Order Code RL33016
CRS Report for Congress
Received through the CRS Web
U.S. Nuclear Cooperation With India:
Issues for Congress
Updated January 12, 2006
Sharon Squassoni
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
U. S. Nuclear Cooperation With India:
Issues for Congress
Summary
On July 18, 2005, President Bush announced a global partnership with India to
promote stability, democracy, prosperity and peace. The desire to transform relations
with India, according to Administration officials, is “founded upon a strategic vision
that transcends even today’s most pressing security concerns.” President Bush said
he would “work to achieve full civil nuclear energy cooperation with India” and
would “also seek agreement from Congress to adjust U.S. laws and policies.”
Administration officials have described the agreement as a “win” for
nonproliferation because it would bring India into the nonproliferation mainstream.
For thirty years, India has remained outside the mainstream: it rejected the Nuclear
Nonproliferation Treaty (NPT) as discriminatory and exploded a “peaceful” nuclear
device in 1974 that convinced the world of the need for greater restrictions on nuclear
trade. The United States created the Nuclear Suppliers Group as a direct response to
India’s test, halted nuclear exports to India a few years later, and worked to convince
other states to do the same.
Nonproliferation experts have suggested that potential costs to U.S. and global
nonproliferation policy of bringing India into the nonproliferation mainstream in this
manner may far exceed the benefits. For example, at a time when the United States
has called for all states to strengthen their domestic export control laws and for
tighter multilateral controls, U.S. nuclear cooperation with India would require
loosening its own nuclear export legislation, as well as creating a Nuclear Suppliers
Group exception. It would reverse nearly three decades of U.S. nonproliferation
policy and practice towards India. Some believe this agreement undercuts the basic
bargain of the NPT, could undermine hard-won restrictions on nuclear supply, and
could prompt some suppliers, like China, to justify supplying other states outside the
NPT regime, like Pakistan.
India does not meet nonproliferation criteria for nuclear cooperation under
current U.S. law (Atomic Energy Act; P.L. 95-242; 42 U.S.C. 2153 et seq.). As such,
the President would have to exempt the agreement from those nonproliferation
criteria and submit nuclear exports for congressional review on an annual basis. The
President would also have to determine, subject to congressional review, that
continued exports were necessary, even though India has tested nuclear weapons and
continues its nuclear weapons program. Congress would have to approve such an
agreement with a joint resolution. The Administration, which might propose
legislation to Congress in early 2006, reportedly prefers to create an exception for
India to existing provisions of law through stand-alone legislation.
Congress has held four hearings thus far on the global partnership. Some issues
raised at those hearings included India’s relationship with Iran and its support (or
lack thereof) for bringing Iran before the U.N. Security Council, whether nuclear
cooperation is an appropriate “carrot” for a much broader strategic relationship, and
strategies for strengthening the nonproliferation benefits of such an agreement. This
report will be updated as necessary.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Global Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issues for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Strategy vs. Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Impact on U.S. Nonproliferation Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Iran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Restricting Enrichment and Reprocessing . . . . . . . . . . . . . . . . . . . . . . . 7
Other Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Impact on the Nonproliferation Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
NSG Cohesion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Effect on NPT Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Missed Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Way Ahead: Challenges and Uncertainties . . . . . . . . . . . . . . . . . . . . . . . . . 12
Negotiating with India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
NSG Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Consulting with Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Complying with Existing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Amending the Atomic Energy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Stand-Alone Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Potential Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
U. S. Nuclear Cooperation With India:
Issues for Congress
Background
The United States actively promoted nuclear energy cooperation with India from
the mid-1950s, building nuclear power reactors (Tarapur), providing heavy water for
the CIRUS research reactor, and allowing Indian scientists to study at U.S. nuclear
laboratories. Although India was active in negotiations of the 1968 Nuclear
Nonproliferation Treaty (NPT), India refused to join the NPT on grounds that it was
discriminatory. The “peaceful” nuclear test in 1974 demonstrated that nuclear
technology transferred for peaceful purposes could be used to produce nuclear
weapons.1 In the United States, the Congress responded by passing the Nuclear Non-
Proliferation Act of 1978 (NNPA, P.L. 95-242), which imposed tough new
requirements for U.S. nuclear exports to non-nuclear-weapon states — full-scope
safeguards and termination of exports if such a state detonates a nuclear explosive
device or engages in activities related to acquiring or manufacturing nuclear
weapons, among other things.2 Internationally, the United States created the Nuclear
Suppliers Group (NSG) in 1975 to implement nuclear export controls. The NSG
published guidelines in 1978 “to apply to nuclear transfers for peaceful purposes to
help ensure that such transfers would not be diverted to unsafeguarded nuclear fuel
cycle or nuclear explosive activities.”3
1 For an excellent analysis of the proliferation implications of U.S. nuclear exports to India,
see Gary Milhollin, “Stopping the Indian Bomb,” The American Journal of International
Law, July 1987, 81 A.J.I.L. 593. See [http://www.wisconsinproject.org/pubs/
articles/1987/stoppingindianbomb.htm].
2 The NNPA, in part, amended the Atomic Energy Act of 1954. See 42 U.S.C. 2151 et seq.
Prior to the 1970 NPT, safeguards (inspections, material protection, control and accounting)
were applied to specific facilities or materials (known as INFCIRC/66-type agreements).
The NPT required safeguards on all nuclear material in all peaceful nuclear activities for
non-nuclear-weapon-state parties (those states not having detonated a nuclear explosive
device prior to Jan. 1, 1967).
3 IAEA Document INFCIRC/254, Guidelines for Transfers of Nuclear-related Dual-use
Equipment, Materials, Software, and Related Technology. Part 1 covers “trigger list” items:
those especially designed or prepared for nuclear use: (i) nuclear material; (ii) nuclear
reactors and equipment; (iii) non-nuclear material for reactors; (iv) plant and equipment for
reprocessing, enrichment and conversion of nuclear material and for fuel fabrication and
heavy water production; and (v) associated technology. Part 2 covers dual-use items.
Additional NSG criteria for dual-use exports include NPT membership and/or full-scope
safeguards agreement; appropriate end-use; whether the technology would be used in a
reprocessing or enrichment facility; the state’s support for nonproliferation; and the risk of
(continued...)
CRS-2
Conditioning U.S. nuclear exports on non-nuclear-weapon states having full-
scope safeguards created a problem particularly for India’s safeguarded Tarapur
reactors. When the NNPA was enacted, the United States was supplying low-
enriched uranium (LEU) fuel. The Carter Administration exported two more
shipments under executive order after the Nuclear Regulatory Commission (NRC)
refused to approve an export license on nonproliferation conditions. Given slim
support in Congress, no more exports were attempted after 1980. France supplied
fuel under the terms of the U.S. agreement with India until France also adopted a full-
scope safeguards requirement (1984 to 1995). After the NSG adopted the full-scope
safeguards condition in 1992, China picked up the slack, and Russia supplied fuel
from 2001 to 2004.4 The issue of LEU fuel for Tarapur became one of pride for the
Indians, particularly since their other reactors use natural uranium and they reportedly
do not have enough enrichment capability to supply Tarapur with fuel. Although the
NPT requires safeguards on items going to non-nuclear weapon states, it does not
explicitly prohibit nuclear commerce with states outside the NPT. In 1995, at the
NPT Extension Conference, states supported the principle that non-NPT parties
should not be eligible for the same kinds of assistance as NPT parties in good
standing.
