The Indo US Nuclear Deal: Changes Not Acceptable
The Indo-US nuclear deal was based on certain assumptions on the Indian side, which were spelt out by the Prime Minister in his statements in Parliament on July 29, 2005, February 27, 2006 and March 7, 2006. The key premises were that this deal would give “full” access to civilian nuclear technology, lift all existing sanctions on dual use technology imposed on India for not signing the NPT, and not limit India’s strategic nuclear program. In turn, India had agreed to separate its civilian nuclear facilities from its military ones and place the former under IAEA safeguards. The other provisions in the agreement were that India would maintain voluntarily its moratorium on testing nuclear weapons and work with the US for a Fissile Material Cut off Treaty. The element that was not explicit in the agreement but obviously very much a part of the overall understanding reached between Bush and Manmohan Singh was that if India valued this nuclear deal, it would fall in line with the US’s administration’s positions on various issues including contentious ones such as Iran.
The CPI(M) had made clear at that time that an attempt to bind India to the US on foreign policy would not be acceptable and had also cautioned the Government on a further shifting of the goal posts while the agreement gets converted to concrete laws and measures. An earlier phase of this shifting of goalposts occurred during the testimony of senior White House officials before Congressional committees in September and November 2005. Whereas the Prime Minister had stressed the separation process would be a purely Indian decision, both Nicholas Burns and Robert Jospeh repeatedly stressed that the separation plan had to be “credible”, “transparent” etc., implying that the U.S. would have to sign off on it. Secondly, they said India could not expect to sign the same kind of safeguards agreement that the U.S. and other “official” nuclear weapons states had done with the IAEA. Unlike the N-5, India would have to accept safeguards in perpetuity. This flew in the face of the Manmohan Singh government’s assurance that what India was accepting through the deal was exactly the same rights and obligations as the N-5, “nothing more, nothing less”.
In the final run-up to the proposed enactment of an amendment to U.S. law authorising nuclear sales to India, further attempts are being made to shift the goalposts. The two versions of the Bill as drafted by the Senate Committee on Foreign Relations and the House of Representatives Committee on International Relations that are to be reconciled with each other prior to being passed , contain provisions which are not only a clear departure from the understanding contained in the Manmohan Singh-Bush agreement of July 18, 2005 and the SseparationSeparation Plan tabled in Parliament, but also seek to permanently lock India’s foreign policy to US requirements and subject its scientific research and development capabilities to intrusive inspections by the IAEA and even American inspectors.
It is clear that India’s vote on the Iran issue in IAEA has been conditioned by the terms of the deal. Senator Lugar in his opening remarks in the Senate Foreign Relations Committee has approvingly noted “We have already seen strategic benefits from our improving relationship with India. India’s votes at the IAEA on the Iran issue last September and this past February demonstrate that New Delhi is able and willing to adjust its traditional foreign policies and play a constructive role on international issues.” It is also clear from the provisions of the two Bills that it is not a one-time concession that India is being asked to make in order to get US Laws modified after which it would be free to act, as it would please. While a number of provisions are in the nature of non-binding “sense of the house” clauses, the annual certification and congressional oversight contained in the Draft Bills mean that India risks losing its continued cooperation with the US on civilian nuclear matters if it “displeases” the US administration or the US Congress. If India imports reactors from US and reaches agreement on supply of fuel for its reactors, it would be vulnerable to any cessation of civilian cooperation. The deal therefore will act to compromise India’s independent foreign policy. And since the proposed laws state very clearly that if the U.S. suspends supplies to India for any reason it must then push for the Nuclear Suppliers group (NSG) to also similarly restrict trade with India, it is not as if India would have the freedom easily to turn to other vendors in the event of an American-triggered disruption of supplies.
There are also other major shifts in the Bills passed in the above committees from the Manmohan Singh Bush agreement. One major shift is that while it agrees to relax the non-proliferation barriers, this relaxation is limited to only nuclear fuel and reactors. The sanctions on fuel reprocessing, enrichment and production of heavy water continues for equipment and technologies.
Let us take the issue of enrichment and fuel reprocessing. They both pertain to the fuel cycle. In the current Bills, Section 6 prohibits exports of equipment, materials or technology related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water. The Senate version enunciates the need to further restrict such equipment and technologies to India, which means that the current sanctions on a host of technologies considered as “dual use” would be still under embargo.
In the NPT, every country that signed the NPT even as a non-nuclear weapon state had a right to the full range of nuclear technologies including the nuclear fuel cycle. All they agree to renounce is the making of nuclear weapons. This of course allows countries to build up nuclear fuel enrichment capabilities for nuclear energy. As the enrichment technology is dual use, it can also be used to enrich uranium not only to fuel grade but also up to weapons grade, therefore developing bomb-making capabilities also. This is the route that India (as a non-NPT signatory) and North Korea (as an NPT signatory) had taken earlier, and that Iran is accused of trying. The US and its allies have been working for some years now to put the nuclear fuel cycle also outside the reach of most countries except a select few such as the Nuclear 5 and Germany, Japan, Denmark, etc. The numbers would be restricted to probably less than 10; and these would be the only countries allowed to have the fuel cycle. While the attempt to introduce such changes in the NPT has failed, the complex scheme of technology controls introduced as a part of the Wassenaar arrangement (countries acting together to limit access to technology in nuclear and missile areas) and various bilateral agreements are elements of this regime.
