U.S. Nuclear Cooperation With India: Issues for Congress
U.S. Nuclear Cooperation with India:
Issues for Congress
Updated November 3, 2008
Paul K. Kerr
Analyst in Nonproliferation
Foreign Affairs, Defense, and Trade Division
U.S. Nuclear Cooperation with India:
Issues for Congress
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.
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.
U.S. nuclear cooperation is governed by the Atomic Energy Act (AEA). P.L.
109-401, which President Bush signed bill into law on December 18, 2006, provides
waivers of several provisions of the AEA (Sections 123 a. (2), 128, and 129). It
requires that several steps occur before nuclear cooperation can proceed. On
September 10, President Bush submitted to Congress a written determination that
these requirements discussed above have been met. That same day, the President
submitted the text of the proposed agreement, which has not yet been signed. The
President also submitted a written determination (also required by the AEA) “that the
performance of the proposed agreement will promote and will not constitute an
unreasonable risk to, the common defense and security.” In addition, President Bush
submitted several documents, including classified and unclassified versions of a
Nuclear Proliferation Assessment Statement, which is required by section 123 of the
AEA. The Department of State has also submitted a report required by P.L. 109-401
on various aspects of the agreement.
On September 27, 2008, the House passed H.R. 7081, which approves the
agreement. The Senate Committee on Foreign Relations approved identical
legislation, S. 3548, September 23. The Senate passed H.R. 7081 October 1.
President Bush signed P.L. 110-369 into law October 8. Secretary of State
Condoleezza Rice and India’s External Affairs Minister Shri Pranab Mukherjee
signed the agreement October 10, but it has not yet entered into force. This report
will be updated as necessary.
Issues for Consideration.............................................5
Strategy vs. Tactics............................................5
Impact on U.S. Nonproliferation Policies...........................7
Restricting Enrichment and Reprocessing......................10
Impact on the Nonproliferation Regime...........................11
Effect on NPT Member States...............................12
U.S. NPT Article I Obligations/Aiding India’s Nuclear Arsenal.....16
Steps Required by P.L. 109-401.....................................21
Separation Plan and Safeguards..................................21
India-IAEA Discussions/Domestic Opposition..................23
India’s Safeguards Agreement...............................24
India’s Nuclear Cooperation with Other Countries...............29
Other Required Steps..........................................31
Declaration of Nuclear Facilities.............................31
Harmonization with NSG/MTCR Guidelines and Adherence to
The Atomic Energy Act and Consultations with Congress.............32
Agreements for Cooperation................................33
Termination of Cooperation.................................36
President’s Signing Statement...................................38
Issues for Congress...............................................38
The Nuclear Cooperation Agreement.............................38
Sensitive Nuclear Technology...............................39
Nuclear Testing/Right of Return.............................39
P.L. 110-369- Key Provisions.......................................42
Declarations of Policy.........................................43
Appendix A. Frequently Asked Questions About U.S.-India Nuclear
Appendix B. India’s September 5, 2008 Statement on Disarmament
U.S. Nuclear Cooperation with India:
Issues for Congress
India and the United States announced July 27, 2007, that they had reached
agreement on the text of a nuclear cooperation agreement.1 P.L. 109-401, the Henry
J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, which
President Bush signed into law December 18, 2006, allows the President to waive
such an agreement with India from several requirements of the Atomic Energy Act
(AEA) of 1954, as amended.
President Bush submitted the text of the proposed agreement, which has not yet
been signed, to Congress September 10. The President also submitted a written
determination (also required by the AEA) “that the performance of the proposed
agreement will promote and will not constitute an unreasonable risk to, the common
defense and security.” In addition, President Bush submitted several documents,
including classified and unclassified versions of a Nuclear Proliferation Assessment
Statement (NPAS), which is required by section 123 of the AEA. The Department
of State has also submitted a report, which is required by section 104 of P.L. 109-
President Bush also determined that P.L. 109-401’s requirements for the
President to exercise his waiver authority have been met. These requirements 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 the NSG and the
Missile Technology Control Regime [MTCR]); and (7) a consensus decision by the
NSG to make an exception for India.
President Bush submitted the agreement after the IAEA Board of Governors
approved India’s safeguards agreement August 1. The NSG decided at the end of a
1 The full text of the agreement, which was released August 3, 2007, can be found at
[ ht t p: / / www.st at e.gov/ r / pa/ pr s / ps/ 2007/ aug/ 90050.ht m] .
2 The relevant documents are available at [http://foreignaffairs.house.gov/press_display.
September 4-6 Extraordinary Plenary meeting to exempt India from the Group’s
Procedures for congressional approval of the nuclear cooperation agreement are
described in both P.L. 109-401 and the AEA. According to P.L. 109-401, the
agreement cannot enter into force without a joint resolution of approval from
Congress. According to Section 123 b. of the AEA, the President is to submit the text
of the agreement to the Senate Foreign Relations Committee and the House
Committee on Foreign Affairs. The President is then to consult with the committees
“for a period of not less than thirty days of continuous session.” According to Section
123 d., the two committees shall, after that time, “each hold hearings on the proposed
agreement for cooperation and submit a report to their respective bodies
recommending whether it should be approved or disapproved.” Therefore, the
minimum amount of time that must elapse before Congress can vote on a joint
resolution of approval is 30 days of continuous session, in addition to the amount of
time Congress would take to hold hearings.
On September 27, however, by a vote of 298 - 117 (1 Present), the House passed
H.R. 7081, which approved the agreement and waived “the provisions for
congressional consideration and approval of a proposed agreement” contained in
Sections 123 b. and 123 d. of the AEA. The Senate Foreign Relations Committee
approved identical legislation, S. 3548, September 23. The Senate passed H.R. 7081
by a vote of 86-13 October 1. The Senate passed H.R. 7081 October 1. On October
8, President Bush signed P.L. 110-369, the United States-India Nuclear Cooperation
Approval and Nonproliferation Enhancement Act, into law. The President’s signing
statement did not indicate any differences with the legislation.
According to its text, the July 2007 agreement “shall enter into force on the date
on which the Parties exchange diplomatic notes informing each other that they have
completed all applicable requirements for its entry into force.” Secretary of State
Condoleezza Rice and India’s External Affairs Minister Shri Pranab Mukherjee
signed the agreement October 10. P.L. 110-369 requires the President to sign and
transmit to Congress two certifications in order for the two governments to exchange
diplomatic notes (see below). Washington and New Delhi have not yet done so,
although President Bush transmitted the certifications October 20.
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 treaty, arguing that it was
discriminatory. India conducted a “peaceful” nuclear test in 1974, which reinforced
the notion that nuclear technology transferred for peaceful purposes could be used to
produce nuclear weapons.3 Congress responded to that test 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 The United States created the NSG, a voluntary
nuclear export regime, in 1975. The NSG published guidelines in 1978 “to apply to
nuclear transfers for peaceful purposes to help ensure that such transfers would not
be diverted to unsafeguarded nuclear fuel cycle or nuclear explosive activities.”5
The condition that non-nuclear-weapon states wishing to obtain U.S. nuclear
exports must have full-scope safeguards created a problem for U.S. fuel supplies to
India’s reactors at Tarapur, which were built by U.S. firms and fueled 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 in 1995. After the NSG adopted the full-scope safeguards condition in
3 For an 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
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 January 1, 1967).
