a very long time) could
be divided into shorter periods with votes scheduled at the
end of each such period to determine whether the Treaty
should be extended into the
succeeding period. It is conceivable that the start of each
such period of extension could be made contingent on some
requirement for a certain degree of disarmament by the
weapon-States.\13\
The linkage of the extension vote to specific progress
toward nuclear disarmament is believed by some to be a risky
strategy. The latter is based on the threat of lowering
political barriers to proliferation if the weapon-States
don't take their obligations under Article VI more seriously,
and there is no doubt that the weapon-States do not wish to
see those barriers lowered. However, it can be argued that an
indefinite extension provides confidence that allows the
weapon-States to continue reducing their weapons stockpile,
while a limited extension designed to push the weapons-States
into faster progress could, if other political factors make
accelerated progress impossible, have the perverse effect of
putting a ceiling on progress precisely because of the fear
that the Treaty might end and new nuclear powers might then
emerge.
As of this writing (November, 1994), the U.S. does not have
the votes to prevail on extending the Treaty indefinitely. It
appears likely that, in the absence of some new factor in the
debate, the Review Conference will either be recessed pending
completion of CTBT negotiations or will vote for a long-term,
but not indefinite, extension with periodic reviews of
progress toward disarmament.
E. Article VIII
This Article lays out the procedures for amending the
Treaty. For a proposed amendment to be adopted, the text must
first be submitted to the Depositary Governments (U.S., U.K.,
Russia) for circulation to all Parties to the Treaty. Then,
if requested by at least one third of the Parties to the
Treaty, a conference is convened to consider the amendment.
Adoption occurs only if the amendment is approved by:
1. A majority of the Parties to the Treaty.
2. All nuclear weapon-States Party to the Treaty.
3. All Parties who, on the date of circulation of the
proposed amendment, are members of the Board of Governors of
the IAEA.
The amendment then goes into force for those Parties that
have ratified it when a majority of the Parties to the Treaty
have filed their instrument of ratification. Thus, approved
amendments to the Treaty apply only to those Parties who wish
to have them apply and have so indicated via ratification.
The remainder of this Article provides for the five-year
Review Conferences that have taken place since 1970.
F. Article X
This next-to-last Article of the NPT provides that after
giving three months notice and an explanation, each Party has
the ``right to withdraw from the Treaty if it decides that
extraordinary events, related to the subject matter of the
Treaty, have jeopardized the supreme interests of its
country''.
The Article also provides for the 25th year Review
Conference to decide, by majority vote, whether the Treaty
shall be extended indefinitely or for an additional fixed
period or periods. As pointed out in a recent paper by Bunn,
Van Doren, and Fischer\14\, this language would allow for the
NPT to be extended for an indefinite number of fixed periods
unless a majority vote taken at the end of some fixed period
were to terminate the Treaty.
It was the first paragraph of Article X that Saddam Hussein
would have employed to leave the NPT after putting into place
the infrastructure to build nuclear weapons. Since there is
no presumption in the Article of sanctions for leaving the
Treaty, the only real protection against the use of the
treaty to gain technology, equipment, and materials that
could be useful for weapons is to impose a set of
multilateral (and unilateral) export controls on appropriate
items with sanctions for violations of those controls. This,
of course, files in the face of the philosophy of laissez-
faire technology transfer embodied in Article IV, but is
necessary if the nonproliferation regime is to be worthy of
its name.
III. Conclusions and Recommendations
A. Strengthening the safeguards system
We have already discussed the deficiencies of the system in
conjunction with the discussion of Article III. To remedy
those deficiencies would require the following
(nonexhaustive) changes to the system:
1. The IAEA must require more transparency in the nuclear
activities of its members. Among other things this should
include a complete list of sensitive or dual-use items
requiring export controls, and registry of trade in such
items. This list should contain the union of those items
brought to the table by IAEA members and not the
intersection; and should cover all sensitive technologies,
whether obsolete, current, or advanced.
2. The IAEA must have access to intelligence information
obtained through national technical means concerning sites
that may require inspection, and must have an unequivocal
right to inspect such sites at short notice.
3. Safeguards should apply to nuclear plants and equipment
as well as materials. INFCIRC/153 safeguards which apply to
the entire fuel cycle of a non-weapon-State Party to the NPT,
should be combined with the INFCIRC/66 safeguards, which
address plants and equipment as well as material for non-NPT
Parties. Any nuclear
facility, whether it contains material or not should be
subject to inspection on short notice.
