Disarmament Diplomacy
Issue No. 77, May/June 2004
In the News
US-UK Mutual Defence Agreement
Introduction by Nicola Butler
Negotiations between the US and the UK on an amendment to extend
the 1958 US-UK Mutual Defence Agreement are now complete. The
amendment would renew this Cold War nuclear cooperation pact, and
is being pushed through in haste, despite increasing controversy
concerning the legality of this Agreement.11
The Amendment was approved, authorised for execution, and
transmitted to Congress by President Bush on June 14, 2004. The
text of the Amendment itself is not publicly available at time of
writing, but in his 'Message to Congress', President Bush states
that it, "extends for 10 years (until December 31, 2014) provisions
that permit the transfer of nonnuclear parts, source, byproduct,
special nuclear materials, and other material and technology for
nuclear weapons and military reactors, and revises text,
principally in the Security Annex, to be consistent with current
policies and practices relating to personnel and physical
security."22
According to Bush, "The United Kingdom intends to continue to
maintain viable nuclear forces... I have concluded that it is in
our interest to continue to assist them in maintaining a credible
nuclear force."33
The 1958 Mutual Defence Agreement provides the basis for
extensive nuclear collaboration between the United States and
Britain. Under the Agreement, the two nuclear weapon states
exchange classified information with the objective of improving
each party's "atomic weapon design, development, and fabrication
capability". The Agreement allows cooperation on defence planning,
delivery systems, training, some intelligence sharing, and
development of military nuclear reactors. It also provides for the
transfer of special nuclear material (plutonium or highly enriched
uranium), components, and equipment between the two countries.
Britain's Atomic Weapons Establishment (AWE), which is
responsible for all aspects of the UK's nuclear weapons programme,
describes the agreement as "vitally important" and a "cornerstone
of life for our nuclear weapons community."
Key aspects of the Agreement are due to expire on December 31,
2004, unless it is amended by this date. As this edition of
Disarmament Diplomacy goes to press, government officials
have indicated that an amended version will shortly also be signed
and transmitted to the UK Parliament for ratification.
While the transatlantic relationship may be widely viewed as
essential for UK security, as the two governments present the
extension of the Mutual Defense Agreement to their legislatures for
ratification many questions remain unanswered. What, currently, is
the nature of US-UK nuclear cooperation? Will Britain participate
in controversial and potentially destabilising programmes such as
the Bush administration's plans for bunker-busters and mini-nukes?
Would Britain participate in or be able to access data from nuclear
tests in the event of a US resumption of testing? Is it appropriate
for the US to continue to prop up Britain's nuclear weapons
programme for the foreseeable future? And are British and US
nuclear cooperation activities compatible with their commitments
under the NPT, as both governments insist they are?
The UK House of Commons Defence Committee has indicated that it
may scrutinise the Mutual Defence Agreement once the 2004 Amendment
has been transferred to Parliament, but the Blair Government has,
so far, declined to allow time for a parliamentary debate on the
subject. Questions should also be asked in the US Congress.
To date, the British government has also declined to provide
NGOs with an official version of the current text of the Agreement,
as amended. Reproduced below is what we believe to be an up to date
version of the text of the Agreement, as amended, from publicly
available sources in the United States. This text was also
circulated to NPT states parties attending the 2004 PrepCom in New
York, and is offered here to promote greater public and
international scrutiny of this important Agreement.
Notes
1. See N. Butler, 'US-UK Nuclear Weapons Cooperation Up for
Renewal', Disarmament. Diplomacy 76
(March/April 2004)
2. 'Message to the Congress of the United States', George W.
