Order Code RL33016
U.S. Nuclear Cooperation With India:
Issues for Congress
Updated February 26, 2007
Sharon Squassoni
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
U.S. Nuclear Cooperation With India:
Issues for Congress
Summary
On July 18, 2005, President Bush announced 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,” in the context of a broader, global
partnership with India to promote stability, democracy, prosperity and peace.
Administration officials have promoted nuclear cooperation with India as a way to
reduce India’s carbon dioxide emissions and its dependence on oil, bring India into
the “nonproliferation mainstream” and create jobs for U.S. industry.
India, which has not signed the Nuclear Nonproliferation Treaty (NPT) and does
not have International Atomic Energy Agency safeguards on all nuclear material in
peaceful nuclear activities, exploded a “peaceful” nuclear device in 1974, convincing
the world of the need for greater restrictions on nuclear trade. The United States
created the Nuclear Suppliers Group (NSG) 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. India tested nuclear weapons again in 1998.
Nonproliferation experts have argued that the potential costs of nuclear
cooperation with India to U.S. and global nonproliferation policy may far exceed the
benefits. 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 NSG exception. This is at odds with nearly three decades of
U.S. nonproliferation policy and practice. Some believe the proposed 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. Others contend that allowing
India access to the international uranium market will free up its domestic uranium
sources to make more nuclear weapons.
U.S. nuclear cooperation is governed by the Atomic Energy Act (AEA). The
Administration proposed legislation in 2006 that, in addition to providing waivers of
relevant provisions of the AEA (Sections 123 a. (2), 128, and 129), would have
allowed an agreement to enter into force without a vote from Congress, as though it
conformed to AEA requirements. In late July 2006, the House passed H.R. 5682,
which provided the necessary waivers but retained the prerogative of Congress to
vote on the actual cooperation agreement later. The Senate passed its version of H.R.
5682 on November 16, 2006, and on December 7, the House approved the
conference report. The Senate approved the conference report by unanimous consent
early on December 9, and President Bush signed the bill into law (P.L. 109-401) on
December 18, 2006. The law requires that the following, among other things, must
occur before nuclear cooperation can proceed: submission of a finalized text of a
cooperation agreement to Congress, approval of an IAEA safeguards agreement by
the IAEA Board of Governors, consensus agreement within the NSG to make an
exception for India, and passage of a joint resolution of approval of the agreement by
the Congress. This report will be updated as necessary.
Contents
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Global Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issues for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Strategy vs. Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Impact on U.S. Nonproliferation Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Iran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricting Enrichment and Reprocessing . . . . . . . . . . . . . . . . . . . . . . . 9
Other Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Impact on the Nonproliferation Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
NSG Cohesion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Effect on NPT Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Missed Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. NPT Article I Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Key Steps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Separation Plan and Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
NSG Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Consulting with Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Agreements for Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Export Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Termination of Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Evolution of P.L. 109-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
President’s Signing Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Potential Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Appendix. Frequently Asked Questions About U.S.-India
Nuclear Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
U.S. Nuclear Cooperation With India:
Issues for Congress
Recent Developments
On December 8, 2006, the House agreed to the conference report on H.R. 5682,
the “Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of
2006,” by a vote of 330-59. The Senate agreed by unanimous consent to the
conference report in the early hours of December 9, 2006. On December 18,
President Bush signed the bill into law (P.L. 109-401.)1 In his signing statement,
President Bush noted that the act “will strengthen the strategic relationship between
the United States and India.”2 With respect to particular provisions, President Bush
stated that the executive branch would construe two sections of the bill as “advisory”
only: policy statements in Section 103 and the restriction contained in Section 104
(d) (2) on transferring items to India that would not meet NSG guidelines. On the
first, the President cited the Constitution’s “commitment to the presidency of the
authority to conduct the Nation’s foreign affairs;” on the second, the President raised
the question of whether the provision “unconstitutionally delegated legislative power
to an international body.” In other words, the President was questioning whether
Congress were ceding authority to approve U.S. exports to the Nuclear Suppliers
Group. However, U.S. officials, including Secretary of State Rice, have formally told
Congress multiple times that the United States government would abide by NSG
guidelines. The President’s signing statement also noted that the executive branch
would construe “provisions of the Act that mandate, regulate, or prohibit submission
of information to the Congress, an international organization, or the public, such as
sections 104, 109, 261, 271, 272, 273, 274, and 275, in a manner consistent with the
President’s constitutional authority to protect and control information that could
impair foreign relations, national security, the deliberative processes of the
Executive, or the performance of the Executive’s constitutional duties.”
Many steps are still ahead before nuclear cooperation can occur. P.L. 109-401
contains seven requirements that must be met for the President to exercise his waiver
authority, and to present the final cooperation agreement to Congress for its approval.
The agreement itself cannot enter into force without a joint resolution of approval
from Congress. The seven requirements are (1) provision of a credible separation
plan for India’s nuclear facilities; (2) approval by the IAEA Board of Governors of
1 See CRS Report RL33561, U.S.-India Nuclear Cooperation: A Side-By-Side Comparison
of Current Legislation, by Sharon Squassoni and Jill Marie Parillo, (hereafter cited as CRS
Report RL33561) for more detail on the bills.
2 See [http://www.whitehouse.gov/news/releases/2006/12/20061218-12.html].
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India’s new nuclear safeguards agreement; (3) substantial progress toward concluding
an Additional Protocol; (4) India’s active support for the conclusion of a treaty to ban
fissile material production for nuclear weapons; (5) India’s support for U.S. and
international efforts to halt the spread of sensitive nuclear fuel cycle technologies
(enrichment and reprocessing); (6) India taking necessary steps to secure nuclear and
other sensitive materials and technologies through adherence to multilateral control
regimes (like NSG and MTCR); and (7) a consensus decision by the NSG to make
an exception for India.
Negotiations between the United States and India on the cooperation agreement
reportedly have not progressed in the past six months, and negotiations between India
and the International Atomic Energy Agency (IAEA) on a safeguards agreement
reportedly also have made little progress. Although U.S. officials offered draft
decision language to Nuclear Suppliers Group (NSG) members in March 2006 on a
broad exception for India, members discussed the issue but did not agree to take up
a decision at the May 2006 plenary. Similarly, the NSG did not take up a decision at
the October 2006 Consultative Group meeting. However, since passage of P.L. 109-
401, some observers believe that there may be greater incentives for progress in each
of these areas than before.
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.3 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.4 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
3 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].
4 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).
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help ensure that such transfers would not be diverted to unsafeguarded nuclear fuel
cycle or nuclear explosive activities.”5
Conditioning U.S. nuclear exports on non-nuclear-weapon states having full-
scope safeguards created a problem particularly for India’s reactors at Tarapur, which
were built by U.S. firms and fuelled by U.S. low-enriched uranium, pursuant to a
1963 nuclear cooperation agreement. After passage of the NNPA, the Carter
Administration exported two more uranium shipments under executive order after
the Nuclear Regulatory Commission (NRC) refused to approve an export license on
nonproliferation conditions. Although the House voted to disapprove the President’s
determination, the Senate voted 46 to 48 on a resolution of disapproval. After 1980,
all nuclear exports from the United States to India were cut off under the terms of the
NNPA. France supplied fuel under the terms of the U.S. agreement with India until
France also adopted a full-scope safeguards requirement (1995). After the NSG
adopted the full-scope safeguards condition in 1992, China picked up the slack, and
Russia supplied fuel from 2001 to 2004.6 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 the 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 Partnership7
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
5 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
potential nuclear terrorism.
6 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 agreed to resupply Tarapur in late February and informed the NSG
on Feb. 27, 2006, reportedly citing the NSG safety exception.
7 See also CRS Report RL33072, U.S.-India Bilateral Agreements and “Global
Partnership,” by K. Alan Kronstadt.
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September 2004, required addressing proliferation concerns and ensuring compliance
with U.S. export controls.8
On July 18, 2005, President Bush announced the creation of a global partnership
with India in a joint statement with Prime Minister Manmohan Singh.9 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
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.”10
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);11
! 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
8 See fact sheet on the NSSP at [http://www.state.gov/r/pa/prs/ps/2004/36290.htm].
9 Joint Statement Between President George W. Bush and Prime Minister Manmohan Singh,
White House Press Release, July 18, 2005, Washington, DC (hereafter cited as “July 18
Joint Statement”) [http://www.whitehouse.gov/news/releases/2005/07/20050718-6.html].
