The much anticipated “deal” between the US and India for the transfer of nuclear technology and equipment is a sobering read. There isn’t much of a deal at all, India gets what it wants. The agreement not only fails to seek any constraints on India’s nuclear weapons programme, it goes out of its way to make clear that what goes on in the nuclear weapons programme is off the table and not to affect at all the agreement’s execution.
Article 2.4 is key: “The... purpose of this Agreement is to provide for peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party... (N)othing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. This Agreement shall be implemented... so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes.”
This means the civilian nuclear sector is under IAEA jurisdiction, but what India does with its nuclear weapons is explicitly irrelevant to the US-Indian civilian nuclear cooperation. This section means India could resume nuclear testing and the US could not use that as a reason to stop nuclear technology and equipment sales. Not that anybody is expecting it, but India could even give nuclear weapons away and, as long as none of the material or technology came from the civilian sector, the US could not stop its civilian nuclear cooperation.
Under Article 5.6(a) the US commits itself to assuring India’s access to nuclear fuel and technology. So, not only will the US explicitly declare that it will never threaten nuclear trade in response to India’s weapons activities, for example, a nuclear test, but it will use its full influence to ensure that India is fully insulated from any such pressure from any quarter. The Article reads as:
“The (US) has conveyed its commitment to the reliable supply of fuel to India. Consistent with the 18 July 2005, Joint Statement, the (US) has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. As part of its implementation of the 18 July... Statement the (US) is committed to seeking agreement from... Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations.
Clearly, the US administration is more concerned about maintaining good relations with India than it is interested in maintaining good relations with the US Congress. The thrust of the agreement ignores key provisions of the Bill authorizing nuclear trade passed in the previous, Republican-controlled, Congress. That Bill, The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, imposes restrictions on India that are not simply neglected but reversed in the deal. For example, the sense of Congress, set forth in the Hyde Act, Section 102.13, reads, “The (US) should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under (US) law.” This is precisely the opposite of Article 5.6 (a) above.
The Hyde Act doesn’t mention nuclear explosions explicitly. The language is a bit convoluted, but it “waive[s] with respect to India the application of… Section 129 of such Act... regarding any actions... before 18 July 2005”. This refers to India’s 1998 tests, which the Hyde Act had to “waive” in order not to conflict with the Atomic Energy Act. Section 129 of the latter says, “No nuclear materials and equipment or sensitive nuclear technology shall be exported to... any non-nuclear-weapon state... found... to have, any time after the effective date of this section,... detonated a nuclear explosive device….” So the Hyde Act essentially grandfathers India’s past nuclear explosions. But, as I read it, if India tests a nuclear weapon in the future, the exception granted by it would no longer kick in. In other words, past explosions are forgiven, but future ones are forbidden, or at least would stop nuclear cooperation. The administration’s deal seems to be in conflict with this provision of the law.
(You might think this clause doesn’t apply, as it states that “any non-nuclear-weapon state found…” and clearly India is a nuclear weapon state. Perhaps clear in fact, but not in a diplomatic legal sense. In testimony before the Senate, undersecretary of state Robert Joseph said, “Our initiative with India does not recognize India as a nuclear weapon state…”)
The deal seems to give India everything it wants with little in return because the US administration does not want anything in return. Most who have thought about India-US nuclear cooperation recognize a trade-off: Yes, there is danger to the Non-Proliferation Treaty (NPT) and to non-proliferation efforts if India can test and build nuclear weapons outside the treaty but, on the other hand, it is important to bring it fully into the international system and to strengthen US-India ties.
I feel undermining the non-proliferation regime is not worth the price, especially as the price is set by India. There are a hundred and one ways that the US could cooperate more fully with India (and already does), whether economically, politically, militarily, scientifically, or culturally. The two countries could have very close ties and simply agree to disagree about nuclear weapons. Other analysts reach a different view, that the damage to non-proliferation can be contained and the benefits of a strategic relationship with India are worth the risk. That’s not where my judgement falls, but I respect the view.
The administration is a third camp; it does not seem to see that there is any trade-off to be made. It has broadly suggested that India is a useful balance to a rising China, including balancing China’s nuclear forces with India’s growing arsenal. To the administration, whose support for the NPT has been half-hearted at best, a growing Indian nuclear arsenal is not something to be feared or avoided. A miniature nuclear arms race with China might give them pause and weigh in on the US side in the strategic balance. The Indians were demanding full, if only de facto, recognition as a nuclear weapon state, but they were pushing on an open door. There was not going to be any resistance from this administration. So what was to negotiate? How could the US demand some balancing concession from the Indians, if what the Indians were proposing was exactly what the US wanted?
This article is an edited excerpt from www.fas.org/blog/ssp. Ivan Oelrich is vice-president, The Federation of American Scientists (its founders were associated with the first atomic bombs). Comment at firstname.lastname@example.org