Bush, The White House, June 14, 2004,
http://www.whitehouse.gov/news/releases/2004/06/20040614-16.html
3. Ibid.
Text of the Agreement between the Government of the United
States of America and the Government of the United Kingdom of Great
Britain and Northern Ireland for Cooperation on the Uses of Atomic
Energy for Mutual Defense Purposes, As Amended:
The Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern
Ireland,
Considering that their mutual security and defense require that
they be prepared to meet the contingencies of atomic warfare;
Considering that both countries have made substantial progress
in the development of atomic weapons;
Considering that they are participating together in
international arrangements pursuant to which they are making
substantial and material contributions to their mutual defense and
security;
Recognizing that their common defense and security will be
advanced by the exchange of information concerning atomic energy
and by the transfer of equipment and materials for use therein;
Believing that such exchange and transfer can be undertaken
without risk to the defense and security of either country; and
Taking into consideration the United States Atomic Energy Act of
1954, as amended, which was enacted with these purposes in
mind,
Have agreed as follows:
ARTICLE I
GENERAL PROVISION
While the United States and the United Kingdom are participating
in an international arrangement for their mutual defense and
security and making substantial and material contributions thereto,
each Party will communicate to and exchange with the other Party
information, and transfer materials and equipment to the other
Party, in accordance with the provisions of this Agreement provided
that the communicating or transferring Party determines that such
cooperation will promote and will not constitute an unreasonable
risk to its defense and security.
ARTICLE II
EXCHANGE OF INFORMATION
A. Each Party will communicate to or exchange with the other
Party such classified information, sensitive nuclear technology,
and controlled nuclear information as is jointly determined to be
necessary to:
1. the development of defense plans;
2. the training of personnel in the employment of and defense
against atomic weapons and other military applications of atomic
energy;
3. the evaluation of the capabilities of potential enemies in
the employment of atomic weapons and other military applications of
atomic energy;
4. the development of delivery systems compatible with the
atomic weapons which they carry; and
5. research, development and design of military reactors to the
extent and by such means as may be agreed.
B. In addition to the cooperation provided for in paragraph A of
this Article, each Party will exchange with the other Party other
classified information concerning atomic weapons, sensitive nuclear
technology, and controlled nuclear information, including special
nuclear materials properties and production or processing
technology, when, after consultation with the other Party, the
communicating Party determines that the communication of such
information is necessary to improve the recipient's atomic weapon
design, development and fabrication capability.
ARTICLE III
TRANSFER OF SUBMARINE NUCLEAR PROPULSION PLANT AND MATERIALS
A. The Government of the United States will authorize, subject
to terms and conditions acceptable to the Government of the United
States, a person to transfer by sale to the Government of the
United Kingdom or its agent one complete submarine nuclear
propulsion plant with such spare parts therefor as may be agreed by
the Parties and to communicate to the Government of the United
Kingdom or its agent (or to both) such classified information as
relates to safety features and such classified information as is
necessary for the design, manufacture and operation of such
propulsion plant. A person or persons will also be authorized, for
a period of ten years following the date of entry into force of
this Agreement and subject to terms and conditions acceptable to
the Government of the United States, to transfer replacement cores
or fuel elements for such plant.
B. The Government of the United States will transfer by sale
agreed amounts of U-235 contained in uranium enriched in the
isotope U-235 as needed for use in the submarine nuclear propulsion
plant transferred pursuant to paragraph A of this Article, during
the ten years following the date of entry into force of this
Agreement on such terms and conditions as may be agreed. If the
Government of the United Kingdom so requests, the Government of the
United States will during such period reprocess any material sold
under the present paragraph in facilities of the Government of the
United States, on terms and conditions to be agreed, or authorize
such reprocessing in private facilities in the United States.
Enriched uranium recovered in reprocessing such materials by either
Party may be purchased by the Government of the United States under
terms and conditions to be agreed. Special nuclear material
recovered in reprocessing such materials and not purchased by the
Government of the United States may be returned to or retained by
the Government of the United Kingdom and any U-235 not purchased by
the Government of the United States will be credited to the amounts
of U-235 to be transferred by the Government of the United States
under this Agreement.
C. The Government of the United States shall be compensated for
enriched uranium sold by it pursuant to this Article at the United
States Atomic Energy Commission's published charges applicable to
the domestic distribution of such material in effect at the time of
the sale. Any purchase of enriched uranium by the Government of the
United States pursuant to this Article shall be at the applicable
price of the United States Atomic Energy Commission for the
purchase of enriched uranium in effect at the time of purchase of
such enriched uranium.
D. The Parties will exchange classified information on methods
of reprocessing fuel elements of the type utilized in the
propulsion plant to be transferred under this Article, including
classified information on the design, construction and operation of
facilities for the reprocessing of such fuel elements.