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 February 27, 2006, reportedly citing the NSG safety exception.
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. India tested several nuclear weapons in 1998.
The Bush Administration had been considering a strategic partnership with India
as early as 2001. Indian officials identified their growing energy needs as an area for
cooperation, particularly in nuclear energy. The U.S.-India 2004 Next Steps in
Strategic Partnership (NSSP) initiative included expanded cooperation in civil
nuclear technology as one of three goals. Phase I of the NSSP, completed in
September 2004, required addressing proliferation concerns and ensuring compliance8
with U.S. export controls.
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 other10
leading countries with advanced nuclear technology, such as the United States.”
India agreed to:
!identify and separate its civilian and military nuclear facilities and
7 See also CRS Report RL33072, U.S.-India Bilateral Agreements and “Global
Partnership,” and CRS Report RL33529, India-U.S. Relations, by K. Alan Kronstadt.
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.
!declare its civilian facilities to the 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
!refrain from transferring enrichment and reprocessing technologies
to states that do not have them, as well as support international
efforts to limit their spread;
!secure its nuclear materials and technology through comprehensive
export control legislation and through harmonization and adherence
to MTCR and NSG guidelines.
Issues for Consideration
The AEA 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 Statement12
will have on U.S. efforts to halt the proliferation of weapons of mass destruction.”
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
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.
12 Opening Statement, Chairman Richard G. Lugar, Senate Foreign Relations Committee
hearing on “Implications of U.S.-India Nuclear Energy Cooperation,” November 2, 2005
(hereafter referred to as November 2, 2005 SFRC India hearing).
13 The House International Relations Committee held the following hearings: “The U.S. and
India: An Emerging Entente?” (September 8, 2005); “The U.S.-India Global Partnership:
The Impact on Nonproliferation” (October 26, 2005); and “U.S.-India Global Partnership:
How Significant for American Interests?” (November 16, 2005); “The U.S.-India Global
Partnership” (April 5, 2006); “U.S.-India Global Partnership: Legislative Options” (May 11,
The Senate Foreign Relations Committee held the following hearings: “Implications of U.S.-
India Nuclear Energy Cooperation” (November 2, 2005); “U.S.-India Atomic Energy
Cooperation: The Indian Separation Plan and the Administration’s Legislative Proposal”
(April 5, 2006); and “U.S.-India Atomic Energy Cooperation: Strategic and Nonproliferation
Implications” (April 26, 2006). See [http://foreign.senate.gov/hearing.html] for testimonies.
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
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 has15
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
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
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 “September 8, 2005, HIRC US-India hearing”) p. 1.
15 Remarks by Congressman Jim Leach, September 8, 2005, House International Relations
Committee U.S.-India Hearing.
16 Henry Sokolski, “Implementing the Indian Nuclear Deal: What’s at Risk, What Congress
Should Require,” Briefing to Congress, September 2005.
17 See “India’s Growth Target Unrealistic,” Financial Times, January 23, 2003, which
quotes the Asia Development Bank.
18 Brahma Chellaney, “US Deal is a Bad Choice for Power Generation,” International
Herald Tribune, December 27, 2005.
19 Statement of Under Secretary of State for Political Affairs, R. Nicholas Burns, November
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. nonproliferation policy, rather than continue as a target of U.S.
nonproliferation policy. According to this reasoning, 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
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 House International Relations Committee hearing,
several members of Congress questioned whether the United States had obtained
assurances from India of its support on Iran before it issued the July 18 joint
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 Nuclear20
Nonproliferation Treaty. 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 energy21
On Iran’s nuclear program, Indian officials have stated they do not support a
nuclear weapons option for Tehran. 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. According to Indian Foreign Secretary Shyam Saran,
2, 2005, Senate Foreign Relations Committee Hearing on Implications of U.S.-India Nuclear
20 See Miriam Rajkumar, “Indian Independence,” Carnegie Analysis, September 20, 2005,
21 Dr. Francine Frankel, Statement before the House International Relations Committee,
November 16, 2005, “India’s Potential Importance for Vital U.S. Geopolitical Objectives
in Asia: A Hedge Against a Rising China?”
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 extended23
On February 4, 2006, following Iran’s resumption of some uranium enrichment
research and development, the IAEA Board of Governors met in an emergency24
session and voted to report Iran’s noncompliance to the U.N. Security Council.
India voted with the United States to report Iran, although this followed a
controversial remark to the press the previous week by Mulford that India would
have to support the United States on Iran in Vienna or the U.S. Congress would not25
support the peaceful nuclear cooperation agreement.
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 should26
retain its lawful rights. On September 26, 2005, Foreign Secretary Saran told the
press that “With respect to Iran’s right to peaceful uses of nuclear energy, that is27
something which we have ourselves no reservations about.” 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
22 “Press Briefing by Foreign Secretary on the events in UN and IAEA,” New Delhi,
September 26, 2005, available at [http://www.indianembassy.org/press_release/2005/
23 Briefing by MEA Official Spokesperson on Draft Resolution on Iran in IAEA, New Delhi,
September 24, 2005, available at [http://www.indianembassy.org/press_release/2005/Sept/
24 See CRS Report RL34544, Iran’s Nuclear Program: Status, by Paul K. Kerr.
25 “U.S.-India Nuclear Deal Could Die, Envoy Warns,” Washington Post, January 26, 2006.
26 “Ahmadinejad Thanks India for Positive Stands on Iran in IAEA,” IRNA, September 23,
27 September 26, 2005 press briefing, op. cit.
28 Iran Republic News Agency, “118 countries back Iran’s nuclear program” Iran Times,
September 18, 2006.
Reported Indian Transfers of WMD-related items to Iran.29 Concerns
about India’s relationship with Iran extend, for some, to the transfer of Weapons of
Mass Destruction (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 in30
the 1990s. More recently, India’s Foreign Minister Jaswant Singh stated in
December 2003 that India “has and would continue to help Iran in its controversial31
bid to generate nuclear energy.”
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, passed32
information to Iran on tritium extraction from heavy water reactors. 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 the34
Iran and Syrian Nonproliferation Act.
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].
31 “India Denies Nuclear Cooperation with Iran,” Agence France Presse, December 13,
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].
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 those 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.
India’s External Affairs Minister Shri Pranab Mukherjee stated September 5
India will not be the source of proliferation of sensitive technologies, including
enrichment and reprocessing transfers. We stand for the strengthening of the non-
proliferation regime. We support international efforts to limit the spread of ENR35
equipment or technologies to states that do not have them.
David Albright, president of the Institute for Science and International Security
(ISIS), 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 providing blueprints for technology to interested parties.36 ISIS followed
up with a September 18, 2008, report that described Indian sales of documents related
to centrifuges, as well as illicit Indian procurement of a chemical used in
reprocessing.37 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. Although 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,38 other NSG
members may transfer such technology.
The NPAS notes that India, by concluding an Additional Protocol to its IAEA
safeguards agreement, “will commit to reporting to the IAEA on exports of all NSG
Trigger List items.”
