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June 2, 2022
Congress Exempts India From Nuclear Trade Rules
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Wade Boese

President George W. Bush Dec. 18 signed into law legislation making India eligible for broad U.S. civil nuclear exports for the first time in roughly three decades. But commencement of such trade still hinges on a series of negotiations that India’s leader warned would be “difficult.”

At a White House signing ceremony, Bush hailed the act as “one of the most important steps” toward reviving U.S.-Indian nuclear cooperation. U.S. nuclear trade with India essentially ceased after New Delhi’s 1974 test of a nuclear device derived partially from Canadian and U.S. technologies transferred for peaceful purposes.

The measure signed by Bush was a merger and revision of two separate bills passed earlier in 2006 by lawmakers. (See ACT, September 2006 and December 2006.) Senators unanimously approved the compromise legislation a day after the House adopted it Dec. 8 by a 330-59 vote.

The act sets conditions for U.S. nuclear exports to nuclear-armed India. It also includes implementing legislation that clears the way for the United States to complete ratification and bring into force an additional protocol to its safeguards agreement with the International Atomic Energy Agency (IAEA). Such measures grant the agency greater authority to gather information inside a country on possible illicit nuclear weapons activities. In the case of the nuclear-armed United States, however, the instrument is mostly symbolic.

A concerted Bush administration campaign to persuade lawmakers to eliminate or dilute provisions from the House- or Senate-passed bills that upset the Indian government had mixed results.

Legislators maintained provisions that limit exports of enrichment, reprocessing, and heavy-water technologies to India to special cases. Such exports can be used to make bombs as well as energy, and U.S. policy is to deny their transfer. New Delhi had complained that this restriction singles out and slights India.

U.S. lawmakers also retained provisions for verifying that U.S. exports to India are not diverted to unintended destinations or purposes. India previously criticized the measures as distrustful. In a report accompanying the act, lawmakers argued the requirements “do not intend to impose a more intrusive regime than arrangements” for other U.S. nuclear pacts with foreign countries.

But Congress bowed to some pressure. A clause in the House bill that would have terminated trade if an Indian entity exported items contravening the export control guidelines of the Nuclear Suppliers Group (NSG) or the Missile Technology Control Regime was modified to enable cooperation to continue if the president determines the Indian government was not involved or took corrective action. India is not a member of the two voluntary regimes, but New Delhi pledged to adhere to their export guidelines as part of the July 2005 U.S.-Indian cooperation framework agreed to by Bush and Indian Prime Minister Manmohan Singh. (See ACT, September 2005.)

In addition, Congress softened a provision requiring that the U.S. government seek to block nuclear trade by other foreign suppliers to India if Washington ceases cooperation. Instead of explicitly mandating such an action, lawmakers made it a statement of policy.

Congress similarly relaxed a requirement that India actively support U.S. and international efforts to contain Iran’s nuclear program. Senators had made such collaboration a condition for U.S.-Indian nuclear trade, but the final legislation does not. The administration, however, is supposed to report annually to Congress on India’s cooperation. The annual reports also are to include information on Indian nuclear weapons developments.

The act maintains that winning India’s help in keeping Iran’s nuclear program in check is a U.S. policy goal. But Bush noted after signing the act that all of its policy statements would be treated as “advisory.”

The original sponsor of the Iran-related condition, Sen. Tom Harkin (D-Iowa), blasted Bush’s statement as a sign of the president’s view of Congress “as a nuisance rather than an equal branch of government.” Rep. Edward Markey (D-Mass.), who opposed the deal, described Dec. 18 as a “sad day in the history of efforts to halt the spread of nuclear weapons and materials around the world.”

Bush administration officials, however, lauded the final product. Both Secretary of State Condoleezza Rice and Undersecretary of State for Political Affairs Nicholas Burns hailed the act as “historic.” Burns told White House reporters the day of the signing that the legislation represents the “symbolic centerpiece” of a new U.S. strategic relationship with India.

Indian reactions were less enthusiastic. The opposition Bharatiya Janata Party (BJP) reacted harshly, claiming in a Dec. 10 statement that the act “aims at capping, rolling back and eventually eliminating India’s nuclear weapons capability.” It urged Singh to reject the act’s “humiliating” conditions.

Singh took a more positive line Dec. 18, but vaguely stated that there were “extraneous issues” and “areas which continue to be a cause for concern.” The prime minister contended these would need to be discussed before finalization of a 123 agreement, which is the instrument that the U.S. government uses to codify foreign nuclear trade under the 1954 Atomic Energy Act. “Clearly, difficult negotiations lie ahead,” Singh said.

U.S. and Indian negotiators have met twice concerning the 123 agreement, which must be approved by Congress. Although Burns claimed that there “aren’t any major issues left to decide,” negotiators have a half-dozen unresolved matters. India’s vehement opposition to a U.S. termination clause for an Indian nuclear test is the most well-known dispute, but New Delhi is also apparently seeking a blanket right to reprocess U.S.-origin spent nuclear fuel.

Still, Burns downplayed the differences. Although acknowledging in New Delhi Dec. 8 that “there is a long process toward the finish line,” Burns also stated that “it is not going to be…as difficult as the last 18 months.” He further said the United States wanted to “accelerate” negotiations in January.

The two sides also will be busy trying to complete other steps to allow for U.S. nuclear exports to begin flowing to India.

Indian negotiators must conclude a safeguards agreement with the IAEA, including approval by the IAEA Board of Governors, to take advantage of enhanced nuclear trade under the deal. Safeguards are measures to ensure that civilian nuclear technologies and materials are not diverted to building bombs. The new U.S. law conditions congressional consideration of the future 123 agreement on India and the agency having a safeguards agreement ready for signature. The safeguards would apply to at least eight additional reactors that India has told the United States it would declare as civilian.

The act further conditions future U.S.-Indian trade on a consensus decision by the 45-member NSG to exempt New Delhi from a 1992 group rule that currently bars most nuclear trade with India because it has never joined the 1968 nuclear Nonproliferation Treaty and does not permit safeguards over its entire nuclear enterprise. Some key members, such as Russia, France, and the United Kingdom, support the U.S. initiative, but many others are undecided or opposed. The regime’s next decision-making meeting will be in April in South Africa.

Ever the optimist, Burns told reporters at the White House that he was “confident” the NSG would act favorably. All told, Burns predicted everything could be finished in as little as six months.