In 2006 President George W. Bush and Indian Prime Minister Manmohan Singh agreed to negotiate a new agreement for peaceful nuclear cooperation between their two countries.  The LAWS report on this website on April 18, 2007 referred to possible obstacles to implementing a final agreement of this kind between the president and the prime minister.[i] These included possible difficulties in gaining approval of a U.S.-India agreement by two international organizations, the Nuclear Supplier’s Group (NSG) and the International Atomic Energy Agency (IAEA), as well as difficulties in gaining U.S. Congressional approval as a result of the 2007 change in control of Congress from the Republican to the Democratic party following the U.S. 2006 elections.  This article describes further developments and suggests additional problems.   

 The 2006 Bush-Singh agreement would provide India with U.S. nuclear reactors and uranium fuel – to generate electricity, not to make nuclear weapons.  Later, Bush and Singh agreed that the United States would assist India in building a nuclear reprocessing plant to separate the plutonium produced in the uranium fuel provided to India by the United States while that fuel was producing heat in Indian nuclear electric-generating reactors provided by the United States.  Under the agreement, the fuel, the reactors and the reprocessing center would be monitored by the IAEA to assure that they are not used to make material that could then be used to make nuclear explosives for weapons.

  India has had both nuclear weapons and nuclear reactors for decades. But its own supply of uranium ore is expected to be inadequate both 1) to generate major increases in electricity supply that India’s leaders believe will be needed, and 2) to make all the nuclear weapons that India may want.  President Bush’s offer of uranium, nuclear reactors and a reprocessing plant to India was therefore attractive to the Indian government.  This was true even though, pursuant to the Bush-Singh agreement, the uranium supplied by the United States, and the plutonium produced in India by these reactors from this uranium, could only be used for peaceful purposes, not for making weapons.  But, as a result of the agreement, India would have more uranium from its own mines to make nuclear weapons.  This is because none of its own indigenous but smaller supply of uranium would have to be used to generate electric power; the uranium supplied to India by the United State would be used to do that. 

 President Bush saw such an important agreement as useful to strengthen U.S. relations with India, the democracy with the largest population in the world, and to assist that country in its efforts to provide needed electricity to its underserved population.  In response to his request, Congress enacted detailed legislation, known as the Hyde Act of 2006, to authorize negotiation of a formal nuclear cooperation agreement between India and the United States.  The purpose of this article is to compare the resulting Bush-Singh agreement with the legal requirements of both the 2006 Hyde Act and the 1968 nuclear Non-Proliferation Treaty (NPT), the most important international agreement designed to prevent the spread of nuclear weapons to more and more countries.

The NPT was intended to limit the number of nuclear-weapon states in the world to the five that had nuclear weapons in 1968 when the NPT was signed:   Britain, China, France, Russia and the United States.  It was certainly not intended to authorize the United States to assist India to acquire nuclear weapons beyond what it already has, though the Bush-Singh agreement might well have that result.   If the Bush-Singh agreement is implemented as intended, it will provide uranium and nuclear reactors from the United States to India for the peaceful purpose of generating electricity for India.   But it would enable India to use its existing enrichment capacity exclusively for making enriched uranium for nuclear weapons.  And it would provide India with U.S. technology for enriching uranium not just to the low levels used for most electricity-generating nuclear reactors, but also to the much higher levels that are needed for making nuclear weapons. 

