Lawyers Alliance for World Security
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At their meeting in India in July of 2005, President George W. Bush and Indian Prime Minister Manmohan Singh agreed that the United States and India should resume cooperation in peaceful nuclear energy matters.  Their cooperation had ended in 1974 after the Indians conducted a nuclear explosion which the United States concluded was a nuclear weapon test.

The United States was angered by India’s 1974 test.  This was because, starting in 1964, the United States had provided nuclear technology and equipment to India not for weapons but for civilian nuclear reactors and other peaceful purposes.   Pursuant to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), India had been classified as a “non-nuclear-weapon state” because it had not exploded a nuclear weapon before 1967, the cut-off date in the NPT for defining what countries that join the NPT are permitted to have nuclear weapons.  Only Britain, China, France, Russia and the United States satisfied the NPT’s definition of “nuclear-weapon state” because they had tested before 1967.1  If India had joined the NPT then, it would have been prohibited by the treaty from developing nuclear weapons.  It did participate in the negotiation of the treaty, but refused to join when the treaty was opened for signature in 1968.  Instead, in 1974, it exploded a nuclear device. 

The adverse U.S. reaction in Congress to this nuclear explosion produced amendments in 1978 to the U.S. Atomic Energy Act of 1954.  These required that a “non-nuclear-weapon state” that received nuclear assistance from the United States must promise not to use that assistance to make nuclear explosive devices, as Congress thought India had done. Pursuant to these 1978 amendments, India was classified as a non-nuclear-weapon state.  Congress had been angered by the 1974 Indian test because Congress had authorized U.S. nuclear assistance to India for peaceful purposes, not for weapons.  Because of the 1974 test, Congress prohibited the U.S. Executive Branch from providing further nuclear assistance to India.2 

In 2005, however, President Bush offered Indian Prime Minister Singh uranium for India’s non-military, electric-power-generating, nuclear reactors -- not for its nuclear weapons.  In return, Bush proposed, India would place these reactors under inspection by the International Atomic Energy Agency (IAEA) just as the peaceful reactors of non-nuclear-weapon countries are required by the NPT to be under IAEA inspection to see that they are not being used, for example, to produce plutonium for nuclear weapons.  Under the Bush proposal, India would also, of course, pay for the uranium.  In addition, it would continue its current moratorium on nuclear-weapon testing and cooperate with the United States in other ways. After achieving this tentative agreement with Prime Minister Singh, Bush called upon Congress to amend the Atomic Energy Act’s prohibition on U.S. nuclear assistance to India so that he could carry out the agreement. Before the end of its 2006 session, Congress did so.  It approved a bill authorizing the negotiation of a new U.S.-India nuclear cooperation agreement.3

President Bush signed the bill into law with a statement that he could, if he chose, ignore  one of the bill’s provisions: In the bill, Congress had asked the President to certify that India was not transferring  nuclear material or technology to Iran.  Bush responded to this  provision by interpreting it as only advisory.4  What this may mean for future implementation of the new statute by the Bush Administration is unclear.

This new statute amends the U.S. Atomic Energy Act to authorize the U.S government to supply India with low-enriched uranium for India’s peaceful nuclear power reactors.   Under 1978 amendments to the U.S. Atomic Energy Act, American nuclear cooperation with another country must be approved by Congress, either by votes of approval in both houses of Congress followed by approval by the President, or by submission to Congress of an agreement for nuclear cooperation authorized by the Act, followed by a waiting period to see if there is formal objection from either house of Congress.5

In the case of the Bush-Singh agreement, the administration did not submit the text of a formal nuclear cooperation agreement to Congress because none had yet been negotiated.  Moreover the terms for the agreement proposed in the Bush-Singh talks did not fit the 1978 Atomic Energy Act amendments.  Instead, the administration submitted to Congress draft legislation which would amend the Atomic Energy Act to permit the kind of nuclear cooperation agreement with India that Bush and Singh had talked about.   The administration’s bill would have authorized a future agreement with India -- leaving the final terms in considerable part to the U.S. and Indian governments to negotiate—without any requirement for final approval of terms of the agreement by Congress.

Members in both houses of Congress, however, objected to providing what some called a “blank check” for negotiations with India without any review of the agreement  by Congress.  Under the Atomic Energy Act, U.S. agreements for peaceful nuclear cooperation are to be with nations that have no nuclear weapons.  Before they are implemented, they must be submitted to both houses of Congress to see if there is objection.  Unless Congress can find enough time to review and vote on the agreement, it can (and the agreements often do) go into effect after a 60-day waiting period without any approval by Congress.    But this statute authorizes such a procedure for agreements with nations not having nuclear weapons, not with India which has nuclear weapons.   Thus, a different procedure was required if the U.S.-India agreement was to be approved by Congress. That was what President Bush asked for and Congress provided, but, with much stricter approval conditions than Bush sought.6

In this new statute, Congress insisted upon having an opportunity for reviewing whatever final agreement the administration negotiates with India.   It demanded that, before it considers whether to give approval to that agreement,  the agreement be submitted for approval to both the IAEA and to the international Nuclear Suppliers Group (NSG).

