NON PROLIFERATION OBJECTIVES ENVIRONED IN THE

UNITED STATES NUCLEAR TECHNOLOGY EXPORTS

Aggressive and unrestrained technological capabilities can

lead the human race to the fulcrum of irreversible crises. Since

1945 United States has not fired a nuclear weapon to express

political anger.

The nuclear non-proliferation treaties that have come into

existence in a period of these 43 years after first destructive

explosion, are some evidence that neither the U.S.S.R. nor the

U.S. has any interest in destroying the human race, yet one

watches both with mystified suspense and suspicion as man's global

capacity to kill increases.

The devastating nature of nuclear weapons not only threatens

the human race but also has the potential to annihilate nature's

eco-system in a given bio-sphere.

No unilateral wish or act can ever disinvest what has been so

brought into existence.

THE DESTINY OF BIOTOPE IN A NUCLEAR ERA

Hiroshima was not the beginning of atomic anger. It was the

American decision to make a bomb in 1939, long before Pearl

Harbour in October 1941.

The political climate in which President Truman's government

considered the imminent test at Alamogordo in the spring of 1945

for putting an end to second world war, cannot be overlooked in

that behalf, maybe that was one of the factor why Americans did

not seriously attempt to develop atomic energy plans during the

period when the proposal on the Acheson-Lilienthal Report and

Baruch Scheme was under consideration.

However, the ultimate decision to go nuclear is a moral one rather

than circumstantial or political. Making such a destructive devise

is no more a puzzle. It is deeper exploration of technological

feasibility and understanding of science or natures forces in the

light of known realities of the physical world.

Many school kids read books on physics and chemistry that

detail particulars of making a bomb.

However, the original nexus of such a horrific idea of making a

bomb was in fact transplanted into modern scientists by the

inspiratorial work of Madam Curie in France.

Since the dropping of the bomb in 1945 the U.S. may have

considered the use of nuclear weapons on several occasions, i.e.,

during the Eisenhower administration at the time of the Korean

war, when a nuclear threat did exist. And during the Kennedy

administration the Cuban Missile Crisis created a possibility of a

direct nuclear showdown with the Soviet Union. American government

wanted Soviet Union to withdraw its missiles from Cuban land,

which gave rise to serious confrontation (Oct. 1962).

The American President agreed to a barter, i.e., removal of

its missiles from Turkey, which eased the tension of immediate

nuclear war. It was the foresight of political advisors and the

Secretary of State that helped out America from the critical

moment of the onset of a nuclear war.

It needs to be mentioned that Mr. Khruschev's wisdom prevailed

during President Kennedy's strong and unyielding administration.

However, the situation leading to mutual suicide was overcome by

peaceful negotiations and amicable conciliation.

Nuclear war can be triggered by human's political

misjudgment. Political environs play a major role in bringing

about changes in the nuclear arena. Americans have carefully

watched Soviet intervention in Angola, Ethopia, Southern Yemen,

Campuchea, Afghanistan and in Central America.

NUCLEAR WEAPONS AND TERRORISM: A PARADISE

BOUND WITH ADAMANTINE CHAINS

Discussions concerning nuclear weapons at NATO demarcates

various possibilities of meeting with contingent situations in

order that people in the U.S. are not caught by surprise if a

nuclear weapon fell on Washington D.C. (Although the fact remains

that the European soil is a major battle ground for diplomacy of

U.S.S.R. and U.S.A.).

Even if a major blast is averted the "suitcase bomb" or a

"teddy bear" bomb still remains in the hands of terrorists who

could use nuclear threats for political purposes.

The spread of nuclear technology continues, and weapons

grade nuclear materials become available whereby a mad dictator

cannot be restrained from such nuclear misuse. In time, life on

this plant shall be a difficult proposition to think about, if

repeated nuclear blasts are witnessed.

Iran - Iraq war has witnessed the use of such lesser

chemical weapons. Fifteen years ago the Germans could be persuaded

by America to refrain from selling nuclear recycling technology to

Brazil.

Decrease in the cost of production of small nuclear weapons also

makes it feasible for many countries to go for it, never once

realizing that such an insatiable lust for power to dominate can

easily turn this planet into a fullstop after World War III.

In creating these dangerous merchants of death, no one looks

at the cost factor, i.e., deployment of public funds. Maybe the

Packard Commission is the only serious body that touches such an

outline in its investigative report.

Sir Sollie Zuckerman, principal science advisor to (several)

British Prime Ministers, wrote that military-industrial sector is

not a major force in bringing these weapons into existence but the

motivative drive in that direction came from community of

scientists, i.e., mutual unpredictable destruction.

MAINTAINING LIVEABLE ENVIRONS WITH LEGISLATIVE SUPPORT.

Non-Proliferation is an important aspect of regulation on

international transfer of technology related to acquisition of

nuclear weapons capabilities. If the United State does not

participate in international nuclear trade it is quite likely that

acts of irresponsible suppliers of nuclear materials would lead to

proliferation.

Therefore, a thorough study of export of fissile materials from

the U.S. to the beneficiary nation is essential to properly

implement nuclear non-proliferation and safety controls.

American safety standards are therefore inbuilt in American

technology transferred abroad (22 U.S.C. Sec. 3202 (d) (Supp. II

1978).

Likewise, decisions of Nuclear Regulatory Commission on transfer

of nuclear technology are more likely to be based on

implementation of the congressional intent found in the Atomic

Energy Act of 1954 as amended by the Nuclear Non-proliferation Act

of 1978 (for short NNPA) (22 U.S.C. Sec. 3201 et seq., Supp. III

1979).

The domestic goals enshrined in the provisions of the National

Environmental Policy Act of 1969 (for short NEPA) are overruled

when found in conflict with non-proliferation and foreign policy

objectives.

Bilateral or multilateral international nuclear transactions must

take precedence over unilateral American endeavors.

Victimized nuclear exporters have somehow refrained from

depriving the upcoming nuclear weapon states of the benefits of

their illicit actions through the use of threat of sanctions or

other diplomatic or legal measures by demanding that Israel return

the Krytrons smuggled out by Smyth.

Congress enacted legislation in 1985 prohibiting U.S.

economic or military assistance to any country which is found by

the president to have illegally exported or attempted to export

illegally material, equipment or technology which could

significantly assist in the manufacture of a nuclear explosive

device, or that the export was intended to be used for such a

purpose (Foreign Assistance Act of 1961, 22 U.S.C.A. Sec. 2429

A(1)(B) (West Supp. 1987 - Popular as the Solarz Amendment).

However, in the end, Israel's conduct was condoned by

Washington D.C., by permitting it to retain those Krytrons already

in use.

A possibility could not be overruled that a portion thereof was

being used for nuclear weapons purposes.

Likewise, the Federal Republic of Germany did not seriously

object to Pakistan's use of the illegally obtained Uranium

processing plant.

It passes comprehension as to why the recipient country be not

prosecuted when a supplier country/government/nuclear exporter

has sufficient evidence to indict an individual for nuclear

smuggling.
More so, after that "smuggler" is convicted the exporter has

little excuse for not confronting the recipient country (importer)

and initiate a motion for return of smuggled nuclear technology or

nuclear materials.

Most of the times, public appeals for initiating action

against such smugglers have fallen on deaf ears but in its own

time, such arguments or actions highlighting importing nations

culpability have proved to be of perennial validity. Time and

again Washington's reluctance has been noticed in so far as it has

refrained from taking action against some emerging nuclear states

in East-West Zones where high political tensions prevail, in order

to prevent its relation from being embittered, despite there being

sufficient evidence on the records indicating unpardonable and

gross violations of the nuclear export law.