From the Indian government’s point of view, the major advantage of the Bush-Singh agreement seems to be that India will be able to generate more electric power without drawing on its own limited supply of uranium.  That supply can then all be used to make nuclear weapons.[ii]  But if a country that refuses to join the NPT, and makes nuclear weapons instead, receives the NPT benefits intended for NPT members that refrain from making such weapons, won’t that compromise the purpose of the NPT?  Won’t it provide a reason for other non-nuclear-weapon NPT members to withdraw from the NPT – to make nuclear weapons themselves?  If India is given the same sort of U.S. assistance that advanced non-nuclear-weapon NPT members are promised for agreeing not to acquire nuclear weapons, why should those countries not follow India’s example?  For example, Argentina and Brazil seem to have the necessary skills and technology to produce enriched uranium that, depending on the amount of its enrichment, can be used in power reactors or nuclear weapons.  In the NPT, Argentina and Brazil have agreed not to use their skills and technology to make nuclear weapons.  If India gets enrichment technology from the United States even though it makes nuclear weapons, would Argentina and Brazil continue to refrain from using their enrichment technology to make nuclear weapons?  The NPT is what prohibits them from doing so.  But if India gets U.S. enrichment technology even though it refused to join the NPT and has nuclear weapons instead, would Argentina and Brazil withdraw from the NPT in order to make nuclear weapons with enriched uranium from the nuclear enrichment plants which they have acquired?

1.      Past U.S-India nuclear cooperation and the NPT.   

Since 1945 when it bombed Japan with its new nuclear weapons, the United States has tried, by national statutes, international treaties and other means, to prevent the spread of nuclear weapons to other countries.  The Atomic Energy Act of 1946 was the first major U.S. legislation having this purpose.[iii]   The most important international agreement to serve this purpose was the 1968 NPT.  As already indicated, this treaty permitted only five countries to have nuclear weapons--the five that had them in 1968.  India participated in the NPT negotiations as a non-nuclear-weapon country member of the negotiating conference.  Since then almost all the other non-nuclear-weapon countries of the world have joined the NPT and promised not to acquire nuclear weapons. The three countries that have never joined are India, Israel and Pakistan -- which all now have nuclear weapons. (North Korea joined, then violated the treaty, then withdrew from it, and then exploded a nuclear weapon. Persuading North Korea to refrain from bomb making and to rejoin the NPT is now a major subject of negotiation for North Korea, its neighbors and the United States.)

While the negotiations which led to the NPT were being conducted at the Geneva Disarmament Conference during the 1960s, India helped lead non-aligned members of the Conference in supporting the first purpose of the treaty – to prevent an increase in the number of nations having nuclear weapons.  It also joined them in demanding that the five nuclear-weapon powers assist countries that did not have nuclear weapons to pursue the peaceful uses of nuclear energy, including the operation of nuclear reactors to generate electric power.  India also helped lead non-aligned efforts to demand language in the NPT that obligated the nuclear-weapon states to begin negotiations to reduce and eventually eliminate their nuclear weapons. Even though provisions supported by India were added to the NPT, India later refused to join the treaty.  Instead, in 1974, it used nuclear assistance provided for peaceful purposes by Canada and the United States to conduct a nuclear explosion.[iv]

In 1974, this produced anger in the U. S. Congress and major revisions of the U.S. Atomic Energy Act, revisions which cut off India’s supply of uranium and reactors from the United States.  It is this legislation that has been revised by the Hyde Act of 2006 to authorize U.S.-India agreements for nuclear supply such as the Bush-Singh agreement.

2. Will implementation of the Bush-Singh agreement result in violation of the NPT by the United States?

Though it did not join the NPT and now has nuclear weapons, India is not a “nuclear-weapon state” for the purposes of the NPT because it did not have nuclear weapons before 1967, the NPT- provided cut-off date for defining which nations are “nuclear-weapon states” within the meaning of that phrase as defined in the NPT.[v]   Since India refused to join the NPT, it is not bound by the treaty.  But the United States is, of course, so bound.  By definition in the NPT, the United States is a nuclear-weapon state because it had nuclear weapons before 1967, as did Britain, China, France and Russia.  The NPT requires the United States to observe its NPT promise “not in any way” to “assist” or   “encourage” any “non-nuclear-weapon state” to “acquire or manufacture” nuclear weapons.[vi]   India is a “non-nuclear-weapon state” within the NPT’s definition because it had no nuclear weapons in 1967.  If the United States provided India today with uranium for making nuclear weapons, would the United States violate the NPT?  Yes, if the NPT language “not in any way“ to “assist” or “encourage” India’s acquisition of nuclear weapons is given its plain meaning.  But would carrying out the Bush-Singh agreement assist India in making nuclear weapons?   That is not as clear.  However, the evidence suggests that it would, as we will see.

