Indo-US nuke deal - what it is and what it entails

Environmental law Project

amity law school, noida, auupEnvironmental law ProjectIndo-US Nuke Deal and its Implications

Karanjot SinghA3256113119Ll.B 3 Years 2013-16Section BFaculty in charge Ms. Aditi Dalakoti

Acknowledgement At the wake of this study I would like to take moment to appreciate and thank the efforts of all those who have been a pillar in the making of this project. First and the foremost the institution of Amity University and ALS in particular for having me and giving me the opportunity to be a part of it, then our dear director sir Maj. Neelendra Kumar, for being the shining example for excellence and success, my teacher Ms. Aditi Dalakoti for her labour and toils in the class which help us understand the subject not only in terms of the book but also in terms of reality, and finally I would like to thank my peers for the healthy spirit of competition and encouragement within the realms of the class to help me strive for the best.

"It's an unprecedented deal for India. If you look at the three countries outside the Nuclear Non-Proliferation Treaty (NPT)-Israel, India, and Pakistan-this stands to be a unique deal." -Charles D. Ferguson, science and technology fellow at Council on Foreign Relations.

"President Bush's bilateral deal correctly recognizes that it is far better for the nonproliferation community if India works with it rather than against it," - Seema Gahlaut University of Georgia's Center for International Trade and Security

"India will not be constrained in any way in building future nuclear facilities, whether civilian or military, as per our national requirements." -Manmohan Singh, PM (former) India

"We are going to be sending, or allowing others to send, fresh fuel to India--including yellowcake and lightly enriched uranium--that will free up Indian domestic sources of fuel to be solely dedicated to making many more bombs than they would otherwise have been able to make," -Henry Sokolski, executive director Nonproliferation Policy Education Center

IntroductionThe Joint Statement of 18 July 2005 provided a roadmap for future strategic partnership between India and the United States. The new cooperative framework aimed at making India a global power has many facets including strategic, energy and economic components. However, the civilian nuclear cooperation agreement which is part of the overall energy dialogue attracted most attention due to its serious implications for global non-proliferation regime and on the South Asian security environment. The agreement would enable India to acquire civil nuclear technology

from the US and other members of the Nuclear Suppliers Group (NSG), and accord India, de facto status of a Nuclear Weapon State (NWS).[footnoteRef:1] [1: While the Indo-US nuclear deal has been in clear recognition of Indias non-proliferation record, the lawmakers in the US against the deal, have questioned Indias track record. Senator Barbara Boxer, California Democrat, for instance, was quick to cite the September 18 The Washington Post story that highlighted leakage of sensitive nuclear blueprints by the Indian Department of Atomic Energy. A report by the Institute of Science and International Security (ISIS), authored by David Albright and Susan Basu questioned Indias illicit procurement activities with regard to its nuclear programmes. See, Aziz Haniffa, Lawmakers Question Indias Non-proliferation Track Record, Rediff News, 19 September 2008,]

The U.S. Congress on October 1, 2008, gave final approval to anagreementfacilitating nuclear cooperation between the United States and India. The deal is seen as a watershed in U.S.-India relations and introduces a new aspect to international nonproliferation efforts, The deal lifts a three-decade U.S. moratorium on nuclear trade with India. It provides U.S. assistance to India's civilian nuclear energy program, and expands U.S.-India cooperation in energy and satellite technology. But critics in the United States say the deal fundamentally reverses half a century of U.S. nonproliferation efforts, undermines attempts to prevent states like Iran and North Korea from acquiring nuclear weapons, and potentially contributes to a nuclear arms race in Asia.In July 2009, New Delhi designated two sites for U.S. companies to build nuclear reactors in India. But anuclear liability law passed by the Indian parliament in August 2010 iscausing a riftwith U.S. nuclear suppliers. Critics of the law contend India's proposal to seek legal redress against nuclear suppliers is a sharp deviation from the international liability regime which holds nuclear operators solely responsible in case of an accident.India would also like the United States to relax some of its restrictions on technology transfer to India.The nuclear deal, if remain unchecked, could allow India to make qualitative and quantitative improvement in its nuclear arsenal, triggering a possible nuclear arms competition in the region, involving Pakistan, India and possibly China, thus destabilizing the entire region. Similarly, the overall India-US strategic partnership at the possible cost of regional instability could impinge security interests of other regional players; forcing smaller countries to re-evaluate their security imperatives and explore options such as strategic realignments, in order to better safeguard their security interests. The emerging India-US relationship aimed at enhancing Indias stature in the region, besides having possible negative implications for the South Asian stability does provide US with an opportunity to use its increased leverage with India, and work towards regional stability by helping to resolve outstanding disputes between India and Pakistan. The US could also work with these two non-NPT (Non Proliferation Treaty) NWS to bring them into mainstream non-proliferation regime through some kind of a regional arrangement, and under a treaty obligation, which could alleviate proliferation concerns of the international community, arising mainly due to non-NPT status of India and Pakistan. Such an option would bring the two non-NPT NWS under a treaty obligation, which could then become a basis for civil nuclear cooperation with other members of the NSG.However the civilian nuclear cooperation deal with the United States is only one part of the wide-ranging alliance that the UPA government sought to forge with the United States. The strategic alliance with the United States as stated in the joint statement of July 2005 by the Indian Prime Minister and the US President has four aspects. The political, which involves India joining the US bandwagon of spreading democracy around the world; the economic, involving a strategic partnership based on a blueprint for US capital; the military, expressed through the Defense Framework Agreement; and fourthly the Nuclear Cooperation Agreement. Prior to the joint statement of July 2005, the UPA government signed a ten-year Defense Framework Agreement with the United States. It is evident that without the defense agreement, the Americans would not have agreed for the nuclear cooperation. This seems to be part of a quid.[footnoteRef:2] [2: International Journal of Scientific and Research Publications, Volume 2, Issue 10, October 2012]