On the other hand, ironically, instead of being brought to

the book by the international community, Pakistan has had the

temerity to sue the French government before the International

Chamber of Commerce for refusing to deliver a reprocessing plant

promised in 1976.

If emerging nuclear states responsible for nuclear

violations are not checked in their attempts to take resort to

illicit transfers of nuclear technology/ materials, power thirsty

politicians in no time, will have nuclear weapons at their command

to threaten friend or foe alike. Possession of such nuclear power

that enhances their capacity to kill, and fuel their insatiable

lust for power and domination, could threaten the existence of

human race in near future.

These power blind politicians never realize the potential

dangers in not maintaining prescribed nuclear safeguards, whereby

they might themselves be one day wrapped in nuclear chains, to

converse with everlasting groans, unrespited, unpited, unreprieved

ages of hopeless end.

NUCLEAR EXPORTS LICENCING - Atomic Energy Act of 1954

The Atomic Energy Act of 1954 (for short AEA) initially

provided for basic infrastructure of nuclear cooperation and

exchange of nuclear technology between the U.S. and other

countries. A major portion of NEPA litigation for nuclear

activities of the U.S. occurred under AEA before it was amended in

1978 (by NNPA). The basic policy laid down by section 3 (d) of AEA

encourages utilization of atomic energy for commercial development

consistent with the "common defense and security" and with "health

and safety of public"[1].

"Common Defense and Security" has been given a separate core

of meaning as distinguished from "health and public safety"[2].

ENVIRONMENTAL CONSIDERATIONS - A Legislative Mandate

 Licencing of a nuclear reactor (Section 103, AEA) would

require to meet all "health and safety" standards of Nuclear

Regulatory Commission (for short NRC), whereas for nuclear

exports, terms of agreement with importer become more significant.

An export license would not be issued if the export would be

"inimical to the common defense and security"3.

Therefore, under AEA criteria, for issuance of an export license

it is essential that:-

(i) the export must occur under an appropriate

agreement for cooperation, i.e., a bilateral agreement as above;

and

(ii) the export must not be inimical to the common

defense and security.

Section 11 (g), AEA, defines the phrase "common defense and

security"[4].

This concept encapsulates notions of national security and

military preparedness and/or superiority in the field of atomic

weaponry [5].

Those were the days when the mind of American legislature was

preoccupied in striking a reasonable balance of its conflicting

interests with U.S.S.R. whereat it would amount to stretching ones

imagination too far if transnational environmental protection

mandate was to be read into the licencing criteria of "Common

Defense and Security".

 ENVIRONMENTAL IMPACT STUDY: Whether A Pre-Conditional

Legislative mandate for nuclear exports.

The question whether NRC would submit a questionnaire to the

Department of State in order to obtain information to ascertain

impact of a proposed nuclear export on United States, mainly has a

bearing on U.S. national security and Nuclear Non-Proliferation

objectives, but not on foreign environmental impact

considerations[6].

It became necessary to be determined as to whether

environmental considerations were explicitly mandated in every

licensing determinations.

On the other hand, legally binding instruments of international

commerce generally reserved environmental and safety criteria for

the beneficiary nations[7].

This has led to an unmistakable and unambiguous inference

against unilateral United States environmental assessments in the

export licencing process.

NRC has consistently refused to interpret AEA provisions to extend

to reviewing of health, safety or environmental factors having

nexus with the importing country's proposal/applications for

nuclear project[8].

Whereas the NRC has always fully supported international

endeavors to prevent environmental damage[9]. However, in 1976 a

generic analysis was provided for assessment of U.S. domestic

impacts for the entire nuclear power program (ERDA-1952)[10].

Transnational environmental mandate cannot be found in AEA

for the paucity of legislative guidance, absence of statutory

clarity and history of administrative practices. Therefore, AEA

alone cannot be said to impose an affirmative obligation on U.S.

agencies to examine environmental impacts within a foreign

territory before authorizing nuclear material export license or

licencing a nuclear technology.

"O'then at last relent;

Is there no place

Left for repentance

None for Pardon left".

PROCEDURAL FRAMEWORK: Transfer of Nuclear Technology

The procedural framework for grant of nuclear export license

is detailed in section 126 of the amended Atomic Energy Act[11].

The relevant regulations are drawn in the following parts of the

Code of Federal Regulations 10 C.F.R. 810, 10 C.F.R. 110, 15

C.F.R. 378, 15 C.F.R. 379. The detailed procedures therein

prescribed involve executive and administrative participation.

The prospective exporter has to file an application for obtaining

such an export license with the NRC. The application clearly

specifies the country to which the nuclear technology has to be

exported from the United States and the type of transaction etc.
 The application as above is thereafter referred to the

Department of State, Defense, Commerce, Energy and Arms Control &

Disarmament Agency. In the meanwhile NRC also, of its own,

considers the application for nuclear export.

The above departments forward to the NRC its recommendation

for or against the issuance of license. Within 60 days thereafter

the NRC has to act thereon or provide reasons for delays caused.

If the the NRC still does not act then within 60 days thereafter

the U.S. President may withdraw that particular case from NRC and

authorize the export by an executive order, if any further delay

would be excessive and would act prejudicial to achievement of the

U.S. Non-Proliferation objectives or would jeopardize the common

defense and security of the U.S.[12].

If the NRC is not able to assess statutory determinations

for the issuance of such a license it may refer the pending case

to the U.S. President, who may thereafter give his decision. The

President's decision on referral or withdrawal context may be

viewed by the Congress within 60 days from the date of the

decision. Ultimately, the Congress has the power and the requisite

authority to refuse to allow a nuclear export even if the same is

authorized by the President of United States.

The NRC is authorized to order public proceedings whereby

time limit applicable to it stands extended by another period of

60 days.
 NUCLEAR EXPORTS FOR PEACEFUL PURPOSES

Section 127 and 128 of the AEA[13] mainly govern the

criteria relevant for United States nuclear exports for peaceful

purposes.

The export of nuclear technology broadly covers source material,

special nuclear material, production or utilization facilities and

sensitive nuclear technology.

International Atomic Energy Agency (for short IAEA) has prescribed

certain safeguards which are applicable to all nuclear exports.

One of the major condition therein stipulates that no such nuclear

material will be used for production of any nuclear explosive

device or for nuclear research on or development of any nuclear

explosive device. Apart from that the international law enjoins a

duty of proper maintenance of adequate security measures during

such export.

There exists a severe restriction on reexport of nuclear

material/technology binding the beneficiary licensee nation to not

to reexport the nuclear materials without prior consent of the

United States.

The aforesaid stipulation further lays down that the importers

shall not reprocess the exported nuclear material without prior

approval of the United States nor will any alterations therein or

removals therefrom be permitted from the reactor of irradiated

material unless prior approval is granted as above.

The law is also clear on reexports, i.e., exports by the

beneficiary nation shall not be permitted to that non-nuclear

weapon state which has failed to meet the requirement stipulated

hereinabove, unless such further authorization is submitted to the

Congress with detailed reasons for Presidents determination,

Executive's judgment and NRC's opinion[14].