The Bush Administration takes the position that even if India is a “non-nuclear-weapon state” as that term was defined for NPT purposes in 1968, the United States, quoting the language of the NPT,  “will not in any way …assist or encourage”  India to “acquire or manufacture” nuclear weapons.  The Bush Administration  argues  that,  if the Bush-Singh agreement is approved by Congress, what the United States will do, by supplying uranium to India, will not “assist or encourage” India in making nuclear weapons.  This argument is made even though India’s own supply of uranium is limited and the provision of U.S. uranium to India for electric power-generating reactors and other peaceful purposes will clearly make more of India’s own uranium available to India for its nuclear weapons.   A fundamental issue here is whether the result of helping to make more uranium  available to India for nuclear weapons will, using the language of the NPT,   “in any way…assist or encourage” India to “manufacture” nuclear weapons.  If so, the assistance or encouragement will violate the NPT.

India would not be seeking uranium from the United States if it had enough of its own available for both peaceful and weapons purposes.  By reducing or eliminating India’s need to use its own uranium to generate electric power in the new reactors supplied by the United States, the agreement will free up Indian uranium for use in Indian nuclear weapons.  In my view, this clearly will “assist” India in making nuclear weapons in violation of the NPT.  Thus by providing uranium  to India, the United States would make it possible for India to make more nuclear weapons using its own uranium.  Moreover, the United States has promised India a chemical separation plant to separate out the plutonium that will be produced in the nuclear fuel supplied by the United States when that fuel is burned in the new Indian reactors to be supplied by the United States for the purpose of generating electricity.  The U.S.-India agreement would prohibit India from using this particular plutonium for making nuclear weapons.  However, by freeing up uranium from India’s own mines – uranium that would otherwise be needed to burn in reactors to generate electricity – the U.S. would help make more uranium available to India from its own sources for use in Indian manufactured nuclear weapons.  

If the Bush-Singh agreement produces these results despite the NPT and U.S. policy not to assist India in making nuclear weapons, it will not be the first time that U.S. government standards on what constitutes “peaceful uses” of nuclear material provided by the United States have been taken advantage of by India to make nuclear weapons.  As we have seen in 1974, after Canada and the United States had provided India with uranium, a nuclear reactor and other nuclear assistance for “peaceful purposes” as permitted by the NPT, India used this assistance to make a nuclear explosive device which it then exploded on its own territory.  At the time, India insisted that this nuclear device was for peaceful purposes, which was required by India’s 1970s nuclear-assistance agreements with Canada and the United States.  But India had clearly used the assistance to make a nuclear explosive device that could be used as a nuclear weapon.

Congress did not accept India’s explanation in 1974 that its nuclear explosion was “for peaceful purposes.”  Instead, Congress enacted legislation having the effect of cutting off most U.S. nuclear assistance to India.  As a result, until the Bush-Singh negotiations that resulted in the Hyde Act and the new Bush-Singh agreement, U.S. nuclear assistance to India has been extremely limited.  What President Bush proposes represents a revolutionary change in U.S. policy concerning American nuclear assistance to India. 