History Of Indian Nuclear Program

In the 1950s, the United States helped India develop nuclear energy under the Atoms for Peace program. The United States built a nuclear reactor for India, provided nuclear fuel for a time, and allowed Indian scientists study at U.S. nuclear laboratories. In 1968, India refused to sign the NPT, claiming it was biased. In 1974, India tested its first nuclear bomb, showing it could develop nuclear weapons with technology transferred for peaceful purposes.[footnoteRef:3] As a result, the United States isolated India for twenty-five years, refusing nuclear cooperation and trying to convince other countries to do the same. But since 2000, the United States has moved to build a "strategic partnership" with India, increasing cooperation in fields including spaceflight, satellite technology, and missile defense.[footnoteRef:4] [3: Ibid,] [4: Sridhar Krishna swami, Pranab, Rice dawdles on N-deal Again, Hindustan Times, March 24, 2008. ]

Nuclear Deal And What It EntailsThe major argument advanced by the UPA government is that the nuclear agreement is vital for India to end its nuclear isolation, without which it will not be possible to meet the countrys energy requirements in the future. This ignores the very limited contribution that nuclear power makes to our overall energy generation which is less than 3 per cent. It cannot exceed 7 per cent even if the ambitious plans for expansion to 20,000 MW are implemented by 2020. While talking about energy security, the cost of nuclear power has to be factored in[footnoteRef:5]. We should continue to develop nuclear technology based on the three-phased program me. But the expansion of nuclear power cannot become the central focus for energy security. The cost of power per unit generated for imported nuclear reactor will be twice that of a coal-based plant. The capital required to set up a plant with an imported reactor will be thrice that of a coal-based plant. So, what does it mean in terms of investment to set a target of 20,000 MW of nuclear power by 2020, or the more ambitious 40,000 MW target set out by the Prime Minister? The government has not conducted any techno-economic study on the feasibility and cost of nuclear power. [5: Mark Bucknam, Power to the People of India: U.S. Nuclear Cooperation with India, Strategic Insights VI, no. 1 (January 2007). ]

The implementation of the nuclear cooperation agreement will hamper the pursuit of a self-reliant nuclear technology policy for peaceful purposes based on the three-phase nuclear energy program me. There will be an unacceptable price to be paid.[footnoteRef:6] While negotiating for the nuclear deal, the United States simultaneously opposed India going ahead with the Iran pipeline project. The strategic alliance with the US will constrain India from accessing energy from Iran and working for an Asian energy security grid which will link Central Asia, West Asia and South Asia. After the Hyde Act was adopted in December 2006, the CPI(M) had stated that it contains provisions which are contrary to the assurances given by the Prime Minister to Parliament on August 17, 2006. The CPI (M) had repeatedly asked the government not to proceed with the bilateral negotiations for the 123 agreement, till this matter was cleared up. But the government did not heed this advice too. The ten-year Defense Framework Agreement was signed in June 2005. It was a precursor to the joint statement issued in July, just three weeks later. Such a wide-ranging military collaboration agreement has not been signed by India with any country since Independence. The agreement provides for joint operations by the two armed forces in military operations outside the auspices of the United Nations; the agreement aims interoperability of the armed forces; the two sides will work for missile defense cooperation; sale of US weapons to India and co-production is another feature. Under this pact, India has agreed to work out a Logistics Support Agreement (otherwise known as the Acquisition and Cross Servicing Agreement) with the United States and a Maritime Security Cooperation between the two navies.[footnoteRef:7] Regular joint exercises and military training of Indian officers in the United States are already underway. This Defense Framework Agreement alone is sufficient to change the entire security and strategic orientation of India.[footnoteRef:8] Following the announcement of the bilateral nuclear cooperation agreement in July 2007, Nicholas Burns, the Under Secretary of State, who was responsible for negotiating the bilateral agreement, in the official briefing after the 123 agreement was reached, said: And I think now that we have consummated the civil nuclear trade between American us, if we look down the road in the future, were going to see far greater defense cooperation between the United State and India: training; exercises; we hope, defense sales of military technology to the Indian armed forces.[footnoteRef:9] [6: Mohamed El Baradei, IAEA Director General Welcomes U.S. and India Nuclear Deal, International Atomic Energy Agency Press Release 2006/05, March 2, 2006. ] [7: Kerr, Paul. "CRS: U.S. Nuclear Cooperation with India: Issues for Congress." Nov 2009. Council on Foreign Relations. Mar 2015.] [8: Condoleezza Rice, Our Opportunity With India, Washington Post, March 13, 2006, A15. ] [9: R. Nicholas Burns, Under Secretary for Political Affairs On-The-Record Briefing on the Status of the U.S.-India Civil Nuclear Cooperation Initiative and the Text of the Bilateral Agreement for Peaceful Nuclear Cooperation (123 Agreement), U.S. State Department. Washington, DC, July 27, 2007. ]

