Issue No. 88, Summer 2008
In the News
Concerns as US-India Nuclear Deal Goes Through
Three years after US President George W. Bush and Indian Prime Minister Manmohan Singh shook hands on a regime-busting bilateral nuclear cooperation agreement, the US-India deal looks set to overcome national and international concerns and long-standing legal hurdles. On 6 September, the Bush administration succeeded in its campaign to secure a waiver for India - which has never become party to the nuclear Non-Proliferation Treaty (NPT) - thereby lifting international nuclear trade restrictions imposed in the 1970s to support the nonproliferation regime.
Acceding to pressure from the United States and in some cases from their own domestic nuclear manufacturers and suppliers who are eager to profit from the opening of India's potentially large nuclear market, the 45-member Nuclear Suppliers' Group (NSG) agreed to waiver after resuming discussions in September and securing India's reiteration of its current nuclear testing moratorium pledge. Once the NSG had agreed to the lifting of nuclear export restrictions to India, the US Congress agreed to bypass existing US non-proliferation law and approve a bilateral nuclear cooperation agreement between the United States and India on an expedited basis.
On 27 September, the US House of Representatives voted to accept the deal by 298 votes to 117, closely followed by the Senate which approved the legislation by 86-13. On 8 October Bush signed the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, which approves the US-India "123 Agreement". Designated HR 7081, upon signing this became public law 110-369.
NSG waiver raises concerns
Prime Minister Singh hailed the NSG decision as marking "the end of India's decades-long isolation from the nuclear mainstream and of the technology denial regime." The Washington-based Arms Control Association, on whose reports this summary is largely based, noted with concern that the US-India deal reverses decades of policy that had been developed to reinforce the NPT and encourage states to renounce the option of using nuclear technology for weapons purposes.
The US-India deal attracted enormous criticism internationally and within both countries after it was announced on 18 July 2005. Nuclear exports to India had been curtailed by the United States, Canada and others after it conducted a nuclear explosion in 1974 that broke Indian commitments to to use nuclear materials and technology obtained from them for peaceful purposes only. Spearheaded by the United States, the NSG developed at this time to establish rules for nuclear commerce that would encourage the peaceful uses of nuclear energy but restrict access to countries that held open military nuclear options and did not join the NPT.
India's nuclear programme and development of nuclear weapons were further challenged when in 1992 the NSG adopted a rule that required all but the five nuclear-weapon states defined in the NPT to permit International Atomic Energy Agency (IAEA) oversight of their full nuclear complex in order to be eligible for most nuclear trade. India has not opened up its entire nuclear complex to IAEA inspection, so the 1992 rule effectively barred India from global nuclear commerce. It was that rule that the NSG members agreed in September to waive for India. Currently there are no plans to do the same for Israel and Pakistan, which also operated unsafeguarded nuclear facilities outside the NPT.
US Secretary of State Condoleezza Rice, who personally lobbied foreign officials by phone during the NSG deliberations, told reporters on 6 September that the waiver was a "very big step forward for the nonproliferation framework." But some NSG members did not share Rice's enthusiasm. Reuters reported that after the NSG conclave, one diplomat remarked, "NPT RIP?" Another diplomat told the same reporter that the final decision met with "complete silence in the room. No clapping, nothing." The diplomat said the quiet reception reflected that "a lot of us felt pressured to some extent into a decision by the Americans, and few [NSG members] were totally satisfied."
Many states were unhappy with the initial US-proposed waiver when the NSG meeting opened. Though some early critics, such as Japan, had fallen silent, Austria, Ireland, the Netherlands, New Zealand, Norway and Switzerland led calls for amending the draft to provide for the termination of nuclear trade with India if that country were to conduct any further nuclear tests, and to prohibit certain transfers, such as uranium-enrichment and spent fuel reprocessing technologies that can be used to produce material for nuclear bombs as well as fuel for nuclear reactors. India strenuously opposed such measures and demanded a "clean" exemption.
