Since 2009, Democratic and Republican administrations have engaged Saudi Arabia on the prospect of striking a bilateral agreement that would allow civil nuclear energy cooperation between Washington and Riyadh. These discussions have always faltered over three sets of issues: whether Saudi Arabia would be permitted to enrich uranium or reprocess spent fuel; Saudi Arabia’s willingness to implement the Additional Protocol with the International Atomic Energy Agency (IAEA); and the role U.S. industry would play in the Kingdom’s plans to build large and small nuclear reactors.
Saudi Crown Prince Mohammed bin Salman’s Nov. 18 visit to the United States marked a potential breakthrough when the two countries released a fact sheet stating they had completed negotiations on civil nuclear energy cooperation. However, the fact sheet does not clarify how the three issues that have held up reaching an agreement in the past were resolved. And to date, no agreement text has been publicly released.
Unlike many international policy decisions, Congress gets a say in foreign nuclear cooperation, which can only be implemented via a congressional-executive agreement known as a Section 123 agreement. Under this law, all nuclear cooperation agreements must be submitted to Congress for its review, with the potential that they could be rejected. That means when a U.S.-Saudi Arabia 123 agreement is submitted to Congress, likely in late February or early March, the legislative branch will have an opportunity to thoroughly consider whether the agreement meets the non-proliferation standards of the law and is in the national security interests of the United States.
Enrichment and Reprocessing
The first issue Congress should focus on is the terms in the agreement surrounding Saudi Arabia’s ability to enrich and reprocess nuclear material. The Saudi government has consistently expressed a desire to take part in the entire nuclear fuel cycle, believing there are significant economic benefits in a domestic ability to fuel its reactors and in the sale of nuclear fuel for export. As with many governments, Saudi Arabia also seeks to participate in the growth of the nuclear industry by developing technical expertise in nuclear fields for its workforce.
The United States has a long-standing policy to prevent the spread of enrichment and reprocessing because the technologies can be used in the production of material for nuclear weapons (as Kelsey Davenport recently explained). However, there has never been a one-size-fits-all solution on how enrichment and reprocessing are dealt with in 123 agreements, with each agreement considered individually. For understandable reasons, some agreements—for example with the United Arab Emirates—have a legally binding ban on enrichment and reprocessing because of proliferation concerns. For others, such as the one with Vietnam, where non-proliferation concerns are lower a political commitment to use international markets for its nuclear fuel supply was viewed as sufficient.
Saudi Arabia is a difficult case because its statements have fueled concerns about its desire for a nuclear weapons capability. Crown Prince bin Salman openly stated in a 2023 interview that if Iran acquired a nuclear weapon, it also would obtain one, which would directly violate its obligations under the Nuclear Non-Proliferation Treaty (NPT).
U.S. negotiators have floated a variety of compromises to reduce proliferation concerns while meeting Saudi Arabia’s desire to participate in the civil nuclear industry. According to press reports, in 2023 the United States offered a U.S.-run and controlled uranium-enrichment facility on Saudi territory and the potential for the Saudis to invest in U.S. nuclear companies. Another potential compromise used in previous cases would be to defer decisions on sensitive issues, such as domestic enrichment and reprocessing, for a period of time while the two countries studied the viability of different options.
IAEA Cooperation
The second issue Congress should concentrate on is the terms of Saudi Arabia’s comprehensive safeguard agreements (CSA) with the IAEA. Ideally, Saudi Arabia would sign up to the Additional Protocol (AP), which provides the IAEA with complementary access to nuclear and suspected nuclear facilities in order to resolve questions relating to the accuracy and completeness of countries’ declarations about their civil nuclear program. To date, 127 countries have implemented the AP, and it is especially important in IAEA investigations of undeclared/clandestine nuclear materials and activities, such as those in Iran.
The Saudi government has resisted signing up to the AP based on concerns about sovereignty and its belief that the AP empowers the IAEA to conduct inspections anywhere within the country. It is important to note that the IAEA cannot operate in this fashion, as it can only inspect a facility if it has a solid body of information indicating suspicious nuclear activity.