The IAEA would be responsible for inspecting the Indian nuclear reactors used for peaceful purposes, those that would receive nuclear fuel from the United States.  India must now negotiate an agreement with the IAEA containing provisions for IAEA inspection of the reactors used by India for peaceful purposes.

Under the bill passed by Congress in December of 2006, the NSG must also approve the U.S.-India deal. The NSG must consent to the export of nuclear material to India that the agreement calls for.  Since NSG decisions to approve exports require consensus, and since some NSG members have already objected to the U.S.-India agreement, this condition may be difficult to meet.  But both the United States and India have been seeking to persuade NSG members to support the agreement at their next meeting, now scheduled for April of 2007.

Other provisions of the legislation enacted in December of 2006 are relevant here.   The administration’s proposal to Congress would have given the president the authority to waive some provisions of the Atomic Energy Act for future agreements authorized by the current Bush-Singh proposals.   The administration’s bill would have provided that future agreements with India submitted to Congress pursuant to a new U.S.-India agreement and not acted upon within 90 days would be considered approved.  However, Congress refused to give the president this much discretion because, said the conference committee responsible for the final draft, “in practice, it is very difficult to secure passage of such resolutions within 90 days.”7   The conference committee added, 

The House-Senate Conference Committee also agreed to statutory language against any future nuclear weapon test by India, though it expressed no opposition to future testing by the United States.     Both countries have signed the Comprehensive Test Ban Treaty, but neither has ratified that treaty.  The administration’s proposed text of legislation to authorize the U.S.-India deal had not dealt with nuclear-weapon testing.  The conference committee report said:

Along with this warning to India, the conference committee report  expressed what it called the “widely held view  in both the House  and Senate that peaceful nuclear cooperation with India can serve multiple U.S. foreign policy and national security objectives….”, including  “ensuring that NSG guidelines and consensus decision-making are upheld.”   The NSG is an international committee of about 45 industrialized countries that supply nuclear materials and technology to other countries.  Its purpose is to achieve a consensus on what should and should not be supplied to countries not having nuclear weapons since many such supplies could contribute to the making of nuclear weapons.   In addition to seeking enforcement of the NSG guidelines by other countries, the  conference committee urged compliance by the Bush administration in its nuclear export decisions with these guidelines.10 

Assuming India accepts the terms of this new American law, the next steps will be to negotiate a formal U.S.-India agreement, and to submit that agreement to the NSG for approval and to the IAEA for the negotiation of an inspection agreement for the Indian reactors used for peaceful purposes, the ones that would be supplied with uranium fuel by the U.S.-India agreement..   Assuming the NSG approves that agreement, its text must also be submitted to Congress for formal approval.

The new statute’s requirements concerning the NSG could become a deal-breaker.    The statute says that before the U.S. supplies nuclear materials to India for its civil energy program, the NSG must have “decided by consensus to permit supply to India of nuclear items covered by the guidelines of the NSG and [that] such decision does not permit civil nuclear commerce with any other non-nuclear-weapon state that does not have IAEA safeguards on all nuclear materials within its territory, under its jurisdiction, or carried out under its control anywhere.”  India will not be required to have such safeguards on uranium separated from ore from its own mines, uranium that it uses to make nuclear weapons.11

The statutory language requiring consensus for NSG approval quoted at the beginning of the preceding paragraph looks impossible to satisfy by NSG consensus unless some NSG members change positions from those they took on the proposed deal at an informal NSG-member meeting in March of 2006. At that meeting, of the over 40 NSG members who were present, only France, Russia, the U.K. and the U.S. expressed support for accepting India into the NSG and for approving the Bush-Singh agreement.  Several non-nuclear-weapon countries expressed objections. Many took no position.  (All the NSG members are non-nuclear-weapon state parties to the NPT except for China, France, Russia, the United Kingdom and the United States).

The NSG Guidelines emphasize that their purpose is to prevent contributions of material and technology to “an unsafeguarded nuclear fuel-cycle activity.”12    In countries having nuclear weapons, that typically  includes the nuclear fuel-cycle  activities that are not subject to  IAEA inspection because  they are not used “for peaceful purposes,” within  the IAEA’s definition of that term.    Though France, Russia and the United Kingdom supported the U.S. position at the informal NSG meeting in March of 2006, the twenty-seven other NSG members who were present at the meeting opposed the U.S.-India proposed agreement, asked questions about it without taking a stand, or remained silent.13  Note that the new statute requires that the NSG decide “by consensus” (its usual decision-making procedure) to permit the supply of the NSG-covered materials to India by the United States.  Judging by the positions some NSG members took earlier this year, several members must change their views if the U.S.-India agreement is to be approved.  The U.S. and India are presumably negotiating with NSG members to support the agreement.  Much remains to be done before a final agreement negotiated by the Indian and U.S. governments can be accepted by the IAEA, the NSG and the U.S. Congress.