Statement of Daryl G. Kimball, Arms Control Association Executive Director, on the U.S.-Indian Agreement for Nuclear Cooperation

October 1, 2008

After a difficult three-year long process, the Senate this evening joined the House of Representatives in approving an unprecedented and imprudent nuclear cooperation agreement between the United States and India. The vote was 86-13.

Earlier today, the Senate engaged in a brief but useful floor debate on the resolution of approval for the U.S.-Indian Agreement for Nuclear Cooperation and a common sense amendment offered Sens. Byron Dorgan (D-N.D.) and Jeff Bingaman (D-N.M.) that would have:

1) clarified that in the event that India resumes nuclear testing, it is the policy of the United States to terminate nuclear trade with India; and
2) required the President to review and implement applicable export control authorities for U.S. nuclear exports to other nuclear supplier nations that continue nuclear trade with India.

Although the Senate rejected the Dorgan-Bingaman amendment and approved the flawed agreement, the debate -- and the remarks of bill managers Sen. Christopher Dodd (D-Conn.)  and Richard Lugar (R-Ind.) in particular -- effectively made the point the amendment sought to clarify: that there should be and will be consequences if India makes the mistake of resuming nuclear testing.

Dodd's and Lugar's main point of contention with the Dorgan-Bingaman amendment was that is was unecessary because the record and relevant U.S. laws require as much. Dodd and Lugar cited statements by the Secretary of State, section of the Henry Hyde Act, and State Department responses to questions for the record that strongly suggest that practical effect of applicable U.S. laws relating to nuclear trade with India -- and the intention of Congress -- is that the United States would terminate nuclear trade with India if it resumes nuclear testing for any reason and to seek the suspension of nuclear trade with India by any other supplier state. As Sen. Lugar stated it: "if India resumes testing, the 123 agreement is over."

The U.S.-Indian Agreement for Nuclear Cooperation is, nonetheless, a nonproliferation disaster. Contrary to the counterfactual claims of proponents and apologists, it does not bring India into the “nonproliferation mainstream” and India’s so-called separation plan is not credible from a nonproliferation perspective:

-    U.S. and foreign nuclear fuel supplies to India’s civil nuclear sector would free up scarce domestic supplies for exclusive use for weapons production. This could allow India to increase its bomb production rate and accelerate Pakistan’s bomb  production;
-    The agreement fails to prohibit India from extracting tritium (a radioactive gas used to boost the explosive power of nuclear bombs) for weapons from its “safeguarded” power reactors;
-    As reported in the Sept. 18 edition of The Washington Post, India’s nuclear technology procurement practices do not conform with those of responsible nuclear suppliers and they risk the leakage of sensitive information;
-     India's civil-military separation plan would allow the free flow of personnel and information between safeguarded and unsafeguarded faciliites;
-    Unlike the United States and other nuclear weapon-states, India has refused to sign the CTBT and halt the production of nuclear bomb material. The opposition BJP may not respect the current Indian government’s nuclear test moratorium pledge.

The proposed resolution of approval does not address these and other nonproliferation flaws in the agreement and it fails to resolve the inconsistencies between the U.S.-Indian 123 agreement and the 2006 Henry Hyde Act, which gives the President limited and conditional authority to engage in nuclear trade with India, which is only one of three countries never to have signed the nuclear Nonproliferation Treaty (NPT).

Although U.S. laws severely restrict the transfer of enrichment or reprocessing technologies to Indian national facilities and would likely lead to a cut off of U.S. nuclear trade if India resumes nuclear testing, the Bush administration opposed efforts earlier this month to ensure other participating governments in the Nuclear Suppliers Group (NSG) follow the same standards and the resolution of approval fails fix this mistake.

In exchange for quick House approval of the India agreement, however, Secretary of State Condoleezza Rice acknowledged the NSG loophole in a personal commitment to Howard Berman (D-Calif.), chair of the House Committee on Foreign Affairs.  Rice promised that the United States will make its “highest priority” to achieve a decision at the next NSG meeting to prohibit the export of enrichment and reprocessing equipment and technology to states that are not party to the NPT.

NSG discussions on the matter predate the proposal for opening nuclear trade with India and are ripe for a decision. The United States and all but one or two states support a new NSG guideline that would bar enrichment and reprocessing technologies to states that:

·   have not signed the NPT;
·   have not agreed to an additional protocol to their International Atomic Energy Agency safeguards agreement;
·   are not in compliance with their NPT or safeguards obligations; or
·   are located in regions in which such transfers might promote proliferation or  undermine security.

The Bush administration must now follow through and rally NSG support for tougher NSG guidelines that would plug one of the gaping holes in the September NSG waiver for India.