E. The Government of the United Kingdom shall indemnify and hold
harmless the Government of the United States against any and all
liabilities whatsoever (including third-party liability) for any
damage or injury occurring after the propulsion plant or parts
thereof, including spare parts, replacement cores or fuel elements
are taken outside the United States, for any cause arising out of
or connected with the design, manufacture, assembly, transfer or
utilization of the propulsion plant, spare parts, replacement cores
or fuel elements transferred pursuant to paragraph A of this
Article.
ARTICLE III bis
Transfer of Materials and Equipment
A. The Government of the United States shall transfer to the
Government of the United Kingdom the following in such quantities,
at such times prior to December 31, 2004, and on such terms and
conditions as may be agreed:
1. non-nuclear parts of atomic weapons which parts are for the
purpose of improving the United Kingdom's state of training and
operational readiness;
2. other non-nuclear parts of atomic weapons systems involving
Restricted Data which parts are for the purpose of improving the
United Kingdom's state of training and operational readiness when
in accordance with appropriate requirements of applicable laws;
3. source, by-product and special nuclear material, and other
material, for research on, development of, or use in atomic weapons
when, after consultation with the Government of the United Kingdom,
the Government of the United States determines that the transfer of
such material is necessary to improve the United Kingdom's atomic
weapon design, development or fabrication capability.
B. The Government of the United States shall transfer to the
Government of the United Kingdom special nuclear material, and
authorize the transfer of other material, for research on,
development of, production of, or use in utilization facilities for
military applications, in such quantities, at such times prior to
December 31, 2004, and on such terms and conditions as may be
agreed.
C. The Government of the United States shall transfer enriched
uranium, and shall arrange enrichment and other uranium services
for the Government of the United Kingdom, for military purposes, in
such quantities, at such times prior to December 31, 2004, and on
such terms and conditions as may be agreed.
D. The Government of the United Kingdom shall transfer to the
Government of the United States for military purposes such source,
by-product and special nuclear material, and equipment of such
types, in such quantities, at such times prior to December 31,
2004, and on such terms and conditions as may be agreed.
E. 1. With respect to by-product material, special nuclear
material and other material transferred from one Party to the other
under this Article, the recipient Party agrees not to use any such
material for purposes other than those for which it was received,
provided that material which has lost its identity as a result of
commingling with other material of the recipient Party may be put
to other uses if the recipient Party retains an equivalent amount
of its own material for the purpose for which the other Party's
material was received.
2. For material or equipment transferred from one Party to the
other Party, the recipient Party shall pay or reimburse, as may be
agreed, all packaging, transportation and related costs. Packaging,
shipping containers and methods of shipment shall be as may be
agreed.
3. Should either Party desire to acquire materials or components
for use in the manufacture or in preparation for manufacture of
atomic weapons from any source within the jurisdiction of the other
Party, the procuring Party shall inform the other Party of the
proposed procurement in order that such other Party may determine
whether the proposed procurement involves classified information
and if so whether the proposed procurement is in compliance with
its applicable laws and regulations.
ARTICLE IV
RESPONSIBILITY FOR USE OF INFORMATION, MATERIAL, EQUIPMENT AND
DEVICES
The application or use of any information (including design
drawings and specifications), material or equipment communicated,
exchanged or transferred under this Agreement shall be the
responsibility of the Party receiving it, and the other Party does
not provide any indemnity, and does not warrant the accuracy or
completeness of such information and does not warrant the
suitability or completeness of such information, material or
equipment for any particular use or application.
ARTICLE V
CONDITIONS
A. Cooperation under this Agreement will be carried out by each
of the Parties in accordance with its applicable laws.
B. Under this Agreement there will be no transfer by either
Party of atomic weapons.
C. Except where specifically authorized by this Agreement or, as
may be agreed for civil uses, the recipient Party agrees not to use
the information communicated or exchanged, or the materials or
equipment transferred, by either Party pursuant to this Agreement
for other than the preparation or implementation of defense plans
in the mutual interests of the two countries.
D. Nothing in this Agreement shall preclude the communication or
exchange of classified information, sensitive nuclear technology,
or controlled nuclear information, which may be transmissible under
other arrangements between the Parties.