4. Safeguards should also apply to uranium concentrates
such as U3O8, not just to UO2, and to nuclear
wastes containing fissionable material.
5. A definition of effective safeguards should be adopted
based on agreed measures of performance embodying appropriate
technical objectives. That is the agency must be able to say
that with a specified (high) degree of probability and a
specified (low) false alarm rate, the diversion of a
significant quantity of specified nuclear material will be
detected withing a specified amount of time (depending on the
material) which is well in advance of the time needed by the
diverter to convert the material into a nuclear explosive
device, assuming that all non-nuclear weapon-related
activities have been carried out.
6. The amount of nuclear material in a ``significant
quantity'' should be reduced by at least a factor of 2 in the
case of both uranium and plutonium.
7. All States with safeguarded nuclear activities should be
required to post a bond with the IAEA based on that State's
GDP and the size and sensitivity of its nuclear program.
Safeguards violations and other violations of IAEA
regulations and NPT commitments, as well as a decision to
leave the NPT should result in forfeiture of part or all of
the bond.
8. Safeguards should be imposed on non-nuclear materials
useful in manufacturing weapons such as Tritium, Lithium-6,
and Beryllium.
9. Safeguards should be established over nuclear research
and development activities and facilities.
10. The annual Safeguards Implementation Report of the
Agency should be a public docment.
B. Interpreting the NPT to strengthen the regime
The NPT, being a document negotiated among many people from
different nations and with different political objectives and
constraints, is inevitably a document of compromises, laced
with imprecise language, nuanced meaning, and cognitively
dissonant passages. Depending on how the Treaty is
interpreted, it is either, as claimed, the core of the
world's non-proliferation regime, or it is a tool for
proliferants to hide their ambitions and legitimize their
activities.
There are at least two main areas where the non-
proliferation regime can be strengthened via an
interpretation of the language of the NPT. The first involves
the language
of Article I requiring that each weapon-State NPT Party not
in any way to assist a non-nuclear weapon-State to
manufacture nuclear explosive devices.
As Eldon Greenberg\15\ has pointed out, the negotiating
history of the NPT does not permit one to conclude that
simply because safeguards are applied to a nuclear transfer,
then the transfer is legitimate. (Transfer of the components
of an explosive device is prohibited even if safeguards are
attached.) Moreover, the very real possibility that an NPT
Party may be a proliferator in disguise makes it incumbent
upon suppliers to make judgments about the ultimate use of
exported technology and equipment. Such judgments could take
into account the economic and technical need for the exported
items.
Accordingly, it is at least arguable that the transfer of
reprocessing equipment or technology to a non-weapon-State,
because
[[Page S4043]] such technology cannot be effectively
safeguarded and exhibits no compelling economic need anywhere
in the world, constitutes prohibited assistance under Article
I.
Article I's language prohibiting indirect assistance by a
weapon-State may also be interpreted as prohibiting nuclear
assistance of any kind by weapon-States to non-weapon-States
not party to the NPT, on the grounds that such assistance
releases resources by those States that may be used in
unsafeguarded nuclear programs--perhaps devoted in part to
weapons development.
C. Some flaws in the treaty that ought to be fixed
1. The NPT does not forbid a non-weapon-State from
possessing nuclear weapons. (It forbids the acquisition, but
in theory a country which weapons could sign the NPT as a
non-weapon-State and not give up weapons already made).
2. There is nothing in the Treaty that prohibits a non-
weapon-State Party to the Treaty from assisting another non-
weapon-State to manufacture or otherwise acquire the bomb.
3. The treaty should be clarified to ensure no challenge to
the notion that safeguards includes the ability to search for
non-nuclear activities relevant to bomb-making, including
R&D. To ensure that this doesn't convert the IAEA into a
university on weapons design, only inspectors from current or
former weapon-States should be involved in this activity.
4. The Treaty does not require the IAEA to verify the
obligation of a non-weapon-State not to receive assistance in
the manufacture or acquisition of nuclear weapons.
5. The Treaty does not require the IAEA to verify that
exports of nuclear hardware by NPT suppliers to non-weapon-
States are carrying safeguards.
6. The Treaty does not define the point at which one can
say that construction of a nuclear explosive device has
begun. The Foster criterion relating ``manufacture'' to
construction of a component having relevance only to a
nuclear explosive device could constitute such a definition.