Terms Of The DealThe details of the deal include the following: India agrees to allow inspectors from theInternational Atomic Energy Association (IAEA), the United Nations' nuclear watchdog group, access to its civilian nuclear program. By March 2006, India promised to placefourteen of its twenty-two power reactorsunder IAEA safeguards permanently.Teresita Schaffer, director of the South Asia program at the Center for Strategic and International Studies, says these will include domestically built plants, which India has not been willing to safeguard before now. India has promised thatall future civilian thermal and breeder reactorsshall be placed under IAEA safeguards permanently. However, the Indian prime minister says New Delhi "retains the sole rightto determine such reactors as civilian." According to him: "This means that India will not be constrained in any way in building future nuclear facilities, whether civilian or military, as per our national requirements." Military facilities-and stockpiles of nuclear fuel that India has produced up to now-will be exempt from inspections or safeguards. India commits to signing anAdditional Protocol (PDF)-which allows more intrusive IAEA inspections-of its civilian facilities. India agrees to continue its moratorium on nuclear weapons testing. India commits to strengthening the security of its nuclear arsenals. India works toward negotiating aFissile Material Cutoff Treaty (FMCT)with the United States banning the production of fissile material for weapons purposes.India agrees to prevent the spread of enrichment and reprocessing technologies to states that don't possess them and to support international nonproliferation efforts. U.S. companies will be allowedto build nuclear reactors in India and provide nuclear fuel for its civilian energy program. (An approval by the Nuclear Suppliers Group lifting the ban on India has also cleared the way for other countries to make nuclear fuel and technology sales to India.)Also India would be eligible to buy U.S. dual-use nuclear technology, including materials and equipment that could be used to enrich uranium or reprocess plutonium, potentially creating the material for nuclear bombs. It would also receive imported fuel for its nuclear reactors.

Section (123) Agreement Under existing law (Atomic Energy Act [AEA] of 1954, as amended; P.L. 95-242; 42 U.S.C. 2153 et seq.) [footnoteRef:10] all significant U.S. nuclear cooperation with other countries requires a peaceful nuclear cooperation agreement. Significant nuclear cooperation includes the transfer of U.S.-origin special nuclear material subject to licensing for commercial, medical, and industrial purposes. Such agreements, which are congressional-executive agreements requiring congressional approval, do not guarantee that cooperation will take place or that nuclear material will be transferred, but rather set the terms of reference and authorize cooperation. The AEA includes requirements for an agreements content, conditions for the President to exempt an agreement from those requirements, presidential determinations and other supporting information to be submitted to Congress, conditions affecting the implementation of an agreement once it takes effect, and procedures for Congress to consider and approve the agreement. Section 123 of the AEA requires that any agreement for nuclear cooperation meet nine nonproliferation criteria and that the President submit any such agreement to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations. The Department of State is required to provide the President an unclassified Nuclear Proliferation Assessment Statement (NPAS), which the President is to submit, along with the agreement, to those two committees. The State Department is also required to provide a classified annex to the NPAS, prepared in consultation with the Director of National Intelligence. The NPAS is meant to explain how the agreement meets the AEA nonproliferation requirements. The President must also make a written determination that the performance of the proposed agreement will promote and will not constitute an unreasonable risk to, the common defense and security. [10: Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006]

Feature Of The 123 Agreement The Agreement could be a major contributor to our energy security. For India it is critical that we maintain our current economic growth rate of 8 to 10 per cent per annum if we are to achieve the goal of eradicating poverty. Inadequacy of energy supply is one of the primary constraints on accelerating Indias growth rate. We are trying to expand all forms of energy production in a manner which takes care of concerns about environment. Nuclear energy is a logical choice in this context and can make a larger contribution to our overall energy mix. At present its share is only about 3%. We have an ambitious program me to increase our nuclear energy generating capacity to 20,000 MWe by 2020 and double this by 2030. While our domestic three stage programme continues, using our own uranium resources, this Agreement, by adding additional capacity quickly, would help us to reach that target soon. The Agreement also opens the door for cooperation in civil nuclear energy with other countries. We are already discussing with France and Russia similar bilateral cooperation agreements on civil nuclear energy. Once the NSG adopts an exemption to its Guidelines we hope to operationalise all these agreements. The Agreement places India in a special category as a State possessing advanced nuclear technology, like the United States, with both parties having the same benefits and advantages. The Agreement provides for full civil nuclear energy cooperation covering nuclear reactors and aspects of the associated nuclear fuel cycle including enrichment and reprocessing. The Agreement provides for nuclear trade, transfer of nuclear material, equipment, components, and related technologies and for cooperation in nuclear fuel cycle activities. The Agreement contains a full reflection of the March 2, 2006 supply assurances, its linkage to safeguards in perpetuity and the provision for corrective measures in case of disruption of fuel supply. The Agreement provides for the development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of Indias reactors. The Agreement provides for the application of IAEA safeguards to transferred material and equipment. There is no provision that mandates scrutiny of our nuclear weapons program me or any unsafeguarded nuclear facility.