JURISDICTIONAL CONFLICTS: A Highly Vituperative Controversy

In case of sale and purchases of nuclear reactors and

technology, the exporting and importing jurisdiction of each

concerned country would be involved in terms of public policies

therein developed. A country like the United States or Canada may

wish to promote its own nuclear technology as well as take active

part in restricting the proliferation of nuclear weapons, whereas

other beneficiary countries may primarily be concerned only with

the development of national power operation systems[15].

Legitimate regulatory jurisdictions of the two countries may

overlap and yet they may not always be the very same. In my case

the United States has always imposed its own regulatory procedures

and standards on all host countries involved in advanced nuclear

technology trade with it[16].

 Such an imposition does not necessarily amount to

interference with beneficiary nations sovereignty, although at

times certain stipulations/conditions attached to the American

exports or transfer of nuclear technology does imbalance the

domestic legislation of beneficiary nation if not in consonance

with such rigid preconditions[17] or sets of criteria in built as

a condition precedent to such transfers.

The criteria for health, safety and environmental concerns

normally is not considered as an unjust condition[18].

FOREIGN RELATIONS: Furtherance of Non-Proliferation Policies

Grant or otherwise of a nuclear export license is in many

respects dependent upon NRC's evaluation of "health, safety and

environmental" review of the foreign or importing country

intending to develop nuclear program[19].

Most of the times the NRC has to "judge" whether the future

behavior of foreign governments will be inimical to the "common

defense and security" of United States[20].

NRC's action or decision in accord with Nuclear Non-Proliferation

Act (NNPA) is also germane to suppressing spread of nuclear

weapons on international scale.

The basic object and purpose of NNPA is to make sure that by

"establishing a more effective framework for international

cooperation to meet the energy requirement of all nations ensure

that the worldwide development of peaceful nuclear activities,

including nuclear commerce, does not contribute to

proliferation...."[21].

Proliferation of nuclear materials among nations affect

foreign relations, and therefore it is major concern of NRC in so

far as restricting its scope is concerned[22].

NNPA grants special power to the President of United States

to overrule decisions of refusal to transfer or grant of nuclear

export license.

Ultimate responsibility of maintaining harmonious foreign

relations depend on the executive[23].

In so far as international transfer of technology is

concerned the scope and ambit of NNPA is fully applicable thereto

but since its policies are specific and distinct from domestic

nuclear power programs, its implementation does not affect the

domestic infrastructure of nuclear licensing.

LEGISLATIVE INTENT CONSPICUOUS IN NNPA: Impendent

Horrors of Nuclear Smuggling

The enactment of NNPA confirms the legislative intent to

ensure non-proliferation of nuclear materials and to ascertain

that the United States military is not imbalanced by reckless

export of nuclear technology[24].

The Congress has devised a cumbersome procedure to prevent nuclear

importers from acquiring nuclear weapons capability. Standard for

grant of nuclear export license are more stringent and elaborate

than conditions for "common defense and security" where strict and

effective antiproliferation criteria is applied to all nuclear

exports made by the United States[25].

NNPA does stipulate a concept of inimicality but it contains

no specific environmental guidelines[26], and therefore, it does

not interpret National Environmental Policy Act (NEPA)

in any manner[27]. In many cases NRC has declined to grant nuclear

export license[28].

Therefore, strictly speaking the operation of NEPA has no

serious foreign implications[29], whichever be the ultimate

outcome of an application for license of nuclear export.

The NRC has to, in any case, inform the Congress about the

outcome of its decision with respect thereto[30].

In the light of the above, the relation between NRC and the

Congress is vital and extremely sensitive as far as transfer of

export of nuclear materials /technology is concerned[31].

NEPA: Safeguarding the Biomass In Human

Ecocenosis - Determinations By NRC

 The National Environmental Policy Act of 1969[32] is the

most effective instrument in the hands of advocates attempting to

redress environmental grievances in a court of law.

Its basic purpose was to improve the environmental planning

activities of governmental agencies[33].

NEPA requires preparation of an Environmental Impact

Statement (EIS) for all "major Federal actions significantly

affecting the quality of human environment"[34].

It is therefore incumbent on the Federal Government to build

within its decision making process "an appropriate and careful

consideration of the environmental aspects of the proposed action

in order that adverse environmental effects may be avoided or

minimized..."[35].

The basic purpose of an EIS is consideration of alternative

measures[36]. NEPA requires[37] the NRC to consider alternatives

to power plant construction, which include postponement or

cancellation of the facility, alternative methods of power

generation, selection of another site, and design alternatives.

There was a spate of litigation over determination by NRC of

various issues, and the U.S. Supreme Court settled the

multiplicity of claims by holding that "no departure should

resorted to from the Rule of Reason" in Kieppe V. Sierra Club

[38], whereas in Vermont Yankee Corp. v. NRDC, the Supreme Court

observed that more alternatives should be explored in selection

and installation of a power plant. A major part of the litigation

also surrounded the area of plant construction, whereat the main

substantial challenge revolved around investigation of

alternatives for site selection [39] however, alternatives cannot

be studied "ad infinitum".

On the other hand NEPA only requires consideration of

environmental values. It is not incumbent upon the government to

give weightage to those values.

A justification of the existence of a nuclear energy plant is that

it can generate electricity which is the main need of the

society[40], whereas the NRC's primary concern in the context of

licencing such a plant is: National Security, Public Health and

Safety[41].

Most adequate consideration is given to environmental

values[42] in the light of the provisions contained in NEPA before

opening up a venue of new environmental hazard.

In fact NEPA compels "adequate consideration" by requiring

the production of an Environmental Impact Statement (EIS)[43]. The

above statute does not define "adequate consideration " and

therefore, as discussed above it has been open for varied

interpretation in litigation challenging EIS[44]. The concept of

EIS has been incorporated in French law also where EIS plays a

major role in deciding the site of a nuclear power plant[45].

INFLUENCE OF NEPA ON THE FRENCH AND JAPANESE LEGISLATION

 The French have incorporated the concept of EIS requirement

from American legislation. In France also, the Environmental

Impact Study basically amounts to a disclosure statement, mainly

to analyze the impact of nuclear effects on the surrounding

environs including on the Plant Kingdom and living beings on soil

and under the water.

Most countries take EURATOM directives[46], including

France, which established maximum permissible ambient radiation.

The law of most countries prohibits discharge of gaseous or liquid

radioactive effluences if they extend the prescriptive limits.

Major legislation in France on the physical protection of

radioactive materials is based on the 1973 recommendations of the

International Atomic Energy Agency (IAEA), and the International

Regulations Concerning the Carriage of Dangerous Goods by Road,

and the Regulations for the Transport of Dangerous Goods on the

River Rhine.

Unlike the judicial activism in the United States, and the

public action on such issues, the French environmentalists were

never encouraged by the judiciary in so far as they opposed the

installation of new nuclear power plants.

Similar to the law in Japan, the French administrative law

enables the courts to examine only the propriety, legality or

otherwise of the administrative determinations, with respect to

licensing, sufficiency of Environmental Impact Statement (EIS),

issuance of a public utility, and grant of permission to discharge

effluents into the atmosphere. However, there exists a provision

of review by Counseil D' Etat, the highest administrative law

court in France[47].

EFFECT OF NEPA ON U.S. FEDERAL AGENCIES

As NEPA provisions extend to all federal agencies in the

United States it was believed that it shall automatically apply to

the Agency for International Development (AID), an independent

body within the Department of State. Its assistance programs are

divided into three main categories, i.e.,: (i) Capital

Assistance;

(ii) Technical Assistance;

(iii) Program Assistant[48].

