Congress Ponders Conditions for U.S.-Indian Deal

Indian and U.S. government officials have warned that their proposed civil nuclear cooperation deal should not be tampered with, lest it unravel. Yet, even U.S. lawmakers supportive of the deal have said congressional conditions should be expected, while some foreign nuclear suppliers and Indian politicians are also resisting giving the deal a free pass.

U.S. law has significantly restricted civil nuclear trade with India since New Delhi’s 1974 test of a nuclear device that made use of U.S. and Canadian nuclear imports slated for peaceful purposes. Over the next three decades, India secretly pursued a nuclear weapons program, shielded nearly all of its nuclear enterprise from international oversight, conducted a series of nuclear tests in May 1998, and accrued an estimated arsenal of 50-100 nuclear weapons.

Citing India’s rising status and growing energy needs, President George W. Bush pledged last July to help revive U.S. and global nuclear commerce with India. Toward this end, Bush and Indian Prime Minister Manmohan Singh in March approved a plan dividing India’s nuclear complex into civilian and military sectors. (See ACT, April 2006.)

Washington provided New Delhi March 14 with a draft bilateral cooperation agreement that would govern U.S. exports to the civilian portion of India’s nuclear apparatus. Such agreements are required by the 1954 Atomic Energy Act. Formal negotiations on the agreement await India’s counterproposal, according to a Department of State official interviewed April 18 by Arms Control Today. “We have made ourselves available whenever India is ready,” the official said.

Although the agreement remains to be negotiated, the Bush administration is urging Congress to pass legislation that would make it easier for it to take effect once it is completed. In particular, instead of requiring the negotiated agreement to win the approval of a majority of members in each congressional chamber, the administration is essentially asking Congress to allow the agreement to enter into force after 90 days if two-thirds of the House and Senate do not vote to block it.

In April 5 appearances before both the Senate Foreign Relations and House International Relations Committees, Secretary of State Condoleezza Rice defended the administration’s approach. While saying that “we’re prepared to work with the Congress on concerns,” Rice also told the House committee, “we can’t be in a position of having to renegotiate this agreement.” She further asserted that “anything that would suggest that we are somehow turning this into an arms control agreement would be particularly problematic.”

Rice was primarily alluding to frequent criticism that the administration should have secured an Indian commitment to end India’s production of fissile material—plutonium and highly enriched uranium—for weapons purposes. Without such a cessation, questions could arise about whether nuclear trade with India’s civilian nuclear infrastructure could be contributing to New Delhi’s military sector. France, Russia, the United Kingdom, and the United States all have halted production of fissile material for weapons while China is understood to have done so.

In addition, without such a halt in fissile material production, the size to which India’s nuclear stockpile could grow would remain uncapped. Rice acknowledged to the Senate committee that “we didn’t set out to constrain the [Indian] strategic program in this agreement.”

Yet, Rice contended that the administration did not expect India to increase its nuclear arsenal substantially. India maintains its goal is having a “minimum credible deterrent,” although it has not explained what this means. “Credible minimum deterrent is a self-explanatory term that requires no further elucidation,” a spokesperson for India’s Ministry of External Affairs stated April 8.

Like the Bush administration, Indian government officials are adamantly opposing any possible changes to the Bush-Singh framework. Foreign Secretary Shyam Saran told reporters March 31 in Washington that the agreement “emerged from exceedingly complex and tough negotiations” and that a “very, very delicate state of balance” resulted. “Now if you start making revisions and changes, that balance is likely to be offset,” Saran warned.

Still, several legislators indicated to Rice April 5 that they are uncomfortable with the administration’s approach. “We’re being asked to, in advance, approve an agreement, the details of which we won’t know at the time,” Rep. Adam Schiff (D-Calif.) complained.

Some lawmakers, even deal supporters, told Rice to expect changes to the legislation. “It is my studied view that this legislation passing Congress will not be the same as was introduced and there will be conditions that will be added,” observed Rep. Gary Ackerman (D-N.Y.), who is currently co-chair of the congressional caucus on India and Indian Americans. Similarly, the ranking member of the House International Relations Committee, Tom Lantos (D-Calif.), said, “The administration will not get all it wants from our committee, but neither will our committee get its entire wish list.” Committee Chairman Henry Hyde (R-Ill.) had already stated in March that conditions were a possibility. (See ACT, April 2006.)

Senators not only registered reservations about approving legislation before a final agreement was concluded but also expressed concerns about acting before knowing the outcome of negotiations between India and the International Atomic Energy Agency (IAEA) on the safeguards India will institute. Safeguards are measures designed to deter and detect the misuse of civilian nuclear facilities and technologies to build nuclear arms. Indian Atomic Energy Commission Chairman Anil Kakodkar made an initial visit to the IAEA in April to discuss the issue.