Global Partnership5
The Bush Administration had been considering a strategic partnership with India
as early as 2001. Indian officials identified their growing energy needs as an area for
cooperation, particularly in nuclear energy. The U.S.-India 2004 Next Steps in
Strategic Partnership (NSSP) initiative included expanded cooperation in civil
nuclear technology as one of three goals. Phase I of the NSSP, completed in
September 2004, required addressing proliferation concerns and ensuring compliance
with U.S. export controls.6
On July 18, 2005, President Bush announced the creation of a global partnership
with India in a joint statement with Prime Minister Manmohan Singh.7 Noting the
“significance of civilian nuclear energy for meeting growing global energy demands
in a cleaner and more efficient manner,” President Bush said he would “work to
3 (...continued)
potential nuclear terrorism.
4 China was not a member of the NSG until 2004. Russia, an NSG member, exported fuel,
citing a safety exception, but NSG members objected so strongly that Russia suspended
supply in 2004. Russia may be reconsidering. “Russia to Review Tarapur Fuel Decision”
South Asian Media Net, May 10, 2005.
5 See also CRS Report RL33072, U.S. - India Bilateral Agreements in 2005, by K. Alan
Kronstadt.
6 See fact sheet on the NSSP at [http://www.state.gov/r/pa/prs/ps/2004/36290.htm].
7 Joint Statement Between President George W. Bush and Prime Minister Manmohan Singh,
White House Press Release, July 18, 2005, Washington, D.C. (hereafter cited as “July 18
Joint Statement”) available at
[http://www.whitehouse.gov/news/releases/2005/07/20050718-6.html].
CRS-3
achieve full civil nuclear energy cooperation with India” and would “also seek
agreement from Congress to adjust U.S. laws and policies.”
The Joint Statement noted that the United States “will work with friends and
allies to adjust international regimes to enable full civil nuclear energy cooperation
and trade with India, including but not limited to expeditious consideration of fuel
supplies for safeguarded nuclear reactors at Tarapur.” The United States committed
to encouraging its partners to consider this request — a reversal in the U.S. position,
which has been to ban fuel to Tarapur — and to consulting with its partners on Indian
participation in ITER (collaboration on fusion research) and in the Generation IV
International Forum for future reactor design.
Prime Minister Singh conveyed that India “would take on the same
responsibilities and practices and acquire the same benefits and advantages as other
leading countries with advanced nuclear technology, such as the United States.”8
India agreed to:
! identify and separate its civilian and military nuclear facilities and
programs;
! declare its civilian facilities to the International Atomic Energy
Agency (IAEA);
! voluntarily place civilian facilities under IAEA safeguards;
! sign an Additional Protocol for civilian facilities;
! continue its unilateral nuclear test moratorium;
! work with the United States to conclude a Fissile Material Cut Off
Treaty (FMCT);
! refrain from transferring enrichment and reprocessing technologies
to states that do not have them, as well as support international
efforts to limit their spread;
! secure its nuclear materials and technology through comprehensive
export control legislation and through harmonization and adherence
to Missile Technology Control Regime (MTCR) and NSG
guidelines.
Issues for Consideration
The Atomic Energy Act of 1954, as amended, requires Congressional approval
and oversight of certain peaceful nuclear cooperation agreements (details described
below). As Senator Lugar has noted, “Ultimately the entire Congress ... must
determine what effect the Joint Statement will have on U.S. efforts to halt the
proliferation of weapons of mass destruction.”9 Following the July 18, 2005
announcement, Congress has held four hearings so far on the global partnership and
8 July 18 Joint Statement.
9 Opening Statement, Chairman Richard G. Lugar, Senate Foreign Relations Committee
hearing on “Implications of U.S.-India Nuclear Energy Cooperation,” November 2, 2005
(hereafter referred to as November 2, 2005 SFRC India hearing).
CRS-4
has consulted with Administration on various aspects of the U.S.-India nuclear
agreement.10 The discussion of potential issues for consideration is drawn in part
from the four hearings and from the emerging debate.
Strategy vs. Tactics
The Bush Administration has described its “desire to transform relations with
India” as “founded upon a strategic vision that transcends even today’s most pressing
security concerns.”11 There is clearly broad support for cultivating a close
relationship with India, yet some members of Congress have suggested that civil
nuclear cooperation may not be the most appropriate vehicle for advancing our
relationship. In a House International Relations Committee hearing on September
8, 2005, Congressman Jim Leach stated,
I don’t know any member of Congress that doesn’t want to have a warming of
relations with the government of India.... I also don’t know many members of
Congress who are pushing for the precise commitment that the administration has
made.12
Congressman Leach instead suggested that U.S. support for a permanent seat for
India on the United Nations Security Council might have been a more appropriate
gesture.
Other observers outside of Congress have questioned whether U.S. energy
assistance should focus on expanding nuclear power, in contrast to other energy
alternatives. Henry Sokolski, of the Nonproliferation Policy Education Center, has
argued that Indian energy needs might be better met through free market allocation,
including improved efficiency. He asserts that nuclear power is the least leveraged
of India’s options to meet India’s energy needs, given that it currently provides only
2.7% of installed electrical capacity.13 India’s projections of its nuclear energy needs
are predicated on an estimated annual growth rate of 8%, which some observers
believe may be unrealistic.14 One well-known Indian commentator, Brahma
Chellaney, argued in the International Herald Tribune that the premise that India
10 The House International Relations Committee held the following hearings: “The U.S. and
India: An Emerging Entente?” (September 8, 2005); “The U.S.-India Global Partnership:
The Impact on Nonproliferation”(October 26, 2005); and “U.S.-India Global Partnership:
How Significant for American Interests?” (November 16, 2005). See
[http://wwwc.house.gov/international_relations] for testimonies of witnesses. The Senate
Foreign Relations Committee held a hearing on November 2, 2005, entitled, “Implications
of U.S.-India Nuclear Energy Cooperation.”
11 Statement of Under Secretary of State for Political Affairs, R. Nicholas Burns, September
8, 2005, House Committee on International Relations, Hearing on “The U.S. and India: An
Emerging Entente?” (hereafter cited as “Sept. 8, 2005 HIRC US-India hearing”) p. 1.
12 Remarks by Congressman Jim Leach, Sept. 8, 2005, HIRC US-India Hearing.
13 Henry Sokolski, “Implementing the Indian Nuclear Deal: What’s at Risk, What Congress
Should Require,” Briefing to Congress, Sept. 2005.
14 See “India’s Growth Target Unrealistic,” Financial Times, Jan. 23, 2003, which quotes
the Asia Development Bank.
CRS-5
should meet its rapidly expanding energy needs through importing nuclear power
reactors was flawed. Chellaney argued that a better approach for India would be to
secure clean-coal and renewable energy technologies.15
The Senate Foreign Relations Committee’s November 2, 2005 hearing sought,
among other things, to answer the question of why civil nuclear cooperation was so
important to the U.S.-Indian strategic relationship. Under Secretary of State Nicholas
Burns told Committee members that “India had made this the central issue in the new
partnership developing between our countries.”16
Impact on U.S. Nonproliferation Policies
The Administration has characterized civil nuclear cooperation with India as a
“win” for nonproliferation because it would bring India into the nonproliferation
“mainstream.” In short, the Administration is proposing that India should be courted
as an ally in U.S. (not global) nonproliferation policy, rather than continue as a target
of U.S. (and global) nonproliferation policy. India should become an ally for three
reasons: past policies have not worked; India has a relatively good nonproliferation
record anyway, and India could be a useful ally in the nonproliferation regime.
Some observers, however, are concerned that India may not support U.S.
nonproliferation policies sufficiently to warrant nuclear cooperation, particularly
where the United States faces its greatest nuclear proliferation threat: Iran. For
example, at the September 8 HIRC hearing, several members of Congress questioned
whether the United States had obtained assurances from India of its support on Iran
before it issued the July 18 joint statement.