Bush had stated before his New Delhi visit that India would be the recipient of nuclear fuel but not be a part of countries participating in the enrichment and reprocessing of nuclear fuel. In this view, Iran and India would be no different. If India wants to build such facilities, it will have to do so on its own and would continue to face the existing technology control regime and the consequent embargoes.
India then will have access to nuclear technology but only for the limited purpose of getting fuel and reactors. It will not have access to the full range of technologies -- both nuclear and other dual use technologies. This is certainly a major departure from what the Prime Minister had assured the House that this deal recognises India as an advanced nuclear power and will allow access to full civilian technologies. And it certainly violates the fundamental premise of the July 18, 2005 statement that what the U.S. would bring to the table in exchange for Indian concessions was “full civilian nuclear cooperation”.
There are clauses in the two Bills regarding India agreeing to ban future nuclear weapons tests and capping of its fissile material stockpile. Both these measures would go against India’s long held positions that any treaty on nuclear issues should not be discriminatory and impose restrictions on some countries while allowing others untrammelled right to nuclear weapons. Regarding the Fissile Material Cut-off Treaty negotiations, the Government of India, as traditionally held by India and enshrined in the New Delhi Declaration, should make this a part of negotiations for universal nuclear disarmament and not allow new obligations to be put on non-nuclear weapons states when the basic obligation of the nuclear weapon states in the Non Proliferation Treaty to disarm have not been fulfilled.
With the nuclear weapons states having refused to conduct “good faith disarmament negotiations” as per NPT provisions, the only negotiating chips today for the non-nuclear states is that any Test Ban and Fissile Material Cut-off Treaty must be in tandem with the nuclear weapon states giving a time table for disarmament. If they give a further set of concessions to the nuclear weapon states, they have no leverage for getting the nuclear weapon countries to disarm. It is in this context that India should examine whether through a bilateral agreement, it should forgo capabilities and rights that the U.S. and other nuclear weapons states are refusing to do. There is a real danger today of the U.S. actively developing a new range of nuclear weapons including bunker-busters and tactical nuclear weapons. Should India declare a moratorium on tests in such an agreement with the U.S., without the U.S. also agreeing to such a moratorium? The obligations on India and the US cannot be asymmetric and discriminatory in a bilateral agreement when India refused to sign the NPT and also opposed the CTBT and FMCT as discriminatory treaties.
If we take the objective of the Indo-US nuclear deal to be one of allowing export of nuclear fuel and reactors while simultaneously restricting India’s fuel cycle capabilities and raising the cost of its strategic programme, then the Deal is different from what the Indian side believes or what the Prime Minister has stated in the Parliament. The agreement, as the Senate and the Congress committees have structured it, will not only put our independent foreign policy under pressure, but also tighten the screws on the Indian nuclear civilian R&D and strategic programmes. Further, many of the current technological embargoes would continue to remain. In the bargain, India would have conceded a lot more than it would have gained: the gain is only nuclear fuel for the nuclear program and some access to reactor technologies.
The Government side has been talking of the Indo US deal being primarily a deal for the civilian nuclear energy. The Planning Commission’s figures indicate that we would reach using the nuclear route a maximum of 10,000 MW of installed capacity by 2015 -- a meagre 5% of our electricity capacity -- and even this would require a considerably stepped up effort, well beyond what we have managed till date. In energy terms, the percentage is even smaller, a meagre 2-3 % of our energy needs will be met by nuclear energy as against 40-45% from the hydrocarbon route. In purely energy terms, giving up the cheap Iran gas route to invest in much more expensive nuclear power, makes little economic sense.
The last few months have shown convincingly that this Deal will not lift existing embargoes on technology, will keep Indian foreign policy a permanent hostage to the US, and impose a host of discriminatory restrictions on the Indian nuclear program. In its current form, the Deal will not be acceptable to the Indian people.
Explicit Departures in the Senate and Congress Drafts
from the Original Agreement
1. Prime Minister: India will not compromise its strategic interests.
A sense of the House resolution states India “has a foreign policy congruent to that of the US, and is working with the US in key foreign policy initiatives related to non-proliferation." … “such cooperation will induce the country to give greater political and material support to the achievement of US global and regional non-proliferation objectives, especially with respect to dissuading, isolating and, if necessary, sanctioning and containing states that sponsor terrorism and terrorist groups; that are seeking to acquire a nuclear weapons capability or other weapons of mass destruction capability and the means to deliver such weapons."
Further, it states that the US “secure India’s full and active participation in US efforts to dissuade, isolate and if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability (including the capability to enrich or process nuclear materials), and the means to deliver weapons of mass destruction."