10 July 18 Joint Statement.
11 See CRS Report RS22474, Banning Fissile Material Production for Nuclear Weapons:
Prospects for a Treaty (FMCT), by Sharon Squassoni, Andrew Demkee, and Jill Marie
Parillo, for more detailed information about the issue and negotiations.
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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 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.”12 Congress held eight hearings in 2005 and 2006 on
the global partnership and has consulted with the Administration on various aspects
of the U.S.-India nuclear agreement.13 The discussion of potential issues for
consideration is drawn in part from the 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.”14 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.15
12 Opening Statement, Chairman Richard G. Lugar, Senate Foreign Relations Committee
hearing on “Implications of U.S.-India Nuclear Energy Cooperation,” Nov. 2, 2005
(hereafter referred to as Nov. 2, 2005 SFRC India hearing).
13 The House International Relations Committee held the following hearings: “The U.S. and
India: An Emerging Entente?” (Sept. 8, 2005); “The U.S.-India Global Partnership: The
Impact on Nonproliferation”(Oct. 26, 2005); and “U.S.-India Global Partnership: How
Significant for American Interests?” (Nov. 16, 2005); “The U.S.-India Global Partnership”
(Apr. 5, 2006); “U.S.-India Global Partnership: Legislative Options” (May 11, 2006). See
[http://www.internationalrelations.house.gov/] for testimonies of witnesses. The Senate
Foreign Relations Committee held the following hearings: “Implications of U.S.-India
Nuclear Energy Cooperation” (Nov. 2, 2005); “U.S.-India Atomic Energy Cooperation: The
Indian Separation Plan and the Administration’s Legislative Proposal” (Apr. 5, 2006); and
“U.S.-India Atomic Energy Cooperation: Strategic and Nonproliferation Implications” (Apr.
26, 2006). See [http://foreign.senate.gov/hearing.html] for testimonies.
14 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.
15 Remarks by Congressman Jim Leach, Sept. 8, 2005, HIRC US-India Hearing.
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Congressman Leach suggested instead 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.16 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.17 One well-known Indian commentator, Brahma
Chellaney, argued in the International Herald Tribune that the premise that India
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.18
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.”19
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
16 Henry Sokolski, “Implementing the Indian Nuclear Deal: What’s at Risk, What Congress
Should Require,” Briefing to Congress, Sept. 2005.
17 See “India’s Growth Target Unrealistic,” Financial Times, Jan. 23, 2003, which quotes
the Asia Development Bank.
18 Brahma Chellaney, “US Deal is a Bad Choice for Power Generation,” International
Herald Tribune, Dec. 27, 2005.
19 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.
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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.20 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.”21
On Iran’s nuclear program, Indian officials have stated they do not support a
nuclear weapons option for Iran. However, they did not agree with the United States
on the urgency of reporting Iran’s nuclear program to the U.N. Security Council,
which the United States has proposed since 2003, 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.22 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.23
20 See Miriam Rajkumar, “Indian Independence,” Carnegie Analysis, Sept. 20, 2005, at
[http://www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=17486].
21 Dr. Francine Frankel, Statement before the House International Relations Committee,
Nov. 16, 2005, “India’s Potential Importance for Vital U.S. Geopolitical Objectives in Asia:
A Hedge Against a Rising China?”
22 “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].
23 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 /
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On February 4, 2006, following Iran’s resumption of some uranium enrichment
research and development, the IAEA Board of Governors met in an emergency
session and voted to report Iran’s noncompliance to the U.N. Security Council.24
India voted with the United States to report Iran, although this followed a
controversial remark to the press the previous week by U.S. Ambassador to India,
David Mulford, that India would have to support the United States on Iran in Vienna
or the U.S. Congress would not support the peaceful nuclear cooperation
agreement.25
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, 2005, that solutions to Iran’s
nuclear problem should be based on the principle that Iran as an NPT member should
retain its lawful rights.26 On September 26, 2005, 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.”27 In September 2006,
India joined in the 118-nation Nonaligned Movement (NAM) summit statement that
expressed support for Iran’s “choices and decisions in the field of peaceful uses of
nuclear technology and its fuel cycle policies.”28
Reported Indian transfers of WMD-related items to Iran.29 Concerns
about India’s relationship with Iran extend, for some, to the transfer of WMD-related
items. Entities in India and Iran appear to have engaged in very limited nuclear,
chemical and missile-related transfers over the years. There are no publicly available
indications of activities related to biological weapons. In the early 1990s, when Iran
actively sought nuclear-related assistance and technology from many foreign sources,
India appears to have played only a minor role in contrast to other states. India
signed an agreement in November 1991 to provide a 10 megawatt research reactor
to Tehran, but cancelled under pressure from the United States. Nonetheless, India
reportedly trained Iranian nuclear scientists in the 1990s.30 More recently, India’s
23 (...continued)
press_release/2005/Sept/16.htm].
24 See CRS Report RS21592, Iran’s Nuclear Program: Recent Developments, by Sharon
Squassoni.
25 “U.S.-India Nuclear Deal Could Die, Envoy Warns,” Washington Post, Jan. 26, 2006.
26 “Ahmadinejad Thanks India for Positive Stands on Iran in IAEA,” IRNA, Sept. 23, 2005.
27 Sept. 26, 2005 press briefing, op. cit.
28 Iran Republic News Agency, “118 countries back Iran’s nuclear program” Iran Times,
Sept. 18, 2006.
29 See CRS Report RS22530, India and Iran: WMD Proliferation Activities, by Sharon
Squassoni, for more information related to sanctions imposed for Indian transfers to Iran.
30 See [http://www.nti.org/e_research/profiles/Iran/2867.html].
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Foreign Minister Jaswant Singh stated in December 2003 that India “has and would
continue to help Iran in its controversial bid to generate nuclear energy.”31
In September 2004, the United States imposed sanctions on two Indian nuclear
scientists, Dr. Y.S.R. Prasad and Dr. C. Surendar, under the Iran Nonproliferation
Act. Indian officials protested, stating that cooperation had taken place under the
auspices of the IAEA Technical Cooperation program. Other reports suggest that the
scientists, who had served as Chairman and Managing Director of the Nuclear Power
Corporation of India, Ltd. (NPCIL), which runs India’s power reactors, passed
information to Iran on tritium extraction from heavy water reactors.32 Sanctions were
lifted on Dr. Surendar in 2005.
In the chemical area, there is one confirmed transfer of 60 tons of thionyl
chloride, a chemical that can be used in the production of mustard gas, from India to
Iran in March 1989.33 Other shipments in that time-frame reportedly were halted
under U.S. pressure. India does not appear in the CIA’s unclassified nonproliferation
report to Congress as a supplier of chemical-weapons-related exports to Iran since
the report began publication in 1997. India signed the Chemical Weapons
Convention in 1993 and deposited its instrument of ratification until 1996.
However, in December 2005, the United States imposed sanctions on Sabero Organic
Chemicals Gujarat Ltd and Sandhya Organic Chemicals Pvt. Ltd, pursuant to the Iran
Nonproliferation Act of 2000. In July 2006, the United States imposed sanctions on
Balaji Amines and Prachi Poly Products, chemical manufacturers, pursuant to the
Iran and Syrian Nonproliferation Act.34
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 already have those technologies and to support
international efforts to limit their spread. 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. Historically, India has supported
states’ inalienable right to all peaceful uses of nuclear energy.
David Albright, president of the Institute for Science and International Security,
published a report on March 10, 2006 that asserted that India had potentially exported
centrifuge enrichment-related technology by virtue of tendering public offers and
31 “India Denies Nuclear Cooperation with Iran,” Agence France Presse, Dec. 13, 2003.
32 John Larkin and Jay Solomon, “As Ties Between India and Iran Rise, U.S. Grows Edgy,”
Wall Street Journal, March 24, 2005.
33 Thionyl chloride is a Schedule 3 chemical under the Chemical Weapons Convention. It
has military and civilian uses, and is widely used in the laboratory and in industry.
