(An abridged version of this Q&A was first published in Vijay Times, 12 December 2006).
1. What is this nuclear bill that has just been passed?
Both Houses of the US Congress – the Senate and the House of Representatives – have now passed the final version of the bill numbered H.R. 5682 and titled the ‘Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006’. Upon President Bush’s signature, expected on Monday, it will become law in the US. The Bill allows America to resume, after a ban that lasted three decades, nuclear trade with India for peaceful purposes.
2. What does the bill exactly do?In essence, all that the Bill does is to lift the ban on nuclear trade with India imposed by US legislation on the US government and private corporations. It allows the US government to now work out the terms of a bilateral nuclear cooperation agreement, called a 123 agreement, with India. Once that agreement is through, American companies will be allowed to apply for licences to export nuclear fuel and reactors to India. The actual granting of licences, and therefore exports to India, will still be subject to several other American laws and export procedures.
3. What action does India have to take now with respect to the Bill?
The Bill is purely an American affair. It is a let from the US Congress to the US government to work out with India the terms of the so-called 123 nuclear cooperation agreement. At this stage, India does not have to do anything, unless it wants to convey to the Bush administration that it cannot accept the stipulations of the Hyde Act, which in fact will govern the 123 agreement.
4. What are the next steps for India towards realising nuclear supplies on the ground?
The next steps would be concurrent discussions with the US on the 123 agreement and with the IAEA on a safeguards agreement. Although the US will take the lead to convince the NSG to make an India-specific exemption, India will probably be called on to do its bit.
5. Why was it necessary for America to pass a bill on nuclear cooperation with India?
Legally speaking, America’s nuclear relations with other countries in the world are governed by its Atomic Energy Act of 1954, which was modified in 1978 to incorporate the provisions of the US Nuclear Non-Proliferation Act of that year. This latter Act was passed in the wake of the Indian nuclear test in 1974 and was aimed primarily at preventing India from getting access to nuclear materials and technology. In effect, following the 1978 amendment, Section 123 of the Atomic Energy Act of 1954 prohibited America from indulging in nuclear trade with any non-nuclear weapon state, as India is considered, that did not agree to have full-scope safeguards on its entire nuclear programme, ie., if the country did not allow the International Atomic Energy Agency to inspect its entire nuclear infrastructure. Since India has a nuclear programme that has both military and civilian aspects, it has never agreed to full-scope safeguards. As such, in order to be able to resume nuclear trade with India, the US had to exempt India from Section 123 a (2) of the AEA, which enumerated the requirement of full-scope safeguards.
6. Why couldn’t India get nuclear fuel and reactors from abroad all these years? Did any international treaty or agreement prohibit it?
The international nuclear non-proliferation agreement, the Non-Proliferation Treaty (NPT), does not prevent nations from selling nuclear fuel and reactors to India if India were willing to put such imported facilities under IAEA safeguards. In fact, India has in the past procured nuclear fuel and many reactors on these terms. But ever since India’s 1974 nuclear test, America had been making constant efforts to cut-off India’s access to nuclear materials and technology. Through domestic US law applied to India, by building supplier cartels, through technology denial regimes as well as through political pressure on a weakened Russia, the US built up an effective nuclear blockade against India, which intensified after 1992, when the Nuclear Suppliers Group decided to make full-scope safeguards a condition for nuclear trade with India.
7. Has India now been recognised as a Nuclear Weapons State?Indian government officials and many in the media have claimed that this is the case. But the US administration has clearly declared that while it recognises that India possesses nuclear weapons, the nuclear ‘deal’ does not give India legal status as an NWS as defined by the NPT. For all practical purposes and procedures, therefore, India will be treated as a non-nuclear weapons state. According to a clarification given by the US administration to the US Congress, subjecting India’s civil nuclear programme to safeguards in perpetuity was a demonstration of not according NWS status to India.
8. It is said that even the Vajpayee government was aiming for such a deal. So, why has the BJP objected to this Bill?
The Vajpayee government did indeed pursue nuclear cooperation with America. The India-US High Technology Cooperation Group (HTCG) was constituted during Vajpayee’s prime ministership to develop India-US relations in nuclear, space, dual-use and missile defence technologies. This led to President Bush’s ‘Next Steps in Strategic Partnership’ initiative as part of which India undertook certain obligations on the nuclear front. In return the US liberalised nuclear trade in several small ways, most notably by changing US attitude from a ‘presumption of denial’ to a ‘presumption of approval’ towards applications for nuclear exports to India.
But there is a key difference between the redlines that the Vajpayee government was ready to cross and the redlines that the Manmohan Singh government has crossed or has expressed readiness to cross. The Vajpayee government agreed to undertake obligations to prevent ‘horizontal proliferation’, ie., it undertook not to export nuclear materials and technologies. It also undertook to align India’s export control systems with some international standards. But it could not get a ‘nuclear deal’ such as the current one because it was not ready to undertake obligations on ‘vertical proliferation’, ie., it was not ready to undertake any obligations that constrained the development of India’s own nuclear weapons programme.