This change is likely to alter the policies of other uranium supplying nations.  After the 1974 change in US policy toward supplying uranium to India, other nuclear suppliers took similar positions.  They agreed in the 50-nation Nuclear Suppliers’ Group (NSG) to halt shipments of uranium to countries like India that had initially refused to join the NPT and then pursued nuclear weapons.  President Bush’s decision -- to reverse U.S. policy against such shipments in the case of India despite the NSG rule --  produced a decision by Australia’s then Prime Minister Howard to change Australia’s rule against providing uranium to countries such as India that have not joined the NPT.  Australia’s change would have permitted shipments of Australian uranium to India.[vii]  However, Howard was defeated for re-election by a candidate who had opposed Howard’s new policy.  The winner, Prime Minister Rudd, may well reverse Howard’s decision.  This could even stimulate opposition to the position the United States must take before the Nuclear Suppliers’ Group (NSG) in the Indian case – which is that the NPT does not prohibit shipments of uranium to nuclear-weapon countries for peaceful purposes even if they have in the past used uranium supplied for those purposes to conduct a nuclear explosion – as India had. (See above)  Since a unanimous vote is needed before the NSG, Australian or other opposition to the U.S.-India agreement could prevent the NSG’s approval of the U.S. exports of uranium to India and prevent implementation of the U.S.-India nuclear agreement.   

In response to President Bush’s 2005 request to Congress for statutory authority to negotiate a nuclear assistance agreement with India, Congress enacted the Hyde Act of 2006.  In it, Congress authorized the provision of uranium, reactors and technical assistance to India, but insisted that these not be used to make nuclear weapons.  At issue today is whether by providing for shipment of a large quantity of uranium to India to generate electric power or for other peaceful purposes, the 2007 Bush-Singh agreement would increase the supply of uranium to India for nuclear weapons. If this occurred, India would not have to use its own uranium to operate its new nuclear power plants.  As a result, it could use all, or almost all, its own uranium to make nuclear weapons.  If so, would this violate the NPT?  

My conclusion is that it would. The U.S. provision of fissionable material to India for peaceful purposes such as reactors that generate electricity would provide assistance to India in its manufacture of nuclear weapons even if none of the U.S. supplied uranium was used to make nuclear weapons.  This conclusion would suggest an NPT violation by the United States, not by India, which refused to join the NPT.[viii]

In addition to supplying uranium and reactors to India, the Bush Administration promised to provide India with the nuclear fuel reprocessing technology which would permit India to extract the plutonium from the spent fuel burned in India’s new reactors.  One result of this would be to provide India with more plutonium with which to make nuclear weapons. The Bush Administration has interpreted the Hyde Act as permitting the United States to provide India with a reprocessing plant for separating plutonium from spent nuclear fuel, provided the spent fuel is not used to make nuclear weapons.  Thus, India would no longer have to rely on its limited capacity to reprocess spent reactor fuel to extract plutonium made from its own uranium to use to make fuel for reactors to generate electricity.  It would be able to use its existing reprocessing capacity exclusively for making plutonium for nuclear weapons. 

3. Would the Bush-Singh agreement permit nuclear weapon testing by India if uranium or other nuclear assistance is provided to India by the United States?

The Bush-Singh agreement does not explicitly prohibit nuclear-weapon testing by India. Nor does it ask India to observe the Comprehensive Test Ban Treaty (CTBT) which the United States has signed but not ratified – and India has refused to sign.[ix]   However, under Section 129 of the U.S. Atomic Energy Act, after the Bush-Singh agreement goes into effect, if India is “found by the  President to have…detonated a nuclear device…,” then “no [further] nuclear materials and equipment may be exported” to India.[x]   At the same time, Section 104(a) of the Hyde Act provides the president with authority to exempt the Bush-Singh agreement from this section of the Atomic Energy Act.[xi]  Thus, President Bush or a future president could permit India to test nuclear weapons, i.e. could relieve India from the provision of the U.S. Atomic Energy Act that would otherwise require the U.S. government, if India tested, to cut off the supply of U.S. uranium and reactors to India. 