In that case, activities involving machines capable of
creating such components could become subject to special
inspections.
7. The Treaty does not prohibit a non-weapon-State from
using nuclear energy for military purposes but is unclear as
to permitted ``military uses'' that are exempt from
safeguards. In his recent book, David Fischer\16\ posed
questions as to whether a non-weapon-State could build a
reactor, claim it is the prototype of a naval reactor and
thereby exempt its fuel from safeguards. Likewise a State
could withhold material from safeguards upon becoming an NPT
Party by claiming (to itself--it has no obligation to inform
the IAEA) that the material is for a permitted military
purpose. Finally, the Treaty appears to allow a ``military''
enrichment plant whose output is only for naval reactors to
be unsafeguarded, and the Treaty appears to allow
unsafeguarded nuclear exports for permitted military use.
8. The Treaty's language in Article III.3 has been used to
support arguments against making safeguards more intrusive.
The Treaty should state as a principle that whenever a
conflict occurs between effective safeguards application and
compliance with Article IV, resolution in favor of effective
safeguards shall govern.
9. The Treaty does not embargo transfers of sensitive
equipment, materials or technology--but it should whenever
effective safeguards do not apply.
10. The Treaty does not provide for sanctions for violators
or for withdrawal from the Treaty.
11. The Treaty is difficult to amend, but worse than that,
only those parties ratifying the amendment are subject to it.
12. The Treaty does not preclude possession and stockpiling
of plutonium or highly enriched uranium by a non-weapon-
State, regardless of economic or technical justification or
the effectiveness of safeguards.
13. The Treaty does not preclude nuclear trade with States
not Party to the NPT.
14. The Treaty's provision on withdrawal does not provide
for any disposition of nuclear assets or payment for nuclear
assistance received by the withdrawing State by virtue of its
NPT membership.
D. What should be our level of reliance on the NPT as a security
measure?
As stated at the outset, there is no question that the NPT
has been a valuable
institution. It has helped create a non-proliferation ethic
that has raised the political barriers, at least in
democratic States, to overt proliferation. It has played a
useful role as an anchor or central element in all the
discussions about security with the Newly Independent
States and other States in Eastern Europe. It provided an
outlet for U.S./Soviet cooperation during the days of the
Cold War that made it more difficult for each side to
demonize the other and thereby lowered the risk of war. It
has provided an outlet for countries desiring to play a
role on the world stage in disarmament to do so without
becoming weapon-States themselves. It provided a way for
South Africa to give up its weapons program with a minimum
of lingering doubt and suspicion because of IAEA
verification, and it provided a basis for dealing with the
North Korean weapons program.
On the other hand, the NPT has also has been a convenient
political cover for countries known to be interested in
acquiring nuclear weapons, played no essential role in
turning around the past South Korean and Taiwanese
clandestine weapons programs, did not produce an appropriate
response to Iraq's weapons program until after Saddam Hussein
invaded Kuwait and was militarily defeated, and provides no
restraint on the stockpiling of weapons materials by any
State as long as they are under safeguards.
Since many of its adherents joined because of the promise
of technical assistance and technology transfer, the Treaty
does not incorporate any nuclear trade restrictions, leaving
it to the suppliers alone to decide what should or should not
be transferred.
And in the end, the ability to leave the Treaty with 90
days notice means that there is no essential barrier to a
country, with the technological known-how to build weapons,
and that sees nuclear weapons as its best option for
enhancing its security, from proceeding to build them.
Even if the Treaty and the safeguards system had been
originally constructed with the needed reforms discussed in
this paper, its implementation would still ultimately depend
on the resolve of the international community acting through
the Board of Governors of the IAEA (which occasionally has a
proliferator as Chair) and the UN Security Council.
Nonetheless, the warts exhibited by the Treaty and its
still evolving safeguards system do not vitiate the political
value of the nonproliferation norm that has been nurtured by
the Treaty and the rest of the non-proliferation regime--the
nuclear weapons free zones, the Tlatelolco and Rarotonga
Treaties, the export control laws and agreements (both
multilateral and unilateral), and other instruments.