Iran. Two factors may present challenges to Indian support for U.S. policies
toward Iran. First, India has a growing strategic relationship with Iran, not limited
to its interest in a proposed $7.4 billion, 2800-km-long gas pipeline between Iran,
Pakistan, and India. Second, India has a strong tradition of foreign policy
independence, as a long-time leader of the Non-Aligned Movement (NAM) states
and as a vigorous opponent of the discriminatory nature of the Nuclear
Nonproliferation Treaty.17 One witness before the House International Relations
Committee hearing on November 16, 2005, suggested that opposition from the
United States on the gas pipeline project is considered to be “interference with
India’s autonomy in foreign relations, as well as disregard for its security and energy
needs.”18
15 Brahma Chellaney, “US Deal is a Bad Choice for Power Generation,” International
Herald Tribune, December 27, 2005.
16 Statement of Under Secretary of State for Political Affairs, R. Nicholas Burns, November
2, 2005, Senate Foreign Relations Committee Hearing on “Implications of U.S.-India
Nuclear Energy Cooperation.
17 See Miriam Rajkumar, “Indian Independence,” Carnegie Analysis, Sept. 20, 2005, at
[http://www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=17486].
18 Dr. Francine Frankel, Statement before the House International Relations Committee,
(continued...)
CRS-6
On Iran’s nuclear program, Indian officials have stated they do not support a
nuclear weapons option for Iran. However, they do not agree with the United States
on the need to refer Iran’s nuclear program to the U.N. Security Council, which the
United States has proposed for two years, nor on the need to limit Iran’s nuclear fuel
cycle development. When the IAEA Board of Governors passed a resolution
(GOV/2005/77) on September 24, 2005, finding Iran in noncompliance with its
safeguards agreement, India voted with the United States, provoking significant
domestic dissent. However, the resolution was weak by traditional standards of
noncompliance resolutions: it did not pass by consensus (Venezuela voted against it
and 12 countries abstained) and it did not refer the matter immediately to the Security
Council. According to Indian Foreign Secretary Shyam Saran, India voted for the
resolution and against the majority of NAM states which abstained, because it felt
obligated after having pressured the EU-3 to omit reference to immediate referral to
the U.N. Security Council.19 Moreover, India explained its vote this way:
In our Explanation of Vote, we have clearly expressed our opposition to Iran
being declared as noncompliant with its safeguards agreements. Nor do we agree
that the current situation could constitute a threat to international peace and
security. Nevertheless, the resolution does not refer the matter to the Security
Council and has agreed that outstanding issues be dealt with under the aegis of
the IAEA itself. This is in line with our position and therefore, we have extended
our support.20
India’s support for U.S. policy toward Iran could be tested significantly by the next
push for the Board to refer Iran to the Security Council, although much depends on
Iranian behavior.
Iran may also test India’s support for curtailing peaceful nuclear programs.
India has always been an advocate of states’ rights to develop the peaceful uses of
nuclear energy and for thirty years has derided the NPT and nonproliferation policies
as discriminatory. The official Iranian press agency reported Prime Minister Singh
as telling President Ahmadinejad on September 22 that solutions to Iran’s nuclear
problem should be based on the principle that Iran as an NPT member should retain
its lawful rights.21 On September 26, Foreign Secretary Saran told the press that
“With respect to Iran’s right to peaceful uses of nuclear energy, that is something
which we have ourselves no reservations about.”22
18 (...continued)
November 16, 2005, “India’s Potential Importance for Vital U.S. Geopolitical Objectives
in Asia: A Hedge Against a Rising China?”
19 “Press Briefing by Foreign Secretary on the events in UN and IAEA,” New Delhi, Sept.
26, 2005, available at [http://www.indianembassy.org/press_release/2005/Sept/29.htm].
20 Briefing by MEA Official Spokesperson on Draft Resolution on Iran in IAEA, New Delhi,
S e p t . 2 4 , 2 0 0 5 , a v a i l a b l e a t [ h t t p : / / w w w . i n d i a n e m b a s s y . o r g /
press_release/2005/Sept/16.htm].
21 “Ahmadinejad Thanks India for Positive Stands on Iran in IAEA,” IRNA, Sept. 23, 2005.
22 Sept. 26, 2005 press briefing, op. cit.
CRS-7
Restricting Enrichment and Reprocessing. One of India’s commitments
in the July 18 statement was to refrain from transferring enrichment and reprocessing
technologies to states that do not have already have those technologies and to support
international efforts to limit their spread. This could help move India politically into
the mainstream of nonproliferation efforts, since India historically has stood with
non-aligned nations in championing the inalienable right to develop peaceful uses of
nuclear energy. To some observers, U.S. efforts to restrict development of certain
aspects of the nuclear fuel cycle (enrichment and reprocessing) that are most useful
in a nuclear weapons development program are seen as creating a new category of
“have-nots” — those states that can have some peaceful nuclear technology but
cannot be trusted with it all. In other words, states like Japan, Germany, and Brazil
might be trusted with sensitive technologies, but states like Iran and North Korea
cannot be trusted. India has supported EU-3 negotiations with Iran, which have as
their ultimate objective getting Iran to walk away from enrichment and reprocessing,
but India has also, at least rhetorically, supported states’ inalienable rights to the
peaceful nuclear fuel cycle. Nonetheless, there is little evidence thus far that India
had exported such technology abroad in the past. U.S. officials reportedly have said
the United States will not engage in reprocessing or enrichment technology
cooperation with India.
Other Priorities. In his February 11, 2004, speech, President Bush outlined
several counterproliferation priorities, including expanding the Proliferation Security
Initiative; strengthening laws and international controls against weapons of mass
destruction (WMD) and missile proliferation (ultimately resulting in adoption of
UNSCR 1540); expanding the G8 Global Partnership; and strengthening IAEA
safeguards through universal adoption of the Additional Protocol. Ambassador
Joseph has noted that India’s adherence to NSG and MTCR guidelines would help
ensure that WMD and missile-related technologies would not be transferred.
Although India’s adoption of the Additional Protocol would contribute to its
universalization, there are few proliferation benefits to be realized from the adoption
of such a protocol in a nuclear weapons state. Finally, although the United States
reportedly has asked India to endorse PSI, that endorsement has not been
forthcoming.
Impact on the Nonproliferation Regime
India has long stood outside the nonproliferation regime and this initiative raises
questions about whether a partial solution can be beneficial or detrimental. Some
considerations include cohesion within the Nuclear Suppliers’ Group, effect on non-
nuclear weapon member states of the NPT, and perspectives on whether the initiative
missed opportunities to strengthen the nuclear nonproliferation regime.
NSG Cohesion. A first order concern is cohesion within the Nuclear
Suppliers Group (NSG). As noted earlier, the NSG has followed the U.S. lead on
requiring full-scope safeguards as a condition of nuclear supply. During the
September 8 hearing, House International Relations Committee Chairman Henry
Hyde noted that “Many of us are strong supporters of the NSG and would not want
to see it weakened or destroyed.” Chairman Hyde asked whether the administration
could assure the Committee that
CRS-8
...no matter what else happens, that the administration will continue to abide by
NSG guidelines, and if you are unable to gain consensus within the NSG for the
amendments you need, you will not implement the new India policy in violation
of NSG guidelines.
