The role of diplomacy in setting the terms for America’s civil nuclear trade with other countries usually gets scant attention. Here’s why it’s important.

BY CHRISTOPHER A. FORD

With the United States and Saudi Arabia having recently announced their agreement on a new framework for civil nuclear energy cooperation, we have a reminder of the importance of an aspect of diplomatic engagement that usually fails to get much attention: the role of diplomacy in setting the terms for America’s civil nuclear trade with other countries.

This kind of diplomacy is especially important because Congress long ago made clear that Americans couldn’t provide any nuclear technology to anybody just because there was a buck to be made—and that, despite the many benefits and advantages of such cooperation, the potential risks associated with nuclear technology were such that this trade had to be held to high policy standards of nonproliferation probity.

Specifically, under Section 123 of the Atomic Energy Act of 1954, no cooperation in nuclear energy development can be undertaken with another country unless we have in place an agreement with that country requiring that specified safeguards—including International Atomic Energy Agency (IAEA) safeguards—be maintained on all nuclear materials and equipment transferred, and that no such assistance will be used to develop nuclear weaponry.

The 123 Agreements

Known as “123 Agreements,” these pacts are negotiated by the State Department, with concurrence from the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC), and submitted to Congress for review, after which they come into force if Congress doesn’t act to disapprove them. We presently have 26 of these agreements in place with 50 countries.

Insisting on high nonproliferation standards is most critical, of course, when dealing with countries that don’t already have nuclear weapons, and U.S. administrations have historically tried to negotiate protections that are as stringent as possible. Exactly what standards are possible to agree on beyond the statutory minimum set by the Atomic Energy Act will naturally vary with the circumstances.

The provisions set forth in the 123 Agreement reached with the United Arab Emirates (UAE) in 2009, for instance, included the UAE’s acceptance of state-of-the-art IAEA inspection authorities under the IAEA Additional Protocol as well as its promise not to develop uranium enrichment or plutonium processing technology. Such terms have become known as the “Gold Standard” for 123 Agreements, because under them, the partner country doesn’t just accept the most effective sort of IAEA inspections to help prevent illicit nuclear weapons work but also flatly forswears developing or acquiring fissile material production capabilities that could in the future be diverted to the production of material for such weapons.

But it’s not always possible to secure such promises. When I ran the State Department bureau that negotiates these agreements, the Bureau of International Security and Nonproliferation, we tried repeatedly to get “Gold Standard” provisions into a U.S.-Saudi 123 Agreement, but the Saudis refused to accept the Additional Protocol and to forswear producing their own fissile material. Press coverage of the recent U.S.-Saudi deal, the Joint Declaration on the Completion of Negotiations on Civil Nuclear Cooperation, nowhere mentions either of these issues, so one can probably assume that the second Trump administration decided not to insist on such provisions.

Indeed, the focus of the recent deal, establishing what the White House describes as a “decades-long, multibillion-dollar nuclear energy partnership with the Kingdom,” suggests that, if anything, the new agreement may encourage Saudi development of fissile material production. In its analysis of the new agreement, for example, the Center for Strategic and International Studies notes that Saudi Arabia’s “uranium reserves uniquely position the kingdom to develop the nuclear fuel cycle, supporting its domestic energy strategy while opening the door to potential exports to the United States” to reduce our worrying dependence on Russia for nuclear fuel.

Managing Trade-Offs

Managing the trade-offs inherent in negotiating such agreements is always challenging. While it’s obviously better from a nonproliferation perspective to get “Gold Standard” provisions, America’s competitors in the market for civil-nuclear technology are less scrupulous about making such demands, which undercuts U.S. negotiating leverage. Nevertheless, even the baseline nonproliferation protections of the statutory minimum standards for 123 Agreements are still better than having no standards (and no 123 Agreement) in place at all—and it’s also the case that nonproliferation is not the only value that U.S. negotiators may legitimately pursue.

In addition to the incentives to promote commerce that represent the “usual” values that must be balanced in such negotiations vis-à-vis nonproliferation, for instance, the recently announced U.S.-Saudi deal focuses on improving American energy and supply chain security. Those are hardly trivial concerns either, underlining the importance of 123 Agreements as instruments of statecraft and loci for complex arbitrage between competing policy objectives that are all important.

Nor does the diplomatic challenge lie only in negotiating with non-nuclear-weapon states. We also have 123 Agreements with some nuclear weapon possessors, the details of which are very important. While preventing new nuclear weapons development clearly isn’t an issue with such partners, it still matters what they do with the civil-nuclear technology the United States provides them. And, as I discovered when last in office at the State Department, it is sometimes necessary to change course in our technology diplomacy as problems arise.

No matter with whom they’re negotiated, 123 Agreements are key elements in any U.S. administration’s national security strategy, and their negotiation is a critical function.