However, AID in the past took the view that EIS does not

apply to its foreign activities. A short litigation settled the

issue and AID now enters a court approved stipulation that NEPA

applies to all its activities.

Under the auspices of AID[49] an assessment on significant

effects that a project will have on environment, is made by the

AID unit in field or in Washington D.C., charged with

responsibility of planning of the project, if such an impact is

with a responsibility of planning of the project. If such an

impact is visualized, an environmental analysis identical to an

EIS, is included in the feasibility study or Intensive Review

Request (IRR) for the project. Also, the Council of Environmental

Quality (CEQ) need not be given the feasibility study or the IRR,

instead a summary report could be substituted theretofore[50].

Many U.S. Federal Agencies face problems with the EIS

requirements.

Firstly, they may not have proper expertise or sufficient

trained personnel, and;-

Secondly, the EIS requirement may force them to compulsorily

hold public hearings on environmental issues.

It cannot be overlooked that NEPA regulates agencies, not

projects[51].

For example, in 1975 congressmen Les Aspin had charged that

hundreds of pounds of plutonium, enough to cause a major nuclear

damage, is exported through New York city's JFK Airport[52], but

NRC refused to take any action to prevent that[53].

Broad sweep of NEPA is ment to protect high seas and other

sovereign territories including outer space and antarctica[54].

PERENNIAL VALIDITY OF EXTRATERRITORIALITY OF NEPA & NNPA

The extra territorial implications of NEPA became evident by

the first two cases which deal with extension of its provisions to

the Pacific Trust Territory.

People of Enewetak[55], case emerged in 1947 when the U.S.

government removed people from Enewetak Atoll, in Marshall

Islands, to the Atoll of Ujelang because nuclear weapons were to

be tested there. Apart from worlds first hydrogen bomb test[56],

at Enewetak, 30 other tests involving nuclear explosions took

place.

The second case was of people of Saipan[57], where the lease

of the beach for Germans and Japanese occupation was considered a

"major action" under NEPA.

In Sierra Club v. The Atomic Energy Commission (for short

AEC)[58], for activist organizations filed suits against AEC,

Dept. of State, and the Export-Import Bank to compel compliance

with NEPA in the exports of nuclear power plants and fuel.

The export process begins with conclusion of an agreement

with the recipient country[59].

AEC thereafter lets out a contract for the enrichment of

necessary nuclear material[60].

It was at this stage that the Eximbank was asked to provide

funding assistance by the U.S. contractor. Therefore, it was

contended that the Bank's participation was in "program" to NEPA

was not applicable to it. However, the final step is the

procurement of license[61].

Traditional principles of jurisdiction accept EIS

requirement for federal actions abroad but a test of

"reasonableness" needs to be applied thereto[62].

As a matter of international comity and fairness it must

balance competing interests of the countries involved to determine

whether United States extraterritorial jurisdiction should be so

asserted[63] NEPA is an environmental "full disclosure law"[64].

Approval of a license for a nuclear power plant is a major

federal action because it involves a greater degree of federal

control and responsibilities [65].

In Philippines reactor case, the court held that an EIS was

not required for issuance of a nuclear export license, when the

effect of the export would be solely confined to recipient

country[66].

Therefore, the EIS requirement does not strictly apply in nuclear

export licensing.

This case framed the legal issue of NEPA's extraterritorial scope

in clearer terms than those presented to any other judicial

entity[67].

In wake of the Three Mile Island accident[68], NRC

Commissioner, Gilinsky reasoned that the safety of a nuclear

reactor depends crucially on the manner in which it is operated.

Because NRC is not in a position to control training and

licensing of a plant operator and manager or regulate operations

of a critical nuclear reactor/plant, reviewing the sitting of

and/or construction of a foreign plant does not guarantee nuclear

safety, and is therefore not crucial.

EXTRATERRITORIAL IMPLICATIONS OF FEDERAL ACTIONS

Judge Wilkey specifically examined the general nuclear or

federal actions affecting foreign nations in the nuclear export

context[69].

The decision to grant an export license for nuclear materials or

technology is always made within the United States by a U.S.

Agency. Such a determination could affect health, safety and the

environment of a foreign country, and therefore a conflict may

arise with the importing nation's policy[70].

Exporting nation would always want to be fully satisfied that

risks by such an export are absolutely minimal compared to the

benefits ensuing from building a nuclear reactor in foreign land.

Therefore, the question arises as to "whether consideration

of these potential impacts, occurring in a foreign nation which

seeks approval of the proposed export, constitutes 'an exercise on

American sovereign power' within the area of the foreign country's

territorial sovereignty".
 Judge Wilkey, therefore, in substance posed a question

whether review of foreign impacts "constitute an extraterritorial

application of U.S. law". Therefore, a well founded cannon of

statutory construction was applied, i.e., "only to conduct

occurring within, or having effect within the territory of U.S.,

unless contrary is clearly indicated by the statute"[71].

U.S. legislation, to the contrary, ought not to be

interpreted to extend to other sovereigns. Judge Wilkey determined

that a court should "balance the scope of the (the exporter's)

regulation alongside the rightful regulatory jurisdiction of the

importing nation.

Criteria for reviewing the NRC's decision that were employed

by Judge Wilkey and Judge Robinson are diametrically opposed to

one another.

The former views the issue as `a legal question' necessitating

statutory interpretation, a task generally recognized as falling

within the expertise of the judiciary whereas the latter differs

"to an interpretation of a statute by the agency entrusted with

its administration"[72].

His decision though being in agreement is based therefore on

an altogether different premise[73].

 NEPA'S EXTRATERRITORIALISTIC TREND IN NUCLEAR EXPORTS

Uncertainty in transnational mandate of NEPA could be

attributed to the insufficient opportunities judges and

legislators had to address on various aspects of NEPA's

transnational applicability.

Also, NEPA's transnationally extended enforcement is of quite

recent origin.

It cannot, however be overlooked that within five months of NEPA's

enactment, the Department of State had expressed its opinion on

the CEQ holding that NEPA was not applicable to certain foreign

affairs activities of the U.S. government (91 st Cong., 2d Sess.

1425 (1970). CEQ in disagreement had all the time negated that

stand, holding that NEPA's environmental mandate is fully

applicable in the foreign affair sector[74].

The basic fact is that U.S. policies are ambivalent in its

international environmental responsibilities. While considering

NEPA's application to nuclear facility exports, the basic question

that arises is whether an environmental impact statement,

evaluating foreign local environmental impact associated with the

construction and operation of a U.S. exported nuclear reactor, is

required before the appropriate U.S. agency can issue the export

license.

In 1976, Energy Research and Development Administration

(ERDA) had completed EIS for U.S. nuclear power export

program[75].
 However, ERDA did not examine the foreign situs

environmental impacts associated with nuclear exports.

It was felt that such an EIS was a subject matter of bilateral

negotiations and cooperative efforts, or it fell solely within the

jurisdiction and decision making authority of the foreign

government[76].

NNPA revamped the nuclear licencing procedures, establishing

a very specific criteria for making a nuclear export licencing

decision.

It created explicit procedures and comprehensive deadlines to

expedite the decision making process[77].

EXECUTIVE ORDER 12, 114

Executive Order 12, 114 entitled "Environmental Effects

Abroad or Major Federal Actions" purports to require effective

environmental analysis by agencies engaged in major federal

actions abroad.

Regulations thereunder issued amply confer a wider discretion upon

federal agencies in formulating their environmental reviews.

