Australia indemnifies US and UK ‘against any liability’ from nuclear submarine risks

The United States, the United Kingdom or Australia could terminate their collaboration on nuclear-powered submarines with just one year’s notice, according to the terms of a new treaty designed to make the Aukus security pact a reality.

The Australian government published the text of the new agreement on Monday as it sought to dispel claims it was failing to tell the public about potentially significant political commitments to the US and the UK.

But opponents of the Aukus arrangement said the treaty contained “multiple get-out-of-jail-free cards for the US”, adding to pre-existing concerns a future president could back away from selling Virginia class submarines to Australia in the 2030s.

The concerns are based on US shipyard bottlenecks that are causing delays in the US meeting its own submarine production needs.

Under the Aukus plan announced in San Diego in 2023, Australia plans to buy at least three Virginia class submarines from the US in the 2030s.

Australia and the UK will then build a new class of nuclear-powered submarine to be known as SSN-Aukus.

The new agreement will allow for the transfer of nuclear material to Australia and it replaces a pre-existing treaty that allowed “for the exchange of naval nuclear propulsion information”.

The new treaty states that it “shall remain in force until 31 December 2075”, but adds any party may terminate it “by giving at least one year’s written notice” to the other countries.

If any country breaches or terminates the treaty, the others have “the right to require the return or destruction of any information, material, and equipment” already exchanged.

The treaty includes several safeguards, including that Australia is required to reach an arrangement with the global watchdog, the International Atomic Energy Agency, “prior to the UK or the US transferring any nuclear material to Australia”.

Nuclear material is to be transferred to Australia in “complete, welded power units” and it must only be used for naval nuclear propulsion.

If Australia “materially breaches its obligations” under the longstanding Nuclear Non-Proliferation Treaty or “detonates a nuclear explosive device”, the US and the UK “have the right to cease further cooperation under the agreement and require the return of any nuclear material or equipment transferred pursuant to the agreement”.

The document reveals Australia has agreed to take responsibility for any nuclear safety risks.

Australia will indemnify the US and the UK “against any liability, loss, costs, damage or injury” arising from nuclear risks “connected with the design, manufacture, assembly, transfer, or utilisation” of any of the material and equipment.

A spokesperson for the Australian Submarine Agency said: “The likelihood of the indemnity being called upon is remote. The UK and the US naval nuclear propulsion programs have unmatched safety records.”

The Australian Greens’ spokesperson for defence, David Shoebridge, said he had “never seen such an irresponsible one-sided international agreement signed by an Australian government”.

“Every aspect of this agreement is a blow to Australian sovereignty,” Shoebridge said.

“This is the deal of the century for the US and UK who must be chuckling all the way to the bank having found the Albanese government and their billions in public dollars.”

Shoebridge and other critics of Aukus raised alarm last week when the US president, Joe Biden, revealed that the new treaty was accompanied by “a non-legally binding understanding” including “additional related political commitments”.

But this additional document was published alongside the treaty on Monday and it does not say anything specific about whether Australia would join any particular US-led military action over Taiwan.

The two-page document listed 10 points to “guide” implementation of the treaty.

It included a statement that the US and the UK “should not unreasonably withhold information, material, or equipment from Australia”.

The governments have also recognised that the cooperation should be done in a way that does “not adversely affect the ability of the United States and the United Kingdom to meet their respective military requirements”.

The Australian government has always insisted it would make “sovereign, independent decisions” on how to use the submarines and it has given no pre-commitment to the US to join any future military action.

The Australian defence minister, Richard Marles, said the treaty was “another significant Aukus milestone”.

“The agreement is unequivocal that, as a non-nuclear weapons state, Australia does not seek to acquire nuclear weapons,” he said on Monday.

Donald Rothwell, a professor of international law at the Australian National University, said most treaties were open-ended and “effectively remain in ongoing operation until they are superseded, or replaced, or mutually terminated”.

He said the fact the countries felt it was necessary to set a 2075 end date reinforced “how it is a transactional instrument dealing with the transfer of nuclear material … and the build of the new Aukus subs”.

Rothwell said the ability to terminate the agreement with one year’s notice was “a unilateral provision” that gave “enormous flexibility to all sides”.