Ambassador Joseph assured the Committee that “we intend to take no action that
would undercut the effectiveness of the NSG,” and further, that the Administration
did not intend to change the consensus procedure or even change the NSG full-scope
safeguards condition of nuclear supply.23
Dissent within the NSG could be counterproductive to achieving other
objectives the United States is pursuing in nuclear nonproliferation, such as
restricting the fuel cycle, disarming North Korea, and restraining Iran, all of which
rely on the considerable support of friends and allies. Moreover, harmonizing export
controls has played a key role in Bush counter- and non-proliferation policies in the
last few years and is particularly important for interdiction efforts. U.S.-India
cooperation could prompt other suppliers, like China, to justify supplying other non-
nuclear-weapon states, like Pakistan. China, which joined the NSG in 2004,
reportedly has not yet shared its views on the nuclear cooperation agreement. Russia,
which only halted fuel supplies to the Indian Tarapur reactors in December 2004 at
the insistence of the NSG, could welcome the opportunity to resume fuel supplies to
Tarapur, but might also be emboldened to push ahead with supplying more reactors
to Iran, regardless of U.S. views.
Effect on NPT Member States. India has complained for years that it has
been excluded from regular nuclear commerce because of its status outside the NPT.
Some observers believe this is a good thing and shows that the policy works. Others
believe that a new paradigm is needed for India because it will not join the NPT as
a non-nuclear weapon state.
The NPT is basically a two-way bargain. Non-nuclear-weapon states under the
NPT give up the option of developing nuclear weapons in exchange for the promise
of peaceful nuclear cooperation. Nuclear weapon states under the NPT were not
required immediately to disarm, but to commit to eventual disarmament. India, as
a state outside the NPT, is bound by neither of these commitments. Some observers
may see the offer of nuclear cooperation previously reserved for states under the NPT
with full-scope safeguards not only as undermining the agreements made by non-
nuclear weapon states, but also the commitments made by nuclear weapon states to
eventually disarm. In this view, India’s continued unilateral testing moratorium is
insufficient, compared with signing the Comprehensive Test Ban Treaty and its
support for FMCT negotiations is insufficient compared with capping its nuclear
weapons fissile material production now, as four of the five nuclear weapon states
have formally done.
The proliferation shocks of the 1990s, when the Iraqi and North Korean
clandestine nuclear weapons programs surfaced, led to the strengthening of the NPT
and export control regimes. At the 1995 NPT Review and Extension Conference,
23 Sept. 8, 2005 HIRC US-India hearing.
CRS-9
NPT parties affirmed the NSG’s decision to require full-scope safeguards for nuclear
exports, supporting the principle that non-NPT parties should not be eligible for the
same kinds of assistance as NPT parties in good standing. At the 2000 conference,
NPT parties again supported that principle. According to one U.S. participant in that
conference, “Reinforcement of this guideline is important given some who have
questioned whether this principle should be relaxed for India and Pakistan, which
have not accepted full-scope IAEA safeguards. The answer from NPT parties is
clearly no.”24
In the last 10 years, virtually all states agreed to strengthen the nonproliferation
regime, sacrificing some sovereignty by opening up to additional, intrusive
inspections under the Additional Protocol. In the wake of revelations in 2004 about
Pakistani scientist A.Q. Khan’s nuclear black market sales, non-nuclear weapon
states under the NPT are also being asked to consider further restrictions on their
sovereignty by voluntarily restricting their access to sensitive nuclear technologies
like uranium enrichment and reprocessing. If some states view the U.S.-Indian
nuclear cooperation agreement as a breach of faith in the basic bargain of the NPT,
they might be less inclined to accept additional sacrifices, to the detriment of the
nonproliferation regime.
Missed Opportunities. Ambassador Joseph described the nuclear initiative
as representing “a substantial net gain for nonproliferation. It is a win for our
strategic relationship, a win for energy security, and a win for nonproliferation.”
Ambassador Joseph said he was “convinced that the nonproliferation regime will
emerge stronger as a result.”25
However, some observers have suggested the United States asked for too little.
For example, Fred McGoldrick, Harold Bengelsdorf and Lawrence Scheinman,
argued in the October 2005 issue of Arms Control Today that
It is open to serious doubt whether the proposed Indian concessions were
significant enough to justify the accommodations promised by the United States
and whether the steps the United States and India agreed to take in the civil
nuclear area will, on balance, be supportive of global nonproliferation efforts...If
the Bush Administration is able to implement the joint declaration without
significant modification, it will have given the Indians a great deal —
acknowledgment as a de facto nuclear weapon state and access to the
international nuclear energy market — in return for largely symbolic concessions
in the nonproliferation area.26
Robert Einhorn, of the Center for Strategic and International Studies, told
members of the House International Relations Committee on October 26, 2005, that
24 Ambassador Norman Wulf, “Observations from the 2000 NPT Review Conference,” Arms
Control Today, Nov. 2000.
25 Ibid.
26 Fred McGoldrick, Harold Bengelsdorf, Lawrence Scheinman, “The U.S.-India Nuclear
Deal: Taking Stock,” Arms Control Today, Oct. 2005, pp. 6-12. See
[http://www.armscontrol.org/act/2005_10/OCT-Cover.asp].
CRS-10
several of the steps pledged by India are “simply reaffirmations of existing
positions.”27 The Indian embassy itself, not surprisingly, has downplayed the depth
and breadth of its nonproliferation commitments, describing all but its safeguards
commitments under the July 18 statement in the following way:
A number of existing policies were also reiterated by India, among them a
unilateral moratorium on nuclear testing, working towards conclusion of a
multilateral Fissile Material Cut-off Treaty, non-transfer of enrichment and
reprocessing technologies, securing nuclear materials and technology through
export control, and harmonisation with MTCR and NSG guidelines.[emphasis
added]28
India has had a self-imposed nuclear test moratorium for years, although
supporters of this agreement note that this agreement would bind India bilaterally to
honoring that pledge. If the NSG used a similar criteria in approving exports, it could
further strengthen that pledge. India has supported FMCT negotiations for years,
despite continuing to produce fissile material for use in nuclear weapons. Since the
pace of FMCT negotiations is glacial, support for negotiations could allow India to
continue producing fissile material indefinitely. At least one supporter of the
agreement has argued that India should not cap its nuclear weapons program, and that
outcomes restraining the ability to build up its nuclear stockpile “threaten to place
New Delhi at a disadvantage vis-a-vis Beijing, a situation that could not only
undermine Indian security but also U.S. interests in Asia.29
The most far-reaching of the commitments is to separate civilian and military
facilities, declare civilian facilities, and place them under safeguards. Administration
officials have pointed to this aspect of the agreement as a nonproliferation “plus.”
Yet, India’s voluntary safeguards commitments essentially place India squarely in the
company of nuclear weapon states. Allowing India broad latitude in determining
which of its facilities to put under international safeguards is a privilege accorded
currently only to nuclear weapon states under the NPT. Although the United States
“in no way recognizes India as an NPT nuclear weapons state,” excluding military
facilities from inspections is a tacit recognition of their legitimacy. Indian statements
to the press indicate that they see their safeguards commitment very much as the kind
that nuclear weapon states undertake. The Indian embassy backgrounder on the
agreement stated that “Nuclear weapon states, including the US, have the right to
shift facilities from civilian category to military and there is no reason why this
27 Statement by Robert J. Einhorn, Center for Strategic and International Studies, “The
U.S.-India Global Partnership: The Impact on Nonproliferation” Oct. 26, 2005.
28 “Backgrounder on India-U.S. Civilian Nuclear Energy Cooperation,” Indian Embassy,
July 29, 2005. See [http://www.indianembassy.org/press_release/2005/July/32.htm].
29 Ashley J. Tellis, India As A New Global Power: An Action Agenda for the United States,
Carnegie Endowment for International Peace, 2005, p. 25.