Some discretion is necessary in the light of foreign policy

concerns and circumstances attendant thereto, common to different

agencies, but too much leeway invites a shrinking of U.S. agencies

obligations to safeguard the environmental heritage[78].

As it appears, the Congress or the President of America,

does not presently seem inclined to modify the above order to

clearly spell out Federal Agencies obligations and

responsibilities.

However, agencies themselves are capable to resort adaption of

their procedures for properly synchronizing the procedural

anomalies to establish a sound and uniform global environmental

policy.

Department of State promulgated such policies for nuclear

export licencing[79].

Westinghouse, a major nuclear supplier, could not meet the

challenge of nullifying the authority of the NRC and Department of

State to consider potential foreign environmental, health and

safety aspects of a nuclear reactor in the export licencing

process[80]. Whereas in NRDC case, the public action group had

sued NRC to prevent nuclear export on the basis of inadequate

consideration given to environment, health and safety problems.

Therefore, Section 102 (2) (E) of NEPA provides a grassroot

system for protecting foreign environment from unintended

consequences of U.S. Nuclear cooperation.

REFINING NUCLEAR NON-PROLIFERATION SYSTEMS

 The treaty on The Non-Proliferation of Nuclear Weapons (for

short NPT) was opened for signature on July 1, 1968 and entered

into force on March 5, 1970, whereafter over 135 countries have

ratified it.

This multilateral convention (NPT) restricts the manufacture and

transfer of nuclear weapons and requires controls on activities

related to the peaceful use of nuclear energy.

A balancing compromise between unrestrained transfer of nuclear

technology (Art.IV) for peaceful purposes and non-proliferation of

nuclear weapons (Art. I & II).

NPT is thereby a major check on the proliferation of nuclear

weapons. However, the fact remains that among countries having

nuclear weapon capabilities, France and China have not signed or

ratified the NPT.

China's conduct is also far from any compliance with NPT

restrictions whereas France generally conducts itself in accord

with NPT[81].

Few other countries with nuclear capabilities are also not a party

to NPT, i.e., Pakistan, Israel, South Africa, India, Argentina and

Brazil, and hence are not bound thereby.

NPT IN CONCORDANCE WITH AMERICAN JURISPRUDENCE

In 1968, President Johnson, while transmitting the NPT to

the U.S. Senate termed it as "the most important international

agreement limiting nuclear arms since the nuclear age began"[82].

The non-weapon parties to NPT are guaranteed the "fullest possible

exchange of equipment, materials and scientific and technological

information" for the peaceful purposes of nuclear energy[83].

NPT is the most widely accepted arms control agreement[84]

in the history. However, experts on nuclear technology transfer

reported the allegations against nuclear smuggling states that

they have not stopped manufacture of nuclear weapons, for the

reason that they do not feel obligated by the provisions of the

NPT[85].

The criticisms suggest that western countries are violating

NPT provisions relating to non-discrimination and free exchange of

nuclear equipment and transfer of nuclear technology. However,

nuclear smuggling has always been a political problem and not a

defect in the international law[86].

The nuclear smugglers, who pose dangerous threat to the

world, to achieve their political objectives, could be prosecuted

under the domestic law, and also the nuclear material exporters

may further tighten their export control laws by obligating

themselves not to export nuclear technology and materials to

offending states.

However, a major change is required in NPT provisions to

eliminate discrimination. For doing away with unilateral

enforcement, the Nuclear Suppliers Guidelines & Triggers List

ought to be replaced by a new system whereat the importing party

and exporting party have equal say as to the applicability of

controls on their nuclear activities[87].

The Nuclear Draft Convention is in fact heading towards the

above for refining the system for nuclear non-proliferation

objectives.

CONCLUSION: VISUALIZATIONS OF FUTURE IN NUCLEAR ERA

Rational development necessitates proper management of the

natural resources and environment. The development process cannot

ignore ecological dimensions.

Degradation of ecology undermines the quality of life of a

country's populace and its future capacity for growth and

development.

The fallacy, generic in developing world, that environmental

management is a restraint on development is a myopic ideology

overlooking long term gains.

Environmental laws have an unparallel role to play in the

developmental process of a nation.

Through the creation of institutional and normative structures for

environmental management, it ensures, first, that the utilization

and development of natural resources proceed on ecologically

acceptable lines; and second, that environmental considerations

are incorporated in development planning.

The brief survey of the Kenyan experience in incorporating

environmental considerations into the development process through

the instrumentality of law, however, reveals that although

legislation is important it may be the only critical factor for

protection of the environment in developing countries.

The dominant postulate of rapid economic growth undermines

the political will to formulate and implement what is

environmentally vital.

The resultant regulatory machinery is therefore truncated,

inadequate in normative content, and functionally ineffective.

Nuclear blast or accident can cause impendent horrors and

endless misery. Nuclear war would be an unparallel disaster in any

uncreated night in the history of mankind.

The clandestine nuclear dealings have always threatened

global efforts to arrest spread of nuclear arms. Despite all

controls and strict regulations the nuclear mafia continues to

survive.

This nuclear underworld, apart from downright smuggling,

deals in quiet exploitations of drawbacks and weaknesses in

legislation of the exporting country, purchase of nuclear

materials under false pretense and use of the same for purposes

other than that for which the valid import was made, i.e., for

research and development work on enhancing nuclear weapons

capabilities, or building it, and not for medicinal purposes or as

fuel for nuclear [electric] power generation and other peaceful

purposes.

Because huge amounts of international currency would be

required for nuclear technology smuggling, the activities of

"nuclear underworld" are interrelated with illicit drug

trafficking and gunrunning etc. for terrorists organizations.

"Nuclear underworld" usually does not comprise of ordinary

criminals as in illicit trade in narcotics or wildlife products

i.e., fur trade, ivory, feathers and other like products, but it

comprises of a small number of government aided organizations.

It appears that there may not be any independent mercenary

or professional smuggling groups dealing exclusively in the

illicit transport and shipment of nuclear materials, and if there

are such groups in existence, they are not generally known.

Nuclear smugglers usually do not smuggle nuclear materials

but they specialize in smuggling nuclear technology with which a

nation aspiring to build nuclear weapons can obtain a perfect

killing mechanism for complete annihilation of its "enemy's"

biomass (two materials can be used as the core of a nuclear

explosive device:

(i) highly enriched uranium (used in the Hiroshima Bomb); and

(ii) plutonium (used in Nagasaki bomb). Highly complex reactors

are needed to produce these fissionable materials).

Exporting states should strictly follow the International

Atomic Energy Agency safety standards and take special care to

audit the materials so exported and time and again conduct

inspection of goods to ascertain its consumption, i.e., if it

commensurates with the quota requisite for peaceful purposes or if

the same is being used for other purposes against the exporting

nations non-proliferation objects. (IAEA (1976) Nuclear Suppliers

Group (NSG) Guidelines).

For those importing countries that are not a party to the

NPT, the supplier state should lay down very stringent and

explicitly spelt terms stipulating restrictions on the importer of

the nuclear materials because such importing countries are not

bound by the covenants contained in NPT (or IAEA safeguards). Such

non-party countries are Argentina, Brazil, India, Israel, Pakistan

and South Africa.

American experts accuse China and Iraq also as violators of

IAEA safeguards, although Iraq is a party state to NPT.

Since 1970, when France canceled its proposed reprocessing

plant sales to South Korea and Pakistan, no official transfer of

nuclear installations took place.