34 See list of sanctions at [http://www.state.gov/t/isn/c15234.htm].
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providing blueprints for technology to interested parties.35 It is not clear whether Indian
procurement practices facilitate transfer of technology, but the U.S. nuclear
cooperation agreement will have no impact on those procurement practices. One
question that arises is how India will be treated with respect to the U.S. policy
restricting the expansion of enrichment and reprocessing technology. Is India a
technology holder or not? On the one hand, the State Department asserted in responses
to questions for the record from Senator Lugar that the United States will not engage
in reprocessing or enrichment technology cooperation with India.36 On the other hand,
some observers have suggested that other NSG members may be interested in such
cooperation with India and may not place as stringent requirements on 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, potential missed opportunities to
strengthen the nuclear nonproliferation regime, and whether U.S. nuclear cooperation
might in any way assist, encourage, or induce India to manufacture nuclear weapons,
in possible violation of our Article I obligation under the NPT.
NSG Cohesion. Cohesion within the Nuclear Suppliers Group (NSG) is
critical to effective implementation of export controls. 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, 2005 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
35 David Albright and Susan Basu, “India’s Gas Centrifuge Program: Stopping Illicit
Procurement and the Leakage of Technical Centrifuge Know-How,” available at
[http://www.isis-online.org/publications/southasia/indianprocurement.pdf].
36 “Questions for the Record Submitted to Under Secretaries Nicholas Burns and Robert
Joseph by Chairman Richard G. Lugar (#6), Senate Foreign Relations Committee,
November 2, 2005.”
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...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 told 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.37 The House-passed H.R. 5682 specified a
requirement for NSG consensus, while the Senate-passed H.R. 5682 required NSG
consensus and limited the decision to India, implicitly prohibiting a similar exception
for Pakistan or Israel.
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, has
shared some negative views on the nuclear cooperation agreement, and reportedly
favors an NSG decision based on criteria, not just an exception for India.38 Russia,
which only halted fuel supplies to the Indian Tarapur reactors in December 2004 at
the insistence of the NSG, has already stepped into the breach by resuming fuel
supplies to Tarapur under the guise of the safety exception, reportedly to the dismay
of many NSG members.39
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. One observer argued in a 2005 law review journal that
India could join the NPT as a non-nuclear weapon state and not give up its nuclear
weapons, primarily because the NPT defines “nuclear weapon states” but does not
define non-nuclear weapon states and because the treaty does not expressly prohibit
non-nuclear weapon states from possessing nuclear weapons, just from acquiring,
manufacturing, receiving transfers of or control of nuclear weapons and not to seek
or receive any assistance in manufacturing nuclear weapons.40 However, that
37 Sept. 8, 2005, HIRC US-India hearing.
38 See, for example, “Nuclear Nonproliferation System is Challenged,” People’s Daily, Mar.
16, 2006.
39 “Concern over Russian Plan to Sell Nuclear Reactor Fuel,” Financial Times, Mar. 15,
2006.
40 David S. Jonas, “Variations on Non-nuclear: May the ‘Final Four’ Join the Nuclear
Nonproliferation Treaty as Non-nuclear Weapon States While Retaining Their Nuclear
Weapons?” Michigan State Law Review, Summer, 2005, p. 417 ff. Mr. Jonas is General
(continued...)
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approach would require India to stop producing fissile material for nuclear weapons
and place all nuclear material (except that which is in its nuclear weapons) under
IAEA safeguards.
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
formally have done. Some have suggested that the absence of an Indian cap on fissile
material production for weapons may make it difficult for China to declare it has
halted fissile material production for weapons. Others have suggested that, absent
a cap on fissile material production, it would be difficult to ensure that peaceful
nuclear cooperation was not indirectly assisting or encouraging India’s nuclear
weapons program.
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,
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 the U.S. ambassador to the
conference at that time, “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.”41
In the past 10 years, virtually all states agreed to strengthen the nonproliferation
regime, sacrificing some sovereignty by allowing 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
40 (...continued)
Counsel of the National Nuclear Security Agency.
41 Ambassador Norman Wulf, “Observations from the 2000 NPT Review Conference,” Arms
Control Today, Nov. 2000.
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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.”42
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.43
Robert Einhorn, of the Center for Strategic and International Studies, told
members of the House International Relations Committee on October 26, 2005, that
several of the steps pledged by India are “simply reaffirmations of existing
positions.”44 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.45
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 criterion in approving exports, it
could further strengthen that pledge. India has supported FMCT negotiations for
42 Sept. 8, 2005, HIRC US-India hearing.
43 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].
44 Statement by Robert J. Einhorn, Center for Strategic and International Studies, “The
U.S.-India Global Partnership: The Impact on Nonproliferation” Oct. 26, 2005.
45 “Backgrounder on India-U.S. Civilian Nuclear Energy Cooperation,” Indian Embassy,
July 29, 2005. See [http://www.indianembassy.org/press_release/2005/July/29.htm].
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years, despite continuing to produce fissile material for use in nuclear weapons.
Since the pace of FMCT negotiations has been glacial, support for negotiations could
allow India to continue producing fissile material indefinitely. Moreover, the draft
treaty on FMCT tabled by the United States in Geneva on May 18, 2006, would not
require India’s accession for the treaty to enter into force, thus lessening the pressure
on India to join. Prime Minister Singh told his Parliament on August 17, 2006 that
“India is willing to join only a non discriminatory, multilaterally negotiated and
internationally verifiable FMCT.”46 Unfortunately, this conflicts with the U.S. draft
proposal, which contains no verification measures.
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, 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.
IAEA Director General Dr. ElBaradei said that he has “always advocated
concrete and practical steps towards the universal application of IAEA safeguards.”47
In remarks to the Carnegie Endowment’s Nonproliferation Conference in November
2005, 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.48 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.
46 Prime Minister Singh, “Excerpts from Prime Minister’s Reply to Discussion in Raja
Sabha on Civil Nuclear Energy Cooperation with the United States.” Remarks are available
at the Indian Ministry of External Affairs website, [http://mea.gov.in].
47 “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.
48 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 Register, Public Notice 5257 stated simply that sanctions
on an Indian entity issued in Public Notice 4845 had been rescinded.
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Many observers have noted that there are no measures in this global partnership
to restrain India’s nuclear weapons program. Many 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
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.”49 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.”50 Prime Minister Singh told the
parliament in August 2006 that “Our position on this matter is unambiguous. We are
not willing to accept a moratorium on the production of fissile material.”51 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.
U.S. NPT Article I Obligations. Given that India will continue to make
nuclear weapons, but is considered under the NPT to be a non-nuclear weapon state,
the question arises as to whether U.S. assistance might in any way “assist, encourage,
or induce any non-nuclear weapon state to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices, or control over such weapons or
explosive devices.”52 In testimony before the House International Relations
Committee, David Albright of ISIS stated that “Without India halting production of
fissile material for its nuclear weapons programs, nuclear assistance, particularly any
in the areas involving the fuel cycle, would likely spill over to India’s nuclear
weapons program.”53
Three areas raise potential concerns: whether the separation plan is adequate to
ensure that cooperation does not in any way assist in the development or production
of nuclear weapons; whether cooperation confers nuclear weapons state status on
India, with an unintended consequence of encouraging the Indian nuclear weapons
program; and whether opening up the international uranium market frees up India’s
domestic uranium for use in its weapons program.
49 Sept 8, 2005, HIRC US-India hearing.
50 “Backgrounder on India-U.S. Nuclear Energy Cooperation,” July 29, 2005.
51 “Excerpts from Prime Minister’s Reply,” August 17, 2006, op. cit.
52 See Zia Mian and M.V. Ramana, “Wrong Ends, Means, and Needs: Behind the U.S.
Nuclear Deal with India, Arms Control Today, January/February 2006. See also Robert
Einhorn, “Limiting the Damage,” The National Interest, Winter 2005/2006.
53 Statement of David Albright before the House International Relations Committee on
October 26, 2005 (hereafter HIRC Oct 26, 2005 hearing).
