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Obstacles Remain for U.S.-Indian Deal
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Wade Boese

The House in July gave its preliminary stamp of approval to the United States forging a broader civil nuclear trade relationship with India, but the arrangement remains far from finished. India is upset about measures that U.S. lawmakers have attached to the deal, and U.S. and Indian negotiators are at a standoff on some key aspects.

On July 26, the House passed, by a vote of 359-68, legislation setting conditions for the future consideration and approval of a U.S.-Indian civilian nuclear cooperation agreement, which is still being negotiated. The Senate is expected to act on similar legislation in September, and then the two chambers must merge their separate bills.

New Delhi is unhappy with the contents of both the House bill and one passed in June by the Senate Foreign Relations Committee. “It is clear that if the final product is in its current form, India will have grave difficulties in accepting the bills,” Indian Prime Minister Manmohan Singh told Indian legislators Aug. 17. The Bush administration is pressing Congress to modify some of its legislative provisions that India finds nettlesome.

The overarching problem with the bills, Singh and some Indian lawmakers and scientists insist, is that their contents depart from the outlines of the deal agreed to by President George W. Bush in July 2005 and March 2006. (See ACT, September 2005; ACT, April 2006.) They charge that the U.S. side is backsliding on its commitment to “full” civil nuclear trade and impinging on India’s nuclear weapons program and national sovereignty.

In exchange for Bush’s commitment to clear U.S. and international restrictions on nuclear trade with India, New Delhi pledged to separate its nuclear enterprise into civilian and military sectors. Under a March split announced by the Singh government, 14 currently operating and planned thermal nuclear reactors were designated civilian, thereby subject to international oversight and eligible for foreign nuclear imports. Eight thermal reactors, two breeder reactors, and three research reactors were put out of bounds to outside inspection and trade.

Honing the Deal

The administration is backing India’s opposition to a Senate Foreign Relations Committee provision that would prohibit exports of uranium-enrichment, plutonium reprocessing, and heavy-water technologies to India unless destined for facilities involved in approved bilateral or multilateral projects. These technologies can be used in civil nuclear programs, but they have direct applications to making nuclear weapons. India contends that full cooperation includes these technologies. Although U.S. policy is to deny such transfers to any country and administration officials have told Congress such items will not be exported to India, New Delhi is protesting the possibility of a statutory prohibition.

At an Aug. 2 Senate Foreign Relations Committee hearing, National Security Council official John Rood, who has been nominated to serve as assistant secretary of state for international security and nonproliferation, testified that “we would prefer to maintain this practice as a matter of policy as opposed to a matter of law.”

The Bush administration is also objecting to a Senate provision mandating new end-use monitoring measures to ensure that U.S. nuclear exports to India are not diverted to unintended destinations or uses. Claiming that the administration would prefer to rely on existing mechanisms instead of instituting special ones for India, Rood argued that India “sees the creation of the end-use verification procedures as implying a lack of trust.”

Some in Congress say that is exactly the point. “ India is no stranger to violating international nuclear commitments,” Rep. Cliff Stearns (R-Fla.) argued July 26. In 1974, India conducted its first nuclear test with the help of Canadian and U.S. nuclear imports designated for peaceful purposes.

Singh criticized any measures to assess or judge Indian nuclear behavior. “We oppose any legislative provisions that mandate scrutiny of either our nuclear weapons program or our unsafeguarded nuclear facilities,” the prime minister stated.

In its bill, the House included an annual reporting requirement proposed by Rep. Jeff Fortenberry (R-Neb.) intended to gauge whether India increases its production of fissile materials, highly enriched uranium and plutonium, for military purposes. Many lawmakers have expressed concern that Indian imports of foreign nuclear fuel could free up the limited Indian uranium stockpile to produce more nuclear weapons.

The United States is legally bound by the 1968 nuclear Nonproliferation Treaty “not in any way to assist” a nuclear weapons program of a non-nuclear-weapon state, which India is considered to be under the treaty. To remove ambiguity about whether U.S. nuclear imports might contribute to India’s weapons program, some House members supported conditioning future trade on India capping or ending its fissile material production for weapons. By votes of 268-155 and 241-184, the House defeated amendments with this purpose July 26.

Still, lawmakers collectively argued that India should not increase its fissile material production for weapons after initiation of U.S.-Indian civil nuclear trade. The Senate Foreign Relations Committee in a July 20 report stated it hoped India would not “significantly” increase fissile material production because “then the committee might well question whether civil nuclear commerce with India had become inimical to regional security and U.S. national security.”

Several legislators assert the damage is already done. “History will say that with this agreement the world lost the last bit of an international tool to control the spread of nuclear weapons,” Rep. Rush Holt (D-N.J.) declared July 26.

The two bills also mandate annual reporting on all U.S. exports to India during the previous year, as well as Indian adherence to or progress toward several nonproliferation agreements and practices. Singh said these reporting requirements were “not acceptable” because the “effect of such certification will be to diminish a permanent waiver authority into an annual one.”

If the United States ceased cooperation with India because of any violation of the agreement on New Delhi’s part, the House bill obliges Washington to try and prevent other foreign suppliers from filling the void. Similarly, the July 20 Senate Foreign Relations Committee report stated, “The committee is particularly concerned that the United States not facilitate or encourage the continuation of nuclear exports to India if U.S. exports were to be terminated.” Singh, however, made repeated references in his parliamentary address to the U.S. commitment in a March 2006 joint statement to ensure India with an uninterrupted supply of nuclear fuel and to join with India and other countries to restore fuel supplies if a disruption ever occurred.