A refusal by the Saudi government to sign up to the AP will complicate the congressional review process. The National Defense Authorization Act (NDAA) of 2020 included a provision limiting the president’s ability to submit a Nuclear Proliferation Assessment Statement (NPAS) with any country that has not signed and implemented the AP. An NPAS is a required part of the congressional review process, as it provides detailed information in both classified and unclassified form about how the 123 agreement complies with the non-proliferation standards set out in the Atomic Energy Act. If the president cannot submit an NPAS to Congress, the review process cannot move forward.
However, there is a waiver provision in the law. A 123 agreement can be submitted 90 days after the president provides Congress a report “describing the manner in which such agreement would advance the national security and defense interests of the United States and not contribute to the proliferation of nuclear weapons.” The author has been made aware that a waiver has been provided to the appropriate Congressional committees, though it has not been made public. This may partially explain why a 123 agreement was not signed during the Crown Prince’s visit to the United States.
This is the first time the waiver process has been used, as every country the United States has agreed to a 123 agreement with since 2020 was a signatory to the AP. In the end, Congress will need to determine whether it believes a Saudi nuclear program that is not constrained by the AP is actually in the national security and defense interests of the United States, and whether sufficient safeguards are in place to ensure it would not contribute to proliferation.
A potential fallback position would be a bilateral safeguards arrangement between the United States and the Kingdom with the IAEA’s involvement. The hope would be that such an arrangement would provide the IAEA with additional safeguards and verification measures that would mirror those contained in the AP. These measures should allow the IAEA to investigate undeclared nuclear activities while alleviating Saudi concerns of IAEA inspectors having the right to visit sensitive government or cultural sites. It is likely such an agreement would need to be approved by the IAEA’s Board of Governors. Congress should ensure it has an opportunity to analyze whatever bilateral safeguard arrangements have been reached with Saudi Arabia during its review of the 123 agreement.
Commercial and Diplomatic Benefits
The final issue Congress should consider is the potential commercial and diplomatic benefits the United States would receive from establishing a civil nuclear cooperation agreement with the Kingdom. Although not strictly part of the criteria for judging a 123 agreement, Congress has always considered civil nuclear relations within a broader framework of bilateral relations. In the best case, the United States would play a major role in the construction of the two nuclear reactors Saudi Arabia is currently accepting bids on, and the United States would be the preferred provider for any small modular reactors Saudi Arabia orders.
In the case of the U.S.-Saudi Arabia nuclear agreement, it is vital that Congress performs its review and oversight role. Congress should carefully weigh whether the 123 agreement the Trump administration has signed with Saudi Arabia reached the highest non-proliferation standard possible, considering the proliferation risk posed by the Kingdom and the degree it enhances the commercial potential of the U.S. nuclear industry.
What Congress Should Ask
Below are some specific questions Congress should ask the administration to clarify while reviewing the Saudi 123 agreement.
• In 2009, the UAE signed a 123 agreement renouncing the pursuit of enrichment and reprocessing (ENR) technologies and capabilities. Why was the United States unable to achieve this standard, which has been an informal measuring stick for nuclear cooperation agreements in the Middle East, in this agreement? Will the UAE seek to renegotiate its agreement with the United States if the U.S.-Saudi 123 goes into effect?
• Crown Prince bin Salman has openly stated Saudi Arabia will obtain a bomb if Iran acquires a nuclear weapon. What safeguards have been put in place to ensure the nuclear material produced by Saudi civil nuclear activities cannot be used in a weapons program?
• Since the George W. Bush administration, the United States has advocated for the universal adoption of the Additional Protocol, noting on numerous occasions that this was a central goal of U.S. nonproliferation policy. How can we justify a nuclear cooperation agreement with a country that refuses to adopt the AP despite its pursuit of a large scale civil nuclear program?
• What additional safeguard and verification measures have been put in place in the Bilateral Safeguard Agreement at proliferation sensitive sites such as enrichment facilities, fuel fabrication sites, and reprocessing facilities? How do these measures compare to what is contained in a standard AP agreement?
• The fact sheet signed by President Trump and Saudi Crown Prince Mohammed bin Salman stated that American companies “will be the Kingdom’s civil nuclear cooperation partners of choice.” Does that mean an American company will construct the first two nuclear reactors the Kingdom has been accepting bids for?
• As part of this agreement will Saudi Arabia be purchasing American small modular reactors?