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Administration officials have defended the separation plan as credible and
defensible because it covers more than just a token number of Indian facilities,
provides for safeguards in perpetuity, and includes upstream and downstream
facilities.54 The conclusion that the plan calls for safeguards in perpetuity, as
described in greater detail below, may be premature. Until India negotiates and the
IAEA Board of Governors approves a safeguards agreement, it is unclear that
safeguards will be applied in perpetuity to India’s eight indigenous reactors that have
been declared. More importantly, while IAEA safeguards ensure that nuclear
material is not diverted, there are no procedures or measures in place to ensure that
information, technology and know-how are not transferred from the civil sector to the
military sector. This could become a key loophole, particularly because the
separation plan places eight indigenous power reactors under safeguards, while
leaving at least eight indigenous power reactors outside of safeguards. Without
additional measures to prevent the transfer of personnel or knowledge from the
safeguarded program to the unsafeguarded program, there would be little assurance
that assistance to the safeguarded program could not migrate to the military program.
For example, U.S. assistance to one of the eight indigenous power reactors, whether
focused on nuclear safety, improving operational efficiency, or extending its lifetime,
could easily be applied by Indian personnel to one of the similar, but unsafeguarded
indigenous power reactors. Some Indian commentators have suggested that the
United States has little technology to offer India, and others have doubted whether
U.S. assistance would be provided to those indigenous power reactors.
A second area that raises concerns is whether nuclear cooperation confers
nuclear weapon state status on India, which could encourage its weapons program.
Senator Lugar noted in a hearing on November 2, 2005 that “Prior to the July 18 joint
statement India had repeatedly sought unsuccessfully to be recognized as an official
nuclear weapons state, a status the NPT reserves only for the United States, China,
France, Russia and the United Kingdom. Opponents argue that granting India such
status will undermine the essential bargain that is at the core of NPT, namely, that
only by foregoing nuclear weapons can a country gain civilian nuclear assistance.”
Dr. Ashton Carter, testifying at that SFRC hearing, stated that:
India obtained de-facto recognition of its nuclear weapons status. The United
States will behave, and urge others to behave, as if India were a nuclear weapons
state under the NPT. We won’t deny it most civil nuclear technology or
commerce. We won’t require it to put all of its nuclear facilities under IAEA
safeguards — only those it declares to be civil. Beyond these technicalities,
nuclear recognition confers an enormous political benefit on India.
Secretary of State Rice, in response to a question for the record in April 2006
on India’s nuclear weapon state status, stated that “While India has nuclear weapons
and we must deal with this fact in a realistic, pragmatic manner, we do not recognize
India as a nuclear weapon state or seek to legitimize India’s nuclear weapons
program.” However, other officials’ statements appear to lend more support to India.
Under Secretary of State Nicholas Burns told reporters on March 2, 2006, that “...
54 Questions for the Record Submitted to Secretary of State Condoleezza Rice by Senator
Richard Lugar (#2) Senate Foreign Relations Committee, Apr. 5, 2006.
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India is a nuclear weapons power, and India will preserve part of its nuclear industry
to service its nuclear weapons program.”55
Mohamed ElBaradei, Director General of the IAEA, views the U.S.-India deal
as “neutral” because “it does not confer any ‘status’, legal or otherwise, on India as
a possessor of nuclear weapons.”56 Nonetheless, a successful U.S. effort to gain an
exemption in U.S. nuclear cooperation law would place India in the company of only
four other nations — the United Kingdom, France, China, and Russia — all de jure
nuclear weapon states. Many observers believe that this legitimizes India’s nuclear
weapons program by providing de facto recognition. Indian official statements
repeatedly have used the term “advanced nuclear states” as synonymous with nuclear
weapon states; India’s separation plan compares Indian nuclear capabilities only to
those of other nuclear weapon states. Prime Minister Singh told the Parliament in
August 2006 that
The July Statement did not refer to India as a Nuclear Weapons State because
that has a particular connotation in the NPT, but it explicitly acknowledged the
existence of India’s military nuclear facilities. It also meant that India would not
attract full-scope safeguards such as those applied to non-nuclear weapon states
that are signatories to the NPT and there would be no curbs on continuation of
India’s nuclear weapon related activities. In these important respects, India
would be very much on par with the five Nuclear Weapon States who are
signatories to the NPT. Similarly, the Separation Plan provided for an India
specific safeguards agreement with the IAEA with assurances of uninterrupted
supply of fuel to reactors together with India’s right to take corrective measures
in the event fuel supplies are interrupted. We have made clear to the US that
India’s strategic programme is totally outside the purview of the July Statement,
and we oppose any legislative provisions that mandate scrutiny of our nuclear
weapons programme or our unsafeguarded nuclear facilities.
Finally, critics of U.S.-Indian nuclear cooperation have argued that giving India
access to the international uranium market would free up India’s domestic uranium
resources for its weapons program.57 India’s leading strategist K. Subrahmanyam
suggested as much in a December 12, 2005 article in The Times of India:
Given India’s uranium ore crunch and the need to build up our minimum credible
nuclear deterrent arsenal as fast as possible, it is to India’s advantage to
categorize as many power reactors as possible as civilian ones to be refueled by
imported uranium and conserve our native uranium fuel for weapon-grade
plutonium production.”58
55 White House, Office of the Press Secretary, “Press Briefing by Under Secretary of State
for Political Affairs Nick Burns,” Maurya Sheraton Hotel and Towers, New Delhi, India,
March 2, 2006.
56 Mohamed ElBaradei, “Rethinking Nuclear Safeguards,” Washington Post, June 14, 2006.
57 See Henry Sokolski, “Fissile isn’t Facile,” Wall Street Journal, Feb. 21, 2006.
58 K. Subrahmanyam, former head of the Institute for Defence Studies and Analysis, was
appointed Head of the National Security Council Advisory Board (NSCAB) established by
the first Vajpayee government to draft the Indian nuclear doctrine. He currently chairs PM
(continued...)
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Secretary Rice countered the critics in the House International Relations
Committee hearing on April 5, 2006:
...Clearly this agreement does not constrain India’s nuclear weapons program...
Neither, however, ... does it enhance India’s capability to build nuclear weapons.
India has about, by most estimates, 50,000 tons or so of uranium in its reserves.
That means that the very small percentage of that that would be needed for a
military program, they could get, certainly, without this agreement I would note
that we do not believe that the constraint on India’s nuclear program is the
availability or absence of nuclear material. With 50,000 tons of uranium
available to them, only a very small percentage of that would be needed for a
military program..
Secretary Rice seemed to be suggesting that having more uranium would not
encourage or assist India’s nuclear weapons program because it already had the fissile
material it needed. If, as Secretary Rice suggests, India’s military requirements are
dwarfed by civilian requirements, then finding international sources for civilian
requirements could result in a windfall for the weapons program. However, the
question for the United States is not whether India intends to ramp up its weapons
program with freed-up uranium, but whether U.S. and other states’ actions create a
new capability for India to do so.
A report by Ashley Tellis, a Bush Administration advisor who helped negotiate
parts of the agreement with India, echoes Secretary Rice’s arguments.59 Tellis states
that India does not seek to maximize its nuclear arsenal, that uranium shortages are
exaggerated and transient, and that nuclear weapons require much less uranium than
civilian power reactors. Tellis poses the question of whether U.S. assistance allows
India to do something it can’t do now, and whether India would, as a result of U.S.
cooperation, ramp up its weapons program, and concludes that it would not.
However, such conclusions are ultimately speculative, given the secrecy of India’s
weapons program.
For the purpose of identifying whether the United States is complying with its
Article I obligations, the appropriate question is whether U.S. assistance encourages
India’s nuclear weapons program. There is no question that opening the international
uranium market to India will result in more indigenous Indian uranium available for
weapons, because it will not be consumed by India’s newly safeguarded reactors. In
the view of many nonproliferation analysts, the key to ensuring that civilian nuclear
cooperation does not assist India’s weapons program is to insist on India halting its
fissile material production for weapons. That would narrow the area of concern to
technology transfer to the weapons and delivery systems themselves, rather than
fissile material production in reactors, enrichment facilities, and reprocessing plants.
58 (...continued)
Singh’s Global Strategic Developments Task Force. See also Dr. A. Gopalakrishnan,
“Civilian and Strategic Nuclear Facilities of India,” Jan. 5, 2006.
59 Ashley J. Tellis, “Atoms for War? U.S.-Indian Civilian Nuclear Cooperation and India’s
Nuclear Arsenal,” Carnegie Endowment for International Peace, 2006. Available at
[http://www.carnegieendowment.org/files/atomsforwarrevised1.pdf].