Austria, Ireland, and New Zealand reportedly resisted US pressure longer than other NSG members, but eventually acquiesced in the adoption of the waiver after some slight modifications and a statement by Pranab Mukherjee, India's external affairs minister on 5 September. Mukherjee reiterated previous Indian positions to adhere to its post-1998 nuclear testing moratorium: "We remain committed to a voluntary, unilateral moratorium on nuclear testing. We do not subscribe to any arms race, including a nuclear arms race. We have always tempered the exercise of our strategic autonomy with a sense of global responsibility. We affirm our policy of no-first-use of nuclear weapons. We are committed to work with others towards the conclusion of a multilateral Fissile Material Cut-off Treaty in the Conference on Disarmament that is universal, non-discriminatory and verifiable."
The text of the approved waiver states that it is "based on the commitments and actions" described by Mukherjee. Though the agreement does not contain any explicit provisions that the group will terminate trade if India were to conduct further nuclear tests, it mandates that the NSG will meet if a member considers that "circumstances have arisen which require consultations". Putting a brave face on the deal, New Zealand declared, "It is our expectation that in the event of a nuclear test by India, this exemption will become null and void." Other states made similar stipulations. However, because the NSG operates by consensus, a single state could block the suppliers' group from cutting off trade with India even if it were proved that it had violated the undertakings made by Mukherjee.
Although Bush and Singh committed to pursuing "full civil nuclear energy cooperation", the NSG waiver cites existing group guidelines that members "should exercise restraint" in enrichment and reprocessing exports, viewed as the most proliferation sensitive technologies, capable of providing the highly-enriched uranium and plutonium for making nuclear bombs. The intention of some NSG members is to develop criteria to limit all future enrichment and reprocessing transfers. One of the draft criteria currently being considered would require recipients to be NPT states parties, which would disqualify India. Expectations that such a criterion will be adopted at some point in the future helped the United States dissuade other countries from insisting that a specific enrichment and reprocessing transfer ban be included as part of the NSG waiver. As the waiver went through Ireland underscored this understanding, based on consultations with other governments, that "no [participating NSG member] currently intends to transfer to India any facilities, equipment, materials or technology related to the enrichment of uranium, or the reprocessing of spent fuel."
The waiver commits each NSG member to provide regular information on certain "approved transfers" to India and "invites" each country to share further information on their bilateral nuclear cooperation agreements with India. France and Russia have already negotiated preliminary agreements with India and are expected to sign them within weeks in the hope of landing lucrative contracts for their nuclear industries before the United States. In a statement on 22 September, Singh said he was "confident" that a trip to France before the end of the month would lead to "further consolidation" of Indian-French civil nuclear cooperation. Transfers of nuclear materials or technologies to India by France, Russia or others, however, cannot legally occur until India brings into force the safeguards agreement that was approved by that IAEA Board of Governors on 1 August.
IAEA agrees India-specific safeguards
Earlier, India also negotiated an "Indian-specific" safeguards agreement with the IAEA. Circulated in July and adopted by the IAEA's 35-member Board of Governers, the agreement would (by the year 2014) allow inspectors access to 14 of India's 22 existing or planned nuclear reactors. The 14 facilities are those designated by India to be for civilian - 'peaceful' - purposes. The agreement in effect confers a right to maintain secrecy at the other 8 nuclear facilities, designated 'military', which are involved in making India's nuclear weapons. The military nuclear facilities would not be subject to inspections or safeguards by the IAEA.
Though the IAEA Director-General Mohamed ElBaradei acknowledged that the agreement with India was not full scope or comprehensive he said, "It satisfies India's needs while maintaining all of the Agency's legal requirements." Concerns have been raised that this agreement flies in the face of the NPT and non-proliferation norms by treating India like one of the five defined nuclear weapon states in the NPT, allowing it to continue to develop its nuclear weapons programme outside of IAEA safeguards. India's nuclear rival in South Asia, Pakistan, complained about the substance of this India-specific arrangement and the manner in which it was being rushed through the Board of Governors, noting that: "it is likely to set a precedent for other States which are not members of the NPT and have military nuclear programmes." He also warned that granting India special privileges through such a safeguards agreement "threatens to increase the chances of a nuclear arms race in the subcontinent."
Daryl Kimball, executive director of the Arms Control Association in Washington said the safeguards agreement needed to be clarified: "The question is: Can India end safeguards if fuel supplies are interrupted, even if they've conducted a nuclear test, or does the agreement require permanent, unconditional safeguards?" In a further analysis, Kimball argued that the proposed India-specific safeguards agreement was inconsistent with IAEA standards and practices in three critical areas: termination of safeguards; absence of a declaration listing items and facilities and entry into force; and status of material subject to safeguards under previous agreements.