In 1975 NSG Guidelines, the supplier nations have agreed to

"exercise restraint" in sensitive nuclear technology, i.e.,

reprocessing plants extracting weapons - usable plutonium from

spent reactor fuel; and enrichment installations that can upgrade

uranium from its natural state to a weapons grade.

However, export of materials for non-nuclear and nuclear

uses is controlled by NSG's trigger list, and by CoCom regime,

mainly to prevent exports of strategically important items to the

Soviet bloc. At times these controls are also ineffective.

In 1984, a Pakistani national, Nazir Vaid, was arrested in

Houston [Texas, U.S.A.], while attempting to smuggle out 50

krytrons to Pakistan. Krytrons are high speed electronic switches

which are subject to export controls because they can be used to

trigger nuclear devices (N.Y. Times, Feb. 25, 1985 at A 1, Col.

4.).

Although U.S. authorities stopped accused Vaid and deported

him, Pakistan still triggered a non-nuclear explosion test by

using a U.S. made krytron in June 1985 (World News Tonight, July

11, 1985, transcript on file with the American Broadcasting Co.,

ABC Television Broadcast, Inc., Library, New York, N.Y.).

The Vaid case was only one of the seven difference

prosecutions already launched for nuclear technology or materials

smuggling into Pakistan.

Courts in Western Europe North America have been

adjudicating upon such cases since 1984.

It is alleged that Pakistan's nuclear smuggling activities

came to light later on but it has been going on since 1970's

(Woodward, Pakistan Reported Near Atom Arms Production, Wash.

Post, Nov. 4, 1986, at A 1, Col. 1).

Pakistan smuggled entire uranium processing plant out of

West Germany, it obtained 6,500 specially hardened steel tubes

from the Netherlands for using in a centrifuge uranium-enrichment

plant.

Agents of Pakistan tried to purchase several hundred tons of

pure graphite in the U.S., Britain, France and West Germany since

1986.

Graphite is essential for construction of weapons grade nuclear

reactor. (PAKISTAN PERSISTS, FOR. REP., Mar. 27, 1986, at Col.

1,2.).

However, the alert Western authorities succeeded in blocking

the purchase. On the other hand, at the same time Pakistan

obtained thousands of flash X-Ray machines by clandestine means

from sweden (Fin. Times, April 30, 1987, at 2, Col. 1; N.Y. Times,
July 15, 1987, at A 1, Col. 1 and N.Y. Times, July 15, 1987, at A

1 Col. 1; Smith, A BOMB TICKS IN PAKISTAN, N.Y. Times, Mar. 6,

1988, Sec. 6. [Magazine], at 38).

These machines are used for testing the non-nuclear components of

nuclear weapons.

Revelations by former Israeli nuclear technician Mordechai

Vanunu, published by a London News paper in Oct. 1986, support the

higher estimates of Israel's stockpile of nuclear weapons

(Revealed: The Secrets of Israel's Nuclear Arsenal, The Sunday

Times (London), Oct.5, 1986 at 1, Col.1).

Israel has also turned to nuclear smuggling as various news papers

report.

The U.S. "Mickey Project" or a Hoax nuclear deal (CIA agent

posing as an illegal seller of nuclear material and technology)

with Libyan nuclear officials, proved Libya's interest in buying

illegitimate nuclear materials. Nuclear smuggler's do not have to

look for the market of their devilish commodities, there are many

enemy's of human race who would prefer to have nuclear devices for

their perverted delights (J.Goulden, The Death Merchant. 310-16

(1984)).

These instances are no more than an iceberg indicating

nuclear smuggling activities. Most nuclear smugglers get maximum

encouragement from small countries and terrorist organizations

wanting to go nuclear to expand their oblique capacity to kill.

Smugglers always find out ways and means to by-pass the law. The

fact remains that the convicted nuclear smugglers have been

treated with astonishing leniency.

It is strange that if a man commits a murder, on being

convicted he is sentenced to life term or death chair, but if he

assists those agents of death wanting to wipe out millions of

humansby one nuclear blast, he gets away with either deportation

or a minimum punishment of fine or a short term.

The West German businessman who secretly shipped the uranium

plant technology (along with the whole nuclear plant) into

Pakistan for a price of U.S. $ 6 million - on conviction received

a $ 10,000 fine and a suspended sentence of eight months

imprisonment (under the German law maximum penalty was 3 years for

such an offence).

Aart from legislation the primitively modernizing society in

this nuclear era, need to bring back the ancient morality in use

to be able to live a life with love for other fellow beings.

One needs to feel the pain of another to live this life

understandingly. Although we do need more stringent laws, and

intensified `intelligence' work by the concerned enforcement

agencies of each exporting country to keep a steady watch on

nuclear sumgglers and illegal financers to detect the association

of "finance" with nuclear smuggling.

Terrorists need weapons to further their diabolic

objectives, in order to collect money for artillery and arsenal

they fall into narcotic trade.

And ultimately narcotics and gunrunning success leads to

power thirst which they try to quench by acquisition of nuclear

weapons. Supplier country's trigger list also needs to be

tightened.

The exporters of nuclear devises and technology should unanimously

agree to stop suppliers/exports to those countries who do not

comply with the guidelines laid down in NPT and IAEA safeguards.

Falsification of "end user documentation" could defeat this

"shortlisting", yet it would operate as a major obstacle in

obtaining nuclear supplier under a false pretense for countries

keen on having nuclear weapons without having sufficient finances

to maintain the requisite safety standards.

Super powers have, within their special prominence, almost

illimitable opportunities for advancing human happiness, which

their position entails. Saintly scientists and political monks

have to draw a line between impatient idealism and the sphere of

practical politics, to be able to understand needs of the denizens

 in this nuclear era.The future of national heritage so bequeathed

by our ancestors ought not to be laid on a sacrophagus stone by

creating nuclear monsters. We have to forsee a future to ascertain

that tranquillity reigns where turmoil and strife were rife.

END NOTES

1. 42 U.S.C. Sec.2013 (d) and 2013 (e) (1976).

2. Sec. 42 U.S.C. Sections 2013 (d), 2073, 2093, 2111 (1976).

Provisions hereat authorizing the foreign distribution of nuclear
material do not refer to "health and safety"; 42 U.S.C. sections
2013 (e), 2074, 2094, 2112, 2121 (1976).

3. 42 U.S.C. Section 2133, 2133 (a) (1976). Under section 123 AEA,
the beneficiary or importing nation must have entered into a
valid agreement for cooperation with the U.S. and given a
guarantee that "security", safeguards and health standards...
will be maintained", that material transferred under the
agreement will not be used for atomic weapons, military purposes,
and that materials or restricted data will not be transferred
improperly, 42 U.S.C. Section 2153 (a) (1976).

4. 42 U.S.C. Section 2041 (g) (1976).

5. AEC, 1954, 1954; Hearings Before The Joint Comm. on Atomic

Energy, part II, 83rd Cong., 2d Sess. 683-707 (1954). S.REP.No.
1699, 83rd Cong., 2d Sess. (1954); H.R. REP.No. 2181, 83rd Cong.,
2d Sess. (1954).

6. Westinghouse Electric Corporation v. Vance, No. 79-2110 (D.D.C.

decided August 31, 1979).