35 The full text of Mukherjee’s statement is in Appendix B.
36 David Albright and Susan Basu, “India’s Gas Centrifuge Program: Stopping Illicit
Procurement and the Leakage of Technical Centrifuge Know-How.” Available at
[ ht t p: / / www.i s i s -onl i ne.or g/ publ i c at i ons/ s out hasi a/ i ndi anpr ocur ement .pdf ] .
37 David Albright and Paul Brannan, “Indian Nuclear Export Controls and Information
Security: Important Questions Remain.” Available at
[ ht t p: / / www.i s i s -onl i ne.or g/ publ i c at i ons/ s out hasi a/ Indi a_18Sept e mber 2008.pdf ] .
38 “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.”
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 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’s status outside the nonproliferation regime raises possible concerns that
the nuclear agreement could negatively affect nuclear nonproliferation efforts. Some
considerations include cohesion within the NSG, 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 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
... 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.39 P.L. 109-401 states that the NSG should
decide “by consensus to permit supply to India of nuclear items covered by” the NSG
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
39 September 8, 2005, HIRC US-India hearing.
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
reportedly favored an NSG decision based on criteria, not just an exception for
India.40 Indeed, Pakistani Foreign Secretary Shah Mahmood Qureshi said that
Islamabad is interested in similar nuclear cooperation with nuclear supplier states, the
Press Trust of India reported July 24, 2008. A July 18, 2008, letter from Pakistan’s
Permanent Representative to the IAEA similarly reflected such an interest.41
Russia, which only halted fuel supplies to the Indian Tarapur reactors in
December 2004 at the insistence of the NSG, resumed fuel supplies to Tarapur under
the guise of the safety exception, reportedly to the dismay of many NSG members.42
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 seek43
or receive any assistance in manufacturing nuclear weapons. However, that
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
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 treaty 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
40 See, for example, “Nuclear Nonproliferation System is Challenged,” People’s Daily,
March 16, 2006.
41 Available at [http://verificationthoughts.blogspot.com/2008/07/indian-separation-plan.
42 “Concern over Russian Plan to Sell Nuclear Reactor Fuel,” Financial Times, March 15,
43 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
Counsel of the National Nuclear Security Agency.
unilateral testing moratorium is insufficient, compared with signing the
Comprehensive Test Ban Treaty (CTBT) 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.”44
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
might be less inclined to accept additional sacrifices, to the detriment of the
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.”45
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
44 Ambassador Norman Wulf, “Observations from the 2000 NPT Review Conference,” Arms
Control Today, November 2000.
45 September 8, 2005, HIRC US-India hearing.
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 concessions46
in the nonproliferation area.
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 existing47
positions.” The Indian embassy itself has downplayed the depth and breadth of its
nonproliferation commitments, describing all but its safeguards commitments under
the July 2005 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 through48
export control, and harmonisation with MTCR and NSG guidelines.
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
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.”49 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.”
46 Fred McGoldrick, Harold Bengelsdorf, Lawrence Scheinman, “The U.S.-India Nuclear
Deal: Taking Stock,” Arms Control Today, October 2005, pp. 6-12. See
[ h t t p : / / www.ar ms cont r o l .or g/ act / 2005_10/ OCT -Cove r . asp] .
47 Statement by Robert J. Einhorn, Center for Strategic and International Studies, “The
U.S.-India Global Partnership: The Impact on Nonproliferation” October 26, 2005.
48 “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].
49 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].
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. Mohamed ElBaradei said that he has “always
advocated concrete and practical steps towards the universal application of IAEA
safeguards.”50 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.51 As such, however,
New Delhi’s promise to refrain from transferring enrichment and reprocessing
technologies to states that do not have them, as well as its promise to adhere to NSG
guidelines, may be little more than a formality.
Many observers have noted that there are no measures in this global partnership
to restrain India’s nuclear weapons program. Many have suggested that the United
States should have asked New Delhi to halt fissile material production for weapons.
Ambassador 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.”52
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.”53 Prime Minister Singh told the parliament in
August 2006 that “Our position on this matter is unambiguous. We are not willing
50 “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.
51 On September 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.
52 September 8, 2005, HIRC US-India hearing.
53 “Backgrounder on India-U.S. Nuclear Energy Cooperation,” July 29, 2005.
to accept a moratorium on the production of fissile material.”54 Other observers have
noted that although India committed to a test ban, it did not commit to signing the
CTBT. 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/Aiding India’s Nuclear Arsenal.
Article I of the NPT states that
each nuclear-weapon State Party to the Treaty undertakes not to transfer to any
recipient whatsoever nuclear weapons or other nuclear explosive devices or
control over such weapons or explosive devices directly, or indirectly; and not
in any way to 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.
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 violate Article I.55 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.”56
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.
Separation Plan Credibility.
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.57 However, although IAEA safeguards ensure that nuclear material is not
54 “Excerpts from Prime Minister’s Reply,” August 17, 2006, op. cit.
55 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.
56 Statement of David Albright before the House International Relations Committee on
October 26, 2005 (hereafter cited as “HIRC October 26, 2005 hearing”).
57 Questions for the Record Submitted to Secretary of State Condoleezza Rice by Senator
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 issue, which the September 2008 NPAS does not appear to address,
could become a key loophole. 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.
Conferring Nuclear Weapon-State Status.
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 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 “... India is
a nuclear weapons power, and India will preserve part of its nuclear industry to58
service its nuclear weapons program.”
IAEA Director-General ElBaradei argues that the U.S.-India deal is “neutral”
because “it does not confer any ‘status,’ legal or otherwise, on India as a possessor
Richard Lugar (#2) Senate Foreign Relations Committee, April 5, 2006.
58 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.
of nuclear weapons.”59 Nonetheless, the successful U.S. effort to create an
exemption in its nuclear cooperation law for New Delhi has placed 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; 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.
Offsetting India’s Uranium Shortage.
Finally, critics of U.S.-Indian civil nuclear cooperation have argued that giving
India access to the international uranium market would free up New Delhi’s domestic
uranium resources for use in its weapons program.60 India has limited indigenous
uranium reserves and apparently has difficulty producing reactor fuel from these
reserves. New Delhi has reportedly reduced its power reactors’ electricity output
because of fuel shortages.61 Since the NSG’s 1992 adoption of the full-scope
safeguards condition for exports, New Delhi has not had access to the international
uranium market.62 Foreign Secretary Saran pointed out on February 18, 2008, that
“a major expansion in nuclear power in the medium term” would require India to
import “higher capacity reactors and uranium fuel.”63 Similarly, the NPAS states that
“India must import fuel, reactors, and other technologies...to meet its nuclear
59 Mohamed ElBaradei, “Rethinking Nuclear Safeguards,” Washington Post, June 14, 2006.
60 See Henry Sokolski, “Fissile isn’t Facile,” Wall Street Journal, February 21, 2006.
61 See Charles Ferguson, “Reshaping the U.S.-Indian Nuclear Deal to Lessen the
Nonproliferation Losses,” Arms Control Today, April 2008. Ferguson cites information from
the Nuclear Power Corporation of India. See also “Uranium Shortage Hits Nuclear Power,”
The Hindu Business Line, May 21, 2008.