In sum then, the Treaty cannot be a substitute for measures
one might otherwise take in protecting one's security. And
without reform it does not provide a good model for dealing
with proliferation threats other than nuclear, such as
chemical, biological, or missile, but it is an important
adjunct whose absence would raise current anxiety levels
about the spread of weapons of mass destruction.
footnotes
\1\Treaty on the Non-Proliferation of Nuclear Weapons, opened
for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161.
\2\George Bunn and Roland M. Timerbaev, ``Nuclear
Verification Under the NPT'', PPNN Study Five, Mountbatten
Centre for International Studies, University of Southampton,
England, 1994.
\3\Remarks Submitted by William C. Foster, Hearings before
the Senate Committee on Foreign Relations, July 10, 1968.
\4\Working Paper submitted to Geneva disarmament conference
by Japan: Arms Control Implications of Peaceful Nuclear
Explosions, CCD/454, July 7, 1975, ACDA Documents on
Disarmament, 1975.
\5\Bunn and Timerbaev, Op. Cit.
\6\Bunn and Timerbaev, Op. Cit.
\7\Nuclear Export Guidelines adopted by 15 Governments,
January 11, 1978, IAEA Doc. INFIRC/254, February, 1978.
\8\Interview with Rudolph Rometsch, IAEA Bulletin, Vol. 36,
No. 3, p. 14, 1994.
\9\U.S. General Accounting Office Report GAO/NSIAD/RCED-93-
284, ``Nuclear Nonproliferation and Safety: Challenges Facing
the International Atomic Energy Agency'', September, 1993.
\10\Lawrence Scheinman, ``Assuring the Nuclear Non-
Proliferation Safeguards System'', Atlantic Council,
Washington, D.C., October, 1992.
\11\Marvin Miller, ``Are IAEA Safeguards on Plutonium Bulk-
Handling Facilities Effective?'', Nuclear Control Institute,
Washington, D.C., August 1990.
\12\Leonard Weiss, ``The Concept of Timely Warning in the
Nuclear Nonproliferation Act of 1978'', Report (dated April
1, 1985), Congressional Record, pp. S2639 and S2646, March
21, 1988; also appendix to testimony delivered by Senator
John Glenn to Senate Foreign Relations Committee, December
15, 1987; to appear in Nuclear Nonproliferation Factbook,
prepared by Congressional Research Service of the Library of
Congress for the Senate Committee on Governmental Affairs,
1995.
\13\Eldon Greenberg, ``Opportunities for Improvement of the
NPT Regime'', Nuclear Control Institute, Washington, D.C.,
August, 1990.
\14\George Bunn, Charles Van Doren, and David Fischer,
``Options and Opportunities: The NPT Extension Conference of
1995'', PPNN Study No. 2, Mountbatten Centre for
International Studies, University of Southampton, England,
1991.
\15\Eldon Greenberg, ``The NPT and Plutonium'', Nuclear
Control Institute, Washington, D.C., May, 1993.
\16\David Fischer, ``Towards 1995: The Prospects for Ending
the Proliferation of Nuclear Weapons,'' Dartmouth Publishing
Co., Vermont, U.S.A., 1993.
Mr. NUNN. Mr. President, I am pleased to join my two distinguished
colleagues, Senators Roth and Glenn, and the other original cosponsors
in urging the adoption of the sense-of-the Senate language on the
unlimited and unconditional extension of the Nuclear Non-Proliferation
Treaty at the upcoming renewal session beginning next month. The
importance of the treaty to U.S. nonproliferation efforts can hardly be
exaggerated. The Committee on Governmental Affairs held a hearing on
Tuesday of this week, with a panel of distinguished witnesses, which
served to highlight the strong bipartisan support for extension of the
treaty. I urge my colleagues to support this important resolution of
endorsement of the unlimited and unconditional extension of the NPT.
Mr. ROTH addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
[[Page S4044]] Mr. ROTH. Mr. President, I say to the distinguished
manager, we are ready for a voice vote on the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 338) was agreed to.
Mr. ROTH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GLENN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana.
Amendment No. 339
(Purpose: To state the sense of the Senate on South Korean trade
barriers to United States beef and pork)
Mr. BAUCUS. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Montana [Mr. Baucus], for himself, Mr.
Byrd, Mr. McConnell, Mr. Leahy, Mr. Grassley, Mr. Kerrey, Mr.
Pressler, Mr. Burns, Mr. Harkin, Mr. Santorum, Mr. Simpson,
Mr. Lugar, Mr. Pryor, and Mr. Conrad, proposes an amendment
numbered 339.