ARTICLE VI
GUARANTIES
A. Classified information, materials and equipment communicated
or transferred pursuant to this Agreement shall be accorded full
security protection under applicable security arrangements between
the Parties and applicable national legislation and regulations of
the Parties. In no case shall either Party maintain security
standards for safeguarding classified information, materials or
equipment made available pursuant to this Agreement less
restrictive than those set forth in the applicable security
arrangements in effect on the date this Agreement comes into
force.
B. Sensitive nuclear technology and controlled nuclear
information transferred pursuant to this Agreement shall be
accorded at least the same level of protection by the recipient
party as that accorded to such information by the transferring
Party. The Parties shall consult with each other regarding the
appropriate protections for such information.
C. Adequate physical security shall be maintained with respect
to any source material, special nuclear material and equipment
transferred pursuant to the Agreement, and with respect to any
special nuclear material used in or produced through the use of any
material or reactor so transferred. Such protection shall be
commensurate with the importance of the material or equipment
involved.
D. Classified information, sensitive nuclear technology, and
controlled nuclear information, communicated or exchanged pursuant
to this Agreement will be made available through channels existing
or hereafter agreed for the communication or exchange of such
information between the Parties.
E. Classified information, sensitive nuclear technology, and
controlled nuclear information, communicated or exchanged, and any
materials or equipment transferred, pursuant to this Agreement
shall not be communicated, exchanged or transferred by the
recipient Party or persons under its jurisdiction to any
unauthorized persons, or, except as provided in Article VII of this
Agreement, beyond the jurisdiction of that Party. Each Party may
stipulate the degree to which any of the information, materials or
equipment communicated, exchanged or transferred by it or persons
under its jurisdiction pursuant to this Agreement may be
disseminated or distributed; may specify the categories of persons
who may have access to such information, materials or equipment;
and may impose such other restrictions on the dissemination or
distribution of such information, materials or equipment as it
deems necessary.
F. Adequate materials control and accountability shall be
maintained with respect to any nuclear material (including source
material and special nuclear material) transferred pursuant to the
Agreement, and with respect to any nuclear material used in or
produced through the use of any nuclear material or equipment
transferred pursuant to the Agreement. Each Party guarantees
adequate materials control and accountancy shall be maintained so
long as such nuclear material or equipment remains under its
jurisdiction or control. As may be mutually agreed, the Parties
shall consult with each other regarding methods and technology for
providing such materials control and accountability.
ARTICLE VII
DISSEMINATION
Nothing in this Agreement shall be interpreted or shall operate
as a bar or restriction to consultation or cooperation in any field
of defense by either Party with other nations or international
organizations. Neither Party, however, shall communicate classified
information, sensitive nuclear technology, and controlled nuclear
information, or transfer or permit access to or use of materials,
or equipment, made available by the other Party pursuant to this
Agreement to any nation or international organization unless:
A. it is notified by the other Party that all appropriate
provisions and requirements of such other Party's applicable laws,
including authorization by competent bodies of such other Party,
have been complied with as necessary to authorize such other Party
directly so to communicate to, transfer to or permit access to or
use by such other nation or international organization; and further
that such other Party authorizes the recipient Party so to
communicate to, transfer to or permit access to or use by such
other nation or international organization; or
B. in the case of communication of classified information,
sensitive nuclear technology, and controlled nuclear information,
and access to materials or equipment, such other Party has informed
the recipient Party that such other Party has so communicated such
classified information to, or permitted access to such materials or
equipment by, such other nation or international organization;
or
C. in the case of material which has lost its identity as a
result of commingling with other material of the recipient Party,
the recipient Party retains an amount under its jurisdiction
equivalent to that made available to it by the other Party under
this Agreement.
ARTICLE VIII
CLASSIFICATION POLICIES
Agreed classification policies shall be maintained with respect
to all classified information, materials or equipment communicated,
exchanged or transferred under this Agreement. The Parties intend
to continue the present practice of consultation with each other on
the classification of these matters.