Requirement Under The Atomic Energy Act Section 123 of the AEA specifies the necessary steps for engaging in nuclear cooperation with another country. [footnoteRef:11] [11: Supra 10]

Section 123(a) States that the proposed agreement is to include the terms, conditions, duration, nature, and scope of cooperation and lists nine criteria that the agreement must meet. It also contains provisions for the President to exempt an agreement from any of several criteria described in that section and includes details on the kinds of information the executive branch must provide to Congress. Section 123(b) specifies the process for submitting the text of the agreement to Congress. Section 123(c) specifies how Congress approves cooperation agreements that are limited in scope (e.g., do not transfer nuclear material or cover reactors larger than 5 MWe). This report does not discuss such agreements. Section 123(d) specifies how Congress approves agreements that do cover significant nuclear cooperation (transfer of nuclear material or reactors larger than 5 MWe), including exempted agreements.

Advantages of the Nuclear Deal to India and the United StatesUnder the new civil nuclear agreement, India has agreed to separate its civilian and military programs and to put two-thirds of its existing reactors, and 65 percent of its generating power, under permanent safeguards with international verification, and in return the United States would be under commitment to supply nuclear fuel and technology to India.This is very vital for India, because one of the biggest constraints for the continuing success of its fast-growing economy is the electricity shortage. Nuclear energy, which at present accounts for only about 3 percent of Indias total electricity generation, is an attractive alternative to coal and expensive imported oil and gas. The fourteen nuclear power plants India has agreed to put underInternational Atomic Energy Agency (IAEA) safeguards exemplify approximately 3,000 megawatts or 3 gigawatts of generating capacity. By 2020, India plans to add another 12-16 gigawatts of nuclear generating capacity to increase its current capacity.[footnoteRef:12] As presently nuclear power plays a very marginal role in Indias growth, therefore in some quarters it is also being felt that even by 2020, nuclear power will contribute only about seven percent of Indias total generating capacity and thus would make only a very marginal difference in Indias electricity scene. [12: International Energy Agency, World Energy Outlook 2004, 74.]

It is also being argued that though the nuclear power could help India in addressing its energy problems to some extent, but it would not make a major difference in the energy sector and also contribute a little to satisfy the needs of its transportation sector. But on the other hand it is being believed by the supporters of nuclear energy that in the future, nuclear power might play an even bigger role. In view of the various problems associated with the other sources of energy and to satisfy Indias huge populations growing energy needs, projected to increase four-fold within 25 years, this group believes that without aggravating its dependence on oil from the Middle East or excessively contributing to pollution and global warming, the growing energy needs could be fulfilled by using the nuclear energy.[footnoteRef:13] [13: Ashton B. Carter, Americas New Strategic Partner? Foreign Affairs 85, no. 4 (July/August2006), 40.]

Unfortunately, though, 17 percent of the worlds population resides in India but it has a very trivial portion of the worlds oil and gas reserves. Therefore in the absence of a reliable source of electricity, industries and households mostly are dependent on scarce and costly energy sources like petroleum, natural gas and coal to produce electricity to meet its requirements.[footnoteRef:14] In view of Indias dependence on imported oil, gas and coal to produce electricity which is not a very practical alternative for meeting Indias rapidly increasing electricity and energy needs, it is being opined that these limited sources, besides hampering Indias growth and development, would also add to Indias mounting pollution problems. They also argue that though coal would continue to be a major source of fuel for generating electricity, that the increasing prices of petroleum and natural gas and the need to control and manage the problem of pollution would push India like other countries to adopt cleaner means of generating electricity. In fact the worries about growing pollution levels have also forced as many as thirty countries in the world to restart their nuclear power plants. Presently the United States is the biggest producer of nuclear energy, with 103 nuclear power plants and 27 percent of the global nuclear generating capacity, and rising natural gas prices have contributed to extensions of nuclear plant licenses in the United States, the United Kingdom, and Germany. China, with just nine nuclear power plants also intends to build thirty new nuclear plants by 2020.[footnoteRef:15] [14: Rahul Tongia, The Political Economy of Indian Power Sector Reforms, Working Paper, no. 4(Revised), Program on Energy and Sustainable Development, Stanford University, December2003.] [15: Mark Bucknam, Power to the People of India: U.S. Nuclear Cooperation with India, StrategicInsights VI, no. 1 (January 2007).]