Role of the United States
Observers have noted that one of the ironies of the US-India deal is that the Bush administration has chosen to do the political running, when it is clear to many that the Russian and French nuclear contractors will be among the first and perhaps largest beneficiaries. Nevertheless, with the administration pulling out all the stops to get the deal signed, sealed and delivered before Bush leaves office, the US-India deal is being touted as one of the administration's top foreign policy initiatives.
Having exerted high level diplomatic pressure on NSG members to approve the waiver, the Bush administration then urged Congress to move rapidly to approve the US-India deal so that American companies would be able to take advantage of the rule change and compete for future nuclear trade contracts with India. On 10 September Bush submitted the bilateral agreement to the US Congress and certified that India had filed a safeguards declaration with the IAEA. Arms Control Today, however received information from IAEA spokeswoman Melissa Fleming on 18 September that India had "not yet" done so. The Congressional resolutions sidestepped the issue by requiring that the list of facilities to be placed under safeguards is not "materially inconsistent" with the list of facilities described in a plan presented by the Government of India to its parliament in May 2006.
The Bush administration also sought to bypass the December 2006 Henry J. Hyde Act, which requires that Congress wait 30 days before voting on the US-Indian cooperation agreement. Despite this, key legislators agreed to expedite the process. The Senate Foreign Relations Committee held one hearing on 18 September and then on 23 September passed a resolution of approval by 19 votes to 2. The committee rejected by a margin of 15-4 a proposed amendment from Senator Russell Feingold (Democrat of Wisconsin) that would have made the agreement's implementation contingent on the NSG amending its guidelines to ban enrichment and reprocessing exports to states outside the NPT.
In addition to affirming that trade with India would cease in the event of a nuclear test, the Bush administration had in January 2008 pledged that US nuclear fuel supply assurances to India "are not, however, meant to insulate India against the consequences of a nuclear explosive test or a violation of nonproliferation commitments." This was part of a series of responses to questions posed in October 2007 by the House of Representatives Committee on Foreign Affairs, chaired by Representative Howard Berman (Democrat of California). Though the Bush administration had asked the committee to keep these answers confidential, Berman ordered their release on 2 September, which touched off a fresh round of recriminations about the deal from Singh's domestic opponents in India. They charged that his government had falsely conveyed that the fuel assurances would help India maintain foreign nuclear supplies even if it tested again.
Berman subsequently agreed to introduce a resolution identical to the Senate version and allow quick House approval of agreement, in exchange for a commitment from Secretary of State Condoleezza Rice that the United States will make it a "highest priority" to achieve a decision at the next NSG meeting to prohibit the export of enrichment and reprocessing equipment and technology to states that are not party to the NPT.
On 27 September, after barely an hour of debate, the House agreed under a suspension of the normal rules of procedure to approve the resolution of approval for the nuclear trade agreement by a margin of 298-117. Several senators used a parliamentary rule to block the committee-approved legislation from being voted on by the full Senate, but finally relented as Majority Leader Harry Reid (Democrat of Nevada) threatened to reconvene the Senate for a vote on the matter later in the month.. On 1 October the Senate engaged in a brief floor debate on the resolution and on an amendment by Senators Byron Dorgan (Democrat of North Dakota) and Jeff Bingaman (Democrat of New Mexico) that sought to clarify that US policy would require the government to terminate nuclear trade with India if that country were to resume nuclear testing.
Citing various Bush administration statements and the Hyde Act, the proponents charged with managing the Bill argued that such an amendment was unnecessary. As Senator Richard Lugar (Republican of Indiana) put it: "if India resumes testing, the 123 agreement is over." The amendment was therefore defeated by voice vote and the resolution was then approved 86-13. This vote opened the way for the President to sign the bill and for US and Indian signature of the 123 agreement.