CRS-11
should not apply to India.”30 Such an approach would not meet U.S. legal standards
for agreements for cooperation.31
Ambassador Burns told reporters on July 19, 2005, that “this agreement can be
verified and will be verified,” and presumably that refers to verifying the U.S.
obligation under Article I of the NPT “not in any way to assist, encourage, or induce
any non-nuclear weapon state to manufacture or otherwise acquire nuclear weapons.”
From a broader nonproliferation perspective, however, there is little value in
inspecting facilities in a nuclear weapons state. In particular, an Additional Protocol
on top of largely symbolic safeguards adds few nonproliferation benefits.
Nonetheless, Ambassador Joseph has noted that signing an Additional Protocol will
require India to report its trigger list exports to the IAEA.
IAEA Director General Dr. ElBaradei said that he has “always advocated
concrete and practical steps towards the universal application of IAEA safeguards.”32
In remarks to the Carnegie Endowment’s Nonproliferation Conference, Dr. ElBaradei
cited additional safety benefits of putting more Indian facilities under safeguards.
However, it should be noted that the NSG already has an exception to its full-scope
safeguards requirement for safety-related items.
The Administration has asserted that India has an “exceptional” record of
nonproliferation and despite a few isolated sanctions, most of the evidence supports
the view that India has exercised restraint in export controls.33 As such, however,
India’s promise to refrain from transferring enrichment and reprocessing technologies
to states that do not have them, as well as its promise to adhere to NSG guidelines,
may be little more than a formality.
Many observers have noted that there are no measures in this global partnership
to restrain India’s nuclear weapons program. Some have suggested that the United
States should have asked India to halt fissile material production for weapons.
Ambassador Bob Joseph stated that the United States remains “committed to
achieving Indian curtailment of fissile material production, and we have strongly
30 Ibid.
31 See McGoldrick, Bengelsdorf, and Scheinman, op cit., for a description of the requirement
for safeguards in perpetuity.
32 “IAEA Director General Reacts to U.S.-India Cooperation Agreement,” See
[http://www.iaea.org/NewsCenter/PressReleases/2005/prn200504.html]. Critics of the
IAEA point out that it is an organization that measures its success in part by how much
nuclear material and how many facilities are under inspection.
33 On Sept. 29, 2004, the State Department published Public Notice 4845 in the Federal
Register imposing sanctions pursuant to the Iran Nonproliferation Act of 2000. Two Indian
scientists were named — Dr. Prasad and C. Surendar. The State Department has not
revealed what technology or equipment was transferred, but both scientists have worked for
the Nuclear Power Corporation of India, Ltd., a government-owned entity that runs India’s
nuclear power plants. The Indian embassy reported in December 2005 that sanctions on Dr.
Surendar had been removed. See [http://www.indianembassy.org/press_release/5.asp]. In
the December 30, 2005 Federal Registe, Public Notice 5257 stated simply that sanctions on
an Indian entity issued in Public Notice 4845 had been rescinded.
CRS-12
encouraged a move in this direction. We stand willing to explore options that might
serve this objective, but we will not insist on it for purposes of this civil nuclear
initiative.”34 Indian officials, on the other hand, have taken pains to point out that
“There is no commitment at all to cease production of fissile material ahead of the
conclusion of such a multilateral [FMCT] treaty.”35 Other observers have noted that
although India committed to a test ban, it did not commit to signing the
Comprehensive Test Ban Treaty. Still other observers have suggested that if India
insists on being treated as a nuclear weapon state, it should undertake responsibilities
similar to those of the other nuclear weapon states, for example, placing fissile
material excess to defense needs under safeguards. Many believe that real limits on
India’s nuclear weapons program would constitute a “win” for nonproliferation.
The Way Ahead: Challenges and Uncertainties
In his September 8 HIRC testimony, Ambassador Joseph highlighted three
challenges and uncertainties: separation of India’s civil and military facilities, NSG
support, and the issue of “other states” (such as Pakistan or Israel, which might ask
for similar treatment).36 By November, Ambassador Joseph had a list of five
challenges when he testified before the Senate Foreign Relations Committee:
meaningful separation, negotiating the appropriate safeguards arrangement, NSG
support, avoiding the temptation to renegotiate the deal, and securing domestic legal
reform.37
A particular challenge for the United States is to ensure that the new steps —
separating civilian and military facilities, placing civilian facilities under IAEA
safeguards, and applying an additional protocol — are implemented in a way that
satisfies U.S. legal requirements. The United States under Article I of the NPT must
ensure that its assistance does not “in any way assist, encourage or induce any non-
nuclear-weapon state to manufacture nuclear weapons.” A significant question is
how India, in the absence of full-scope safeguards, can provide sufficient confidence
that U.S. peaceful nuclear technology will not be diverted to nuclear weapons
purposes, as it was in 1974.38 Some observers believe that IAEA safeguards provide
34 Sept 8, 2005 HIRC US-India hearing.
35 “Backgrounder on India-U.S. Nuclear Energy Cooperation,” July 29, 2005.
36 Statement of Robert G. Joseph, Under Secretary of State for Arms Control and
International Security, Sept. 8, 200, HIRC US-India Hearing. Ambassador Joseph described
India as an exceptional case and civil nuclear cooperation as a mechanism to further deepen
its commitment to international nonproliferation. Joseph then suggests that neither Pakistan
nor Israel — two other nuclear weapon states outside the NPT — has a civil nuclear energy
program that approximates India’s and that the United States will not seek such cooperation
with those states.
37 Statement of Robert G. Joseph, Under Secretary of State for Arms Control and
International Security, November 2, 2005 SFRC India hearing.
38 Although India maintained a certain ambiguity by calling its 1974 test a “peaceful nuclear
explosion,” the 1998 tests leave little doubt that the experience gained was put to use in a
(continued...)
CRS-13
little assurance of the non-diversion of fissile material, particularly in a state that has
an active nuclear weapons program. Others believe that the application of an
Additional Protocol helps strengthen the IAEA’s capabilities to detect diversion.
India has agreed to sign an additional protocol for its civilian facilities. However,
given India’s unsafeguarded nuclear facilities, this step is also unlikely to make a
difference in providing additional assurances of the non-diversion of nuclear
material.
The United States has a legal obligation under Section 123 a. (1) of the Atomic
Energy Act to maintain safeguards with respect to all U.S. materials and equipment
transferred pursuant to the agreement as long as that material or equipment remains
under the jurisdiction of the cooperating party, irrespective of whether the agreement
is terminated or suspended [emphasis added]. The language of the joint statement,
however, refers to India “voluntarily placing its civilian facilities under IAEA
safeguards.” There are currently three kinds of safeguards agreements in force:
INFCIRC/66, INFCIRC/153, and voluntary safeguards agreements made by the five
nuclear weapon states.39 Only INFCIRC/66 agreements, which predate the NPT and
which India currently has on four of its nuclear reactors, have indefinite application.
INFCIRC/153 agreements apply to nuclear material, which means that if a facility is
emptied of nuclear material, it would not have to be inspected, and voluntary
safeguards agreements make facilities “eligible” for safeguards, but do not require
the IAEA to inspect them. Although Foreign Minister Saran has stated that “it is
legitimate for our partners to expect that such cooperation will not provide any
advantage to our strategic programme,”it is not clear which kind of agreement India
will seek and which one will be acceptable to the IAEA. In November 2, 2005
testimony before the Senate Foreign Relations Committee, Ambassador Joseph stated
that the United States “would not view a voluntary offer arrangement as defensible
from a nonproliferation standpoint or consistent with the Joint Statement, and
therefore do not believe it would constitute an acceptable safeguards arrangement.”