In mid-August 2007, after the Bush-Singh agreement was announced, Prime Minister Singh told the Indian Parliament that the Bush-Singh agreement would not curb India’s “sovereign right to test.”  On the other hand, a State Department spokesperson said the agreement contained provisions for “full termination” of all nuclear cooperation with India and return of items such as reprocessed spent fuel if India tested nuclear weapons.  There was heated debate in the Indian parliament over this issue, but little was reported about it in the United States.[xii]  The Bush-Singh agreement has no language specifically referring to the consequences of testing by either India or the United States.  Perhaps that is because the U.S. Atomic Energy Act provision cited in the preceding paragraph seems to give the President full power to cut off nuclear assistance to India if India tests.

Presumably President Bush would instead exercise whatever power he has to exempt the agreement from a Congressional ban on Indian testing if he had the opportunity to do so – if Congress approved the Bush-Singh agreement before Bush’s term in office ends in January of 2009.  Under the Hyde Act, the Bush-Singh agreement will not come back to Congress for formal approval until it has been approved by both the international Nuclear Suppliers’ Group (NSG) and the International Atomic Energy Agency (IAEA).  When that will likely occur is not yet clear.

The Hyde Act’s broad authority seems to authorize a U.S. president to continue U.S. assistance to India pursuant to the Bush-Singh agreement even if India conducts nuclear weapon tests.  Unlike typical U.S. nuclear cooperation agreements with non-nuclear-weapon countries, the Bush-Singh agreement does not mention any U.S. “right of return” of U.S.-provided uranium or reactors in the event that India, conducts a nuclear test.  Instead, the agreement commits the United States to “support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors,” i.e. those reactors imported from the United States.[xiii]   Indeed, the Hyde Act authorizes the President to waive the U.S.-statute-required “right of return” of U.S.-provided uranium and nuclear equipment if India tests.

The “right of return” is usually a standard U.S. requirement in U.S. nuclear cooperation agreements with non-nuclear-weapon countries.[xiv]   If the Bush-Singh agreement goes into effect before President Bush’s term in office expires, he could waive this statutory requirement.  What a subsequent president would do is impossible to foresee.  The testing issue is not further discussed in the Bush-Singh agreement.  However, the agreement does exclude “research on, or development of, any nuclear explosive device” from its definition of “peaceful purposes,” the purposes which the Bush-Singh agreement is supposed to serve. [xv]   Nuclear weapon testing would clearly be excluded from the NPT meaning of “peaceful purposes” – in contrast to India’s insistence that its 1974 test of a nuclear explosive device made in part with assistance from U.S.-supplied uranium provided for peaceful purposes was not the test of a weapon.  Indeed, the Bush-Singh agreement explicitly provides that “nuclear material… transferred pursuant to this Agreement….shall not be used by the recipient Party for any nuclear explosive device…”[xvi]

Perhaps to guard against the effects of a possible cut-off of U.S. nuclear-assistance in a future administration if, for example, India tested nuclear weapons, the 2007 Bush-Singh agreement would authorize the U.S. Government to assist Indian efforts to build  a strategic reserve of nuclear fuel for peaceful purposes.  Thus, the Bush-Singh agreement has the effect of authorizing a U.S. president to help India acquire more nuclear materials that could be used for making nuclear weapons – perhaps thereby getting around the restrictions on uranium supply for weapons that Congress intended to impose.  This would violate a purpose of the Hyde Act and the NPT.

4. Would the Hyde Act permit the United States to transfer to India the technologies for uranium enrichment or spent fuel reprocessing?

In the past, these technologies have not been transferred by the United States to any country except to a few close allies that already had advanced nuclear experience, for example, NATO members that were also members of Euratom, a West European, electric-power generating nuclear energy enterprise to which several West European NATO members belong.  The Bush-Singh agreement would not explicitly authorize such a transfer now to India.[xvii]   But it authorizes a later agreement that would permit the United States to transfer to India “sensitive nuclear technology” and “sensitive nuclear facilities” or “major components” of such facilities. [xviii]   Whether such a later agreement would have to be approved by Congress or not, is not stated clearly in the Bush-Singh agreement or the Hyde Act.  However, the Bush-Singh agreement says that future transfer of “dual-use items” that could be used for uranium enrichment or spent fuel reprocessing “will be subject to the Parties respective applicable laws, regulations and license policies.”[xix]  This issue seemed thus left in large part for future resolution by Congress, no earlier than 2008 – when an American presidential election process should be in full swing.