While these sections are non-binding, taken together with Presidential certification and Congress and Senate approval for the 123 Agreement, imposes serious restrictions on India’s independent foreign policy.
2. Prime Minister’s Statement in Parliament: Full co-operation on civilian nuclear technology, which should include the complete fuel cycle.
Senate: Section 6 prohibits exports of equipment, materials or technology related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water. The Senate version enunciates the need to further restrict such equipment and technologies to India which means that the current sanctions on a host of technologies considered as dual use would be still under embargo.
3. Prime Minister’s suo motu statement on July 29 last year: “we committed ourselves to separating the civilian and strategic programme. However this was to be conditional upon, and reciprocal to, the United States fulfilling its side of the understanding… steps to be taken by India would be conditional upon and contingent on action taken by the United States.”
“Before voluntarily placing our civilian facilities under IAEA safeguards, we will ensure that all restrictions on India have been lifted."
Senate and Congress: There is an annual certification clause that can stop the co-operation. More importantly, India has to negotiate its agreement with IAEA before the final agreement for transfer of civilian technology is passed by the Congress. The current Bills enable the President to propose such a Bill to the Congress and Senate under the Section 123 of the Atomic Energy Act of the US, who have to both pass it for cooperation in civilian nuclear energy to take place.
a) Section 8 requires annual Presidential certifications (written determination to the Congress) that India is meeting its commitments under the July 2005 Joint Statement, its Separation Plan, New Delhi’s Safeguards Agreement and Additional Protocol with the IAEA, the 123 Agreement, and applicable U.S. laws regarding U.S. exports to India. [and also that it is cooperating with the US to prevent spread of fuel enrichment and reprocessing technology to countries that do not already have “full scale, functioning enrichment of reprocessing plants” (obvious target Iran). So continued good certificate on Iran is a requirement here] The bill is an important step toward implementing the nuclear agreement with India, but is not the final step in the process. This legislation sets the rules for subsequent Congressional consideration of a so-called “123 Agreement” between the U.S. and India. A “123 Agreement” is the term for a peaceful nuclear cooperation pact with a foreign country under the conditions outlined in Section 123 of the Atomic Energy Act.
4. The March Agreement: US would take necessary steps to change its laws and also align the NSG rules to fulfil the terms of the Indo-US Nuclear Deal.
Senate: It is now contingent on a unanimous resolution of the NSG on this issue.
“In addition, we require that decisions in the Nuclear Suppliers Group enabling nuclear trade with India are made by consensus and consistent with its rules.”
5. The original agreement talked of an Additional protocol which the Prime Minister’s statement made clear was an India Specific Protocol not covered under the protocols for weapon states or non-weapon states.
In the Congress and Senate reading of the Agreement, they have been made into far more intrusive Model Additional Protocols of IAEA, which are currently, only accepted by some of the countries. India’s civilian program will be safeguarded under this Additional Protocol as a non-nuclear weapons state. Under this protocol, IAEA can be used to delve into the past of each of the activities that have gone to build the civilian facilities, effectively allowing others to use IAEA to find out about India’s strategic program and also our technology capabilities.
6. Assurance given by the Prime Minister on March 7, 2006 was that we are placing our facilities in perpetuity as reciprocally US is also guaranteeing fuel supply in perpetuity. In case the US defaults on its fuel supply agreement (as it did in Tarapur), it will ensure that other members of the NSG will take over its obligations.
The Obama amendment to the Senate Bill passed on June 29, 2006, though a Sense of the House Amendment, states in Section 102(6): "The US should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under US law." The House Bill goes a step further. In Section 4(d)-3 it states, "If nuclear transfers to India are restricted pursuant to this Act — the President should seek to prevent the transfer to India of equipment, materials or technology from other participating governments in the NSG or from any other source."
7. In the original agreement, India had agreed to work with the US for a Fissile Material Cut off Treaty (FMCT).
This is now being used to restrict India’s fissile material stockpile. This is also reiterated in the two bills.
Section 103 Declaration of Policy Concerning United States India Peaceful Atomic Energy Cooperation states:
To achieve as quickly as possible a cessation of the production by India and Pakistan of all fissile materials for nuclear weapons and other nuclear explosives devices;
Also the President has to report the efforts it has made with India and Pakistan for “disclosing, securing, capping and reducing their fissile material stockpiles”
8. In the original agreement, only IAEA safeguards were considered.
In the Senate Bill, Section 107 End-Use Monitoring Program states that in case IAEA is unable to fulfil its safeguards obligations the President take Measures to ensure all material and its use is in conformity with it declared purpose. This includes physical verification and suitable access to be provided by India to US inspectors.
9. The military program had no monitoring requirement from IAEA or the US.
In the Senate Bill, Section 108 Implementation and Compliance, the President to report to the Congress “significant changes in the production by India of nuclear weapons or in the types and amounts of fissile material produced.” Further, under the Additional Protocol, an inventory of uranium from the mining stage has to be provided to the IAEA.