62 Several countries have supplied low-enriched uranium to the U.S.-origin Tarapur reactors,
including France, China and Russia.
63 “India and the Nuclear Domain.” Available at [http://mea.gov.in/].
India’s current fuel situation means that New Delhi cannot produce sufficient
fuel for both its nuclear weapons program and its projected civil nuclear program. A
panel of nuclear experts concluded in 2006 that
India’s production of weapon grade plutonium is currently constrained by the
competing demands of India’s nuclear-power reactors for its limited domestic
supply of natural uranium. If India could import fuel for its civilian nuclear
reactors, it could use more domestic uranium for the production of weapon64
Acknowledging the country’s uranium limitations, India’s leading nuclear strategist
K. Subrahmanyam suggested December 12, 2005, in The Times of India, that New
Delhi should use imported nuclear fuel to preserve its domestic uranium reserves for
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-grade65
Proponents of U.S.-Indian nuclear cooperation have made several arguments
regarding the Article I issue. None of these claims, however, refute the fact that
India’s access to the international uranium market will result in more indigenous
Indian uranium available for weapons, because it will not be consumed by New
Delhi’s newly safeguarded reactors.66
64 Zia Mian, A.H. Nayyar, R. Rajaraman and M.V. Ramana, Fissile Materials in South Asia:
The Implications of the U.S.-India Nuclear Deal, September 2006. Available at
[ h t t p : / / www.f i ssi l e ma t e r i al s.or g/ i p f m/ s i t e _down/ r r 01.pdf ] .
65 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
Singh’s Global Strategic Developments Task Force. See also Dr. A. Gopalakrishnan,
“Civilian and Strategic Nuclear Facilities of India,” January 5, 2006.
66 It is worth noting that even before the NPT entered into force, negotiators recognized that
a state outside the treaty 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.
(Mason Willrich, Non-proliferation Treaty: Framework for Nuclear Arms Control, The
Michie Company, Charlottesville, VA, 1969, p. 125.)
For example, proponents of the deal argue that India already has sufficient
uranium to increase its nuclear arsenal and that New Delhi does not plan to increase
that arsenal. For example, the NPAS states that “India is capable of maintaining and
expanding its existing nuclear arsenal within the limit of its indigenous resources and
capabilities.” Secretary Rice made a similar argument during an April 5, 2006, House
International Relations Committee hearing. But these arguments do not address the
constraints India faces in pursuing its civilian and military nuclear programs using
only indigenous uranium.
The NPAS also addresses New Delhi’s intentions regarding its future nuclear
arsenal. First, the statement says that Washington has “no evidence indicating that
India plans to use additional domestic uranium reserves in its nuclear weapons
programs as a consequence of implementing” the nuclear cooperation agreement.
Second, the NPAS argues that New Delhi has “a posture of nuclear restraint,” citing
India’s stated no-first-use nuclear weapon policy and need for only a “credible
minimum deterrent.” India, however, has never defined what it means by such a
deterrent; Saran stated during an April 2006 television interview that “there is no
responsibility on part of India to declare what its minimum deterrent is.”67 Moreover,
New Delhi’s intentions are irrelevant to determining U.S. compliance with its Article
Furthermore, the NPAS appears to argue that the agreement may reduce India’s
potential to produce additional fissile material for weapons, because the additional
indigenous Indian reactors placed under safeguards “will no longer be available for
this purpose.” However, the statement characterizes the reactors’ potential to serve
this purpose as “theoretical.” And, as noted above, India is not obligated to place
future reactors under safeguards.
The State Department report submitted with the agreement notes that IAEA
safeguards will prevent India from using its civil nuclear facilities for its nuclear
weapons program. It also describes the ways in which U.S. export control policies
prevent exported U.S. dual-use nuclear technologies from being used for military
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 New
Delhi 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. 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.”
67 “India Won’t Define Minimum N-Deterrent: Saran,” Press Trust of India, April 8, 2006.
68 Report Pursuant to Section 104 (c) of the Hyde Act Regarding Civil Nuclear Cooperation
with India. Submitted to Congress September 10, 2008. (Hereafter cited as, “2008 State
Steps Required by P.L. 109-401
As noted above, P.L. 109-401 allows the President to exempt a U.S. nuclear
cooperation agreement with India from several AEA requirements. Before such an
agreement can enter into force, however, the President must first certify that several
steps have been completed. President Bush did so September 10. After the President
signs H.R. 7081, which both the House and Senate have passed, Washington and
New Delhi must, according to the agreement’s text, “exchange diplomatic notes
informing each other that they have completed all applicable requirements” in order
for the agreement to enter into force.
Separation Plan and Safeguards69
U.S. and Indian officials agreed on India’s separation plan in March 2006. The
key elements of that plan are:70
!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
!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
!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
69 See CRS Report RL33292, India’s Nuclear Separation Plan: Issues and Views, by Sharon
Squassoni, for details on the separation plan. See the previous section for additional issues
concerning the separation plan.
70 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.
71 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).
!3 heavy water plants
!Various military-related plants (e.g., prototype naval reactor).
The separation plan stated that India would begin placing facilities under
safeguards in 2006 and complete the process in 2014. However, since the IAEA did
not approve New Delhi’s safeguards agreement until 2008, India will need to update
that timeline. Acting Deputy Assistant Secretary of State for International Security
And Nonproliferation Richard Stratford told the Senate Foreign Relations Committee
September 18, that New Delhi stands by its initial plan to bring its facilities under
safeguards by 2014.
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 the
facilities themselves 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.
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 1974.72
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.”73 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.
Administration officials repeatedly have stressed that India’s separation plan
must be credible, transparent, and defensible from a nonproliferation standpoint,74
72 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. U.S. documents from the
early 1970s indicate that the United States interpreted its nuclear cooperation agreement
with India to prohibit peaceful nuclear explosions. Washington communicated this position
to New Delhi. The documents are available at [http://www.armscontrol.org/country/
73 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.
74 Statement of Dr. Joseph, November 2, 2005, SFRC India hearing.
and that “the resultant safeguards must contribute to our nonproliferation goals.”75
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.76 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.”77
India-IAEA Discussions/Domestic Opposition.78 After the United States
and India concluded the nuclear agreement last July, New Delhi delayed beginning
talks with the IAEA about a safeguards agreement because of domestic opposition
from Communist and other leftist parties, known as the Left Front.79 Until recently,
the United Progressive Alliance government, led by Prime Minister Singh, depended
on those parties’ support in order to stay in power. In India, the executive can enter
into international agreements without parliamentary approval, but the Left Front
threatened to withdraw its support if the government went ahead with the safeguards
discussion. Indian officials had indicated multiple times that the government would
not risk prompting early elections in order to push the deal through. In November
2007, the Left Front agreed to allow the government to engage in discussions with
the IAEA. The talks were announced November 21, and the two parties subsequently
met five times.