7. In NRC proceedings, whereat a German environmental group was a

party litigant, jurisdiction over health, safety, and
environmental matters were reserved for FRG to decide and the
Commission of European Communities under the terms of Art. I and
V of the appropriate agreement for cooperation. See : Additional
Agreement For Cooperation Between the United States and the
European Atomic Energy Commission (EURATOM) Concerning Peaceful
Uses of Atomic Energy, June 11, 1960, 11 U.S.T. 2589, T.I.A.S.
No. 4650. See also : Halsted, Report from Geneva, 5 Arms Control
Today (1975) and Epstine, Nuclear Proliferation: The Failure of
Review Conference, 17 SURVIVAL 262 (1975).

8. Export Study Group Report, International Reach of NEPA (NRC

Commissioner Action Paper No. SECY - 77-280, June 6, (1977); 124
CONG. REC. S. 19358 (1978).
9. Apart from sponsoring several projects in the area of reactor
safety for domestic or exported reactors, NRC's formal bilateral
agreements with foreign regulatory authorities include systematic
information exchange on safety analysis, operating experience,
safety research and regulatory policy. NRC cooperates with
International Atomic Energy Agency (IAEA) in development of codes
and standards for nuclear power reactors. Organization for
Economic Cooperation and Development (OECD) has a nuclear energy
agency that conducts nuclear reactor safety meetings in which NRC
is represented by its specialist.

10. Babcock and Wilcox, 5 N.R.C., AT 1341.

11. 42 U.S.C. Section 2155 (Supp. II 1978); 10 C.F.R. Section 10-13

(1980).

12. 42 U.S.C. Section 2155 (b) (2) (Supp. II 1978).

13. 42 U.S.C. Section 2156, 2157 (Supp. II 1970).

14. Section 2155 and 2159 (g).

15. Philippines National Power Corporation for example is mainly

concerned with generating power that would satisfy 90% of its
need by nuclear power plant.
Nationalization of all power plants under presidential decree No:
40 in Nov. 1972 (westing House Electric Corporation), GLI-80-15,
11 NRC (6 May 1980) is a clear example thereof.

16. 44 Fed. Reg. 1957 (1979).

17. Health, Safety and Environmental concerns. Extraterritorial

Application of the Antitrust law: A conflict of laws approach, 70
Yale L.J. 259, 272-87 (1960).

18. Restatement (second) of Foreign Relations Law of the United

States. Section 38 U.S. (1965). See also: Foley Bros. Inc. v.
Filardo, 336 U.S. 281, 285; 69 S.Ct. 575, 577; 93 L.Ed., 680
(1949).

19. 42 U.S.C. Section 2014 (b) (1976).

20. The Nuclear Non-Proliferation Act of 1978, 10 Law & Policy in

Int'l Bus. 1105 (1978).

21. S. Rep. No. 95-467, 95th Cong. Ist. Sess. 3(1977).

22. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319,
57 S.CT. 216, 220; 81 1.Ed. 255 (1936) broadly defines the limits
as governed by Atomic Energy Act, U.S. Constitution and the
Presidents domain over foreign affairs.

23. Barlow v. Collins 397 U.S. 159, 166; 90 S. Ct. 832, 837, 25 L.Ed.
 2d 192 (1970).

24. NNPA Sections 2-3, 22 U.S.C., Sec. 3201-02 (Supp. II 1878); S.

Rep. No. 95-467, 95th Cong. Ist Sess. 2-3 (1977).

25. 123 Cong. Rec. H.9831 (daily ed., 22 Sept. 1977). CRS-Legislative
History of NNPA at 873-74.

26. 124 Cong. Rec. S, 1449 (daily ed., 7 Feb. 1978) (debate on S.
897.

27. Bettauer, The Nuclear Non-Proliferation Act of 1978, 10 Law &

Policy in Int'l Bus. 1106 (1978)

28. Edlow International Co., 5 N.R.C. 1358 (1977) and 3 N.R.C. 563
(1976) (export to India); Babcock & Wilcox, 5 N.R.C. 1332 (1977)
(export to FRG); Westinghouse Electric Corp., 3 N.R.C. 737 (1976)
(export to Spain).

29. 41 Fed. Reg. 56, 895 (30 Dec. 1976).

30. 22 U.S.C. Section 3282 (c) (Supp. II 1978) and 42 U.S.C. Section
2259 (1976).

31. Union of Concerted Scientists v. AEC, 499 F. 2d 1069, 1079

(D.C.Cir., 1974).

32. 42 U.S.C. Section 4321 (Supp. III 1973).

33. The NEPA applied to policy level decision making. 3 Ecology L.O.
799 (1973).

34. NEPA of 1969 Section 102 (2) (c), 42 U.S.C. Section 4332 (2) (c)
1970.

35. Council on Environmental Quality, Guidelines on preparation of

environmental Impact statements, 40 C.F.R. Sec. 1500.1(a) (1974).

36. 42 U.S.C. Section. 4332 (2) (c) (1970), 40 C.F.R. Section 1500.9
(1974).

37. Id.

38. Lleppe v. Sierra Club, 427 U.S. 390, 410 A. 2d (D.C.Cir. 1976).

39. 622 F. 2d 396 (D.C. Cir. 1976).

40. 42 U.S.C. Section 2021 (k).

41. Sections 2132, 2133 and 2201 supra.

42. Weinberger v. Catholic Action League of Hawaii. 454 U.S. 139

 (1981).

43. 42 U.S.C. Section 4332 (6) (1986).

44. Supra footnote No: 5, and See: Calvert Cliffs Coordinating

Committee v. AEC 449 F. 2d 1109 (D.C.Cir. 1971).

45. Citizens for safe power v. NRC, 524 F. 2d 1291 (D.C.Cir. 1975)
and Acschliman v. NRC 547 f. 2d 653 (D.C. 1976).

46. French Law (1976) Gaz. Pal. 506 (sen.) Art. 1, Law No. 76-663,
July 19, 1976.

47. EURATOM Directives Jo, Nos. 11 of Feb. 20, 1959, 57 of July 9,

1962; 21 of Nov. 26, 1966; L-87 of July 12, 1976 and C-246 of
Sept. 17, 1980.

48. Judgment of April 13, 1979 (1980) R.J.E. 34 (Trib. Admn. Orleans;
and reversal by Conseil D' Etat dt. Dec. 17, 1979 (1980) R.J.E.
44 (Conseil D' Etat). Management, Disposal and safekeeping of all
radioactive waste produced in France is in the hands of National
Radioactive Waste Management agency (ANDRA).

49. Environmental Defense Fund v. agency for International

development. D.D.C. Civ. No. 75.0500, filed apr. 8, 1975,
stipulation at 7.

50. Considerations of Environmental aspects of U.S. - Assisted

Capital Projects, Manual Circular Review of Capital Projects
(M.C.) 1214.1 (1971), both reprinted in 1972; M.C. 1214.1 (1972).

51. 40 C.F.R. Section 1500.7 (a) (1984).

52. Jones v. D.C. Redevelopment Land Agency, 499 F. 2d 502, 512, 6

FRC 1534, 1539 (D.C. Cir. 1974), and See: 7 Int'l Lawyer 46. 59
(1973).

53. ENVIRONMENT, June 1975, at 24; Wall St. J. Mar. 28, 1975 at 15
Col. 5.

54. S.F. Examiner-Chron, July 6, 1975 at B9, col. 7.

55. 4 Ecology L.Q. 279 (1974) also See the Energy Research and
Development Administration (ERDA), Draft Environmental statement:
U.S. Nuclear Power Export Activities (2 vol. 5 Aug. 1975) EDF v.
AID, supra note. 19. The stipulation specifically provides that
the environmental reports shall cover impacts on humans and
wildlife wherever they occur.