The Obama administration reached a new agreement with China in 2015, for example, that became a problem because it turned out that China was illicitly repurposing Western nuclear software design codes to support the People’s Liberation Army (PLA) naval nuclear propulsion program. (U.S. nuclear reactor technology should absolutely not be used to help the PLA build ballistic missile submarines and aircraft carriers!)

Even before the Obama administration decided to share more civil-nuclear technology with China, in fact, hackers from the PLA had stolen technical and design information on U.S. nuclear reactor designs from the Westinghouse Electric Corporation and were thereafter indicted by the Obama administration in 2014. For some reason, this was not considered an obstacle to the new 123 Agreement negotiated in 2015.

When he submitted the agreement to Congress, President Barack Obama declared that it would “promote, and will not constitute an unreasonable risk to, the common defense and security.” Indeed, U.S. officials—rather ironically, it would transpire—argued that the deal would “enhance our ability to manage and mitigate the risk of China diverting sensitive nuclear technology to its military programs or re-exporting it without U.S. permission.” Commercial pressures, however, seem to have driven the decision. Industry trade representatives at the Nuclear Energy Institute believed that it would “clear the way for U.S. companies to sell dozens of nuclear reactors to China, the biggest nuclear power market in the world,” as reported on May 10, 2015, in The Washington Post.

A Strategic Pivot

In reaction to Beijing’s abuse of the Sino-American civil-nuclear cooperation relationship, however, the first Trump administration revised U.S. export rules for sending such technology to China in October 2018, imposing much more stringent conditions and establishing a “presumption of denial” for many transfers with which the Obama administration had previously been comfortable.

This was the opening salvo in the first Trump administration’s decision to pivot the United States into a technology-denial competitive strategy with China, which picked up pace rapidly thereafter when we put the semiconductor company Huawei on the Commerce Department’s “Entity List” as part of this technology strategy.

No matter with whom they’re negotiated, 123 Agreements are key elements in any U.S. administration’s national security strategy, and their negotiation is a critical function. As the China example shows, thoughtful statecraft is sometimes also needed in knowing when to back off from enthusiastic civil-nuclear cooperation efforts. This “123 diplomacy,” therefore, can be a pretty big deal.

Beginning in the first Trump administration, we also developed an additional instrument of diplomatic statecraft in the civil-nuclear technology arena: Nuclear Cooperation Memoranda of Understanding (NCMOUs). These are not formal, legally binding instruments like 123 Agreements; and they aren’t, in themselves, legally sufficient under the Atomic Energy Act to launch full-scale cooperation on something like a nuclear reactor project. Nevertheless, they can be valuable in helping partner countries get to the point at which they are ready for the kind of deep cooperation that a full, formal 123 Agreement can set in motion.

As I pointed out at the State Department when we first rolled out this concept, NCMOUs allow “a country weighing the possible development of a nuclear power program [to] use a less formal instrument to build strategic ties with the United States, its experts, industry, and cutting-edge researchers about how best to tailor future opportunities to its specific needs.” These memoranda can “help states build their own infrastructure for the responsible use of nuclear energy and technology and adopt best practices in nuclear safety, security, and nonproliferation, including independent regulatory oversight.”

NCMOUs can thus contribute to establishing “the basis for a broader, strategic relationship between the United States and those countries considering civil nuclear energy,” thereby “laying the foundation for making [these] partner countries fully prepared to take advantage of the emerging technologies and coming innovations in reactor design and other areas that are being pioneered in the United States, and to do so under the highest standards of safety, security, and nonproliferation.”

So far, the United States has signed NCMOUs with at least 12 countries.

Vital Work

There are multiple facets to U.S. nuclear technology diplomacy, and it remains an important instrument of American statecraft. Our diplomats should be proud of the roles they play in this endeavor.

Despite the lamentable recent turn in American political life against professional expertise—and the degree to which our current leaders distrust those who have skill sets and experience one develops only “in the trenches” of real-world engagement on technically complex and multifaceted challenges in public service—it’s worth remembering that U.S. national security still depends heavily on the talented civil servants and Foreign Service officers who shoulder the burdens of diplomatic engagement in our country’s interest.

Nuclear security diplomacy is only one example of this, but it’s a good one.

Christopher A. Ford, PhD, served as U.S. assistant secretary of State for international security and nonproliferation in 2018–2021, also performing the duties of the under secretary for arms control and international security for the last 15 months of that period. He is presently a professor with Missouri State University’s School of Defense and Strategic Studies and a senior associate at the Center for Strategic and International Studies in Washington, D.C.

Read More...

• “U.S. Policy: Interlocking and Reinforcing Elements” by Christopher A. Ford, The Foreign Service Journal, July-August 2007
• “Why Nuclear Arms Control Matters Today” by Thomas Countryman, The Foreign Service Journal, May 2020
• “Struggling with ¬the Bomb: Competing Discourses in the Nuclear Disarmament Movement” by Christopher A. Ford, National Institute for Public Policy Occasional Papers, February 2025