New Delhi had indicated that, once a safeguards text has been agreed upon with
the IAEA Secretariat, the government would seek approval from an ad hoc political
76 Condoleezza Rice, “Our Opportunity With India,” Washington Post, March 13, 2006.
77 National Strategy to Combat Weapons of Mass Destruction, December 2002. Available
78 See also CRS Report RL33529, India-U.S. Relations, by K. Alan Kronstadt.
79 Those parties argue that the agreement would compromise India’s sovereignty by drawing
New Delhi into a “strategic alliance” with Washington. See, for example,
[http://www.cpim.org/] for a detailed account of objections from the Communist Party of
committee (which includes the Communists) before proceeding further with the
agreement. Speaking before a Calcutta audience February 3, External Affairs
Minister Mukherjee said that when “the draft agreement [with the IAEA] is ready it
will be brought back to the United Progressive Alliance (UPA)-Left Coalition
committee for its approval and suggestion.”80 Similarly, Communist Party of India
(Marxist) General Secretary Prakash Karat stated November 16 that “we have come
to an understanding that the government can go to the IAEA secretariat. But the
outcome of the talks should be brought to the committee before moving to the IAEA
board of governors.”81 The committee last met June 25. The government, however,
never presented the text of the safeguards agreement to the committee, and at New
Delhi’s request, the IAEA Secretariat circulated the draft text (GOV/2008/30) 82 July
Pakistan, along with several unidentified board members, had “voiced strong
reservations” about the safeguards agreement, according to a July 24 Nucleonics
Week article, which added that no members have indicated that they would vote
against the agreement.83 But the Board of Governors approved the agreement by
consensus August 1.
Four Left Front parties withdrew their support for the coalition government July
However, the coalition government won a July 22 vote of confidence, staving off the
threat of early elections. Karat stated September 7 that the Left Front will only
support a government that would terminate the nuclear agreement with the United
States.84 The opposition Bharatiya Janata Party has also continued to express its
opposition to the deal and has stated that it would attempt to renegotiate it if the party
India’s Safeguards Agreement.86
IAEA Director-General ElBaradei described India’s safeguards agreement as an
“umbrella agreement” that allows for any facility identified by New Delhi in the
80 “N-deal strategic to India’s progress: Pranab Mukherjee,” Indo Asian News Service,
February 3, 2008.
81 “After Left Nod, Govt Decides To Go Ahead With IAEA Talks On N-Deal,” Financial
Express, November 16, 2007.
82 Available at [http://pmindia.nic.in/IaeaIndiaSGADrft.pdf].
83 Mark Hibbs and Daniel Horner, “Pakistan, Other States Not Satisfied After Indian
Briefing on IAEA Pact,” Nucleonics Week, July 24, 2008.
84 “Will Support Govt That Scraps 123,” The Economic Times, September 8, 2008.
85 Interview with Leader of the Opposition (Lok Sabha) L.K. Advani, The Hindu, July 11,
2008; “BJP Will Renegotiate N-Deal If Comes To Power: Sushma Swaraj,” The Economic
Times, September 7, 2008.
86 Unless otherwise noted, this section is based on ElBaradei’s August 1, 2008 comments
to the IAEA Board of Governors, as well as personal communications with IAEA officials,
and current and former State Department officials.
future to become subject to safeguards. According to its text, the agreement will
enter into force when the IAEA “receives from India written notification that India’s
statutory and/or constitutional requirements for entry into force have been met.”
ElBaradei also explained that, since New Delhi has committed to place additional
reactors under safeguards, concluding an umbrella agreement was more efficient than
negotiating different agreements for each facility.
According to the safeguards agreement, India is to provide the IAEA with a
declaration of its nuclear facilities “based on [New Delhi’s] sovereign decision to
place voluntarily its civilian nuclear facilities under Agency safeguards in a phased
manner.” India will implement this provision in a two-step process. First, New
Delhi will provide a list of nuclear facilities that it intends to place under safeguards
in the future. On July 25, India provided to the IAEA a document — a copy of New
Delhi’s 2006 separation plan — containing a list of its nuclear facilities.87 The IAEA
anticipates that these facilities will be those listed in India’s declaration. Later, New
Delhi will notify the IAEA when specific facilities are to be safeguarded. Those
facilities will be placed on an Annex to the agreement. The IAEA expects to begin
safeguarding new facilities in 2009. India will also have to notify the agency of
imported items that are required to be safeguarded. These will not be listed in the
A State Department official said that the India’s submission of this plan does not
constitute submission of the declaration required by the safeguards agreement, but
does satisfy P.L. 109-401’s requirement regarding New Delhi’s declaration.88 India
is not required to submit its IAEA declaration until the safeguards agreement enters
India’s placement of nuclear facilities under safeguards appears to be contingent
on its conclusion of nuclear supply agreements with other countries. Anil Kakodkar,
Chairman of India’s Atomic Energy Commission, said in a July 20 interview that
India’s identification of “any facility as civilian is conditional on that facility
benefitting from full civil nuclear cooperation” with other countries.89
Some observers have expressed concerns about the agreement’s preamble,
which contains language suggesting that India could withdraw nuclear facilities or
fuel from safeguards if New Delhi so chooses. For example, the preamble states that
India “may take corrective measures to ensure uninterrupted operation of its civilian
nuclear reactors in the event of disruption of foreign fuel supplies.” New Delhi has
not defined “corrective measures,” although Kakodkar described them as
“unspecified sovereign actions.”90
The preamble also states that
87 Available at [http://www.iaea.org/Publications/Documents/Infcircs/2008/infcirc731.pdf].
88 Author interview, September 23, 2008.
89 “Indian Daily Interviews Atomic Body Chairman on Nuclear Deal,” The Hindu, July 20,
[a]n essential basis of India’s concurrence to accept Agency safeguards is…
support for an Indian effort to develop a strategic reserve of nuclear fuel to guard
against any disruption of supply over the lifetime of India’s reactors.
New Delhi may want such a stockpile to hedge against a cut-off of fuel supplies in
the event that, for example, India tests a nuclear weapon.
However, ElBaradei stated August 1 that the agreement’s specific termination
clauses “override any general clauses in the agreement.” Additionally, the State
Department stated in January 2008 responses to Questions for the Record submitted
by the House Committee on Foreign Affairs that New Delhi “has expressed its view
that for purposes of implementing the U.S.-India Agreement,” IAEA safeguards “can
and should be regarded as being ‘in perpetuity.’”91
It is also worth noting that, if India were to terminate IAEA safeguards on U.S.
nuclear exports (or special nuclear material produced from or with such exports),
section 123 a. (1) of the AEA requires that fall-back safeguards be maintained on
those exports. The nuclear cooperation agreement states that
safeguards will be maintained with respect to all nuclear materials and equipment
transferred pursuant to this Agreement, and with respect to all special fissionable
material used in or produced through the use of such nuclear materials and
equipment, so long as the material or equipment remains under the jurisdiction
or control of the cooperating Party.
The State Department noted that if IAEA safeguards “fail to be applied,” the
two countries “must enter into arrangements for alternative measures to fulfill” the
above requirement.92 The Department’s January responses also stated that “it would
not be consistent with the proposed agreement text for ... corrective measures to
detract from the applicability” of safeguards to the relevant nuclear items “including
after termination or expiration of the agreement.”93
Following formal and informal U.S. consultations with NSG members, the
United States presented during a March 2006 Consultative Group meeting a draft
decision for potential discussion during the NSG plenary in May 2006.94 That draft
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
91 Questions for the Record Submitted to Jeffrey Bergner, Assistant Secretary for Legislative
Affairs by Rep. Tom Lantos, House Committee on Foreign Affairs (#12), October 5, 2007.