Ambassador Joseph also noted that safeguards must be applied in perpetuity.40
Administration officials repeatedly stressed that India’s separation plan must be
credible, transparent, and defensible from a nonproliferation standpoint.41 Although
Ambassador Joseph has noted that “the resultant safeguards must contribute to our
38 (...continued)
nuclear weapons program. Plutonium produced in the CIRUS reactor, which the United
States supplied with heavy water, was used in the 1974 test. See Victor Gilinsky and Paul
Leventhal, “India Cheated,” Washington Post, June 15, 1998.
39 INFCIRC, an abbreviation of “Information Circular,” is a designation the IAEA uses to
record its agreements with states and organizations. INFCIRC/66 and /153 are model
agreements; the actual agreements with states will bear different numbers. INFCIRC/66
agreements predate the NPT and were used in bilateral safeguards arrangements, whereas
INFCIRC/153 agreements are “full-scope safeguards” under the NPT.
40 Statement of Robert G. Joseph, Under Secretary of State for Arms Control and
International Security, November 2, 2005 SFRC India hearing.
41 Statement of Under Secretary of State Robert Joseph before the Senate Foreign Relations
Committee, November 2, 2005.
CRS-14
nonproliferation goals,” it is not clear what that might mean.42 Some observers have
noted that a separation plan needs to take into account several factors: India’s past
commitments (e.g., use of purportedly “peaceful” nuclear reactors like CIRUS to
produce plutonium for nuclear weapons); the impact on its nuclear weapons program
(some advocate a plan that would cap India’s fissile material production); and U.S.
legal requirements for safeguards in perpetuity. A Canadian embassy official stated
in mid-December 2005 that Canada encouraged India to place CIRUS under
international safeguards. Any assessment of a credible and defensible separation plan
needs to consider potential U.S. obligations, which are yet to be revealed in any
agreement for peaceful nuclear cooperation. One advantage of complying with the
provisions in the Atomic Energy Act is that it requires a detailed nuclear cooperation
agreement as well as detailed assessments of nuclear proliferation impacts.
Senator Lugar, in a December 6, 2005 press release, noted that the civil-military
separation plan was the next hurdle in moving forward with the agreement, and that
the U.S. Congress would likely judge the separation plan according to three criteria:
1. Compliance with safeguards requirements; 2. Non-assistance (with respect to
India’s nuclear weapons program); and 3. Transparency.43 The first two criteria
reflect what is required by U.S. law and under the NPT. With respect to
transparency, it is not clear whether transparency would require India to simply name
civilian facilities or to provide evidence of separation.
In late December 2005, Foreign Minister Saran visited the United States and,
according to press reports, discussed a separation plan with U.S. officials.
Confidentially, administration officials noted that the plan was not credible or
defensible from a nonproliferation standpoint, and negotiations will continue.
With respect to safeguards negotiations, India reportedly has not yet been in
contact with IAEA officials to discuss safeguards issues. Ultimately, the United
States will have little influence over the outcome of the safeguards negotiation
process, since safeguards agreements are negotiated between the state and the
IAEA.44 India’s broad latitude in separating its civilian facilities from military
facilities and voluntarily placing them under safeguards will affect how observers
perceive the “verifiability” of the agreement. Ambassador Joseph noted in November
that “the number of facilities and activities that India places under IAEA safeguards,
and the method and speed with which it does so, will directly affect the degree to
which we will be able to build support for full civil nuclear cooperation.” Congress
could, however, condition its approval of an agreement for cooperation on adequate
implementation of safeguards on India’s civil nuclear program, as described below.
42 Ibid.
43 See press release at [http://lugar.senate.gov/pressapp/record.cfm?id=249537]
44 Under Secretary of State for Political Affairs Nicholas Burns, “Briefing on the Signing
of the Global Partnership Agreement Between the United States and India,” July 19, 2005.
See [http://www.state.gov/p/us/rm/2005/49831.htm].
CRS-15
Negotiating with India
The July 18, 2005 joint statement by President Bush and Prime Minister Singh
noted that the two countries would establish working groups (headed on the Indian
side by Foreign Secretary Saran and on the U.S. side by Under Secretary Burns) to
hammer out details of cooperation. A visit by President Bush to India in 2006 will
provide impetus for progress. It is not clear whether Congress is expected to approve
legislation or an agreement before the details of safeguards on Indian nuclear
facilities are clear. In the case of other states, safeguards negotiations have taken
years.
NSG Consultations
U.S. officials have consulted both informally and formally with NSG members
thus far.45 Initial responses from the United Kingdom, Russia and France have all
been positive. In mid-September, France issued a joint statement with India that it
would work with NSG partners to enable nuclear cooperation with India to go
forward.46 Other responses have been mixed, especially from Sweden and Canada.
Some “NPT purists,” including Ireland, Japan, and the Netherlands, reportedly have
raised questions. Canada, which provided the CIRUS reactor to India, as well as
blueprints for CANDU reactors (that India subsequently used to build indigenous
reactors that could make plutonium for its weapons program), reportedly told U.S.
officials that it welcomed U.S. steps to addressing what has been a thorny issue in the
NPT — nuclear weapon states outside the regime — but had hoped the United States
would have placed more conditions on the agreement. In particular, the deal would
have been more positive if the United States had obtained an Indian commitment to
freeze production of fissile material for nuclear weapons.47 As noted above, Canada
hopes India will consider placing CIRUS under safeguards.
In October, the NSG held a Consultative Group meeting, in which member
states discussed the issue of nuclear cooperation with India. U.S. officials (Assistant
Secretaries of State Rademaker and Rocca) did not present a strategy for creating an
exception, but presented the issue. NSG members are likely to want to see exactly
what Indian safeguards commitments are before proceeding further. Reportedly,
some NSG members may want to see restrictions on cooperation, such as no
enrichment or reprocessing cooperation, no heavy water cooperation, and no exports
of highly enriched uranium or plutonium. Brazil will chair the next NSG plenary
meeting in mid-2006.
Although U.S. officials did not present a plan to the NSG, Ambassador Joseph
has told Congress that he envisions adopting an exception or set of criteria that would
allow full cooperation with India without abandoning NSG consensus rules or the
45 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,” Nuclear Fuel, Sept.
26, 2005.
46 Sept. 12, 2005, Joint Statement by President Chirac and Prime Minister Singh, Paris.
47 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,” Nuclear Fuel, Sept.
26, 2005.
CRS-16
full-scope safeguards condition of supply.48 One approach could be to adopt the
commitments India made on July 18 as the criteria for an exception. In short, exports
to a non-nuclear weapon state without full scope safeguards could be allowed if that
state: separated military and civilian facilities, declared and placed civilian facilities
under IAEA safeguards, adopted an additional protocol, supported FMCT and a
nuclear testing moratorium, refrained from transferring enrichment and reprocessing
technologies, implemented export controls, and adhered to the MTCR and NSG
guidelines. NSG members would have to agree that those commitments represent
significant enough nonproliferation gains to warrant full nuclear cooperation.
An alternative to additional criteria would be simply to have all 45 member
states decide in the plenary to allow nuclear exports to India, based on its past export
control history and its future commitments. While this has the benefit of not seeking
changes to NSG policies or procedures, it still must be compelling enough to win the
support of all other member states. Some NSG members, for example, Sweden,
Denmark, Austria, and Ireland, are expected to be critical of the U.S. policy on the
basis of nonproliferation principles.49
Consulting with Congress
Significant U.S.-Indian nuclear cooperation requires consent by Congress
because India does not meet existing nonproliferation criteria under current U.S. law
(Atomic Energy Act; P.L. 95-242; 42 U.S.C. § 2153 et seq.). As noted in the July
18th Joint Statement, President Bush “would also seek agreement from Congress to
adjust U.S. laws and policies.” Regardless of how that is achieved, any agreement
for nuclear cooperation with India requires positive approval from Congress, either
through existing provisions of law, or through passing new legislation that would
create an exception for India. Three options — complying with existing law,
amending existing law, or proposing stand-alone legislation — are described below.
