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– Hans Blix,
former IAEA Director-General

NSG, Congress Approve Nuclear Trade with India
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Wade Boese

The Bush administration succeeded Sept. 6 in its three-year campaign to secure a waiver for India from long-standing international nuclear trade restrictions. Three days of U.S. prodding and an Indian reiteration of its current nuclear testing moratorium pledge helped the United States overcome the last resistance of some nuclear suppliers to the sweeping policy reversal. With international trade restrictions on India removed, the U.S. Congress heeded Bush administration exhortations to bypass existing U.S. law to approve a bilateral U.S.-Indian nuclear cooperation agreement on an expedited basis.

Indian Prime Minister Manmohan Singh, who agreed in July 2005 to the joint venture with the United States and risked his coalition government’s survival on the deal, hailed the decision by the 45-member Nuclear Suppliers Group (NSG). In a Sept. 6 statement, Singh said the move “marks the end of India’s decades-long isolation from the nuclear mainstream and of the technology denial regime.”

The United States and some other countries curtailed nuclear exports to India after it conducted a 1974 nuclear explosion that broke Indian commitments to Canada and the United States to use their trade for peaceful purposes only. India’s isolation grew when the NSG, founded in response to the Indian test, adopted a 1992 rule that required non-nuclear-weapon states as defined by the 1968 nuclear Nonproliferation Treaty (NPT) to permit international oversight of their full nuclear complex to be eligible for most nuclear trade. Although nuclear armed and not a signatory to the treaty, India is classified by the accord as a non-nuclear-weapon state because it did not explode a nuclear device before Jan. 1, 1967. India has not opened up its entire nuclear enterprise to outside inspection, so the 1992 rule effectively has barred India from global nuclear commerce. It was that rule that the NSG members recently agreed in Vienna to waive for India.

Secretary of State Condoleezza Rice, who feverishly lobbied foreign officials by phone during the NSG deliberations, told reporters Sept. 6 that the waiver was a “very big step forward for the nonproliferation framework.”

But some representatives of other NSG members did not share Rice’s enthusiasm. After the NSG conclave, according to a Sept. 6 Reuter’s report, one diplomat remarked, “NPT RIP?” Another diplomat told the same reporter that the final decision met with “complete silence…no clapping, nothing.” The diplomat said the quiet reception reflected that “a lot of us felt pressured to some extent into a decision by the Americans, and few [NSG members] were totally satisfied.”

Heading into the meeting, originally scheduled for two days but extended to a third, many states objected to the initial U.S.-proposed waiver. Austria, Ireland, the Netherlands, New Zealand, Norway, and Switzerland led calls for augmenting the draft to terminate nuclear trade if India conducts new nuclear tests as well as to prohibit certain transfers, such as uranium-enrichment and spent fuel reprocessing technologies that can be used to produce material for nuclear bombs in addition to fuel for nuclear reactors. India strenuously opposed such measures and demanded a “clean” exemption.

Austria, Ireland, and New Zealand apparently resisted U.S. pressure the longest but eventually acquiesced to adopting the waiver after some slight modifications and a Sept. 5 statement by Pranab Mukherjee, India’s external affairs minister. Mukherjee reiterated previous Indian positions to adhere to a unilateral nuclear testing moratorium and negotiate an additional protocol with the International Atomic Energy Agency (IAEA). Such measures grant the IAEA greater authority to investigate a country’s nuclear activities to ensure that materials and facilities for peaceful purposes are not used surreptitiously to make nuclear arms. In India’s case, such an instrument would be largely symbolic because India will continue to operate a nuclear weapons production sector outside of IAEA safeguards.

The text of the approved waiver states that it is “based on the commitments and actions” described by Mukherjee. Several states assert this reference indicates that the group will end nuclear trade with India if it does not honor the Mukherjee statement, particularly if it conducts a nuclear test. In a Sept. 6 statement, New Zealand declared, “It is our expectation that in the event of a nuclear test by India, this exemption will become null and void.” Other states, including Japan and Ireland, offered similar statements.

Still, the waiver does not contain any explicit provisions that trade will be terminated automatically. It mandates that the group will meet if a member considers that “circumstances have arisen which require consultations.” Because the NSG operates by consensus, a single state could block the group from cutting off trade with India for any alleged transgression.

Unless the president intervenes, U.S. law mandates that U.S. trade with India cease in the event of a nuclear test. The Bush administration also told lawmakers that pledged U.S. nuclear fuel supply assurances to India “are not, however, meant to insulate India against the consequences of a nuclear explosive test or a violation of nonproliferation commitments.”