The Hyde Act authorization for the Bush-Singh negotiations seems to continue a U.S. policy against helping India to reprocess spent fuel to extract the plutonium for either peaceful or weapons uses.  The Hyde Act calls upon U.S. officials to work with members of the NSG “to further restrict the transfers of [enrichment and reprocessing] technologies” to other countries “including India.” [xx]  It states the following U.S. policy for South Asia:  “Achieve, at the earliest possible date, the conclusion of a treaty banning the production of fissile material for nuclear weapons to which both the United States and India become parties…”[xxi]   It asks the President to  make a determination that India “is working with and supporting international and U.S. efforts  to prevent the spread of enrichment and reprocessing technologies to any state that does not already possess full – scale functioning enrichment or reprocessing plants.”[xxii]  The report of the Senate Foreign Relations Committee on the bill which became the Hyde Act said:  “It is necessary to ensure that no sensitive nuclear technologies related to the enrichment of uranium…[or] the reprocessing of spent fuel…are given to India.”

Despite these Congressional statements in the Hyde Act restricting the provision by the United States of uranium enrichment and spent fuel reprocessing technologies to India, the Bush-Singh agreement would authorize India to build a new facility for reprocessing spent nuclear fuel from the uranium fuel rods supplied by the United States, fuel that had been burned in Indian nuclear reactors also supplied by the United States.  In the Bush-Singh Agreement, the United States grants India “consent to reprocess…nuclear material transferred pursuant to this Agreement…”[xxiii]   In addition, India can enrich uranium provided by the United States “up to twenty per cent in the isotope 235…”[xxiv]  (Twenty percent is usually called the top percentage for peaceful, non-explosive purposes.)

When he signed the Hyde Act, President Bush issued a formal “signing statement” to make clear that he, not Congress, conducts foreign policy – and therefore has a greater say than Congress  on what U.S. policy on nuclear relations with India should be.  He added:  “Given the Constitution’s commitment to the presidency of authority to conduct the Nation’s foreign policy, the executive branch shall construe such policy statements [as by Congress in the Hyde Act] as advisory.”[xxv]  Thus, despite the statements of policy in the Hyde Act, the Bush-Singh agreement would, in President Bush’s view, enable India to reprocess U.S.-origin nuclear fuel burned in U.S.-provided Indian reactors to extract the plutonium made during the burning of the fuel.  While the policy enunciated by Congress in the Hyde Act seems to authorize the President to go in one direction in dealing with nuclear assistance to India, President Bush has clearly asserted power to go in another.  Does he have such power?  That is clearly debatable.

Conclusion

What will happen next in this Bush-Singh nuclear arrangement remains to be seen.  Negotiations between India and the IAEA for an IAEA safeguards inspection agreement for the new American-supplied reactors have begun.  If India and the IAEA agree, this agreement must then come back to the Indian Parliament for consideration to implement a deal made between the Singh administration coalition and the Communist led-minority in the Indian Parliament.  December 2007 debates in the Indian Parliament suggest that the opponents may now have a majority.   

The Nuclear Suppliers’ Group must also approve the Bush-Singh agreement before it is returned to the U.S. Congress for final approval.  The U.S. election of November 2006 changed which party controls Congress, and it remains to be seen whether the new Congress will approve what has been negotiated by the Bush Administration after the earlier Congress authorized the negotiations.  The atmosphere in Congress in 2008, with a Democratic majority in Congress in an election year, will likely be different from that in 2006 when a Republican Congressional majority to a considerable extent followed President Bush’s lead.

                                                                                    George Bunn

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