ARTICLE IX
PATENTS
A. With respect to any invention or discovery employing
classified information which has been communicated or exchanged
pursuant to Article II or derived from the submarine propulsion
plant, material or equipment transferred pursuant to Articles III
or III bis, and made or conceived by the recipient Party, or any
agency or corporation owned or controlled thereby, or any of their
agents or contractors, or any employee of any of the foregoing,
after the date of such communication, exchange or transfer but
during the period of this Agreement:
1. in the case of any such invention or discovery in which
rights are owned by the recipient Party, or any agency or
corporation owned or controlled thereby, and not included in
subparagraph 2 of this paragraph, the recipient Party shall, to the
extent owned by any of them:
(a) transfer and assign to the other Party all right, title and
interest in and to the invention or discovery, or patent
application or patent thereon, in the country of that other Party,
subject to the retention of a royalty-free, non-exclusive,
irrevocable license for the governmental purposes of the recipient
Party and for the purposes of mutual defense; and
(b) grant to the other Party a royalty-free, non-exclusive,
irrevocable license for the governmental purposes of that other
Party and for purposes of mutual defense in the country of the
recipient Party and third countries, including use in the
production of material in such countries for sale to the recipient
Party by a contractor of that other Party;
2. in the case of any such invention or discovery which is
primarily useful in the production or utilization of special
nuclear material or atomic energy and made or conceived prior to
the time that the information it employs is made available for
civil uses, the recipient Party shall:
(a) obtain, by appropriate means, sufficient right, title and
interest in and to the invention or discovery, or patent
application or patent thereon, as may be necessary to fulfill its
obligations under the following two subparagraphs:
(b) transfer and assign to the other Party all right, title and
interest in and to the invention or discovery, or patent
application or patent thereon, in the country of that other Party,
subject to the retention of a royalty-free, non-exclusive,
irrevocable license, with the right to grant sublicenses, for all
purposes; and
(c) grant to the other Party a royalty-free, non-exclusive,
irrevocable license, with the right to grant sublicenses, for all
purposes in the country of the recipient Party and in third
countries.
B. 1. Each Party shall, to the extent owned by it, or any agency
or corporation owned or controlled thereby, grant to the other
Party a royalty-free, non-exclusive, irrevocable license to
manufacture and use the subject matter covered by any patent and
incorporated in the submarine propulsion plant, spare parts or
equipment transferred pursuant to paragraph A of Article III or
paragraphs A, B, C or D of Article III bis for use by the licensed
Party for the purposes set forth in paragraph C of Article V.
2. The transferring Party neither warrants nor represents that
the submarine propulsion plant or any material or equipment
transferred under Articles III or III bis does not infringe any
patent owned or controlled by other persons and assumes no
liability or obligation with respect thereto, and the recipient
Party agrees to indemnify and hold harmless the transferring Party
from any and all liability arising out of any infringement of any
such patent.
C. With respect to any invention or discovery, or patent
application or patent thereon, or license or sublicense therein,
covered by paragraph A of this Article, each Party:
1. may, to the extent of its right, title and interest therein,
deal with the same in its own and third countries as it may desire,
but shall in no event discriminate against citizens of the other
Party in respect of granting any license or sublicense under the
patents owned by it in its own or any other country;
2. hereby waives any and all claims against the other Party for
compensation, royalty or award, and hereby releases the other Party
with respect to any and all such claims.
D. 1. No patent application with respect to any classified
invention or discovery employing classified information which has
been communicated or exchanged pursuant to Article II, or derived
from the submarine propulsion plant, material or equipment
transferred pursuant to Articles III or III bis, may be filed:
(a) by either Party or any person in the country of the other
Party except in accordance with agreed conditions and procedures;
or
(b) in any country not a party to this Agreement except as may
be agreed and subject to Articles VI and VII.
2. Appropriate secrecy or prohibition orders shall be issued for
the purpose of giving effect to this paragraph.
ARTICLE X
PREVIOUS AGREEMENTS FOR COOPERATION
Effective from the date on which the present Agreement enters
into force, the cooperation between the Parties being carried out
under or envisaged by the Agreement for Cooperation Regarding
Atomic Information for Mutual Defense Purposes, which was signed at
Washington on June 15, 1955, and by paragraph B of Article I bis of
the Agreement for Cooperation on Civil Uses of Atomic Energy, which
was signed at Washington on June 15, 1955, as amended by the
Amendment signed at Washington on June 13, 1956, shall be carried
out in accordance with the provisions of the present Agreement.