The Bush administration delivered that statement in January to the House Committee on Foreign Affairs as part of a series of responses to October 2007 questions posed by the panel. The administration asked the committee to closely hold the answers, but the panel’s chairman, Rep. Howard Berman (D-Calif.), ordered their release Sept. 2. Publication of the answers touched off a fresh round of incriminations by Singh’s domestic opponents, who charged his government had falsely conveyed that the fuel assurances would help India maintain foreign nuclear supplies even if it tested again.

Although President George W. Bush and Singh committed to pursuing “full civil nuclear energy cooperation,” the NSG waiver cites existing group guidelines that members “should exercise restraint” in enrichment and reprocessing exports. Moreover, NSG members are negotiating criteria to limit all future enrichment and reprocessing transfers; and one of the draft criteria requires recipients to be NPT states-parties, which would disqualify India. (See ACT, June 2008.) Expectations that such a criterion eventually will be adopted helped the United States dissuade other countries from insisting that a specific enrichment and reprocessing transfer ban be included as part of the India waiver. In its Sept. 6 statement, Ireland asserted its understanding, based on consultations with other governments, that “no [participating NSG member] currently intends to transfer to India any facilities, equipment, materials or technology related to the enrichment of uranium, or the reprocessing of spent fuel.”

The waiver commits each NSG member to regularly inform the group of certain “approved transfers” to India and invites each country to share information on their bilateral nuclear cooperation agreements with India. France and Russia have negotiated preliminary agreements with India and are expected to formally sign them within weeks. Singh said in a Sept. 22 statement that he was “confident” that a trip to France before the end of the month would lead to “further consolidation” of Indian-French civil nuclear cooperation.

Transfers of nuclear materials or technologies to India by France, Russia, or others, however, cannot legally occur until India brings into force its IAEA safeguards agreement that was approved Aug. 1 by that agency’s 35-member Board of Governors. (See ACT, September 2008.) India has informally stated which facilities it intends to put under safeguards but is not obligated to follow that plan.

In the wake of the NSG move, the Bush administration urged Congress to rapidly approve a July 2007 U.S.-Indian nuclear cooperation agreement (see ACT, September 2007) so U.S. companies can take advantage of the rule change and compete for future nuclear deals with India. Bush submitted the bilateral agreement Sept. 10 to lawmakers and certified that India had filed a safeguards declaration with the IAEA. But Melissa Fleming, an agency spokesperson, e-mailed Arms Control Today Sept. 18 that India had “not yet” done so. The congressional resolution of approval sidestepped the issue by requiring that the list of facilities placed under safeguards not be “materially inconsistent” with the list of facilities described in a plan presented by the Indian government to its parliament in May 2006.

Passed by legislators and signed into law in December 2006, the Henry J. Hyde Act requires that Congress wait 30 continuous days before voting on the U.S.-Indian cooperation agreement. Yet, key lawmakers agreed to expedite the process. The Senate Foreign Relations Committee held one hearing on Sept. 18 and on Sept. 23 passed 19-2 a resolution of approval. The committee rejected by a margin of 15-4 a proposed amendment from Sen. Russell Feingold (D-Wis.) that would have made the agreement’s implementation contingent on the NSG amending its guidelines to ban enrichment and reprocessing exports to states outside the NPT.

Shortly thereafter, House Committee on Foreign Affairs Committee Chairman Howard Berman (D-Calif.) agreed to introduce a resolution identical to the Senate version and allow quick House approval of the India agreement, in exchange for a commitment from Secretary of State Condoleezza Rice that the United States will make its “highest priority” winning an NSG commitment at a November meeting to prohibit the export of enrichment and reprocessing equipment and technology to states that are not party to the NPT.

After nearly an hour of debate, on Sept. 27 the House approved the agreement 298-117. For a few days, some senators blocked similar action in the Senate , but finally relented after Democratic Leader Harry Reid (Nev.) threatened to reconvene the Senate for a vote on the matter later in the month. On Oct. 1 the Senate approved the agreement 86-13 after voting down by voice vote a proposed amendment by Sens. Byron Dorgan (D-N.D.) and Jeff Bingaman (D-N.M.) that sought to clarify that it is the policy of the United States to terminate nuclear trade with India if it resumes testing. Citing various Bush administration statements and the Hyde Act, the bill managers argued the amendment was unnecessary. As Sen. Richard Lugar (R-Ind.) put it: “if India resumes testing, the 123 agreement is over.” The vote opens the way for Bush to sign the bill and for the United States and India to finalize the nuclear cooperation agreement.