Implications of Proposed India-U.S. Civil Nuclear Cooperation

Introduction

On July 18, 2005, Indian Prime Minister Manmohan Singh and U.S. President Bush announced an agreement that would expand bilateral activities and commerce in space, civil nuclear energy, and dual-use technology. (See the text of the statement.) The prospect of U.S. transfers of civil nuclear technology to India has important ramifications for the global nuclear and missile nonproliferation regime. This issue brief will examine the proposed agreement and its implications for U.S. law, the Nuclear Suppliers Group, and the Missile Technology Control Regime.

The decision of the U.S administration to enter into an agreement with India to reengage in civil nuclear cooperation after more than a quarter century hiatus following India's 1974 nuclear test, and against the background of domestic legislation and international agreements regulating the terms and conditions for nuclear cooperation, raises important questions regarding the integrity of the nuclear nonproliferation regime. This is especially so in view of the fact that it comes in the wake of a discouraging and unproductive 2005 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) Review Conference that has shaken international confidence.

The agreement calls for steps to be taken by both sides. For the United States, it represents a sea change in policy, entailing the need to revisit and revise domestic law, and to get agreement of the 45 member Nuclear Suppliers Group (NSG)[1] to adjust agreed Guidelines prohibiting the supply of nuclear equipment, material, or technology to any state not accepting comprehensive IAEA safeguards on all of its nuclear facilities in order to accommodate the Indian situation. U.S. President Bush committed himself to work to achieve "full civil nuclear cooperation with India" on the ground that "as a responsible state with advanced nuclear technology, India should acquire the same benefits and advantages as other states."

For its part, India would agree to "assume the same responsibilities and practices" as other countries with advanced nuclear technology, in particular, identifying and separating civilian and military nuclear facilities and programs; filing a declaration regarding its civilian facilities and voluntarily placing them under IAEA safeguards; signing and implementing an Additional Protocol[2] with respect to those facilities; continuing its unilateral moratorium on nuclear testing; working with the United States toward conclusion of a multilateral fissile material cutoff treaty; implementing comprehensive export control legislation; and refraining from transferring enrichment and reprocessing technology to states that do not have them.[3]

In both cases there is much work to be done, none of it easy, and it cannot be taken as given that all of the above objectives can be met. In so far as the United States is concerned, significant nuclear exports can take place only pursuant to an agreement on civil nuclear cooperation. Agreements with non-nuclear weapon states (which is how U.S. and international law regard India) require that certain conditions be met including full-scope IAEA safeguards, adequate physical protection, a peaceful nuclear explosive guarantee, consent rights over enrichment and reprocessing of nuclear materials, and a U.S. right of return of items subject to the agreement if the cooperating partner detonates a nuclear explosive or terminates or abrogates an IAEA safeguards agreement. All agreements must be submitted to Congress. In the event of an agreement that does not meet all of the requirements because the president has chosen to waive one or more of the conditions, both houses of Congress must approve it by majority vote. Even if Congress does so, export licensing must be approved by the Nuclear Regulatory Commission (NRC) where waiver conditions may again be subject to Congressional review and disapproval. The complexity involved indicates that the executive branch would likely seek to amend the law with no certainty regarding the outcome.

Beyond domestic law and practice, the United States is politically obligated as a member of the NSG to require full-scope safeguards on all items appearing on a safeguards trigger list. NSG decisions on criteria are based on consensus. Having labored since 1975 to establish and strengthen the NSG, in particular to insist on full-scope safeguards, the United States would have to face up to a significant challenge to bring its 44 partners in the NSG around to making an exception on behalf of India or to a formulation that might be used for future cases. It is particularly ironic that the state that initiated and nurtured the NSG and labored unrelentingly for the principle of full-scope safeguards and for enlarging the list of items to be covered by NSG rules would now be urging modifying the rules to accommodate a "special case." It is significant that the NSG at its most recent 2005 Plenary in Oslo further strengthened its Guidelines by agreeing to suspend nuclear transfers to countries that are in non-compliance with their safeguards agreements. Since these safeguard agreements refer to full-scope safeguards, the agreement with India would confer a special status on India not applicable to members of the NPT.