Mr. BAUCUS. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 25, between lines 4 and 5, insert the following:
SEC. 110. SENSE OF SENATE ON SOUTH KOREA TRADE BARRIERS TO
UNITED STATES BEEF AND PORK.
(a) Findings.--The Senate makes the following findings:
(1) The United States has approximately 37,000 military
personnel stationed in South Korea and spent over
$2,000,000,000 last year to preserve peace on the Korean
peninsula.
(2) The United States Trade Representative has initiated a
section 301 investigation against South Korea for its
nontariff trade barriers on United States beef and pork.
(3) The barriers cited in the section 301 petition include
government-mandated shelf-life requirements, lengthy
inspection and customs procedures, and arbitrary testing
requirements that effectively close the South Korean market
to such beef and pork.
(4) United States trade and agriculture officials are in
the process of negotiating with South Korea to open South
Korea's market to United States beef and pork.
(5) The United States meat industry estimates that South
Korea's nontariff trade barriers on United States beef and
pork cost United States businesses more than $240,000,000 in
lost revenue last year and could account for more than
$1,000,000,000 in lost revenue to such business by 1999 if
South Korea's trade practices on such beef and pork are left
unchanged.
(6) The United States beef and pork industries are a vital
part of the United States economy, with operations in each of
the 50 States.
(7) Per capita consumption of beef and pork in South Korea
is currently twice that of such consumption in Japan. Given
that the Japanese are currently the leading importers of
United States beef and pork, South Korea holds the potential
of becoming an unparalleled market for United States beef and
pork.
(b) It is the sense of the Senate that--
(1) the security relationship between the United States and
South Korea is essential to the security of the United
States, South Korea, the Asia-Pacific region and the rest of
the world;
(2) the efforts of the United States Trade Representative
to open South Korea's market to United States beef and pork
deserve support and commendation; and
(3) The United States Trade Representative should continue
to insist upon the removal of South Korea's nontariff
barriers to United States beef and pork.
Mr. BAUCUS. Mr. President, this is a sense-of-the-Senate resolution
urging the United States Government to remain firm in its effort to
open the Korean market to American beef and pork exports. The United
States has initiated a section 301 case on the issue, and this
amendment will put the Senate on record in support of the USTR and our
stockgrowers.
We have been a good friend to South Korea over the years. And South
Korea has abundant evidence of our friendship.
Fifty-seven thousand Americans gave their lives in the Korean war.
Today, nearly 40,000 American men and women are on the line of what is
still one of the world's most dangerous regions. We are right to be
there because our presence helps keep the peace in a critically
important region.
We are also a critically important market for Korea. We Americans buy
Korean cars, kim chee, semiconductors and more. In total $17 billion in
imports from Korea in 1993, and more than that, almost $20 billion last
year.
So we are good friends to Korea, but friendship works both ways. The
least Korea can do is to be as open to our products as we are to
theirs.
Beef is a perfect example. Today, American meat exports to Korea are
blocked by a web of nontariff barriers.
Unscientific shelf-life requirements require chilled beef in Korea to
be sold in very unrealistically short periods of time, combined with
the Customs regulations that deliberately delay beef shipments at the
ports, which creates a catch-22 situation, making it almost impossible
to sell red meat in Korea.
If Korea would remove these barriers, the meat industry estimates
that the return could be as much as $240 million this year alone and by
the turn of the century, our meat exports would rise to $1 billion a
year.
So the issue is simple: Ambassador Kantor is asking Korea to live by
the standards that most trading nations already live by and that they
have, as Koreans, accepted by their entry into the World Trade
Organization.
Up to now, they have not done so. One barrier has been abolished
simply to be replaced by others. We have been patient for years, and
the time has now come to be firm.
We have, therefore, as Americans initiated a section 301 case on the
issue, and history shows that when we have a good case--and we do--and
we show that we are serious--and we are--section 301 cases get results.
This sense-of-the-Senate amendment will put us on record in support
of that case and strengthen Ambassador Kantor and his negotiators in
their effort. I hope our stockgrowers can count on the support of the
Senate. I ask for support of this amendment.