In view of the scarcity of alternative sources of electricity generation and Indias mounting energy needs to match its economic progress India has perceived this agreement as a means of fulfilling its energy needs. The United States, on the other, hand has been viewing it as a tool to bring India under the control and obligations of the nuclear regimes. In view of Indias energy-related problems, this agreement appears to have transformed their relationship by fulfilling the objectives of both the countries. As on the one hand, it would end Indias isolation, help it acquire high-technology, and reduce its dependence on oil from the Persian Gulf; and on the other, it would bring India under the IAEA inspection and control system, and prove economically beneficial for the United States, too.[footnoteRef:16] Due to this fact the deal was welcomed by Mohamed El Baradei, Director of the International Atomic Energy Agency. In his opinion the nuclear deal would bring India closer as an important partner in the non-proliferation regime and which would be a milestone, timely for ongoing efforts to consolidate the non-proliferation regime, combat nuclear terrorism and strengthen nuclear safety. The forty-five nation Nuclear Suppliers Group (NSG), such as France, Russia and the United Kingdom, also did not take much time in expressing their support for the Indo-U.S. nuclear deal but on the other hand Canada and China, both NSG members, expressed their reservations about this deal. [16: Mohamed El Baradei, IAEA Director General Welcomes U.S. and India Nuclear Deal,International Atomic Energy Agency Press Release 2006/05, March 2, 2006.]

The U.S. Secretary of State Condoleezza Rice[footnoteRef:17] while arguing in favor of the Indo-U.S. strategic partnership and the civil nuclear deal, stressed that India has a record of thirty years of responsible behavior on proliferation matters, and the agreement would make the world, and the future of India and the United States, safe. While naming the agreement as unique, Rice also emphasized that Indias uniqueness as a country, as a democracy with an accountable and transparent government encouraged the United States to move forward for this agreement. In her view point other countries like North Korea and Iran that had also been seeking to develop their programs on the basis of this agreement do not fall in this category, because Iran is a state that promotes terrorism, and North Korea is the least transparent state, threatens its neighbors, and proliferates weapons. She also felt that by satisfying Indias energy needs, it would end its dependence on fossil fuels and ease the environmental impact of Indias vibrant economic growth; and, on the other hand, it would also help the U.S. economy and enhance the employment and job prospects for the American people also. The nuclear deal grants India the facility of reprocessing the nuclear fuel acquired from the external sources, a concession the United States has presently given only to Japan and European countries. In accordance to the deal the United States would also help India to find fuel if the United States cuts off the supply for any reason particularly if India tests a nuclear weapon. In the viewpoint of several scholars, the reason for the U.S. willingness to take these steps lies in the fact that lately it has started to recognize India as an important strategic bulwark and an answer against a growing Chinese power and highly unstable and unpredictable Pakistan. India s million-man army, the worlds fourth largest, and its blue-water navy make it a natural buffer as well as a sentinel on the trade route between East Asia and the Middle East. The United States believes that a demographically and economically vibrant India could serve as a counterweight to expanding Chinese influence in Southeast Asia as well as Beijings great-power ambitions around the globe. [footnoteRef:18] U.S. Ambassador to India David Mulford has also accepted that the United States by adopting such policy moves towards India has succeeded to a large extent in de-hyphenating its relationship with India and Pakistan.[footnoteRef:19] [17: Ibid, 8.] [18: Sadanand Dhume, Is India an ally?, Commentary 125, no. 1 (January 2008).] [19: Amit Baruah, Waiting for India to process nuke deal, U.S., Hindustan Times, January 30,2008.]

Interestingly, now the United States has also tacitly acknowledged India as a responsible state with advanced nuclear know-how, but it has very diplomatically avoided accepting India as the sixth nuclear weapons state. The U.S. stand also makes the nuclear deal noteworthy. It clearly shows that America has agreed to help India acquire the same benefits and advantages as other states with nuclear weapons. India would also be granted full civil nuclear energy co-operation, fuel supplies and the transfer of technology, etc., but the United States would not like to undermine the conditions of the NPT by recognizing India as a sixth nuclear state. In some quarters it is believed that the present U.S. policy, like the NPT which created two classes of states, the nuclear haves and the have-nots, would once again create two classes of the non- NPT signatories, "responsible" non-nuclear states such as Japan and the EU countries which are allowed to conduct plutonium reprocessing and uranium enrichment for their civilian programs, and other countries like Iran which are denied this right because of the feeling that they may use their potential to acquire nuclear weapons. [footnoteRef:20] In view of this duplicity, it can be said that a country can not be assured of obtaining full fuel cycle facilities by just signing the NPT or the IAEA safeguards system but its political system and proximity to the western countries would also matter in deciding its suitability for access to the dual use potential sensitive technologies. [20: . T.V. Paul, The U.S.-India nuclear accord: implications for the nonproliferation regime,International Journal 62, no. 4 (Autumn 2007): 854.]

However some other scholars have opined that the July 18, 2005 agreement for a civil nuclear deal with the United States has heralded Indias strategic liberalization, and has also ensured substantial gains such as the import of nuclear fuel, etc. They feel that an enabled India, free of technology denial restraints and of the category of the strategic outcast, would not only emerge as an important state in the twenty-first century but also help multi-polarity to become a reality at the global level.[footnoteRef:21] [21: C. Uday Bhasker, N-Deal Enters Choppy Waters: the Implications, Rediff India Abroad,August 19, 2007.]