What the Manmohan Singh government has done, in addition to taking on additional commitments on export controls, is to signal to the US and the world that it is ready to undertake obligations that would constrain India’s nuclear weapons programme too. Most notably, the Manmohan Singh government has not objected to a clause in the Bill that the nuclear cooperation would stop if India conducts a nuclear test again. It is provisions such as these that the BJP, the nuclear establishment, some strategic experts and even the Left are objecting to.
9. What are the conditions that have been imposed on India to get this Bill through US Congress?In the July 18, 2005 Joint Statement, India agreed to tighten its export controls and align them with the NSG and MTCR guidelines; it agreed to continue to observe a self-imposed moratorium on nuclear testing; and it agreed to work with the US towards conclusion of a multilateral Fissile Material Cut-off Treaty. India also agreed to separate its nuclear programme into civil and nuclear parts and ‘voluntarily’ put under international safeguards the civilian programme. Since then, however, conditions have either been tightened or added. The Manmohan Singh government has had to agree to put the civil programme under safeguards not ‘voluntarily’, as the NPT-recognised nuclear weapon states are entitled to do, but compulsorily and perpetually. The Hyde Act also stipulates that India should align its export controls and procedures with not just the NSG and MTCR, but also with other technology denial regimes such as the Australia Group and the Wassennar Arrangement. India’s voluntary moratorium on nuclear testing has been turned into a bilateral agreement with the US and a commitment to the NSG. The Bill stipulates that nuclear trade with India will be terminated if it conducts another nuclear test. Further, under this Bill, India cannot withdraw from international safeguards even if America and the NSG terminate nuclear trade with it for any reason.
10. All international agreements have an escape clause that allows parties to withdraw citing national interests. Isn’t this the case with this agreement too?
Section 106 of the Hyde Act simply states that ‘‘A determination and any waiver under section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device after the date of enactment of this title’’.
As the law is worded, there is no force majeure clause. If India tests, cooperation is off. Period. Indeed, Report 109-721 accompanying the Bill makes clear that this is how the US Congress intends it to be. It says, ‘‘the conferees believe that there should be no ambiguity regarding the legal and policy consequences of any future Indian test of a nuclear explosive device. In that event, the President must terminate all export and reexport of U.S.-origin nuclear materials, nuclear equipment, and sensitive nuclear technology to India.
11. What are the fears of the Indian nuclear establishment over this Bill?
Firstly, the July 18, 2005 statement said India would only need to accept India-specific safeguards, including an India-specific Additional Protocol, in view of the fact that while India possesses a military nuclear programme, it is not an NPT-recognised nuclear weapons state. Neither the Hyde Act nor its accompanying report talk about the India-specificity. Instead, they stipulate ‘‘IAEA safeguards in perpetuity in accordance with IAEA standards, principles, and practices…’’ With regard to the Additional Protocol, which is designed to give the IAEA intrusive access to even unsafeguarded facilities, the Hyde Act prescribes not an India-specific Additional Protocol but one based on the IAEA’s Model Additional Protocol as set forth in a document called INFCIRC 540. It is not binding even on an NPT member to accept an Additional Protocol, but India has not only accepted the Additional Protocol but has even placed a cancer hospital and two theoretical mathematics research institutes under safeguards. Further, under a sub-section titled ‘Nuclear Export Accountability Program’ in the Hyde Act, the US Congress has mandated that America must ensure perpetual safeguards on India’s civil nuclear programme even if the IAEA cannot do so. What it means is that India might have to accept American or other foreign inspectors.
The Indian nuclear establishment also has other concerns. The fuel supply guarantee, which President Bush agreed to during his visit to India, has been reinterpreted by the US administration and by the Hyde Act. Now, fuel assurances are applicable only in case of ‘market failures’, and not if the US or other NSG members decide that India has in some way violated its commitments under this Bill. The Hyde Act stipulates that India will be supplied only so much fuel as would be consistent with normal reactor operating requirements. It will not be allowed to build a strategic reserve as was promised earlier.
Fears over the prohibition on nuclear testing have been expressed by many former heads of the Indian nuclear establishment.
12. But many experts are saying that India’s concerns have been addressed in the final Bill. How true is this?
Supporters of the deal have said that the final Bill has diluted language on many of India’s concerns, and made them non-binding. It is said now that the US desire to secure India’s support for US efforts to curb Iran’s nuclear programme has been made non-binding on India, that annual certification requirements have been reduced to ‘assessments’ or ‘reports’ and that the prohibition on supply of enrichment and reprocessing technologies has been diluted.
Critics of the deal contend that in the first place, these were not the most important concerns that India had expressed. The most important concerns relate to the clause seeking to enshrine a prohibition on Indian nuclear testing in an international agreement, binding India to perpetual safeguards even if nuclear supplies are suspended or stopped, and prescriptions that seek to prevent India from increasing the availability of fissile materials to unsafeguarded facilities or making more weapons than it already makes per year. Even the Indian government has acknowledged that none of these concerns have been addressed, and hence its muted response to the congressional approval.