Available at [http://www.hcfa.house.gov/110/press090208.pdf]. (Hereafter, “Questions for
the Record, 2007.”)
92 Ibid. (#11).
93 Ibid. (#42).
94 The Consultative Group is the NSG’s “standing intersessional working body.” See
[http://www.nuclearsuppliersgr oup.org/ activities.htm] .
contain any restrictions on enrichment or reprocessing cooperation, nor on heavy
water or HEU or plutonium sales.95
The United States subsequently developed a second draft decision, which
incorporated the suggestions of supporting NSG members.96 After revising that draft
following consultations with New Delhi, Washington submitted it to Germany, the
current NSG chair, in early August.97 The second version did not contain any
additional restrictions on India. Indeed, it weakened one section of the 2006 draft
which stated that NSG members could engage in nuclear trade with New Delhi if
“the participating Government intending to make the transfer is satisfied that India
continues to fully meet all” of its nonproliferation and safeguards commitments. The
new draft stated only that
Participating Governments shall maintain contact and consult through regular
channels on matters connected with the implementation of the Guidelines, taking
into account relevant international commitments and bilateral agreements with
The NSG considered the new draft decision during an August 21-22
Extraordinary Plenary meeting and decided during a similar meeting held September
4-6 to exempt India from some of its export guidelines. This decision means that
members’ decisions to export previously restricted nuclear items to India are now
governed by individual governments’ policies.98
Although several countries advocated that certain conditions (such as an explicit
ban on the transfer of enrichment and reprocessing technology, as well as a provision
that nuclear supplies to India would end if New Delhi were to test a nuclear weapon)
be placed on an exemption for India, the final language contains no such explicit
conditions.99 Instead, it states that the exemption is “based on” Indian commitments
and actions, which are essentially the same as the requirements in P.L. 109-401. The
NSG statement also notes that the India has agreed to continue its “unilateral
moratorium on nuclear testing.”
The NSG agreed to exempt India from the portions of its guidelines that require
India to have full-scope IAEA safeguards “provided that transfers of sensitive exports
95 A copy of the proposal is available at [http://www.armscontrol.org/projects/
96 Author interviews with State Department official, February 4, 2008; August 14, 2008.
97 The August 2008 draft is available at [http://www.armscontrol.org/node/3274].
98 The text of the NSG statement is available at [http://www.nuclearsuppliersgroup.org/
PRESS/2008-09-Press-V i enna.pdf].
99 Austria, Ireland, the Netherlands, New Zealand, Norway, and Switzerland issued a joint
statement at the August meeting explaining that they had proposed amendments to the U.S.
proposal in order to meet their “non-proliferation objectives.” New Zealand’s Disarmament
and Arms Control Minister Phil Goff stated August 26 that approximately 50 amendments
had been proposed to the U.S.-proposed text.
[enrichment and reprocessing technology] remain subject to paragraphs 6 and 7 of
The relevant portions of those paragraphs state that
suppliers should exercise restraint in the transfer of sensitive facilities,
technology and material usable for nuclear weapons or other nuclear explosive
devices. If enrichment or reprocessing facilities, equipment or technology are to
be transferred, suppliers should encourage recipients to accept, as an alternative
to national plants, supplier involvement and/or other appropriate multinational
participation in resulting facilities ... [and]
For a transfer of an enrichment facility, or technology therefor, the recipient
nation should agree that neither the transferred facility, nor any facility based on
such technology, will be designed or operated for the production of greater than
20% enriched uranium without the consent of the supplier nation, of which the
IAEA should be advised.
Ireland reportedly stated after the NSG decision that, “on the basis of
consultations during the meeting, it ‘understands that no [NSG member] currently
intends to transfer to India any facilities, equipment, materials, or technology related100
to the enrichment of uranium, or the reprocessing of spent fuel.’” Under Secretary
of State for Arms Control and International Security John Rood made a similar
assertion during a September 18, 2008, Senate Foreign Relations Committee hearing.
Berman explained September 26 that he chose to support H.R. 7081 partly
because Secretary Rice “made a personal commitment” to him that “the United
States will make its ‘highest priority’ at the November meeting of the Nuclear
Suppliers Group the achievement of a decision by all of the nuclear suppliers to
prohibit the export of enrichment and reprocessing equipment and technology” to
non-NPT states. Asked the same day about Berman’s statement, Rice told Reuters
that the United States would advocate for “strict limits” on the export of such
The NSG is considering adopting criteria for exporting enrichment and
reprocessing technology. President Bush stated in February 2004 that NSG members
should refuse to sell “enrichment and reprocessing equipment and technologies to
any state that does not already possess full-scale, functioning enrichment and
reprocessing plants.” The administration has since shifted its position and proposed101
export criteria of its own. France first introduced such criteria in 2004.
The September 2008 NSG statement also says that participating governments
will meet “and act in accordance with paragraph 16 of the [group’s] Guidelines” if
one or more members “consider that circumstances have arisen which require
100 Mark Hibbs and Daniel Horner, “Scope of NSG Exemption For India Yet to Be Defined
by Member States,” Nucleonics Week, September 11, 2008.
101 Wade Boese, “Nuclear Export Criteria Lacks Consensus,” Arms Control Today, June
consultations.” Paragraph 16 provides a list of potential steps for NSG members to
one or more suppliers believe that there has been a violation of supplier/recipient
understanding resulting from these Guidelines, particularly in the case of an
explosion of a nuclear device, or illegal termination or violation of IAEA
safeguards by a recipient.
Under such circumstances, NSG members could agree to cut off nuclear supplies;
indeed, New Zealand stated September 6 that “in the event of a nuclear test by India,
this exemption will become null and void.” However, the NSG would have to agree
by consensus to cut off nuclear exports.
Several NSG governments indicated in statements after the vote that a
September 5, 2008, statement from Mukherjee describing India’s “stand on
disarmament and nonproliferation” played a decisive role in persuading them to agree102
to the exemption. However, he simply reiterated previous Indian policies and
articulated no new commitments. For example, Mukherjee stated that India
“remain[s] committed to a voluntary, unilateral moratorium on nuclear testing.” But
New Delhi is already committed to such a moratorium. Furthermore, Congress party
spokesperson Manis Tiwari stated September 4 that “[i]f the need arises and if it is
in our national interest, we are ready to test not once, not twice but a hundred103
India’s Nuclear Cooperation with Other Countries.
India is now free to engage in nuclear cooperation with NSG countries other
than the United States. Indeed, a spokesperson for India’s Ministry of External
Affairs stated September 11, 2008, that New Delhi is “moving towards finalizing
bilateral agreements with other friendly partner countries such as France and Russia.”