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Among others, Henry Sokolski suggested in the Wall Street Journal that “If we want
to keep this aid from freeing up India’s domestic nuclear resources to make more
bombs...we have to get serious about India capping its nuclear weapons program.”
It is worth noting that even before the NPT entered into force, negotiators
recognized that a state outside the NPT could preserve its domestic uranium sources
for a possible weapons program as long as it agreed to accept IAEA safeguards on
the items it imported. In the late 1960s, however, Congress was more concerned
about ensuring that the United States could supply its allies outside the treaty, such
as Japan and Germany, with nuclear fuel. According to Mason Willrich’s history
of the NPT,
As long as India does not become a party to the Non-Proliferation Treaty, it can
continue to import from the parties nuclear materials and equipment subject to
safeguards for use in its civil nuclear power program. This would free its
indigenous resources, particularly its limited uranium supply, for possible
concentration on a nuclear weapons program.60
Key Steps
There are several key steps to take before a nuclear cooperation agreement can
be implemented with India. Although P.L. 109-401 allows the President certain
authorities to waive restrictions in the Atomic Energy Act, at least seven actions must
occur before the agreement for cooperation can enter into force. India took the first
step by identifying civilian nuclear facilities in March 2006 and began preliminary
negotiations with the IAEA on a safeguards arrangement. In mid-2006, U.S. officials
began negotiations with India on the peaceful nuclear cooperation agreement itself
and consultations with NSG members. After a safeguards agreement has been
concluded, an agreement for cooperation has been finalized, NSG approval has been
obtained, and all the other relevant determinations are made, the executive branch
must bring the final agreement for cooperation back to Congress for a joint resolution
of approval.
Separation Plan and Safeguards61
U.S. and Indian officials agreed on India’s separation plan in March 2006. The
key elements of India’s separation plan are:62
60 Mason Willrich, Non-proliferation Treaty: Framework for Nuclear Arms Control, The
Michie Company, Charlottesville, VA, 1969, p. 125.
61 See CRS Report RL33292, India’s Nuclear Separation Plan: Issues and Views, by Sharon
Squassoni, for details on the separation plan.
62 Prime Minister Singh presented “Implementation of the India-United States Joint
Statement of July 18, 2005: India’s Separation Plan,” to Parliament on March 7, 2006. This
is available at [http://indianembassy.org/newsite/press_release/2006/Mar/sepplan.pdf]. The
plan was updated on May 11, 2006 to include names of reactors and upstream facilities, as
well as dates they would be submitted to safeguards.
CRS-20
! 8 indigenous Indian power reactors will be placed under an India-
specific safeguards agreement, bringing the total number of power
reactors under safeguards to 14 of 22 (6 are already under
safeguards)63
! Future power reactors may also be placed under safeguards, if India
declares them as civilian
! Some facilities in the Nuclear Fuel Complex (e.g., fuel fabrication)
will be specified as civilian in 2008.
! 9 research facilities and 3 heavy water plants would be declared as
civilian, but are “safeguards-irrelevant.”
The following facilities and activities were not on the separation list:
! 8 indigenous Indian power reactors
! Fast Breeder test Reactor (FTBR) and Prototype Fast Breeder
Reactors (PFBR) under construction
! Enrichment facilities
! Spent fuel reprocessing facilities (except for the existing safeguards
on the Power Reactor Fuel Reprocessing (PREFRE) plant)
! Research reactors: CIRUS (which will be shut down in 2010),
Dhruva, Advanced Heavy Water Reactor
! 3 heavy water plants
! Various military-related plants (e.g., prototype naval reactor).
India’s Implementation Document noted that facilities were excluded from the
civilian list if they were located in a larger hub of strategic significance, even if they
were not normally engaged in activities of strategic significance, calling into question
whether the plan really will result in a “separation” of civilian and military facilities.
Moreover, the plan stated that electricity grid connectivity is not relevant to the
separation exercise and that grid connectivity would be necessary “irrespective of
whether the reactor concerned is civilian or not civilian.” This means that “military”
reactors will continue to provide civilian electricity.
In addition, the statement in the Implementation Document that the India-
specific safeguards agreement will provide “for safeguards to guard against
withdrawal of safeguarded nuclear material from civilian use at any time as well as
for providing for corrective measures that India may take to ensure uninterrupted
operation of its civilian reactors in the event of disruption of foreign fuel supplies”
raises questions about whether the Indian interpretation of safeguards in perpetuity
mirrors the U.S. interpretation. Corrective measures are not defined, but probably
mean the use of unsafeguarded nuclear material in an indigenous reactor. In that
case, there could be periods of time when such reactors, using unsafeguarded nuclear
material, would not necessarily be inspected. Moreover, IAEA safeguards
agreements for states outside the NPT (INFCIRC-66 type) do not require safeguards
in perpetuity for reactors that a state voluntarily places under safeguards, although
63 According to the May 11th update, the 8 indigenous reactors to be safeguarded are: 4 at
Rajasthan (RAPS 3, 4, 5 & 6); 2 at Uttar Pradesh (NAPS 1, 2); and 2 at Gujrat (KAPS 1, 2).
CRS-21
they can be written that way.64 According to one IAEA official, since 1974, the
duration of 66-type agreements has been tied to actual use of supplied material or
items, rather than fixed periods of time,65 which would support the concept of lifting
safeguards on the reactors once they are no longer using safeguarded material.
Another question that arises is whether 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 many believe it was in 1974.66
In response to a question for the record submitted by Senator Lugar on April 5, 2006
on whether exports of nuclear material or reactors from the United States would in
any way assist India’s nuclear weapons program, the Administration noted that “Any
items sent to India would be subject to safeguards, and implementation of the
Additional Protocol would provide further assurances of the non-diversion of such
items or material.”67 However, the Additional Protocol provides assurances of
absence of undeclared activities, rather than of the non-diversion of safeguarded
items, contrary to Secretary Rice’s assertions.
The application of “permanent” safeguards on the facilities declared to be
civilian could make the separation more meaningful.68 Early in the process, Indian
officials had suggested they would adopt a strictly voluntary safeguards arrangement,
such as those in force for nuclear weapon states wherein facilities can be put on and
taken off of lists of eligible facilities. In his November 2, 2005 testimony before the
Senate Foreign Relations Committee, Under Secretary 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.” He also
64 Paragraph 16 of INFCIRC/66 states “In the light of Article XII.A.5 of the Statute, it is
desirable that safeguards agreements should provide for the continuation of safeguards,
subject to the provisions of this document, with respect to produced special fissionable
material and to any materials substituted therefor.”
65 Laura Rockwood, “Legal Instruments Related to the Application of the Safeguards,” paper
for conference, “Safeguards: Verifying Compliance with Nonproliferation Commitments,”
Kingston, Jamaica, Apr. 25-26, 1996.
66 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
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.
67 The Additional Protocol is a measure to strengthen safeguards by providing for additional
information, access and inspection tools. INFCIRC/540, concluded in 1997, is the model
upon which states’ protocols to their safeguards agreements are based.
68 There are three basic types of safeguards agreements: INFCIRC/66, INFCIRC/153, and
voluntary safeguards agreements made by the five nuclear weapon states. 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.
CRS-22
asserted that safeguards must be applied in perpetuity.69 This stems from a U.S. 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]. Although it is likely that safeguards will be applied in
perpetuity to anything the United States transfers, it may not be as likely that
safeguards will be applied in perpetuity to those indigenous reactors India places
under safeguards, for the reasons described above. The safeguards agreement, yet to
be negotiated between India and the IAEA, will determine whether that is the case.