ProblemsHowever, despite the benefits for India and the United States by the nuclear deal it is also being felt that the nuclear deal with India not only threatens to demolish the global nuclear regimes but would also encourage other countries to go for their nuclear programs as India is one of the countries which have not signed the NPT. The U.S. Nuclear Nonproliferation Act also aims to prevent proliferation by denying access of nuclear technology and nuclear materials for the states that have refused to sign the NPT. To strengthen controls on export of the nuclear technology and materials to such countries the Nuclear Suppliers Group in the mid-1970s was established by the United States. And it is also true that despite creating two classes of states and being a highly discriminatory treaty, the NPT has survived because no major power has remained outside of it to defy it. Actually the P-5 have shown very little interest in linking the vertical and horizontal proliferation with the result the NPT has become a purely horizontal nonproliferation instrument. [footnoteRef:22] [22: Karthika Sasikumar, Indias Emergence as a responsible nuclear power, InternationalJournal 62, no. 4 (Autumn 2007): 825 (20).]

Though there is no denying the fact that NPT has also remained unsuccessful in controlling the proliferation of nuclear weapons as both signatory and non signatory countries have violated the norms of the treaty. China and France, signatories to the NPT, have helped Israel and Pakistan, non-signatories of the NPT, to carry forward their nuclear program as well as to acquire nuclear weapons technology. Likewise Iran and North Korea which have signed the NPT have used nuclear technology, equipment and fuel meant for civilian nuclear power programs to expand the nuclear weapons programs.It is ironic that despite the failure of the NPT in controlling the proliferation of the nuclear weapons and technology, it is being argued that rewarding India through this deal for not signing the NPT would encourage other states also to follow suit, and also set a precedent for future proliferators to develop their nuclear programs without worrying about sanctions. However, to counter this argument it is also being alleged that though India did not sign the NPT but it has always presented an example of responsible nuclear state by never helping proliferation of nuclear weapons or providing the technology to the rogue states like Libya or Iran despite lucrative energy deals in return for such help. Therefore, India cannot be put in the bracket of the rogue states for denying the technology or imposing the sanctions.T he U.S. stand towards the nuclear deal with India in the opinion of some scholars presents a good case of the double standard, however U.S. policymakers have not only rejected this argument but also said "We treat India, a democratic, peaceful friend, differently than we treat Iran and North Korea and we're very happy to say that. India is inviting the IAEA in, Iran is pushing the IAEA out. India is playing by the rules. Iran is not. If thats a system of double standards, we're very proud to establish that double standard on behalf of a democratic friend."[footnoteRef:23] [23: David Ruppe, U.S. acknowledges double standard on Indian deal, Global SecurityNewswire, April 12, 2006.]

Actually the U.S. move is driven by both strategic and economic considerations. Strategically, Washington perceives India as a potential counterweight to China, and by improving the nuclear relationship it aspires to bring changes in political relations between the two states. In economic terms, the United States would like to help India build a number of nuclear power reactors to fulfill the energy needs of its fast-growing economy and cut the dependence on pollution-creating hydrocarbon fuels. As India is expected to order several nuclear power reactors, therefore ultimately U.S. companies would earn benefits from such sales to India.In fact over the last thirty years, India and the United States both have paid the price of not having a good relationship with each other. India has paid a heavier price than the United States for not joining the NPT in 1968, and also for its nuclear tests conducted in 1974 and 1998 by way of attracting various kinds of sanctions imposed by the international community. However, initially the sanctions did not create much problem as Indias nuclear program was in its infancy, but as India has developed its nuclear program further and has succeeded in developing a workable nuclear deterrent, it is believed that the additional restrictions on nuclear cooperation would adversely affect Indias civilian energy program and economic progress than its nuclear weapons programs. At present, India has a good understanding of the nuclear fuel cycle; techniques for using thorium as fuel; produced an arsenal of nuclear weapons; and also developed civilian nuclear power program. For further advancement now India wants access to enriched uranium and also the right to reprocess the spent fuel, but without any conditions on its nuclear weapons program. The United States feels that the U.S.-India nuclear deal, would on the one hand help India to fulfill its energy related needs and on the other would also bind India through international agreements to continue its responsible nonproliferation policies and thus help meet international non-proliferation goals.[footnoteRef:24] [24: R. Nicholas Burns, Under Secretary for Political Affairs On-The-Record Briefing on the Statusof the U.S.-India Civil Nuclear Cooperation Initiative and the Text of the Bilateral Agreement forPeaceful Nuclear Cooperation (123 Agreement), U.S. State Department. Washington, DC, July27, 2007.]

In India though all the opposition parties have shown their displeasure towards the Indo-U.S. deal but the Congress Party of India and Prime Minister Manmohan Singh have been vigorously arguing in the favor of the nuclear deal by emphasizing that this deal is meant to end Indias isolation in the field of nuclear technology and all the nuclear scientists have also favored it as a historic agreement. The Nuclear Suppliers Group has also agreed to supply nuclear material to India on account of this agreement. The Congress Party also feels that to meet its growing energy demands, electricity production through nuclear energy has become a necessity for India, therefore, India needs this agreement urgently to move with other countries, like France, which gets 78 percent, Germany 30 percent and the United States 20 percent of its electricity from nuclear energy.[footnoteRef:25]It is also being argued by the Congress Party leadership that this would not only help in electricity generation but also in medical and scientific research, and high-technology. It would also allow more investment in other areas by U.S. firms and in case of failure India would revert back to the primitive stage or to the status prior to 1974, and all the growth and development would be stunned. Some scholars have also argued that despite many claims, Indias energy needs have not been met either by hydro-electric potential or coal for the last 50 years and in order to meet Indias full potential there is a need to provide unhindered access to technology, investment, markets and higher education. This need could only be fulfilled by the nuclear energy, therefore, this deal is a must for Indias progress and development. [25: Steven Mufson, Nuclear Power Primed for Comeback Demand, Subsidies Spur U.S.Utilities, Washington Post, October 8, 2007, A01.]