India and France signed a civil nuclear cooperation agreement on September 30,
2008. That agreement, however, does not include the transfer of enrichment or
reprocessing technology, according to French Ambassador to India Jerome
Prime Minister Singh stated February 12, 2008, that New Delhi and Moscow
had “finalized negotiations in regard to reaching an agreement on cooperation in the
construction of additional nuclear power plants in India.” The two countries have not
yet signed the agreement. Asked when they would do so, Kakodkar stated September
102 See Appendix B.
103 Rama Lakshmi, “U.S. Letter Puts India’s Premier On Defensive Over Nuclear Deal,”
Washington Post, September 5, 2008.
104 “Indo-French Pact Not to Cover Nuclear Enrichment Technology Sale - Envoy,” Press
Trust of India, September 19, 2008.
30 that “we cannot fix a time-line” to such an event.105 But Mukherjee stated October
Foreign Secretary Saran reportedly identified Kazakhstan, Niger, and
Uzbekistan October 21 as other potential candidates for nuclear cooperation.106
During an October 30 speech, Singh added Canada and the United Kingdom to that
New Delhi is reportedly waiting for Congress to approve the nuclear
cooperation agreement before implementing similar agreements with other
countries.107 A September 10 letter from Indian Foreign Secretary Shivshankar
Menon states that
it is the intention of the Government of India and its entities to commence
discussions with U.S. nuclear energy firms and conclude agreements after entry
into force of the [U.S.-India] Agreement for cooperation in the construction of
nuclear power units at least at two sites approved by the Government of India,108
which would be capable of generating a minimum of 10,000 MW.
However, Menon appeared to qualify this claim, adding that such deals would be
on the basis of mutually acceptable technical and commercial terms and
conditions that enable a viable tariff regime for electricity generated. It is the
expectation of the Government of India that this partnership will contribute
towards providing energy to India’s population in a manner that takes into
account affordability, sustainability of nuclear fuel resources and credibility of
nuclear waste management.”
Moreover, Under Secretary of State for Political Affairs William Burns indicated
during the September 18 hearing that India will not wait indefinitely for
Convention on Supplementary Compensation for Nuclear Damage.
Menon’s September 10 letter also stated that “it is the intention of the Indian
Government to take all steps necessary to adhere to the Convention on
Supplementary Compensation for Nuclear Damage [CSC] prior to the
commencement of international civil nuclear cooperation under” the U.S.-India
agreement.” India’s decision to become a party to the CSC is, according to the State
105 “Indian Official Indicates French Firms May Have To Wait For Nuclear Trade,” Press
Trust of India, October 1, 2008.
106 “India Needs to Tap Atomic Opportunity as Crisis May Slow Orders,” Bloomberg,
October 21, 2008.
107 “India Tells U.S.: Can’t Hold up N-Deals With Other Nations For Long,” Indo-Asian
News Service, September 17, 2008.
108 Text Available at [http://svaradarajan.blogspot.com/2008/10/dear-bill-foreign-secretarys-
Department, “an important step in ensuring that U.S. nuclear firms can compete on
a level playing field with other international competitors” because many other
countries’ nuclear firms “have other liability protections afforded to them by their
governments.”109 U.S. firms could engage in nuclear trade with India without the
CSC’s protections, but would likely be very reluctant to do so. The convention has
not yet entered into force.
Other Required Steps
Section 104 (b) (3) of P.L. 109-401 requires a Presidential determination that
“India and the IAEA are making substantial progress toward concluding an
Additional Protocol consistent with IAEA principles, practices, and policies that
would apply to India’s civil nuclear program.” ElBaradei told the IAEA Board of
Governors August 1 that New Delhi and the agency have already begun discussions
on an additional protocol to the draft safeguards agreement. Additionally, India has
submitted a letter outlining a proposed Additional Protocol, which the agency is
currently reviewing. According to the State Department, ElBaradei concluded
September 10 that India has made substantial progress toward concluding such a
protocol. Indian and IAEA officials held another round of talks September 17,
according to the State Department.110
As previously noted, Additional Protocols, which are based on a Model
Additional Protocol, are designed to augment the IAEA’s ability to detect undeclared
nuclear activities in a member-state. Since New Delhi has nuclear weapons and is
keeping some of its nuclear facilities outside of safeguards, “there are bound to be
important differences between” India’s Additional Protocol and the Model Protocol,
according to the NPAS.
Declaration of Nuclear Facilities.
Section 104 (b) (1) requires that India file “a declaration regarding its civil
facilities and materials with the IAEA.” As noted above, a State Department official
said that the India’s submission of this plan does not constitute submission of the
declaration required by the safeguards agreement, but does satisfy P.L.109-401’s
requirement.111 New Delhi is neither required to place any new facilities under
safeguards, nor to adhere to the separation plan. However, an Indian facility must be
placed under safeguards in order for it to receive foreign assistance.
109 “Questions for the Record Submitted to Under Secretary William Burns and Acting
Under Secretary John Rood by Senator Robert P. Casey, Senate Foreign Relations
Committee, September 18, 2008.”
111 Author interview, September 23, 2008.
Harmonization with NSG/MTCR Guidelines and Adherence to NSG
Section 104 (b) (6) (B) requires a presidential determination that India has
harmonized “its export control laws, regulations, policies, and practices with the
guidelines and practices” of the MTCR and the NSG. Section 104 (b) (6) (B)
requires a determination that New Delhi adhere to the NSG guidelines.
The State Department report assesses that India has harmonized its export
control laws with the NSG and MTCR guidelines “up through the 2005 revisions,
and has the means in place to make future updates to its guidelines and control
lists.”112 New Delhi stated its adherence to the NSG in a September 8 letter to the
IAEA and its adherence to the MTCR in a September 9 letter to the MTCR point of
cont act . 113
According to the September NSG statement, the group’s chair (which rotates
each year) “is requested to consult with India regarding changes to and
implementation of” the group’s guidelines. This provision gives New Delhi what is
essentially a non-binding consultative role in formulating changes to the guidelines.
India had been reluctant to adhere to the guidelines because they sometimes change
and New Delhi, as a non-member, will not be able to participate in the Group’s
decisions regarding such changes.114
The Atomic Energy Act and Consultations 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.115
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 to non-nuclear weapon states.116
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 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
112 State Department Report 2008.
114 Author interviews with State Department official August 11, 2008; August 14, 2008.
115 Nuclear cooperation includes the distribution of special nuclear material, source material,
and byproduct material, to licensing for commercial, medical, and industrial purposes. These
terms, “special nuclear material,” “source material,”and “byproduct material,” as well as
other terms used in the statute, are defined in 42 U.S.C. § 2014.
116 P.L. 83-703, 42 U.S.C. §§ 2153 et seq.
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
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.).117
!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 over 20 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
gu arant ees. 118
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.,
117 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.
118 United States General Accounting Office, “Nuclear Agreement: Cooperation Between
the United States and the People’s Republic of China,” GAO/NSIAD-86-21BR, November
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, 1967.119
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.”120 In other words,
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
119 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, theth
Soviet Union, and France. U.S. Code Congressional and Administration News, 95 Cong.,nd
120 This new requirement was added by the Export Administration Amendments Act of 1985,
P.L. 99-64, Section 301 (b) (2), 99 Stat. 120.