13. What then are the maximum benefits that India gains from cooperation with the US under this Bill?
The ‘Hyde Act’ allows for the sale of only nuclear reactor-grade fuel and reactors to India. While the July 18, 2005 India-US Joint Statement envisaged ‘full civil nuclear cooperation’, the US and India differ on the interpretation of that phrase. Prime Minister Manmohan Singh assured the Indian Parliament in August that India will get plutonium reprocessing and perhaps even uranium enrichment technologies as part of the ‘nuclear deal’, but the congressional report accompanying the Bill says that the Bush administration has clarified to the US Congress that it will not allow the sale of enrichment or reprocessing technologies to India.
14. But many newspapers and news channels are saying that the prohibition on these technologies has been diluted. So, is there any reason now to worry about it?
There is much hype in the media that the clause prohibiting the sale of enrichment and reprocessing technologies has been ‘diluted’ to allow such sale. This is not true. The Bill’s provision that such technologies may be supplied to India as part of an IAEA-approved research effort does not alter the prohibition. Any sale of enrichment and reprocessing technologies will require a presidential determination that such sale will not hurt non-proliferation and US security interests. This is an almost impossible determination to make with regard to uranium enrichment and plutonium reprocessing.
15. But supporters of the deal are saying if we can’t get them from the US, we can buy them from other suppliers. So, why worry so much about US restriction?
Although other NSG members may be willing to sell India enrichment and reprocessing technologies, they are unlikely to break ranks with fellow members of the cartel or displease the US by doing so. The NSG operates by concensus. Members face immense pressures and disincentives if they seek to break that concensus. The NSG concensus till now has been that they will not sell enrichment and reprocessing technologies to non-nuclear weapon states. Indeed, the Hyde Act calls for the US to work with other NSG members to further tighten the NSG’s procedures in this regard, specifically mentioning India as a case. It also stipulates that the US should work to ensure that India will not get from the other NSG countries any technologies that the US itself will not sell. Report 109-721 accompanying the Hyde Act, goes even further to warn that any attempt by India to obtain such technologies from other suppliers would be a violation of the terms of nuclear cooperation and would invite a collective response from NSG members, including termination of all nuclear trade with India. In the past, the US has arm-twisted Russia, France and China against selling nuclear and space technologies to India. In the 1990s, for instance, it stopped France and Russia from selling cryogenic engine technology. More recently, it stopped Britain from selling even spare parts for helicopters that India had bought from Britain simply because the helicopters contained some American technologies. It is unlikely that India will get enrichment and reprocessing technologies from either the US or other NSG countries.
16. The government of India has said it has secured perpetual fuel supply guarantees from the US. So, what is the harm in agreeing to perpetual safeguards in return?
Contrary to the Indian government’s claims of an ‘ironclad’ fuel supply guarantee, the US Congress has noted that ‘‘The conferees understand and expect that such assurance of supply arrangements that the US will be party to will be concerned only with disruption of supply of fuel due to market failures or similar reasons, and not due to Indian actions that are inconsistent with the July 18, 2005 commitments, such as a nuclear explosive test’’. Indeed, Condoleeza Rice has clarified to the US Congress that this is the administration’s policy.
17. The Prime Minister has already said that India will not accept American inspectors and will only allow IAEA inspections. So, what’s the concern now regarding safeguards?
As per Report 109-721, ‘‘Section 104(d)(5)(B)(iii) mandates that, in the event the IAEA is unable to implement safeguards as required by an agreement between the United States and India approved pursuant to this title, there be appropriate assurance that arrangements will be put in place expeditiously that are consistent with the requirements of section 123 a.(1) of the Atomic Energy Act of 1954 regarding the maintenance of safeguards as set forth in the agreement regardless of whether the agreement is terminated or suspended for any reason’’.
The above means two things. One, India will be subject to safeguards regardless of whether the nuclear supplies have been terminated or suspended for any reason. Two, the Bill has not taken note of Indian concerns and has instead stipulated these ‘fall back assurances’ – essentially that US or other foreign inspectors would take the place of IAEA inspectors if need be.
18. Once we start obtaining fuel from foreign sources for our civil programme, we will be able to devote more of our own fissile material to the weapons programme. Who is going to stop us from doing so?
The US Congress has noted in Report 109-721 that ‘‘Indian officials have publicly stated that under the US-India agreement, India will be able to produce as much fissile material for weapons purposes as it desires… The conferees hope that India will demonstrate restraint and not increase significantly its production of fissile material. If civil nuclear commerce were to be seen, some years from now, as having in fact contributed to India's nuclear weapons program, there could be severe consequences for nuclear cooperation, for U.S.-Indian relations…’’ In this regard, the Bill contains both a statement of US policy towards South Asia as well as related reporting requirements on the amounts of uranium being mined and milled in India, on the amounts being made available to the military programme and on the number of nuclear weapons being manufactured by India each year. The reporting requirements are to satisfy the US Congress that US cooperation with India is not in violation of its NPT commitment not to assist India’s nuclear weapons programme directly or indirectly. If India is found to be making more fissile materials or building more nuclear weapons, the US Congress can put a stop to nuclear cooperation on the ground that civil nuclear cooperation with India violates US non-proliferation commitments under the NPT.