Controversial Issues of the DealFollowing the U.S. Presidents visit to India in March 2006, the U.S. Congress also took up the agreement and formally made it into legislation after the committee level deliberations and conciliations in terms of words by both the House and the Senate. The Congress made substantive modifications to the agreement by adding conditions such as limiting the reprocessing rights of India over spent fuel as well as restraints on its ability to conduct nuclear testing. The legislation also required the President to issue an annual certification to Congress stating that India is abiding by the clauses of the agreement. President Bush signed the bill on 18 December 2006, making it a legal instrument. On 1 August 2007, U.S. and Indian negotiators concluded a separate technical agreement under section 123 of the U.S. Atomic Energy Act, which spells out the precise terms, conditions, responsibilities, obligations and promises that each party undertakes. Through this legislation in the form of the Hyde Actfor the first time in history the United States, it has ratified nuclear cooperation with India and opened the way for giving India access to American nuclear technology with limited safeguards to discourage possible proliferation. While it was passed by the United States, the ratification by the Senate and the approval of the forty-five nation Nuclear Suppliers Group that control exports of nuclear materials is also required for any further movement.[footnoteRef:26] As the legislation, known as Hyde Act, has imposed restrictions on how India could utilize U.S. nuclear supplies, therefore the implementation of the agreement has received a setback because of the opposition by the Communist parties that support Indias present UPA government from outside. Actually the leaders of almost all the political parties of India have categorically expressed their dislike and apprehensions for provisions that provide for cutting off aid if India conducts any future nuclear tests and the return of the all nuclear material or equipment provided by U.S. suppliers. [26: James Gersten Zang, Congress OKs Nuclear Pact with India: The Deal, a Major Policy Shift,Provides Access to American Technology, L.A. Times, December 9, 2006.]

The opposition parties have also been demanding that the clause that prohibits India from reprocessing any fuel provided for power plants be removed from the text. They have also expressed dislike towards the clause that requires the U.S. President to annually certify that India is complying with the rules as they believe that this would allow for U.S. meddling in its nuclear program and also violate the sovereignty of India. Taking note of objections by India and the delay in working on the modalities of the deal, U.S. officials have opined that despite Indias reservations the United States would make no such concessions to India that would run counter to the Hyde Act as the ball was in Indian court. "We will honor every aspect of the Hyde Act. A collapse of the talks, would seriously undercut our hopes for the relationship... The process has been held hostage to political crosswinds in Congress and the Indian parliament." The U.S. approach has given another reason for the opposition parties as well as the allies to rally together to oppose the deal.On account of the prevailing circumstances it is being felt that it would be difficult for the United States to fulfill its obligations and similarly in a coalition government without the approval of the coalition partners, India would also not be able to move forward with this deal. In view of the problems Indias Prime Minister is facing to develop consensus and approval of the coalition partners the future of the deal looks bleak as the UPA allies, the left parties, are adamant on not supporting the deal. They have threatened to withdraw support from the government even at the cost of pushing the country to mid-term poll. In the United States apprehensions have also already started to find their expression among Congressmen, many of whom think that this deal is more in Indias interest as India would be able to conduct the nuclear test and also develop its military program without any problems. They have argued that Indias prototype fast breeder reactors, which can produce significant amounts of weapons-grade plutonium, have been kept out of this agreement, and there would not be any problem for Indias weapon program.[footnoteRef:27] A group of U.S. non-proliferation specialists expressing their apprehensions and concerns about the deal wrote to members of Congress urging them to reject any pact that falls short of American domestic laws. They feel that the result of such pacts could be reduced accountability, increased Indian nuclear weapons production capacity and damage to the credibility of U.S. nonproliferation efforts. Unlike 177 other states, India has so far refused to sign the Comprehensive Test Ban Treaty and is, under no legal obligation not to test. They urged the Congress to ensure that, 'the agreement for nuclear cooperation must explicitly state that renewed nuclear testing by India would lead to the termination of U.S. nuclear assistance.'[footnoteRef:28] [27: Neil King, Jr., U.S.-India Talks On Nuclear Pact Enter Endgame, Congress Likely to Balk AtNew Delhis Terms; Businesses Want a Deal, Wall Street Journal, July 14, 2007, A1.] [28: Glenn Kessler, Nunn Urges Congress to Set Conditions on U.S.-India Nuclear Pact,Washington Post. March 19, 2006, A9. ]

