The much anticipated “deal” between the United States and India for the transfer of nuclear technology and equipment was released over the weekend. It is a sobering read and tells us much about the administration’s thinking. In summary, there isn’t much of a deal here at all, India gets what it wants.
The agreement not only fails to seek any constraints on India’s nuclear weapons program, it goes out of its way to make clear that what goes on in the nuclear weapons program is off the table and not to affect at all the agreement’s execution. Article 2.4 is key:
The Parties affirm that the purpose of this Agreement is to provide for peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party. Accordingly, nothing 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 in a manner 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 that the civilian nuclear sector is under IAEA jurisdiction but what India does with its nuclear weapons is explicitly irrelevant to US-Indian civilian nuclear cooperation. This section means that India could resume nuclear testing and the United States 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 United States could not stop its civilian nuclear cooperation.
Undermining Export Laws
There’s more. Under Article 5.6(a) the United States commits itself specifically to assuring India’s access to nuclear fuel and technology. In other words, not only will the United States explicitly declare that it will never threaten nuclear trade in response to India’s weapons activities, for example, a nuclear test, but the United States will use its full influence to make certain that India is fully insulated from any such pressure from any quarter. The article reads as:
The United States has conveyed its commitment to the reliable supply of fuel to India. Consistent with the July 18, 2005, Joint Statement, the United States 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 July 18, 2005, Joint Statement the United States is committed to seeking agreement from the U.S. 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.
One thing is clear: the U.S. administration is more concerned about maintaining good relations with India than it is interested in maintaining good relations with the U.S. Congress. The entire thrust of the India-US 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 several restrictions on India that are not simply neglected but reversed in the deal. For example, the sense of the Congress, set forth in the Hyde act, Section 102.13 reads, “the United States should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under United States law.” This is precisely the opposite of the Article 5.6(a) above.
About Those Nuclear Tests
The Hyde act does not mention nuclear explosions explicitly. The language is a little convoluted but the act “waive[s] with respect to India the application of…(B) section 129 of such Act (42 U.S.C. 2158) regarding any actions that occurred before July 18, 2005.” This is in reference to India’s nuclear tests in 1998, which the Hyde act had to “waive” in order not to conflict with the Atomic Energy Act.
Section 129 of the Atomic Energy Act reads, “No nuclear materials and equipment or sensitive nuclear technology shall be exported to–
(1) any non-nuclear-weapon state that is found by the President to have, at any time after the effective date of this section,
(A) detonated a nuclear explosive device…”
So the Hyde act essentially grandfathers India’s past nuclear explosions including the series in May 1998 but, as I read it, if India tests a nuclear weapon in the future, that is, after July 18, 2005, the exception granted by the Hyde Act 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 that the above clause simply doesn’t apply because it clearly states that “any non-nuclear-weapon state that is 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 U.S. administration does not want anything in return. Most who have thought about India-U.S. nuclear cooperation recognize that there is a tradeoff here: Yes, there is a certain danger to the Non-Proliferation Treaty and to non-proliferation efforts in general if India is able to test and build nuclear weapons outside the treaty but, on the other hand, it is important to bring India fully into the international system and to strengthen US-India ties.
I feel that undermining the non-proliferation regime is not worth the price, especially since the price is set by India. There are a hundred and one ways that the United States 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. The United States and Norway disagree about whaling but that does not mean they cannot be, aside from that, close allies. And no one expects Norway to demand that relations in all spheres depend on the United States enthusiastically supporting their whaling. Other analysts come to a different judgment, that the damage to non-proliferation can be contained and the benefits of a strategic relationship with India are worth the risk. That is not where my judgment falls, but I respect the view.
The administration is a third camp; it does not seem to see that there is any tradeoff 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 the Chinese 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 United States demand some balancing concession from the Indians if what the Indians were proposing is exactly what the United States wanted? The reaction from Congress will be interesting.