Mr. BYRD. Mr. President, I am pleased to cosponsor this sense-of-the-
Senate resolution on the question of Korean trade practices offered by
the distinguished Senator from Montana [Mr. Baucus]. It encourages the
United States Trade Representative to insist on South Korea's removal
of unfair nontariff trade barriers to United States beef and pork
products. The issue is, unfortunately, a familiar one in our trading
relations with the Pacific--nontariff barriers to our trade, amounting
to effective closure of their markets to our goods, regardless of
tariff schedules, despite agreements to the contrary, flying in the
face of our conception of free trade. The question of nontariff
barriers, of closed market practices has bedeviled trade with Japan,
and now is bedeviling our trading relations with Korea, as well as
China.
The specific issue is the Korean market for United States chilled
beef and pork products, a potentially lucrative market worth as much as
$240 million in exports this year, and growing to the $1 billion annual
range by the end of the century. The issue has festered since at least
1988 when American meat producers filed a petition concerning Korean
discriminatory practices under section 301 of the 1974 Trade Act.
American producers succeeded in getting proceedings in a GATT panel,
and this resulted in three bilateral trade agreements, in 1989, 1990,
and 1993. Then in 1994 the USTR did accept the section 301 petition
brought by American meat and pork producers, alleging unjustifiable
regulatory restrictions that effectively block their export products
from the Korean market.
Now, Mr. President, what is the current result of nearly a decade of
complaining, initiation of a 301 case, action under the GATT, extended
negotiations, and the signing of several additional agreements? The
director of the USTR's Asian division has informed my staff that as of
today the total of United States imports into Korea of chilled pork is
zero and red meat is minimal. The results are zero and minimal. This is
America's fourth largest agricultural market, yet we cannot get meat
into it, despite the signing of numerous agreements and constant
negotiations. This dismal situation is not for lack of trying: USTR
engaged the Koreans in consultation in mid-January, and resumed
negotiations just this month. The negotiations just concluded have
apparently failed to get
[[Page S4045]] market access. What we are seeking is a specific
timetable from the Koreans to eliminate what is obvious to both them
and us as burdensome regulatory practices designed for the sole purpose
of keeping United States meat products out of Korea.
It is time for the Koreans to settle this issue. We have asked for
the Koreans to reform their current antiquated regulatory requirements,
establish an interim system to go into effect immediately, letting
United States products into their market, and to permanently revise
their regulations according to a specific timetable. While the Koreans
announced last September that they intend to reform their system, they
have stalled on doing so. The Koreans, in the latest round of
negotiations this month would not agree to the establishment of such an
interim system that would allow trade to take place. The Trade
Representative has recently announced that the United States is now
prepared to take the case to the newly-formed World Trade Organization
[WTO] for ``consultations'' on the scientific basis for Korean meat
exclusions, opening up a second track of discussions and dispute
settlement, if it comes to that. I strongly encourage this route,
exposing the Korean practices widely in a multilateral forum, raising
the visibility of the problem. It would serve as an excellent test case
of the WTO dispute settlement procedures. What is the WTO for, I ask my
colleagues, if not for this type of situation? Of course, at any time
the Koreans can avoid that by providing us with an interim regime of
market access.
Similar problems are being experienced with the Koreans in
telecommunications equipment, with the Koreans refusing to certify an
updated AT&T switch already operating in the Korean market in order for
AT&T to compete in a new round of Korean procurement. Here again the
discriminatory behavior is in violation of a United States-Korean
bilateral agreement. The Koreans have had 2 years to investigate and
certify the switch, but recently announced they would need another 70
weeks to test it. Seventy weeks. This is just plain delay, calculated
to give a Korean-made switch more time to compete.
Similar situations have occurred in regard to other products, such as
medical devices, bottled water, raisins, and candy. Let's take a recent
example of chocolate. The Korean Minister of Health is refusing entry
of five containers of Mars chocolate claiming insufficient label
information, with new requirements never before announced. Several of
the containers have been held since last December. The alleged missing
information was not notified to either the United States or the World
Trade Organization, and the resulting obstruction of trade is a
violation of Korea's obligation under the WTO agreement to publish
regulations affecting trade and administer them in a ``uniform,
impartial and reasonable manner.'' We are getting nowhere fast with the
Koreans on this matter either, which is resulting in substantial
financial damage to an American company. Last week the Korean
Government stiffed the United States Trade Representative's negotiators
on the matter.