Complying with Existing Law. All significant nuclear cooperation requires
an agreement for cooperation. The Nuclear Non-Proliferation Act of 1978 (NNPA)
amended the Atomic Energy Act of 1954 (AEA),50 to include a requirement for full-
scope safeguards for significant nuclear exports non-nuclear weapon states.51
Agreements for Cooperation. Section 123 of the AEA (42 U.S.C. 2153)
requires an agreement for cooperation as a prerequisite for significant nuclear
cooperation with any nation; the United States has about 27 agreements for
cooperation in place now, and had an agreement with India from 1963 to 1993.
48 Sept. 8, 2005 HIRC US-India hearing, Nov. 2, 2005 SFRC US-India hearing.
49 Mark Hibbs, “U.S. to face some opposition if it seeks consensus NSG rule on India,”
Nucleonics Week, Sept. 29, 2005.
50 P.L. 83-703, 42 U.S.C. §§ 2153 et seq.
51 Nuclear cooperation includes the distribution of special nuclear material, source material,
and byproduct material, to licensing for commercial, medical, and industrial purposes. These
terms, “special nuclear material,” “source material,”and “byproduct material,” as well as
other terms used in the statute, are defined in 42 U.S.C. § 2014.
CRS-17
There are nine criteria that an agreement must meet unless the President exempts the
agreement.52 Briefly, they are guarantees that 1) safeguards continue in perpetuity;
2) full-scope safeguards are applied in non-nuclear weapon states; 3) there is no
transfer; 4) U.S. has right of return; 5) there is no transfer of material or classified
data; 6) physical security is maintained; 7) no enrichment or reprocessing without
prior approval; 8) storage is approved by United States for plutonium and HEU; and
9) anything produced through cooperation is subject to all the above requirements.
The most difficult of these requirements to meet in the case of India is the full-
scope safeguards requirement for non-nuclear weapon states (AEA, Sec. 123(a)(2).53
The President may exempt an agreement for cooperation from any of the
requirements if he determines that the requirement would be “seriously prejudicial
to the achievement of U.S. non-proliferation objectives or otherwise jeopardize the
common defense and security.” An exempted agreement would not become effective
“unless the Congress adopts, and there is enacted, a joint resolution stating that the
Congress does favor such agreement.”54 In other words, both chambers of Congress
must approve the agreement if it does not contain all of the Section 123 requirements.
Export Licensing. In addition to formalizing cooperation in a peaceful
nuclear cooperation agreement, the AEA sets out procedures for licensing exports
(Sections 126, 127, and 128; 42 U.S.C. 2155, 2156, 2157). The Nuclear Regulatory
Commission (NRC) is required to meet criteria in Sections 127 and 128 in
considering authorizing export licenses. These criteria mirror those in Section 123
and include full-scope safeguards for non-nuclear weapon states. In addition, the
President must judge that the proposed export or exemption will “not be inimical to
the common defense and security” or that any export of that type would not be
inimical to the common defense and security because it lacks significance for nuclear
explosive purposes. Additional considerations, if warranted, include whether the
license or exemption will materially advance the nonproliferation policy of the
United States by encouraging the recipient nation to adhere to the NPT; whether
failure to issue the license or grant the exemption would otherwise be seriously
prejudicial to U.S. nonproliferation objectives; and whether the recipient nation has
agreed to conditions identical to those laid out in Section 127.
If the NRC does not issue an export license, the President may still authorize an
export if he “determines that failure to approve an export would be seriously
prejudicial to the achievement of U.S. nonproliferation objectives or otherwise
jeopardize the common defense and security.” In that case, the President would
submit the license or authorization, along with a detailed assessment and other
52 These are listed in Section 123.a., (1) through (9), 42 U.S.C. § 2151.
53 42 U.S.C. 2153(a)(2). Section 4 (b) of the NNPA specifies that all other terms used in the
NNPA not defined in Section 4 “shall have the meanings ascribed to them by the 1954 Act,
the Energy Reorganization Act of 1974 and the Treaty [NPT].” S.Rept. 95-467 further
clarified that under the NPT, the five nuclear weapon states are the U.S., U.K., China, the
Soviet Union, and France. U.S. Code Congressional and Administration News, 95th Cong.,
2nd sess., 1978, vol. 3, p. 329.
54 This new requirement was added by the Export Administration Amendment Act of 1985,
P.L. 99-64, Section 301 (b) (2), 99 Stat. 120.
CRS-18
documentation, to Congress for 60 days of continuous session. If Congress
disapproves the export, no further exports can be made during that Congress. If
Congress does not disapprove the export, it would review one license for export each
year.
In the case of exports pursuant to an exempted agreement for cooperation —
which would be the case for Indian nuclear cooperation, the NRC would not have to
meet the full-scope safeguards requirement in assessing whether it could issue export
licenses. In addition, Congress would only review one such license per year.
Termination of Cooperation. Another significant hurdle is Section 129 of
the AEA (42 U.S.C. 2158), which requires ending exports of nuclear materials and
equipment or sensitive nuclear technology to any non-nuclear-weapon state that, after
March 10, 1978, detonates a nuclear explosive device; terminates, abrogates or
materially violates IAEA safeguards; or engages in activities involving source or
special nuclear material and having “direct significance” for the manufacture or
acquisition of nuclear explosive devices, and “has failed to take steps which, in the
President’s judgment, represent sufficient progress toward terminating such
activities.” India is clearly in this category. The President can waive termination if
he determines that “cessation of such exports would be seriously prejudicial to the
achievement of United States nonproliferation objectives or otherwise jeopardize the
common defense and security.” The President must submit his determination to
Congress, which is then referred to the House International Relations Committee and
the Senate Foreign Relations Committee for 60 days of continuous session. The
determination becomes effective unless Congress opposes it.
Reports to Congress. The NNPA (P.L. 95-242) also required the President
to report annually to the Congress on federal efforts to prevent proliferation.55 These
reports have become known as the “Section 601” reports.56 Among other things, they
describe progress in U.S. efforts to encourage non-nuclear-weapon states not party
to the NPT to adhere to the treaty or full-scope safeguards, and to foreswear the
development of nuclear weapons, as well as progress in discouraging nuclear exports
to non-nuclear-weapon states that have not taken such steps. The reports must also
include a determination on which non-nuclear-weapon state recipients of U.S.
nuclear exports have detonated a nuclear device, refused to accept full-scope IAEA
safeguards on all peaceful nuclear activities, refused to give specific assurances that
they will not manufacture or otherwise acquire any nuclear explosive device, or
engaged in nuclear weapons-related work.57 In short, the President must report to
Congress if a recipient state has engaged in activities that would require a termination
of exports under Section 129 of the AEA, as described above. The Section 601
reports must also describe implementation of nuclear and nuclear-related dual-use
export controls. The most recent Section 601 report to Congress for the year ending
55 22 U.S.C. 3281 et seq.
56 “Report to Congress Pursuant to Section 601 of the Nuclear Non-Proliferation Act of
1978, As Amended by the Nuclear Proliferation Prevention Act of 1994 for the Year Ending
December 31, 2004.”
57 22 U.S.C. § 3281(a)(3).
