"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."

– Joseph Biden, Jr.
January 28, 2004
U.S.-Indian Deal Clears Congressional Hurdles

Wade Boese

Key lawmakers gave their initial blessing at the end of June to a Bush administration initiative to expand civilian nuclear commerce with India, but reserved final judgment pending completion of detailed terms governing such trade. U.S. and Indian negotiators recently held their first round of negotiations toward this end, while New Delhi has yet to begin talks on granting international inspectors greater access to its civilian nuclear sector.

President George W. Bush and Indian Prime Minister Manmohan Singh pledged in July 2005 to overhaul three decades of acrimonious U.S.-Indian nuclear relations, which stem in large part from India’s 1974 nuclear test that made use of U.S. and Canadian imports intended for peaceful purposes. Bush committed to changing U.S. law and international rules restricting full civilian nuclear trade with India, while Singh vowed to make India’s nuclear establishment more open. (See ACT, September 2005.)

Nearly a year later, neither side has fulfilled its pledges despite the Bush administration’s early hopes that the entire process would move quickly. Winning twin votes in the House International Relations and Senate Foreign Relations Committees giving the president authority to waive certain aspects of U.S. law to pursue nuclear trade with India marked the first concrete White House step to hold up its end of the bargain. The June 27 House vote was 37-5, while the June 29 Senate vote was 16-2.

The bills approved by the committees, however, were not exactly what the administration wanted.

The White House originally asked lawmakers to back legislation that would have made it easier for a detailed U.S.-Indian bilateral nuclear cooperation agreement to sail through Congress once it is negotiated. (See ACT, April 2006.) Such agreements are required by the Atomic Energy Act of 1954, which also establishes specific standards of behavior for U.S. nuclear trade partners. Instead of requiring a majority of both congressional chambers to approve a bilateral cooperation agreement for it to take effect, the administration advocated a process by which the agreement would essentially enter into force unless two-thirds of both chambers voted against it.

The House and Senate committees rejected the administration’s approach. Rep. Henry Hyde (R-Ill.), chairman of the House panel, derided the administration-backed legislation June 27 as “profoundly unsatisfactory” because it had asked Congress “to remove itself” from having a final say on the future bilateral cooperation agreement. The chairman of the Senate panel, Richard Lugar (R-Ind.), said June 29 that requiring the agreement to receive a “positive vote…fully protects Congress’ role in the process.”

Hyde warned the administration against assuming that the agreement’s future passage is assured. He recommended U.S. negotiators “pay close attention to Congressional concerns” when working out the details of the agreement with their Indian counterparts.

Nonetheless, the process endorsed by the House panel mandates that any House floor debate on the agreement will be limited to six hours and lawmakers will not be permitted to offer amendments. The Senate bill does not contain similar procedures.

The full Senate and House still need to approve their respective versions of the legislation passed by the committees and then reconcile their differences before a measure can be sent to the president to sign into law.

The chief concern of lawmakers that emerged during the committee’s deliberations was preventing India’s use of any U.S. nuclear exports to help produce more nuclear weapons. The House and Senate panels adopted provisions explicitly stating that U.S. nuclear trade should not directly or indirectly assist India’s strategic program. But the Senate panel defeated a proposal by Sen. Russ Feingold (D-Wis.) that would have required the president to certify that U.S. nuclear trade was not contributing to India’s military nuclear activities. The 1968 nuclear Nonproliferation Treaty (NPT) prohibits the United States from aiding other countries’ nuclear weapons programs.

The Senate panel barred, except for a few specific scenarios, the export of any uranium enrichment, plutonium reprocessing, or heavy water production technologies to India. These technologies have direct applications to building nuclear bombs.

Some legislators sought and failed to condition U.S. nuclear exports on New Delhi ending or capping its production of fissile material, highly enriched uranium and plutonium, for nuclear weapons. California Democratic Representatives Howard Berman and Brad Sherman contended that without such a move U.S. nuclear trade could aid or contribute to a growth in India’s nuclear arms stockpile. House International Relations Committee ranking member Tom Lantos (D-Calif.) argued that an Indian fissile material production halt would be “desirable” but Congress could not demand it because it would be a “quintessential deal breaker.”

Both committees, however, passed language that could upset New Delhi. In particular, the committees adopted language to prohibit Washington from working with other capitals to supply India with nuclear transfers in the event that U.S.-Indian cooperation is terminated. The Singh government had been trumpeting the fact that a March U.S.-Indian agreement commits the United States to develop measures and join with other countries to ensure that India’s nuclear fuel supply will never be disrupted.

If India were to walk away from the deal, not all members of Congress would shed tears. Rep. Jim Leach (R-Iowa) said the U.S.-Indian deal amounted to a knife in the NPT, which he described as “the most serious arms control treaty perhaps ever negotiated.” The treaty codifies the right of civilian nuclear trade for countries forswearing nuclear weapons. Nuclear-armed India, Israel, and Pakistan never joined the accord.

Most of Leach’s fellow House panel members welcomed the prospect of engaging in nuclear trade with India. Yet, the House and Senate legislation both say that the 44 other countries in the voluntary Nuclear Suppliers Group must first also agree “by consensus” to full civilian nuclear commerce with India. The measures also conditioned approval on congressional satisfaction with the contents of the future bilateral cooperation agreement and the outcome of New Delhi’s effort to grant international inspectors greater ability to oversee and inspect India’s civilian nuclear apparatus.

Status of Negotiations

U.S. and Indian officials conducted their first round of negotiations on a bilateral cooperation agreement June 12-14 in New Delhi. The two sides have been tightlipped about the talks. One U.S. official told Arms Control Today June 23 that there had been “progress” but that both negotiating teams had issues and questions to take back to their capitals.

India reportedly had several concerns about a March U.S. draft of the agreement and submitted a version of its own to the United States in May. The substantive differences between the two drafts have largely remained secret, but India has publicly objected to a U.S. proposal to include a provision terminating the agreement if India conducts a nuclear test.

The next round of negotiations has yet to be scheduled. The U.S. official said that the two sides are “trying to go at the fastest pace possible.”

Meanwhile, it is unclear when New Delhi will begin negotiations with the International Atomic Energy Agency (IAEA) on what safeguards will be applied to India’s civilian nuclear sector. The IAEA administers safeguards to deter and detect the misuse of civilian nuclear materials and technologies for military purposes.

In a March 2 agreement with Bush, Singh said India would submit 14 out of 22 current and planned thermal nuclear power reactors to “India-specific” IAEA safeguards by 2014. Six of the 14 already have safeguards or were previously slated for them. (See ACT, April 2006.)

Still, India has not defined what it means by India-specific. The IAEA only has one type of safeguards, known as INFCIRC/66, for countries outside the NPT. Any different formulation would need to be approved by the IAEA Board of Governors.