Korean behavior on United States trade is clearly reaching a level of
concern which can affect our overall bilateral relationship. It is
affecting, in my view, the strength, fairness, and durability of our
relationship with South Korea. American national security, the health
of our defense budget, and our ability to continue to honor our
commitment to defend South Korea depends on our overall long-term
economic health. Our economic health is dependent, to a significant
degree, on good trading balances, and such balances have been
consistently negative with North Asian countries, Japan, China, and to
a lesser extent, Korea. Korea needs to understand that trade and mutual
defense are a two-way street. First, on trade the United States is
vital to Korean exports of automobiles, semiconductors, and other
items, now approaching $20 billion in annual revenues to Korean
manufacturers. Second, the Koreans expect us to come to their defense
on a moment's notice, because we have made a commitment to do so. I
expect the Koreans to be forthcoming, to lean over backward to
accommodate our trade, to honor the agreements we have reached with
them in the spirit with which they were intended--that is, to give
United States products reciprocal access to the Korean market. In
addition, obfuscation, stonewalling, and erecting baloney barriers to
such access violates the spirit of our overall relationship, and by
that I mean our overall security relationship. Economic health is
fundamental to America national security, and fundamental to the
continuation of a strong United States-Korean defense relationship.
I suggest that the officials with whom we have had such an excellent
relationship with in the Korean defense establishment get in touch with
the foot-draggers in the agencies stalling on United States trade and
turn the lights on. The time is overdue for reciprocity on the part of
Korea. I am going to watch closely for Korean agreement to set a
specific timetable for allowing United States meat and pork into Korea,
for allowing AT&T to compete in the 1995 Korean procurement cycle, for
release of confectioneries from Korean ports to Korean store shelves,
and in general for a change in attitude toward its most reliable
defender. The United States is stationing nearly 40,000 of the 100,000
personnel we have deployed to the Pacific for the defense of Korea, we
shed the blood of tens of thousands more against invasion from the
north during the Korean war. Korea is considered one of the two so-
called ``major regional conflicts'' around which we are basing the
force structure and budget parameters of our defense budget. From what
I am reading, the product with the best chance of gaining ready access
to the Korean Peninsula is American troops, gladly accepted for the
defense of Seoul. It is time for Korea to understand the critical
importance of a healthy trading relationship, and it is time for Korea
to treat the United States as an economic ally as well as a military
ally.
I commend the Senator from Montana for bringing this matter to the
Senate's attention. The Trade Representative is doing the best he can
to cope with Korean behavior, and if he eventually needs the benefit of
congressional pressure on nontrade matters, I am sure it will be
available.
I also commend the Trade Representative on his recent success in
regard to the progress he has made with the third of our north Asian
trading partners, China. Late last month the USTR successfully
negotiated an agreement with China to provide protection of
intellectual property rights for United States companies and provide
market access for such products. Just last week, he was able to
conclude another agreement with the Chinese to gain Chinese compliance
with a 1992 agreement for better access for nearly 3,000 different
United States products over a period of several years. The Chinese did
not fully comply with that accord, and now we have an agreement,
apparently, to abide by the earlier agreement.
Mr. President, the Chinese also need to understand that it is not
enough to sign agreements, but that they must be abided by in a spirit
of cooperation, in an effort to make them work, and not dance around
them. The Chinese want to be a member of the World Trade Organization,
and so they threatened to forego implementing existing agreements until
we agree to give them another carrot in terms of support for membership
in this organization. But, Mr. President, the proof of the pudding is
in the eating, on these agreements. They must be energetically
implemented. I believe that it would be very useful if the Senate
conducted frequent reviews of the record of our trading partners in
implementing the agreements they have signed with us. Implementation is
the key, for instance to the extensive agreements we signed with
Beijing on intellectual property. And it is certainly key to the
various bilateral agreements we have signed with the Koreans.
Compliance with the provisions of the WTO should also be insisted upon
for Korea, and China if she is admitted.
I hope that the Trade Representative will ensure that his Korean, as
well as Chinese, counterparts are made aware of this Senate resolution
and accompanying statements, and that they will understand the
importance of these various trade matters to the Senate and the United
States.
Mr. STEVENS. Mr. President, I want to state that I am informed that
this
[[Page S4046]] has been cleared by the Members on this side on the
subcommittee involved. So I am prepared to accept the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 339) was agreed to.
Mr. BAUCUS. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. STEVENS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, I ask unanimous consent to speak as in
morning business for just 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
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