Administration officials repeatedly have stressed that India’s separation plan
must be credible, transparent, and defensible from a nonproliferation standpoint,70
and that “the resultant safeguards must contribute to our nonproliferation goals.”71
To those observers who interpreted that statement to mean that a separation plan
would need to take into account India’s past commitments (e.g., use of purportedly
“peaceful” nuclear reactors like CIRUS to produce plutonium for nuclear weapons)
and the impact on its nuclear weapons program (e.g., capping India’s fissile material
production), the separation plan may not appear credible. To those observers who
interpreted “credible” to mean that all power reactors that supplied electricity would
be declared civilian because they have a civilian use, the separation plan also may not
appear credible. Secretary Rice has stressed, however, that more reactors under
safeguards means more transparency, more physical security, better nuclear safety,
and therefore increased safety for the United States.72 Even so, some observers may
argue that types of facilities safeguarded are critical in assessing whether the plan is
defensible from a nonproliferation standpoint. For example, in terms of preventing
terrorist access to fissile material, safeguarding facilities like reprocessing and
enrichment plants and breeder reactors could be viewed as providing a significant
nonproliferation benefit because the materials produced by these plants are a few
steps closer to potential use in a bomb. In addition, safeguards on enrichment,
reprocessing plants, and breeder reactors would support the 2002 U.S. National
Strategy to Combat Weapons of Mass Destruction, in which the United States
pledged to “continue to discourage the worldwide accumulation of separated
plutonium and to minimize the use of highly-enriched uranium.”73
69 Statement of Robert G. Joseph, Under Secretary of State for Arms Control and
International Security, Nov. 2, 2005, SFRC India hearing.
70 Statement of Dr. Joseph, Nov. 2, 2005, SFRC India hearing.
71 Ibid.
72 Condoleezza Rice, “Our Opportunity With India,” Washington Post, Mar. 13, 2006.
73 National Strategy to Combat Weapons of Mass Destruction, Dec. 2002. Available at
[http://www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf].
CRS-23
NSG Support
U.S. officials have consulted both formally and informally with NSG members
thus far.74 The United Kingdom, Russia and France have all supported an exception
to the NSG’s full-scope safeguards requirement for exports to India. In September
2005, France issued a joint statement with India that it would work with NSG
partners to enable nuclear cooperation with India to go forward, and Prime Ministers
Chirac and Singh signed a nuclear cooperation declaration with India in February
2006.75 Other responses have been mixed, especially from Sweden and Canada.
Some states, including Ireland, Sweden, Norway, and the Netherlands, reportedly
have raised questions. Canada 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, particularly an Indian freeze on production of fissile
material for nuclear weapons.76 The draft decision tabled by U.S. officials on March
23, 2006 reportedly sought an exception for India to the NSG requirements of full-
scope safeguards, notwithstanding the exceptions for safety assistance and for those
agreements signed before the full-scope safeguards requirement came into effect in
1992. It did not contain, reportedly, any restrictions on enrichment or reprocessing
cooperation, nor on heavy water or HEU or plutonium sales.
In October 2005, the NSG held a Consultative Group meeting at which some
members reportedly stressed the need for limits on cooperation, such as no
enrichment or reprocessing cooperation, no heavy water cooperation, and no exports
of highly enriched uranium or plutonium. In late March 2006, NSG members held
another Consultative Group meeting, at which the United States presented a draft
decision for potential discussion at the NSG plenary in May 2006. Member states did
not agree to put the draft decision on the May agenda, but continued discussions.77
Likewise, the October 2006 Consultative Group meeting did not yield an NSG
decision.
Consulting with Congress
Under existing law (Atomic Energy Act of 1954; P.L. 95-242; 42 U.S.C. § 2153
et seq.) all significant nuclear cooperation requires an agreement for cooperation.78
74 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,” Nuclear Fuel, Sept.
26, 2005.
75 Sept. 12, 2005, Joint Statement by President Chirac and Prime Minister Singh, Paris.
“India, France Sign Nuclear Cooperation Declaration,” Financial Express, Feb. 21, 2006.
76 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,” Nuclear Fuel, Sept.
26, 2005.
77 The text of the draft decision was circulated by Daryl Kimball of the Arms Control
Association on Mar. 21, 2006.
78 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
(continued...)
CRS-24
The Nuclear Non-Proliferation Act of 1978 (NNPA) amended the Atomic Energy
Act of 1954 to include, among other things, a requirement for full-scope safeguards
for significant nuclear exports non-nuclear weapon states.79
At issue are the requirements for full-scope nuclear safeguards contained in
Section 123 a. (2) for approval of an agreement for cooperation and in Section 128
for licensing nuclear exports. India, a non-party to the Nuclear Nonproliferation
Treaty (NPT), does not have full-scope safeguards, nor is it ever expected to adopt
full-scope safeguards, since it has a nuclear weapons program that would preclude
them. Also at issue is the requirement in Section 129 to stop exports if a non-nuclear
weapon state has detonated a nuclear device after 1978, among other things. India
detonated several nuclear devices in 1998.
These three sections of the AEA provide mechanisms for the President to waive
those requirements and sanctions (in Section 129), which are spelled out in more
detail below. The sections also provide legislative vetoes, in the form of concurrent
resolutions, of the presidential determinations. In 1983, however, the Supreme Court
decided in INS v. Chadha that legislative veto provisions that do not satisfy the
bicameralism and presentment requirements of Article I of the Constitution were
unconstitutional. In 1985, some parts of the AEA were amended to provide for joint
resolutions of approval or disapproval (e.g., Section 123 d.). The Chadha decision
affects how Congress would disapprove of such presidential determinations under
existing law and therefore affects the impact of the Administration’s proposed
legislation.
Agreements for Cooperation. Section 123 of the AEA (42 U.S.C. 2153)
specifies what must happen before nuclear cooperation can take place.
! Section 123 a. states that the proposed agreement shall 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 the
nine criteria, 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.).80
78 (...continued)
other terms used in the statute, are defined in 42 U.S.C. § 2014.
79 P.L. 83-703, 42 U.S.C. §§ 2153 et seq.
80 In the 1954 Act, the provisions in Section 123 c. covered all agreements for cooperation.
Section 123 d. was added in 1958 (P.L. 85-479) to cover military-related agreements. In
1974, P.L. 93-485 amended Section 123 d. to include agreements that covered reactors
producing more than 5 MW thermal or special nuclear material connected therewith.
CRS-25
! 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.
The United States has 23 agreements for cooperation in place now, and had an
agreement with India from 1963 to 1993. Such agreements for cooperation are
“framework” agreements — they do not guarantee that cooperation will take place
or that nuclear material will be transferred, but rather set the terms of reference and
provide authorization for cooperation. The 1963 U.S.-India cooperation agreement
is anomalous in that it did guarantee fuel for the Tarapur reactors, even though other
U.S. nuclear cooperation agreements reportedly have not included any such
guarantees.81
Section 123 a. lists nine criteria that an agreement must meet unless the
President determines an exemption is necessary. These are listed in Section 123 a.,
paragraphs (1) through (9), 42 U.S.C. 2153. They are guarantees that (1) safeguards
on nuclear material and equipment transferred continue in perpetuity; (2) full-scope
safeguards are applied in non-nuclear weapon states; (3) nothing transferred is used
for any nuclear explosive device or for any other military purpose; (4) the United
States has the right of return if the cooperating state detonates a nuclear explosive
device or terminates or abrogates an International Atomic Energy Agency (IAEA)
safeguards agreement; (5) there is no transfer of material or classified data without
U.S. consent; (6) physical security is maintained; (7) there is no enrichment or
reprocessing by the recipient state without prior approval; (8) storage is approved by
United States for plutonium and highly enriched uranium; and (9) anything produced
through cooperation is subject to all of the above requirements.
In the case of India, the most difficult of these requirements to meet is the full-
scope safeguards requirement for non-nuclear weapon states (Sec. 123 a. (2)). India
is considered to be a non-nuclear weapon state because it did not, as defined by the
Nuclear Nonproliferation Treaty, explode a nuclear device before January 1, 1967.82
The President may exempt an agreement for cooperation from any of the
requirements in Section 123 a. if he determines that meeting 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.”83 In other words,
81 United States General Accounting Office, “Nuclear Agreement: Cooperation Between
the United States and the People’s Republic of China,” GAO/NSIAD-86-21BR, Nov. 1985,
Appendix I-1.
82 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.
83 This new requirement was added by the Export Administration Amendments Act of 1985,
(continued...)
CRS-26
both chambers of Congress must approve the agreement if it does not contain all of
the Section 123 a. requirements.