56. 353 F. Supp. 811, 4 ERC 1926 (D. Ha. 1973).

57. S.F. Examiner-Chron, Sept. 8, 1974, at A14, Col. 5.

58. Guerrero v. United states Department of Internal, 356 F. Supp., 5
FRC 1159 (D. Ha. 1973), affirmed as modified, 502 F. 2d 90.6 ERC
1952 (9th Cir. 1974).

59. Civil No. 1867-73, Memorandum opinion at 6 ERC 1980 (D.D.C.

1974).

60. 42 U.S.C. Section 2153 (Supp. III, 1973); Executive Order No: 10,
841, Sec. 4,3 C.F.R. 175 (1959).

61. 42 U.S.C. Section 2201 (v) (A) (1970) plaintiff alleged that as
of Nov. 1973, pending negotiations lead to a possible $553.8
billion in enrichment contracts and had pending export license
applications of 113, 794 kilos of enriched nuclear fuel.

62. 42 U.S.C. Sections 2073 (a) (1), 2133 (1970).

63. 647 F. 2d 1345 (D.C. Cir. 1981), NRDC v. N.R.C.

64. 549 F. 2d 613-15 (NEPA Section 403); See: Executive Order No: 12,
114.3 C.F.R. 356 (1980) and Gaines "Environmental Effects abroad
of Major Federal Actions". An Executive Order ordains a National
Policy, 3 Harv. L. Rev. 136, 153-55 (1979).

65. Environmental Defense Fund Inc. v. Corps of Engineers, 325 F.

Supp. 749, 759 (E.D. Ark. 1971).
See: 42 U.S.C. Section 4332 (2) (c) (iii) (1976), and
Robinson, Extraterritorial Environmental Protection Obligations
of Foreign Affairs agencies: The Unfulfilled Mandate, 7 N.Y.U. J.
Int'l. 1 & Pol. 257, 261 (1974).

66. Calvert Cliffs Coordinating Comm. v. Atomic Energy Comm'n, 449 F.

2d 1109, 110-14 (D.C.Cir 1971) Cert. Denied 404 U.S. 942 (1972)
Also See; Vermont Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519
(1978); and Breyer, Vermount Yankee and the Courts role in
Nuclear Power Controversy, 91 Harv. L. Rev. 1833 (1978).

67. Court overlooked that Philippine Islands are located in one of

the world's known earthquake and volcano belts. The site of
proposed reactor being only about 5 miles from Mount Natib, a
volcano- which would probably be considered "active" under NRC
criteria.
See also: 4 Hastings Int'l & Comp. L. Rev. 201, 214-25 (1981) for
analysis of statutory language and concluding that EIS
requirement does not apply in the context of nuclear export
licencing.
In many cases the defendant government voluntarily agreed to
prepare an EIS, effectively considering NEPA issue.
See also: NRC, Final Environmental Statement, U.S. Nuclear Power
Export activities , ERDA, NRC A/R Vol: 8 (1976).

68. N.Y.Times, April 2, 1979 at 14 Col. 1.647 F. 2d at 1355. supra

End Note 33.

69. NEPA sections: 2, 101, 42 U.S.C. Sec. 4321, 4331 (1976); NNPA
Sec. 407, 42 U.S.C. Sec. 2153 e (Supp. iv 1980) laying down that
"President shall endeavor to provide in any agreement entered
 into pursuant to Section 123 (of 1954 Act) for cooperation
between the parties in protecting the international environment
form radioactive, chemical or thermal contamination arising from
peaceful nuclear activities.

70. Restatement (Second) of the Foreign Relations Law of the United

States. Sec. 38 (1965).

71. 647 F. 2d at 1370 (Robinson J. Concurring).

72. Id., at 1371.

73. Robinson, Extraterritorial Environmental Protection, Obligation

of Foreign Affair Agencies; The unfulfilled mandate of NEPA, 7
N.Y.U.J. Int'l. L. & Pol. 257 (1974), 7 N.Y.U.J. INT'L l. & pOL.
459 (1974), 7 Mich. L. Rev. 349 (1975) and 5 Syracrus J. NAT'L L.
& Com. 317 (1978).

74. The former Atomic Energy Commission was reorganized into two
separate Federal agencies; (1) ERDA and NRC - Pursuant to Energy
Reorganization Act of 1976. 42 U.S.C. Section 5801 -5891. (1976).

75. Export Study Group Report, International Reach of NEPA (NRC

Commissioner Action Paper No. SECY - 77 - 280, June 6, 1977) and
124 CONG. REC.S. 19358 (1978).

76. 42 U.S.C. Section 2011-2296 (1976).

77. On January 5, 1977, President Carter issued Executive Order

describing the scope of U.S. Federal Agencies obligations to
consider the environmental consequences of proposed agency
actions aborad, mainly to resolve the issues raised by
extraterritorial implications of EIS requirements under NEPA.

78. 44 Fed. Reg. 65, 560 (1979).

79. Westinghouse Electric Corporation v. Vance, No. 79-2110 (D.D.C.,

decided August 31, 1979) (denying plaintiffs request for
preliminary injunction, appeal dismissed. No. 79 - 209 (D.C.
Cir., Nov. 27, 1979).

80. Timber Lane Lumber Co. v. Bank of America. 549 F. 2d 597, 613
(9th Cir. 1976).

81. In January 1984, however, China joint the International Atomic

Energy Agency and agreed to adhere to IAEA Criteria for nuclear
exports. See: L. SPECTOR, GOING NUCLEAR. 71 (1987).
N.Y. Times report dated June 22, 1984, at A1, Col. 4 reported
that China was providing Pakistan with nuclear equipments,
material and technology to complete a uranium enrichment plant
capable of producing nuclear weapons. U.S. writers also expressed
a great concern that China might supply heavy water for use in
the enrichment of uranium to India. (N.Y. Times, Sept. 8, 1986,
 at A 23, col. 1).

82. M. Nillrich, Non Proliferation Treaty : Framework for Nuclear

Arms control. 3 (1968).

83. A non weapon party is a country that has not manufacture or

exploded a nuclear weapon or other nuclear explosives device
prior to Jan. 1, 1967.

84. United States Information pertaining to the Treaty on the Non

Proliferation of Nuclear Weapons, July 29, 1985, NPT/CONF.III/18,
ATL. For its criticism See: Wolfgang Friedmann Conference on
Export Controls and Technology Transfer, held at Columbia
University School of Law in New York on March 28, 1987.

85. See: Spector, The Nuclear Netherworld, 26 COLUM. J. TRANSNAT'L L.

9(1987) ; See United Nations Conference for the Promoting of
International Cooperation in the Peaceful Uses of Nuclear Energy,
draft report Committee I, U.N. Doc. A/Conf. 108/7 (1987), and

See generally: Spector, Nuclear Smuggling, BULL. ATOMIC

SCIENTISTS, June-July 1986, at 34.

86. Unilateral restrictions were a major focus of criticism in both

the second and third NPT Review Conference. For a discussion of
the second conference See: THE SECOND SECOND REVIEW CONFERENCE OF

THE PARTIES TO THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR

WEAPONS, 1980 U.N. Disarmament Y. B. 132, U.N. Sales No. F 81.
IX.4.

87. Guidelines for nuclear transfers. IAEA Doc. INFCIRC/254/App.

(1978).

Divyang K. CHHAYA

Advocate Supreme Court of India

70 Lawyers Chamber, Supreme Court Compounds
Bhagwan Das Road
New Delhi 110 001