To argue for selective exception is essentially to substitute selective proliferation for nonproliferation which strongly contradicts the NPT and the norms of the nonproliferation regime. Furthermore, once the door has been opened to exceptionalism, it will be all the more difficult to rein in imprudent exports by other members of the group. The timing of the announcement is interesting having been made less than a month after the 2005 NSG Plenary. It appears that it was specifically planned so as not to complicate important agreements at the Oslo Plenary while maximizing opportunities for the United States to lobby NSG partners prior to the 2006 Plenary–the only opportunity where a change in the Guidelines could be agreed upon.

Further complicating matters is the position taken by NPT parties in past Review Conferences. In 1995, when states party to the treaty agreed to its indefinite extension, they included in a Decision on Principles and Objectives for Nuclear Non-Proliferation and Disarmament that was critical to indefinite extension a proviso that "New supply arrangements…should require as a necessary precondition, acceptance of IAEA full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices." (paragraph 12) The 2000 NPT Review Conference not only reaffirmed this position, but also emphatically declared that the 1998 nuclear test explosions carried out by both India and Pakistan "do not in any way confer a nuclear-weapon State status or any special status whatsoever." (paragraph 9 under Articles I and II). In short, the initiative raises significant political problems both domestically and internationally and runs a serious risk of resulting in a net weakening of the nonproliferation regime.

India also faces problems in fulfilling the undertakings noted above. Some see the agreement as promises on one side (U.S.) and explicit commitments on the other (India) and as such imbalanced. Among the concerns that have been expressed is the problem of separating the civil and military programs apparently because the latter has few dedicated facilities and relies on the former for fissile material and the impact of perceived "intrusive" international inspection on Indian nuclear facilities especially with an Additional Protocol in place. The prospect that the nuclear bureaucracy in India will seek to minimize the undertakings with respect to international safeguards, and to avoid having to fully separate civil and military activities (inter alia for cost considerations of having to build dedicated facilities for the latter alone) suggests that reaching closure on a mutually acceptable arrangement will not be easy.

Besides reversing decades of nuclear nonproliferation policy, the Bush Administration's prospective deal to share civilian nuclear technology with India could also permanently damage missile nonproliferation policy. Under the reported terms of the deal, in exchange for placing its civilian nuclear facilities under international monitoring, India would obtain a free hand to purchase previously restricted conventional weapons, most notably Israel's Arrow missile defense system, a partially U.S. funded program aided by infusions of U.S. technology.[4] India has expressed interest in Arrow but has been thwarted to date by the fact that the Arrow interceptor is a Category I missile capable of delivering a 500 kg payload to a range of 300 km. Consistent with the Missile Technology Control Regime's (MTCR) Category I provisions, this has obliged the United States thus far to discourage Israel from selling the Arrow to India. Israel is an informal "adherent" to the MTCR's guidelines and should practice restraint in transferring the Arrow, but both Israel and India have lobbied Washington hard to make an exception in regard to Arrow's export to India.

Ever since President Bush signed the December 2002 National Security Presidential Directive/NSPD-23, specifying national policy on ballistic missile defense, the White House has pressured both the State Department and the Pentagon to "promote international missile defense cooperation, including bilateral and alliance structures…[and to] eliminate unnecessary impediments to such cooperation."[5] Of course, such impediments include more than the MTCR's treatment of so-called "defensive" missile interceptors as potential "offensive" delivery systems. Various classified export controls affecting highly sensitive "black box" technologies have been a longstanding impediment to technology transfer even with our closest allies. As far as the MTCR goes, however, President Bush directed the secretaries of State and Defense to review the impact of U.S. commitments under the MTCR on the goal of missile defense cooperation. Many nonproliferation specialists feared the administration would seek to liberalize the MTCR's existing provisions regarding treatment of defensive interceptors, by arguing that restrictions on their export were inconsistent with the MTCR's original goal of arresting the spread of mass-destruction delivery systems.[6]