Though, in view of Indias unilateral moratorium on nuclear testing it is being felt that these requirements would pose no problem, however, on the other hand, it is also being argued that Indias insistence on assurances that commercial nuclear contracts should continue even in case of nuclear testing would breach the agreement. Indias relationship with Iran is also a matter of concern for U.S. Senators and think tanks. On account of Indias relations with Iran the Senators have also expressed their apprehensions about the deal. They feel that in view of Indias activities like agreeing to military-to-military working groups and joint training exercises with Iran, Indian companies selling Iran precursor chemicals for rocket fuel and chemical weapons, passing nuclear secrets to Tehran, entering into agreements with Iran to develop oil and gas resources and helping Iran to develop more effective batteries for Irans submarine fleet, there is an urgent need to reconsider the nuclear deal.[footnoteRef:29] [29: Sridhar Krishnaswami, Reject N-deal if it falls short of domestic laws, Rediff India Abroad,May 17, 2007]

Issues of Concerns in India and the United StatesThere is no denying that this agreement has opened new vistas of cooperation between India and the United States, but it cannot be denied that despite the hoopla, the pin-pricks and pressure politics are still present. U.S. objections regarding the supply of nuclear fuel by Russia to Indias Tarapur nuclear reactor are a cause of concern. As within three weeks of the March 2006 announcement of the deal, Russia agreed to supply uranium to refuel two reactors at Indias Tarapur nuclear site but the United States feels that any action should be taken only after India fulfills its obligations under the historic Indo-U.S. nuclear deal, which India has not yet done.Interestingly, low-enriched uranium for Tarapurs reactors has been supplied by NSG member states since these reactors came in to being in 1969. Under the present deal also if the United States fails to go ahead with the deal, the other NSG countries will seek to replace the United States in cooperating with India and the United States would hardly be in a position to object to the cooperation that it had first proposed. India, on the issue of the fuel supplies for the Tarapur plant by Russia also made it clear that nuclear fuel was required urgently to prevent shutting down the Tarapur plant, and that it did not violate any NSG guidelines or international law. India also clarified that it had requested the United States to supply nuclear fuel, but as this was not possible under U.S. law, it requested this of Russia, which agreedand that this issue was separate from the Indo-U.S. civilian nuclear deal.[footnoteRef:30] In view of this, it seems that in order to pursue its civil nuclear-related interests, India would have to accommodate the United States pressures, and without the United States consent, it would be difficult for India to get such supplies from other nuclear powers. [30: Russian Fuel for Tarapur within NSG guidelines: India, Hindustan Times, March 15, 2006.]

Proliferation ConcernsMany critics of this agreement, both in the United States and India, have expressed their apprehensions about it. They feel that India may not have signed the NPT, but that the United Statesby signing the NPThad also promised not to help other countries, and only those countries who have signed it could benefit from trade in civilian nuclear technology, and that allowing nuclear trade with India is bound to break this rule.[footnoteRef:31] It is also being felt in some quarters in America that this agreement is more favorable to India and its military program than to the United States, as this deal allows India enough fissile material for producing nuclear weapons. [31: Nuclear Proliferation: Dr. Strangedeal, The Economist, March 9, 2006.]

They feel that this would be against Americas worldwide nuclear non-proliferation agenda. In some segments of India as well, there is a feeling that the UPA government, in its enthusiasm to develop good relations and a nuclear deal with the United States, has compromised Indias interests.Although India has been able to keep its military option open, it will now be under the constant pressures and vigilance of the international agencies and in view of the past record of the United States with regard to such supplies, India would have to work with utmost caution. Ashton B. Carter has opined that Bushs historic concession to India could create a serious blow to the international non-proliferation regime and could set a dangerous precedent for rogue countries like Iran, North Korea and other aspiring nuclear powers. He also feels that the United States in order to win the support and cooperation of India in confronting the challenge that a threatening Iran, a turbulent Pakistan and an unpredictable China may pose in the future gave away something on the nuclear front to gain much more on other fronts. He has also argued that the deal is clear about what the United States would concede but it is not clear as what India would give in return and such imbalance would leave the United States at the mercy of Indias future behavior. The deal has also given a message that forgiveness comes to proliferators who wait long enough, and that the nuclear aspirants could bypass the NPT if they waited long enough.In view of this it is being apprehended that the deal would encourage other countries to develop their nuclear programs, and this would harm the United States vital interest of preventing nuclear proliferation, lead to the spread of weapons-grade nuclear material, and also unleash a regional arms race in which China and Russia could be expected to do the same for Pakistan and Iran as the United States would do for India. In such an atmosphere, it would be difficult for the United States to get support for sanctions against the countries known as nuclear rebels, such as Iran and North Korea. It is also being feared that it would be difficult for the United States to convince the forty-five nation NSG, and particularly China and Japan, to change their policies to exempt India from nuclear export controls.U.S. objections to Indias search for alternative energies are also noteworthy, as the United States wants to restrict Indias attempts to develop the India-Pakistan-Iran gas pipeline. The United States believes that the nuclear deal will end Indias dependence on the oil from Persian Gulf; however, despite being the pioneer in a field of nuclear energy, the United States is equally interested in maintaining a continued and unhindered flow of oil from the Persian Gulf for satisfying its own needs, which means the United States is free to look after its interests, but that Indias hands would be tied. In view of this, it can be said that though the integration of India in the field of nuclear energy is a welcome move, but India needs to tread cautiously to protect its interests.0 | Page