If Congress votes to approve an agreement for cooperation that was exempted
because the recipient state did not have full-scope safeguards (Section 123 a. (2)),
such approval would essentially waive the Nuclear Regulatory Commission’s (NRC)
obligation to consider full-scope safeguards as an export license authorization
criterion under Section 128. However, Congress would still have the authority to
review one export license authorization approximately every 12 months after the
agreement for cooperation has entered into force. (See discussion below)
Section 123 d., in part, states the following:
if Congress fails to disapprove a proposed agreement for cooperation which
exempts the recipient nation from the requirement set forth in subsection 123
a. (2), such failure to act shall constitute a failure to adopt a resolution of
disapproval pursuant to subsection 128 b. (3) for purposes of the
Commission’s consideration of applications and requests under section 126
a. (2) and there shall be no congressional review pursuant to section 128 of
any subsequent license or authorization with respect to that state until the first
such license or authorization which is issued after twelve months from the
elapse of the sixty-day period in which the agreement for cooperation in
question is reviewed by the Congress.84
Export Licensing. In addition to specifying criteria for framework
agreements, the AEA sets out procedures for licensing exports (Sections 126, 127,
and 128 codified as amended at 42 U.S.C. 2155, 2156, 2157). The Nuclear
Regulatory Commission (NRC) is required to meet criteria in Sections 127 and 128
in authorizing export licenses; Section 128 contains the requirement for full-scope
safeguards for non-nuclear weapon states. Section 126 b. (2) contains a provision
for the President to authorize an export in the event that the NRC deems that the
export would not meet Section 127 and 128 criteria. The President must determine
“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.” The President would submit his executive order, along with a detailed
assessment and other documentation, to Congress for 60 days of continuous session.
83 (...continued)
P.L. 99-64, Section 301 (b) (2), 99 Stat. 120.
84 The language “fails to disapprove” is an artifact of the 1978 Nuclear Nonproliferation Act,
which used legislative vetoes in the form of concurrent resolutions of disapproval. In 1985,
following the Supreme Court’s Chadha decision invalidating the use of legislative vetoes,
the Export Administration Amendments Act created a separate approval process for
exempted agreements, which this part of Section 123 d. is referring to, that called for a joint
resolution of approval. Thus, “fails to disapprove” could be interpreted as “approves” in the
form of a joint resolution of approval.
CRS-27
After 60 days of continuous session, the export would go through unless Congress
passes a concurrent resolution of disapproval.85
In the case of exports pursuant to an exempted agreement for cooperation (i.e.,
exempted from the full-scope safeguards requirement), as described above, the NRC
would not have to meet the full-scope safeguards requirement in assessing whether
it could issue export licenses (Section 128 b. (3)). Congress would review one
license every 12 months. If Congress passed a resolution of disapproval, no further
exports could be made during that Congress.86
In both cases, Section 128 contains a provision for the President to waive
termination of exports by notifying the Congress that the state has adopted full-scope
safeguards or that the state has made significant progress toward full-scope
safeguards, or that U.S. foreign policy interests dictate reconsideration. Such a
determination would become effective unless Congress disagrees with the President’s
determination.87
Termination of Cooperation. Section 129 of the AEA (42 U.S.C. 2158)
requires ending exports of nuclear materials and equipment or sensitive nuclear
technology to any non-nuclear-weapon state that, after March 10, 1978, the President
determines to have:
! detonated a nuclear explosive device;
! terminated or abrogated IAEA safeguards;
! materially violated an IAEA safeguards agreement; or
! engaged 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.”
In addition, Section 129 would also halt exports to any nation the President
determines:
! to have materially violated the terms of an agreement for cooperation
with the U.S.;
! assisted, encouraged, or induced any other non-nuclear weapon state
to obtain nuclear explosives or the materials and technologies
needed to manufacture them; or
85 In light of the Chadha decision, passing a concurrent resolution could invite a legal
challenge. Although this is not provided for in the AEA, Congress could choose to pass a
joint resolution of disapproval or a bill stating in substance it did not approve.
86 Section 128 b. (3) refers to a “resolution of disapproval,” and this would likely be a joint
resolution of disapproval, in light of the Chadha decision.
87 Section 128 b. (2) refers to a “concurrent resolution.” In light of the Chadha decision,
Congress could pass a joint resolution disagreeing with the President’s determination, or
pass a bill barring nuclear exports for a certain period of time to that country.
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! re-transferred or entered into an agreement for exporting
reprocessing equipment, materials or technology to another
non-nuclear weapons state.
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.88
Evolution of P.L. 109-40189
On March 9, 2006, the Administration submitted its proposed legislation to
Representative Hyde and Senator Lugar, and on March 16, 2006, Representatives
Hyde and Lantos introduced H.R. 4974, and Senator Lugar introduced S. 2429.
Following public hearings and committee mark-ups, the House passed H.R. 5682 on
July 26, 2006 by a vote of 359 to 68 and the Senate passed its version of H.R. 5682,
substituting the text of the amended S. 3709, on November 16, 2006 by a vote of 85
to 12. One issue that held up the Senate bill was the inclusion, in Title II, of the
implementing legislation for the U.S. Additional Protocol — an agreement between
the United States and the IAEA to provide for enhanced information, access, and
inspection tools for IAEA inspectors as they inspect U.S. nuclear and other facilities
under the U.S. voluntary safeguards agreement.
The House and Senate version of the H.R. 5682 were remarkably similar, with
four differences.90 The Senate version contained an additional requirement for the
President to execute his waiver authority, an amendment introduced by Senator
Harkin and adopted by unanimous consent that the President determine that India is
“fully and actively participating in U.S. and international efforts to dissuade, sanction
and contain Iran for its nuclear program.” This provision was watered down into a
reporting requirement in the conference report. The Senate version also had two
unique sections related to the cooperation agreement, Sections 106 and 107, both of
which appear in the conference report. Section 106 (now Section 104 (d) (4))
prohibits exports of equipment, material or technology related for uranium
enrichment, spent fuel reprocessing or heavy water production unless conducted in
a multinational facility participating in a project approved by the International
88 Section 129 specifies that the President’s determination “shall not become effective if
during such sixty-day period the Congress adopts a concurrent resolution stating in
substance that it does not favor the determination.” Again, in light of Chadha, Congress
could choose to enact a joint resolution stating it does not favor the determination, or enact
a law expressly rejecting the determination.
89 See CRS Report RL33561, U.S.-India Nuclear Cooperation: A Side-By-Side Comparison
of Current Legislation, by Sharon Squassoni and Jill Marie Parillo (hereafter cited as CRS
Report RL33561) for more detail on the bills.
90 See H.Rept. 109-590 and for S.Rept. 109-288, dated July 20, 2006, background on the bill.
CRS-29
Atomic Energy Agency (IAEA) or in a facility participating in a bilateral or
multilateral project to develop a proliferation-resistant fuel cycle. Section 107 (now
Section 104 (d) (5)) would establish a program to monitor that U.S. technology is
being used appropriately by Indian recipients. Finally, the Senate version also
contained the implementing legislation for the U.S. Additional Protocol in Title II,
which was retained in the conference report.
P.L. 109-401 allows the President to
! exempt a proposed agreement for cooperation with India from the
full-scope safeguards requirement of Section 123 a. (2) of the
Atomic Energy Act;
! exempt an agreement from any export review by the Congress under
Section 128 of the AEA;
! exempt the agreement from restrictions resulting from India’s
nuclear weapons activities under Section 129 a. (1) (D) of the AEA,
and exempt the agreement from a cutoff in exports because of
India’s 1998 nuclear test.
It does not exempt the agreement from a future cutoff in exports if India tests
a nuclear explosive device again. For the President to exercise his waiver authority,
seven requirements, as outlined earlier, must be met. P.L. 109-401 contains
numerous statements of policy and reporting requirements, as well as restrictions on
certain kinds of transfers. There are specific prohibitions on (as outlined in Section
104 (d)): (1) transfers that would violate U.S. obligations under Article 1 of the NPT
not to in any way assist any country to manufacture or otherwise acquire nuclear
weapons; (2) transfers that would violate NSG guidelines in force at the time; (3) a
cutoff in exports if India is found to have violated NSG or MTCR guidelines; (4)
enrichment and reprocessing cooperation, except to “a multinational facility
participating in an IAEA-approved program to provide alternatives to national fuel
cycle capabilities; or... a facility participating in, and the export, reexport, transfer,
or retransfer is associated with, a bilateral or multinational program to develop a
proliferation-resistant fuel cycle.” Additionally, the law provides for a nuclear export
accountability program (formerly Section 107 of the Senate version of H.R. 5682).