Both congressional bills aim to keep the United States and other nuclear suppliers in sync on nuclear exports to India. They would tie the commencement of expanded U.S. nuclear exports to India to the voluntary Nuclear Suppliers Group first reaching consensus on exempting New Delhi from existing trade restrictions. France, Russia, and the United Kingdom back the U.S.-India initiative, but other members of the 45-nation regime remain undecided or critical of the deal. (See ACT, July/August 2006.)

U.S. and IAEA Negotiations With India

A key sticking point in U.S.-Indian negotiations on the cooperation agreement pertains to the conditions triggering its termination. Washington is seeking inclusion of a clause specifying that if India conducts a nuclear test, the agreement would be abrogated.

Singh said such a provision is “not acceptable.” Indeed, nuclear testing is a hot-button issue across the Indian political spectrum. Murli Manohar Joshi of the opposition Bharatiya Janata Party said June 29 that his party’s view is that the no-testing commitment renders India’s nuclear arsenal “frozen permanently at a very low level of technology and at permanent parity with Pakistan.”

The testing issue is one of about a half-dozen that need to be worked out by U.S. and Indian negotiators. The two sides met for the first time in June and are expected to meet again in September to discuss a revised draft of the cooperation agreement the United States provided Aug. 8 to India.

Negotiators have agreed to resolve separately the process by which India might be permitted to reprocess U.S.-origin material. India had wanted the agreement to include pre-approval for such reprocessing, a benefit that the United States has only extended to Japan and the European consortium EURATOM. But the U.S. delegation said that these were special cases and would not be replicated.

Estimates of when the negotiations may conclude vary greatly, but the agreement cannot be finalized until after India completes safeguards negotiations with the International Atomic Energy Agency (IAEA). The U.S.-Indian agreement must contain a reference to the date and signature of the Indian-IAEA arrangement, which would specify measures for detecting any diversion of technologies or materials from India’s civil nuclear sector to its military program.

An IAEA delegation visited India July 7-8 to discuss technical safeguard issues, but actual negotiations between India and the agency have yet to commence. IAEA spokesperson Marc Vidricaire described the July visit to Arms Control Today Aug. 22 as a “very preliminary meeting.” He further noted that India has not yet approached the agency about beginning actual negotiations and no additional meetings have been scheduled.

Currently, India can only subscribe to one type of safeguards, INFCIRC/66. India says it wants “India-specific” safeguards but has not publicly explained what that term means. If the agency and New Delhi reach agreement on a novel set of safeguards, they would need to be approved by the IAEA’s Board of Governors.

The duration of the safeguards is a matter of disagreement. India agreed to accept safeguards in perpetuity, but Singh said the offer of “safeguards in perpetuity is conditional upon these facilities securing fuel from international sources for their lifetime.”

U.S. lawmakers have expressed concern about this interpretation. The Senate Foreign Relations Committee stated that Indian government statements suggesting it would take “corrective measures” in case foreign nuclear fuel supplies are halted is “troublesome because it suggests a more voluntary approach to safeguarding India’s reactors than has been asserted.”

National Sovereignty

Singh has come under fire domestically from rival politicians and the nuclear complex for allegedly compromising Indian autonomy in pursuing the civil nuclear cooperation deal. He has recoiled at the charge, contending that negotiations on the deal “have not led to any change in the basic orientation of our policies or affected our independent judgment.”

This independence has been disconcerting to members of Congress concerned about India’s export behavior and its relationship with Iran. Although short of the required majority, 192 representatives supported an amendment July 26 to add a condition to the House bill requiring the president to make a determination that India is “fully and actively participating” in efforts to deny Iran a nuclear weapons capability.

On Aug. 4, the Bush administration publicly announced sanctions on two Indian entities for transferring chemicals to Iran. The sanctions determination had been made July 25, a day before the House passed its India bill.

In an Aug. 4 statement, Rep. Edward Markey (D-Mass.), who sponsored the failed Iran amendment, said he was “appalled that the Bush administration…withheld this information from Congress” until after the vote. Department of State spokesperson Sean McCormack defended the administration Aug. 7, claiming, “I’m not aware of any attempt to deliberately withhold information from Congress.”

For its part, India contended the sanctions were unwarranted. A Ministry of External Affairs spokesperson asserted Aug. 7 the transfers were “not in violation of our regulations or our international obligations.”

Meanwhile, Singh’s government also conducted India’s first flight test July 9 of the Agni-3 ballistic missile, which has an estimated range of 3,000-5,000 kilometers. Although the test failed because the two-stage nuclear-capable missile did not separate properly, many interpreted the test as a show of independence because significant speculation existed that India had been postponing the experiment to avoid upsetting Washington.

Chairman of the Joint Chiefs of Staff General Peter Pace had played down the notion June 5 that the United States was pressuring India not to test. “ India will decide what India wants to do about testing missiles,” Pace told reporters in New Delhi.

Afterward, White House Press Secretary Tony Snow refuted any comparison between the Indian test and those conducted by North Korea several days earlier. Snow said July 10 that India’s launch was carried out in a “transparent and nonthreatening way” and was not a “provocation.”