At time of writing, India has not itself signed the agreement, although Mukherjee said that his government would be "in a position to sign" at a mutually convenient date after Bush has confirmed US approval with his signature. Another official confirmed that insistence on Bush signing first was to alleviate Indian fears about fuel supplies. India's insistence on the United States going first exemplifies the dynamic that has characterized the agreement from its inception: dominated by India's needs and interests, the US-India deal has had the Bush administration running around the world, pressuring reluctant allies to go against their better judgment to allow a hole to be blown through long-established nonproliferation norms and practices and also contradicting long-standing US policies. The justification has been to engage India, but Bush has looked like an over-anxious suitor while India has achieved what the Tehran Times called a "win-win situation" that "ends India's nuclear isolation and recognizes the world's largest democracy as the de facto sixth nuclear power".
Presidential Certification Requirement on NPT Article I
The concluding comment should be given to Daryl Kimball, executive director of the Arms Control Association, an eminent nonproliferation expert and one of the foremost American critics of the US-India deal: "Before exchanging diplomatic notes pursuant to the 123 agreement, the Congressional resolution of approval requires that Bush must certify to Congress that entry into force and implementation of the agreement is consistent with US obligations under Article I of the [NPT] '...not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices...' To be credible, this certification should take into account any intelligence community assessment that US supply of nuclear fuel for India's civil nuclear sector will reduce or eliminate India's need to sacrifice electricity production to produce weapons-grade plutonium and the potential that this would increase India's bomb material production capacity and jeopardize US compliance with Article I of the NPT.
"Furthermore, it should take into account the fact that there is currently no provision in the 123 agreement or in the proposed Indian-IAEA safeguards agreement that prohibits India from removing heavy water from its 'safeguarded' civilian reactors and extracting tritium, which can be used to boost the explosive yield of nuclear warheads. Such activity would clearly violate the peaceful use assurances in the 123 agreement and be cause for termination of the agreement."
 Statement from Prime Minister Manmohan Singh, 6 September, 2008.
 See Mark Heinrich, 'Nuclear nations approve disputed India trade waiver', Reuters, 6 September, 2008, www.alertnet.org/thenews/newsdesk/L6267956.htm. See also Mark Heinrich, 'Nuclear states mull U.S.-India deal again as clock ticks', Reuters, 3 September, 2008. www.reuters.com/article/worldNews/idUSL341129820080903
 Veronika Oleksyn, 'IAEA board considering Indian nuclear agreement', Associated Press, 1 August 2008.
 Letter to Members of the IAEA Board of Governors and Members of the Nuclear Suppliers Group from Ambassador Shahbaz, Permanent Representative of Pakistan to the International Organizations in Vienna, dated 18 July, 2008.
 Veronika Oleksyn, 'IAEA board considering Indian nuclear agreement', Associated Press, 1 August 2008.
 Seema Sirohi, 'A win-win situation for India', Tehran Times, October 14, 2008.
This news report has been compiled by Rebecca Johnson based on documents and reports published by the Arms Control Association over the past two years and contains excerpts from the emailed updates provided by ACA and its publication Arms Control Today on the US-India nuclear deal. For more on ACA and its work, including the US-India deal, visit www.armscontrol.org.
In addition to expressing gratitude to executive director Daryl Kimball for permitting Disarmament Diplomacy to make such extensive use of ACA's material and analysis here, we would particularly like to pay tribute to ACA's leadership in raising awareness about the developments and implications of the US-India deal for nonproliferation and security.
I am pleased today to sign into law the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, which approves the U.S.-India 123 Agreement. The passage of this legislation by the Congress marks another major milestone in achieving the vision that Prime Minister Singh and I set forth on July 18, 2005, to transform the relationship between our two countries and to establish a strategic partnership. This Act will strengthen the relationship between the United States and India and deliver valuable benefits to both nations.
The legislation does not change the terms of the 123 Agreement as I submitted it to the Congress. That Agreement is consistent with the Atomic Energy Act and other elements of U.S. law. This legislation is important as it enables me to bring the 123 Agreement into force and to accept on behalf of the United States the obligations contained in the Agreement.
The Agreement grants India advance consent to reprocessing which will be brought into effect upon conclusion of arrangements and procedures for a dedicated reprocessing facility under IAEA safeguards. In addition, the legislation does not change the fuel assurance commitments that the U.S. Government has made to the Government of India, as recorded in the 123 Agreement.
The passage of this legislation reflects the common view of my Administration and the Congress as to the value of nuclear cooperation and is in the interest of the United States and India.
Source: The White House, Office of the Press Secretary, 8 October 2008.
© 2008 The Acronym Institute.