by Leonard Weiss
Published in the March 2011 issue of The Nonproliferation Review 18:1, 2011, p.11
Christopher Paine and Thomas Cochran have produced an interesting variation on an old idea for enhancing nonproliferation by internationalizing the fuel cycle (see “Nuclear Islands: International Leasing of Nuclear Fuel Cycle Sites to Provide Enduring Assurance of Peaceful Use,” 17.3, November 2010, pp. 441-74). In the concluding discussion of their article, they state, correctly, that their idea does not conflict with most other proposals for “multilateralizing” the fuel cycle, including the establishment of an international fuel bank. The lack of conflict, however, means that their idea can in turn be thought of as a plan for realizing the establishment of an earlier proposal for an International Nuclear Fuel Authority (INFA), which has the virtue of already being in law as Section 104(a) of the Nuclear Nonproliferation Act of 1978 (NNPA) and is reproduced in Appendix A of their article.
The idea for an INFA was introduced by Senator John Glenn (Democrat of Ohio) as part of a package of amendments at the October 1977 markup of the NNPA in the Senate Governmental Affairs Committee; the package was designed to make the bill more palatable to pro-nuclear senators who were concerned about industry opposition to the bill’s regulatory aspects. After the amendments were passed, the INFA proposal was placed up front in Title I of the bill to emphasize that the purpose of the NNPA was not to halt nuclear energy expansion, but rather to channel it in ways that would prevent or slow proliferation. It was an attempt to move nuclear development onto a track more closely affiliated with proposals made in the Acheson-Lilienthal Report that nonproliferation scholars recognize as the gold standard for proliferation protection (despite the report’s error of considering plutonium as capable of being denatured).
In the NNPA, the INFA is proposed as an agency that (via a priori negotiations, begun by the president, among all concerned parties) is given the authority to enter into fuel supply arrangements involving suppliers and recipients so as to provide assured supplies of nuclear fuel to countries with good nonproliferation credentials. Though it did not shift ownership of existing fuel cycle facilities, for states that had no fuel cycle facilities and pledged not to seek them—or states that had facilities and were willing to internationalize them under the INFA arrangement—the proposal would have created a reliable substitute for domestically controlled nuclear fuel cycle facilities.
In the vision of Paine and Cochran, the INFA-like body is a lease-holding agency that takes on a broader mandate than proposed in the NNPA, becoming in essence a regulatory body similar to a public service commission in the United States with the ability to certify (or reject) proposed fuel cycle facilities in accordance with internationally adopted standards for safety, safeguards, environmental protection, and nonproliferation in general. In light of this expanded approach, Paine and Cochran provide a new name for INFA, calling it an International Nuclear Fuel Cycle Association, or INFCA. I think it is important to point out that there is nothing in the NNPA language that precludes identifying INFA as INFCA (as long as the NNPA’s phrase “effective international auspices and inspection” is taken to mean arrangements blessed by international agreement to render all fuel contracts via an INFA). Indeed, the agency described by Paine and Cochran, including all of the organizational details they outline (with the exception of the agency name), could actually be established under the authority granted to the president in the NNPA.
For more than thirty years, there has been profound silence on the implementation of INFA. Considering this, one should not be surprised by skepticism as to whether the INFCA idea will have better legs, the case of Iran notwithstanding. Unfortunately, the same fly in the ointment that has bedeviled all past proposals affects the Paine/Cochran idea as well: the unshakeable notion of national sovereignty. The plain fact is that proposals that purport to tell a country what it can and cannot build are unlikely to go anywhere if that country believes its security or prestige are on the line. Sanctions have failed to stop Iran and North Korea, just as they failed to stop India and Pakistan earlier. So one must do what is doable to strengthen nonproliferation.
Paine and Cochran postulate that if INFCA enjoys wide acceptance among both nuclear suppliers and customers, then it will be possible to limit new nationally controlled fuel cycle facilities because customers would be under obligation to not purchase supplies from non-certified facilities. Ostensibly this would make it more politically difficult for a country to withdraw from or never join the INFCA, then build a facility and claim it is for civilian purposes even though uncertified. In essence, this is an attempt to move the public proliferation signal to an earlier stage than that provided by a move out of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and this time, unlike withdrawal from the NPT, sanctions would be automatically attached. But how long would it take for consensus on an INFCA proposal that is a transparent end-run around the NPT to reach the point where it would be a more effective tool for discovering the intentions of others than good intelligence operations? To put it another way, how long would it take for the world’s nuclear culture to reach the point where some version of the original ideas of Acheson-Lilienthal have traction?
Traction in this case means a willingness to recognize that a substantial amount of national sovereignty must be sacrificed on the altar of nonproliferation if advanced nuclear technology is to expand safely in a world concerned about nuclear weapons risk. Traction also means having an answer to many legal and policy questions concerning the operation of INFCA that have not been covered by Paine and Cochran, despite their admirable attempt to lay out a detailed plan of organization. Some of those questions were laid out in the US Security and Assistance Act of 2008 (also described in Appendix A of the Paine/Cochran article), which called for a study of the original INFA concept, and which did not get reported out of the Senate Foreign Relations Committee.
Nearly sixty-five years after the Acheson-Lilienthal Report, there still has been no refutation of the report’s basic claim that to effectively safeguard against proliferation, no system of inspection and material accountancy can substitute for international monopoly ownership of nuclear raw materials, reactors, fissionable materials, and fuel cycle facilities. Partial internationalization schemes such as INFA and INFCA are designed to deal with a piece of the problem—fuel cycle facilities—that appears more manageable but still harbors daunting issues requiring resolution.
Another interesting proposal to internationalize the fuel cycle in the spirit of INFA and INFCA, but with much more legal detail and issue analysis, was created via a Stanford Law school class project prompted by the passage of the NNPA in February 1978. Shortly after the bill was passed, I received a call from John H. Barton, who was then a professor of law at Stanford, inviting me to lecture to his class on the INFA concept in the NNPA. Barton said he was intrigued by the INFA idea and had begun a class project to evaluate it. The result was a monograph, published later that year and edited by Barton, that laid out many of the policy and legal issues that implementing an INFA would have to address. Unsurprisingly, overcoming sovereignty was one of the issues targeted in the study which was entitled Evaluation of an Integrated International Nuclear Fuel Authority).
Much of the recent activity on the issue of internationalization stems from the push for more nuclear-generated power as a way to address global warming concerns and the fear that nuclear expansion may bring more proliferation. But there is still no clear picture as to what level of sovereignty countries are willing to forego for a higher measure of proliferation protection. Until there is a better understanding of that, prudence dictates that alternatives to fuel cycle activities and to nuclear power itself should receive high priority in establishing policies to stem global warming.