President’s Signing Statement
In President Bush’s signing statement, he noted that the act “will strengthen the
strategic relationship between the United States and India.”91 With respect to
particular provisions, President Bush stated that the executive branch would construe
two sections of the bill as “advisory” only: policy statements in Section 103 and the
restriction contained in Section 104 (d) (2) on transferring items to India that would
not meet NSG guidelines. On the first, the President cited the Constitution’s
“commitment to the presidency of the authority to conduct the Nation’s foreign
affairs”; on the second, the President raised the question of whether the provision
“unconstitutionally delegated legislative power to an international body.” In other
words, the President was questioning whether Congress were ceding authority to
91 See [http://www.whitehouse.gov/news/releases/2006/12/20061218-12.html]
CRS-30
approve U.S. exports to the Nuclear Suppliers Group. However, U.S. officials,
including Secretary of State Rice, have formally told Congress multiple times that the
United States government would abide by NSG guidelines. The President’s signing
statement also noted that the executive branch would construe “provisions of the Act
that mandate, regulate, or prohibit submission of information to the Congress, an
international organization, or the public, such as sections 104, 109, 261, 271, 272,
273, 274, and 275, in a manner consistent with the President’s constitutional
authority to protect and control information that could impair foreign relations,
national security, the deliberative processes of the Executive, or the performance of
the Executive’s constitutional duties.” This seems to suggest that the executive
branch might limit the scope of reporting required by Congress in those sections, not
just on national security grounds, but to protect executive branch processes or
performance. The implications of the approach outlined in this signing statement
will not be clear until the executive branch produces (or does not produce, as the case
may be) required reports.
Potential Issues for Congress
It may be some time before all the requirements are met for the executive branch
to bring a final cooperation agreement before Congress again. When that happens,
Congress will have another opportunity to consider the specific parameters of
cooperation. In addition to meeting the requirements set out in P.L. 109-401,
Congress may want to assess how well the actual agreement meets the other
nonproliferation requirements of the Atomic Energy Act (other than full-scope
safeguards). Some substantive questions could include whether the Indian safeguards
agreement meets the U.S. requirements for perpetuity; whether U.S. assistance could
benefit India’s nuclear weapons program and whether India’s nonproliferation record,
as described in the Nuclear Nonproliferation Nonproliferation Assessment Statement,
contains anything that causes concern for Members, or would have a negative impact
on U.S. national security.
Although joint resolutions of approval for nuclear cooperation agreements
receive expedited consideration, significant concerns about the agreement could
result in the passage of a joint resolution of approval with conditions, as happened
in the case of the 1985 U.S. nuclear cooperation agreement with China. In P.L. 99-
183, 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. A presidential certification on the three matters was not made until
January 12, 1998.
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Appendix. Frequently Asked Questions About
U.S.-India Nuclear Cooperation
Is there a signed peaceful nuclear cooperation agreement?
No. The United States and India must negotiate the text of a peaceful nuclear
cooperation agreement (pursuant to the Atomic Energy Act). That agreement is
required to specify the terms, conditions, duration, nature and scope of cooperation.
Negotiating that agreement could last anywhere from months to a year or more.
What was the agreement signed on March 2, 2006?
In July 2005, India committed to identifying and separating its civilian and military
nuclear facilities and programs. On March 2, 2006, U.S. and Indian officials agreed
upon a “separation” plan.
Is membership in the Nuclear Nonproliferation Treaty (NPT) necessary to sign
a peaceful nuclear cooperation agreement?
No, but the Nuclear Nonproliferation Act of 1978 made comprehensive International
Atomic Energy Agency (IAEA) safeguards a requirement for nuclear cooperation
with non-nuclear weapon states.
What are comprehensive IAEA safeguards?
States that join the NPT as non-nuclear weapon states are obligated to sign an
agreement with the IAEA to safeguard all the nuclear material in their state and under
their jurisdiction. These are called “comprehensive” or “full-scope” nuclear
safeguards, or INFCIRC/153-type safeguards.
Does India have IAEA safeguards now on some nuclear facilities?
India has facility-specific (INFCIRC/66-type) safeguards on two U.S.-supplied
reactors at Tarapur, two Canadian-supplied reactors at Rajasthan, and has concluded
a safeguards agreement for two Russian-supplied reactors under construction at
Kudankulam. India also applies intermittent safeguards at its reprocessing plant at
Tarapur when safeguarded fuel is present.
If India has nuclear weapons, why isn’t it considered a nuclear weapons state?
The Nuclear Nonproliferation Treaty (NPT) defined nuclear weapons states as those
states that had detonated a nuclear explosive device before January 1, 1967. Those
states are the United States, the United Kingdom, Russia, France, and China. U.S.
law follows the NPT definition.
Which laws did the Administration seek to adjust?
The Atomic Energy Act (P.L. 83-703) does not prohibit nuclear cooperation with
India, but has three provisions that contain restrictions. The first is Section 123,
which requires non-nuclear weapon state recipients of U.S. nuclear cooperation to
have full-scope safeguards, among other requirements. The second is Section 128,
which requires full-scope safeguards to license nuclear exports. The third is Section
129, which would terminate nuclear exports if a non-nuclear weapon state has
conducted a nuclear test after 1978 or continues a nuclear weapons program without
steps to terminate such activities.
CRS-32
What facilities did India designate as civilian?
In a statement to the Indian Parliament on March 7, 2006, India identified 14 out of
22 power reactors to declare as civilian; some facilities at the fuel fabrication
complex to be identified in the future; some spent fuel storage; 3 heavy water plants
(which are not required to be safeguarded); and several research facilities (which are
not required to be safeguarded). India has stated that the 14 plants equal 65% of its
total nuclear electricity capacity (known as megawattage). However, six of those
plants are already covered by existing IAEA safeguards agreements.
On May 11, 2006, Indian officials provided more details. The eight indigenous
power reactors to be safeguarded include RAPS 3, 4, 5, & 6 (at Rajasthan); two at
Uttar Pradesh (NAPS 1, 2); and two at Gujrat (KAPS 1, 2). The safeguards will be
phased in beginning in 2007 and completed by 2014. Other facilities (so-called
“upstream”) were also identified in May, to include a uranium oxide plant, two
ceramic fuel fabrication plants, an enriched uranium oxide plant, an enriched fuel
fabrication plant and the Gadolinia Facility.
What does P.L. 109-401 accomplish?
P.L. 109-401, “The Henry J. Hyde United States-India Peaceful Atomic Energy
Cooperation Act of 2006,” was signed into law by President Bush on December 18,
2006. It allows the President to waive certain restrictions contained in the Atomic
Energy Act, namely that non-nuclear weapon states, as defined by the NPT and U.S.
law, must have full scope, or comprehensive safeguards on all nuclear material in
their state before the United States can engage in nuclear cooperation with them.
P.L. 109-401 sets out seven requirements that the President must determine to have
happened before he can exercise his waiver authority. These are (1) provision of a
credible separation plan for India’s nuclear facilities; (2) approval by the IAEA Board
of Governors of India’s new nuclear safeguards agreement; (3) substantial progress
toward concluding an Additional Protocol; (4) India’s active support for the
conclusion of a treaty to ban fissile material production for nuclear weapons; (5)
India’s support for U.S. and international efforts to halt the spread of sensitive
nuclear fuel cycle technologies (enrichment and reprocessing); (6) India taking
necessary steps to secure nuclear and other sensitive materials and technologies
through adherence to multilateral control regimes (like NSG and MTCR); and (7) a
consensus decision by the NSG to make an exception for India.
What are the next steps?
1. U.S. and Indian officials must finalize the text of a cooperation agreement (so-
called a “123 agreement” after Section 123 of the Atomic Energy Act);
2. Indian and IAEA officials must negotiate a safeguards agreement, and the Board
of Governors of the IAEA must approve it;
3. NSG member states must agree by consensus to make an exception for India; and
4. Congress must approve the text of the “123 agreement” in a joint resolution of
approval.
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