Although saying he was “probably going to support this,” ranking Senate Foreign Relations Committee member Joseph Biden (D-Del.) declared, “Congress should not give up its power under existing law without knowing what the India peaceful nuclear cooperation agreement and India’s safeguards agreement with the IAEA will contain.” Echoing Biden, Sen. John Kerry (D-Mass.) said, “I am uncomfortable voting…without seeing those safeguards.”

Rice sought to alleviate their concerns, noting that “nothing in this legislation can take effect until the president determines that there is an acceptable agreement with the IAEA.” However, she emphasized that Congress should not wait on the safeguards. “We believe that the proper sequence is to go ahead and pass the legislation, to negotiate the bilateral agreement…and then to have the IAEA safeguards fully negotiated.”

But some in Congress are leery of letting the president alone determine whether the safeguards are adequate. Indeed, the only criterion of the legislation that is not left up to the president’s determination is if India conducted another nuclear test. Rice noted that, in such a case, “the deal from our point of view would at that point be off.”

There has been some speculation, including at least one news report, that Washington has assured India that it will have the nuclear fuel it needs even if the United States halted nuclear commerce with India after a nuclear test. The State Department official interviewed April 18 denied such a possibility, saying that Washington has not committed to “go around U.S. law.”

Still, as part of the March separation plan, the United States pledged to assist India in developing “a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors.” If this reserve was sufficiently built up, it would, in effect, assure India of nuclear fuel even if it conducted a nuclear test triggering the termination of the U.S.-Indian bilateral cooperation agreement.

The State Department official reported that the draft U.S.-Indian nuclear cooperation agreement contains a provision ending the whole arrangement in the event of an Indian nuclear test. This is standard practice for all U.S. nuclear cooperation agreements with countries not officially recognized as nuclear-weapon states, which India is not. Only countries that conducted nuclear tests before January 1, 1967 are deemed nuclear-weapon states by the 1968 nuclear Nonproliferation Treaty (NPT). New Delhi has not joined this treaty.

India has objected to the nuclear test clause in the draft agreement. A Ministry of External Affairs spokesperson told reporters in New Delhi April 17 that “such a provision has no place in the proposed bilateral agreement.”

This stance may reflect the Singh government’s sensitivity to domestic Indian public opinion in light of charges from opposition parties that India has struck a bad deal. Former Prime Minister Atal Bihari Vajpayee of the Bharatiya Janata Party (BJP) asserted April 6 that “ India has ended up giving more and more concessions.” In particular, he condemned as “not acceptable” that the agreement would “convert a voluntary moratorium on further tests by India into a legally binding commitment for all times to come.” BJP President Rajnath Singh recommended five days later that India should consider walking away from the deal.

Although Indian complaints are that the deal is too strict, other countries are concerned it is too lenient. At a March 22-23 Vienna meeting of the voluntary Nuclear Suppliers Group (NSG), roughly half of the participating states raised questions about the agreement, several critically. Group members vow to abide by certain nuclear commerce guidelines, including a rule that eligible export recipients not recognized by the NPT as nuclear-weapon powers must subject all their nuclear facilities to safeguards, which India refuses to do.

Washington is urging the group, which operates by consensus, to adopt a proposal that would exempt India from this regulation. Given the numerous questions surrounding the proposal, diplomatic sources have told Arms Control Today that it is highly unlikely that the NSG will act on the U.S. proposal at the group’s May 29-June 2 plenary in Rio de Janeiro. When it might take up the issue is uncertain, but Rice told House committee members that the administration views NSG action as “at the end of [the] trail.”

Several U.S. lawmakers expressed concerns to Rice that the U.S. initiative might lead other NSG members to lobby for similar exceptions for their preferred customers. Of particular concern was that China might seek changes for Pakistan, which is a nuclear rival of India.

Rice dismissed this prospect, saying that Washington has repeatedly told Pakistan that it was not eligible for a similar arrangement as India because of Islamabad’s poor proliferation record, particularly Pakistani scientist Abdul Qadeer Khan’s black market activities. (See ACT, March 2004.)

Islamabad, however, is not happy about the deal. A Pakistani Ministry of Foreign Affairs spokesperson derided the U.S. approach April 10 as “discriminatory.” The spokesperson added, “Instead of making exception for one, a package deal would have been preferable.”

When Congress may act on the administration’s legislation for the deal remains uncertain. The two committees are holding additional hearings in May, and House Speaker Dennis Hastert (R-Ill.) told reporters on an April visit to India that Congress might not vote on the matter until after this November’s congressional elections. Senate Foreign Relations Chairman Richard Lugar (R-Ind.) also told Rice April 5 that Congress would carry out “exhaustive deliberations” before reaching any conclusions.