CRS-19
2004 notes that none of the non-nuclear-weapon states that have U.S. agreements for
cooperation in effect had engaged in any of the prohibited activities of Section 129
of the AEA. India is not described in that section since there is no agreement for
cooperation in place now, but if the agreement is approved, the President would need
to report specifically on India’s nuclear weapons program.
The Process. The process of implementing an agreement under existing law
would be, roughly, as follows:
! The President submits an exempted agreement for cooperation to
Congress.
! The exempted agreement lies before Congress for 60 days of
continuous session (once a Nuclear Proliferation Assessment
Statement is received).58
! An exempted agreement only becomes effective if Congress enacts
a joint resolution of approval.
! If the exempted agreement is approved, no congressional review of
exports is required until 12 months after the first export has been
licensed. Thereafter, an annual review is required per Section 128.
! President would have to waive Section 129 provisions which require
cessation of exports.
Amending the Atomic Energy Act. The Administration might propose to
the Congress to amend certain sections of the Atomic Energy Act. In Section 123,
a potential provision to amend could be the full-scope safeguards requirement
(Section 123 a. 2.). Taking out the full-scope safeguards requirement would open up
the possibility of U.S. nuclear cooperation with states such as Pakistan and Israel,
however. While some might argue that the costs of lowering the threshold for U.S.
nuclear cooperation globally outweigh the benefits, others might argue that there are
only three states outside the NPT now, and therefore, lowering the threshold is not
that significant.
Another option would be simply to delete Section 128 of the AEA, which added
the full-scope safeguards requirement for exports, particularly since other criteria for
U.S. exports are already contained in Section 127. In addition, Section 129 could be
amended to either change the effective date of the restriction so that nuclear testing
after 2005 (rather than 1978) would trigger a cutoff (Section 129 (1) (A)), but this is
unlikely to be sufficient, since India will continue its nuclear weapons activities that
would trigger cessation of exports under Section 129 (1) (D). Or, Sections 128 and
129 could be eliminated.
Stand-Alone Legislation. One precedent for waiving nonproliferation
sanctions is the so-called Brownback Amendment of 1999, which lifted nuclear
testing sanctions for India and Pakistan. Senator Brownback offered his amendment
to the Defense Appropriations Act of FY2000, which stated simply that sanctions
contained in the Arms Export Control Act and the Export-Import Bank Act would
not apply to India and Pakistan for any reason, effective for five years. The President
58 Specific procedures are found in AEA, P.L. 95-242, Sections 123 and 130.
CRS-20
could renew the suspension for an additional five years if he certified to Congress
that it was in the national interest of the United States to do so. The final version, in
PL 106-79, did not contain a time limit, but did contain a termination of the waiver
in the event that either country tested another nuclear explosive device. A new bill
to create an exception for India along these lines may be the most appealing option
to the Administration.
Although it is not necessary for the Administration to provide a copy of the
agreement for cooperation to the Congress at the same time that it submits proposed
legislation, it is likely that Congress will want to review the actual proposed
agreement for substance before it could pass a law excepting India from the current
process. Under the Atomic Energy Act, Congress reviews the agreement and a
nonproliferation assessment statement at the same time. Another consideration in
assessing stand-alone legislation is whether it diminishes Congressional oversight of
a peaceful nuclear cooperation agreement with India in contrast to existing provisions
of law. It may be possible to draft language in stand-alone legislation that could seek
to maintain such congressional prerogatives.
Potential Issues for Congress
As the Administration consults with Congress over implementation of the U.S.-
Indian nuclear cooperation agreement, Congress may want to consider several
questions of substance:
! What level of intrusiveness, either in the process of separating
India’s civilian and military nuclear activities, or in an inspections
regime, is sufficient to meet U.S. NPT obligations not to aid, assist,
or encourage efforts to develop nuclear weapons?
! What is a credible and defensible separation plan?
! How should an additional protocol be implemented in India’s case
to maximize the IAEA’s ability to detect diversion from the civilian
sector to the military sector? What is the added value of the
additional protocol, given the certainty that nuclear weapon facilities
cannot be inspected?
! How well do India’s export controls function?
! What are India’s plans for its nuclear weapons program and what is
the possibility that U.S. assistance could benefit that weapons
program?
! If India is prepared to take on the responsibilities undertaken by
other nuclear weapon states, is it prepared to stop producing fissile
material for weapons? Is it prepared to declare some nuclear
material as excess to its defense needs and place that material under
IAEA safeguards? Is it prepared to sign the Comprehensive Test
Ban Treaty?
! What impact will nuclear safeguards on civilian facilities have on
India’s transparency efforts with Pakistan?
! What would be the impact of NSG agreement to an exception for
India before the U.S. Congress approves an agreement for
cooperation?
CRS-21
! Are other countries’ nuclear industries more likely to benefit from
opening up nuclear cooperation with Indian than U.S. industries?
Ultimately, some of these issues might be addressed in a Nuclear Proliferation
Assessment Statement, which the Administration is required to submit to the
Congress along with the Section 123 agreement for cooperation, assuming the
Administration complies with existing law.
If Congress chooses, it may attach conditions to approval of any agreement for
cooperation. One precedent is the 1985 U.S.-China agreement for cooperation. As
noted earlier, the U.S.-China agreement is the first U.S. peaceful nuclear cooperation
agreement with another nuclear weapon state. The agreement contained certain
restrictions on cooperation, but more importantly, Congress required the President
to certify that a) reciprocal arrangements would ensure that nuclear materials,
facilities or components would be used solely for peaceful purposes; b) China was
not violating paragraph 2 of Section 129 (particularly with respect to assisting non-
nuclear weapon states in a nuclear weapons program); and c) that U.S. approval for
subsequent potential Chinese requests to enrich, reprocess or alter in any form
material provided under the agreement would not be automatic.59
When the U.S.-China peaceful nuclear cooperation agreement was submitted
to Congress in July 1985, the Arms Control and Disarmament Agency (ACDA) had
concluded that China had met all the statutory requirements. On Section 129 of the
Atomic Energy Act, ACDA concluded that “Based on the available information, it
is believed that a finding under Section 129 that would preclude nuclear exports to
China under the proposed Agreement is not warranted.”60 Nonetheless, a presidential
certification on the three matters was not made until January 12, 1998. Reciprocal
arrangements to ensure the peaceful uses of material, facilities, and components
transferred were submitted to Congress for review and published in the Federal
Register.
In the case of a U.S.-India nuclear cooperation agreement, it may be attractive
to require similar certifications, particularly on the peaceful uses of U.S. technology
and material. Other potential prerequisites for implementing an agreement could
include completion of India’s safeguards arrangements (including possibly subsidiary
arrangements) with the International Atomic Energy Agency, executive branch
certification of adequate transparency in the separation of India’s civilian and military
nuclear facilities, prior agreement by the Nuclear Suppliers Group for creating an
exception for India, or substantive progress toward negotiating a fissile material
production cutoff treaty.
Congress may also wish to consider certain issues related to its oversight of
peaceful nuclear cooperation, should the Administration propose stand-alone
legislation. Under existing law, Congress could review exports to India on an annual
basis (Section 128), because the agreement itself would have to be exempted by the
59 P.L. 99-183.
60 Nuclear Proliferation Assessment Statement, page II-13 (reprinted in House Document 99-
86, p. 41.)
CRS-22
President since it did not meet the full-scope safeguards criterion under Section 123.
Stand-alone legislation that said that Sections 123 a (2), 128, and 129 of the Atomic
Energy Act would not apply to peaceful nuclear cooperation with India would take
away that annual Congressional review, as well as the provision that would halt U.S.
nuclear exports if India tests a nuclear weapon again.