ARTICLE XI
DEFINITIONS
For the purposes of this Agreement:
A. "Atomic weapon" means any device utilizing atomic energy,
exclusive of the means for transporting or propelling the device
(where such means is a separable and divisible part of the device),
the principal purpose of which is for use as, or for development
of, a weapon, a weapon prototype, or a weapon test device.
B. "Classified information" means information, data, materials,
services or any other matter with the security designation of
United Kingdom 'Restricted' or United States Confidential or higher
applied under the legislation or regulations of either the United
States or the United Kingdom, including that designated by the
Government of the United States as "Restricted Data" or "Formerly
Restricted Data" and that designated by the Government of the
United Kingdom as "ATOMIC".
C. "Sensitive nuclear technology" means any information
(including information incorporated in a production or utilization
facility or important component part thereof) which is not
available to the public and which is important to the design,
construction, fabrication, operation or maintenance of a uranium
enrichment or nuclear fuel reprocessing facility or a facility for
the production of heavy water, but shall not include information
designated as Restricted Data by the Government of the United
States."
D. "Controlled nuclear information" means information protected
by the Government of the United States from unauthorized
dissemination pursuant to sections 57.b. or 148 of the United
States Atomic Energy Act of 1954, as amended.
E. "Equipment" means any instrument, apparatus or facility and
includes any facility, except an atomic weapon, capable of making
use of or producing special nuclear material, and component parts
thereof, and includes submarine nuclear propulsion plant, reactor
and military reactor. 'Equipment' also includes non-nuclear parts
of atomic weapons and other non-nuclear parts of atomic weapons
systems involving Restricted Data.
F. "Military reactor" means a reactor for the propulsion of
naval vessels, aircraft or land vehicles and military package power
reactors.
G. "Person" means:
1. any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, government
agency or government corporation other than the Department of
Energy and the Ministry of Defence; and
2. any legal successor, representative, agent or agency of the
foregoing.
H. "Reactor" means an apparatus, other than an atomic weapon, in
which a self-supporting fission chain reaction is maintained and
controlled by utilizing uranium, plutonium or thorium, or any
combination of uranium, plutonium or thorium.
I. "Submarine nuclear propulsion plant" means a propulsion plant
and includes the reactor, and such control, primary, auxiliary,
steam and electric systems as may be necessary for propulsion of
submarines.
J. "Non-nuclear parts of atomic weapons" means parts of atomic
weapons which are specially designed for them and are not in
general use in other end products and which are not made, in whole
or in part, of special nuclear material; and 'other non-nuclear
parts of atomic weapons systems involving Restricted Data' means
parts of atomic weapons systems, other than non-nuclear parts of
atomic weapons, which contain or reveal atomic information and
which are not made, in whole or in part, of special nuclear
material.
K. "Atomic information" means information designated 'Restricted
Data' or 'Formerly Restricted Data' by the Government of the United
States and information designated 'ATOMIC' by the Government of the
United Kingdom.
ARTICLE XII
DURATION
This Agreement shall enter into force [n1] on the date on which
each Government shall have received from the other Government
written notification that it has complied with all statutory and
constitutional requirements for the entry into force of this
Agreement, and shall remain in force until terminated by agreement
of both Parties, except that, if not so terminated, Article II may
be terminated by agreement of both Parties, or by either Party on
one year's notice to the other Party.
Notes: n1 Aug. 4, 1958.
IN WITNESS WHEREOF, the undersigned, duly authorized, have
signed this Agreement.
DONE at Washington this third day of July, 1958, in two
original texts.
SIGNATORIES:
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
JOHN FOSTER DULLES
FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND:
HOOD
Source: This text has been compiled from text of the
Treaty and its subsequent amendments obtained from LexisNexis, http://www.lexisnexis.com,
courtesy of British American Security Information Council (BASIC).
See also: "US-UK nuclear weapons collaboration under the Mutual
Defence Agreement: Time to shine a torch into the darker recesses
of the 'special relationship'", published by BASIC, http://www.basicint.org.
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