Certainly, missile defenses and missile nonproliferation policy are complimentary; they both seek to deter or defeat mass-destruction delivery systems.[7] There is an ample supply of missile defense interceptors (Patriot, THAAD or Terminal High Altitude Area Defense system, for example) to sell to friends and allies without violating longstanding missile nonproliferation policy.[8] But by allowing clear Category I missiles like Arrow to gain a free pass vis a vis the MTCR's strong presumption to deny their export, the administration will do an incalculable disservice to overall missile nonproliferation policy. The Soviet SA-2 air defense interceptor has seen stalwart service as the basis for offensive missile programs in at least China, India, Iran, Iraq, and Serbia. To the extent the United States makes Arrow an extraordinary exception to its obligatory presumption to deny Israel's export to India, it could open the floodgates to other even less sensitive MTCR members and regime adherents repudiating the regime's most important range/payload provision. Potential Russian transfers to Iran and Syria and Chinese exports to Pakistan come immediately to mind. In the end, the offensive missile proliferation damage that results could make both missile defenses and missile nonproliferation policy significantly less effective than they are today.

Resources

• Sharon Squassoni, "U.S. Nuclear Cooperation with India: Issues for Congress," CRS Report for Congress, July 29, 2005, www.fpc.state.gov
• www.whitehouse.gov

Sources:

[1] The Nuclear Suppliers Group (NSG) comprises 45 nuclear supplier states that voluntarily agree to coordinate civil nuclear export policy on nuclear and nuclear related items and to require agreed standards on such exports. Requirements include such things as recipient state acceptance of full scope IAEA safeguards, physical protection against unauthorized use of transferred materials and facilities, and supplier consent to retransfer of items provided to the recipient.
[2] Additional Protocol refers to a legal document granting the IAEA increased rights to information and access to sites in a safeguarded state as well as additional authority to use advanced technologies during the verification process. It is a means of strengthening the IAEA's comprehensive safeguards system to enable the Agency to provide assurance about declared and possible undeclared activities.
[3] For a discussion of engaging non-NPT states in the regime while maintaining laws and rules on civil cooperation, see Lawrence Scheinman, "Engaging Non-NPT Parties in the Nuclear Non-Proliferation Regime," Programme for Promoting Nuclear Non-Proliferation, Issue Review 26 (May 1999); see also Marvin Miller and Lawrence Scheinman, "Israel, India and Pakistan: Engaging the Non-NPT States in the Nonproliferation Regime," Arms Control Today, December, 2003.
[4] Dana Milbank and Dafna Linzer, "U.S., India May Share Nuclear Technology," Washington Post, July 19, 2005, p. A1.
[5] "National Security Presidential Directive/NSPD-23 on National Policy on Ballistic Missile Defense," www.fas.org.
[6] See, for example, Dennis M. Gormley, "Missile Defence Myopia: Lessons from the Iraq War," Survival, vol. 45, no. 4 (Winter 2003-04): 61-86.
[7] For an insightful treatment on the subject, see Richard Speier, "Complementary or Competitive: Missile Controls vs. Missile Defense," Arms Control Today, June 2004, www.armscontrol.org.
[8] This is because these interceptors cannot deliver a 500kg payload to a range of 300km. According to Richard Speier, most versions of the Russian S-300 also would be available for export on a case-by-case basis. On the other hand, the U.S. Standard Missile-3 and Alaska's Ground-Based Interceptors are Category I missiles. See Speier, "Complementary or Competitive."
[9] Sharon Squassoni, "U.S. Nuclear Cooperation with India: Issues for Congress," CRS Report for Congress, July 29, 2005, https://fpc.state.gov.