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 in121
which the agreement for cooperation in question is reviewed by the Congress.
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.
After 60 days of continuous session, the export would go through unless Congress122
passes a concurrent resolution of disapproval.
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.123
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’s124
121 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.
122 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.
123 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.
124 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.
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
!to have materially violated the terms of an agreement for cooperation
with the United States, or
!assisted, encouraged, or induced any other non-nuclear weapon state
to obtain nuclear explosives or the materials and technologies
needed to manufacture them; or 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
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
125 Section 129 specified 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.” However, P.L. 110-369 amended that
section to change the “concurrent resolution” provision to a “joint resolution,” presumably
to overcome potential issues raised by the Chadha decision..
126 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.
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.127 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 changed to 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 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
127 See H.Rept. 109-590 and for S.Rept. 109-288, dated July 20, 2006, background on the
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.”128 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 NSG. 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
Issues for Congress
The Nuclear Cooperation Agreement
The agreement announced in July by the United States and India lists a variety
of civilian nuclear projects on which the two countries “may pursue cooperation.”
Although the Bush administration argues that the agreement “is consistent with
128 See [http://www.whitehouse.gov/news/releases/2006/12/20061218-12.html]
applicable U.S. law,”129 some members of Congress have expressed concern that it
may be inconsistent with parts of P.L. 109-401. For example, H.Res. 711, which was
referred to the House Committee on Foreign Affairs October 4, 2007, states that “it
is the sense of the House of Representatives” that the Bush administration should not
propose changes to NSG guidelines until it has resolved “all differences of
interpretation” of the agreement with New Delhi and “answered all outstanding
questions raised by Congress regarding apparent inconsistencies between the nuclear
cooperation agreement” and P.L. 109-401. Non-governmental experts have also
raised questions about several aspects of the agreement, arguing that they may be
inconsistent with P.L. 109-401.130
Sensitive Nuclear Technology. Despite restrictions in P.L. 109-401
regarding U.S. exports of equipment, material or technology related to uranium
enrichment, spent fuel reprocessing or heavy water production, the agreement states
Sensitive nuclear technology, heavy water production technology, sensitive
nuclear facilities, heavy water production facilities and major critical
components of such facilities may be transferred under this Agreement pursuant
to an amendment to this Agreement.
However, the agreement also states that “transfers of dual-use items that could be
used in enrichment, reprocessing or heavy water production facilities will be subject
to the Parties’ respective applicable laws, regulations and license policies.” Such
transfers would, therefore, be subject to the same restrictions described in P.L. 109-
law. The State Department has said that Washington does not intend to negotiate an
amendment to the agreement.131 Furthermore, “as a matter of policy, the United
States does not transfer dual-use items for use in sensitive nuclear facilities” and
“will not assist India in the design, construction, or operation of sensitive nuclear
technologies through the transfer of dual-use items, whether under the 
Agreement or outside the Agreement,” according to the State Department.132
Nuclear Testing/Right of Return. P.L. 109-401 does not exempt the
agreement from a future cutoff in exports if India tests a nuclear explosive device
again.133 However, the agreement does not explicitly mention U.S. responses to such
a test of such a device. Instead, the agreement states that “either Party shall have the
129 Department of State Fact Sheet July 27, 2007, at [http://www.state.gov/r/pa/prs/ps/2007/
130 See, for example, Sharon Squassoni, “Issues in U.S.-India Nuclear Cooperation,”
November 7, 2007 [http://www.carnegieendowment.org/publications/index.cfm?fa=view&
id=19697&prog=zgp&proj=znpp,zsa], and Daryl G. Kimball and Fred McGoldrick
“U.S.-Indian Nuclear Agreement: A Bad Deal Gets Worse,” August 3, 2007, at
[ ht t p: / / www.ar ms cont r ol .or g/ pr essr oom/ 2007/ 20070803_Indi aUS.asp?pr i nt ] .
131 Questions for the Record, 2007 (#8).
132 Ibid. (#s 4 and 5).
133 As noted above, the President retains the right to waive the termination of nuclear
right to terminate this Agreement prior to its expiration on one year’s written notice
to the other Party” — that is, the agreement does not limit the grounds upon which
the agreement may be terminated.
Similarly, the agreement provides that the party seeking termination
has the right to cease further cooperation under this Agreement if it determines
that a mutually acceptable resolution of outstanding issues has not been possible
or cannot be achieved through consultations.
This provision means that nuclear cooperation under the agreement may be
terminated by a party during the one-year notice period for termination of the
The agreement also specifies that the two governments are to “hold
consultations” prior to ceasing cooperation or terminating the agreement. The United
States and India are to
take into account whether the circumstances that may lead to termination or
cessation resulted from a Party’s serious concern about a changed security
environment or as a response to similar actions by other States which could
impact national security.
This provision suggests that, in the event that India conducts a nuclear explosive test,
New Delhi may argue that the agreement should not be terminated (and nuclear
cooperation should not cease) because geopolitical circumstances justified the test.
However, in such cases, the U.S. right to terminate and cease cooperation under this
provision would not be constrained by the results of the consultations.
With regard to the U.S. right of return, Section 123 a. (4) of the AEA requires
that nuclear cooperation agreements include
a stipulation that the United States shall have the right to require the return of
any nuclear materials and equipment transferred pursuant thereto and any special
nuclear material produced through the use thereof if the cooperating party
detonates a nuclear explosive device or terminates or abrogates an agreement
providing for IAEA safeguards.
The July agreement states that, following the cessation of cooperation under this
agreement, either party has the right to require the return of “any nuclear material,
equipment, non-nuclear material or components transferred under this Agreement
and any special fissionable material produced through their use.” However, the
agreement does not say explicitly that a future Indian test of a nuclear explosive
device would allow the United States to exercise its right of return. Rather, it
provides for a right of return whenever a party has given notice of termination of the
agreement and has ceased nuclear cooperation, which would include but not be
limited to the circumstances specified in section 123.a(4) of the AEA. The
agreement also provides that a “notice by a Party that is invoking the right of return
shall be delivered to the other Party on or before the date of termination of this
Agreement.” This means that the right of return cannot be exercised after the one-
year interval prior to the agreement’s termination.
Fuel Supply. A closely related issue is the agreement’s four assurances
regarding India’s future nuclear fuel supply:
!The United States is willing to incorporate assurances regarding fuel
supply in the bilateral U.S.-India agreement on peaceful uses of
nuclear energy under Section 123 of the U.S. AEA, which would be
submitted to the U.S. Congress.
!The United States will join India in seeking to negotiate with the
IAEA an India-specific fuel supply agreement.
!The United States will support an Indian effort to develop a strategic
reserve of nuclear fuel to guard against any disruption of supply over
the lifetime of India’s reactors.
!If, despite these [above] arrangements, a disruption of fuel supplies
to India occurs, the two governments would jointly convene a group
of friendly supplier countries (including countries such as Russia,
France, and the United Kingdom) to pursue such measures as would
restore fuel supply to India.
The last two provisions are particularly controversial because they could potentially
provide India a way to mitigate the effects of a U.S. cessation of nuclear exports (in
the event that, for example, India tests a nuclear weapon).134 Indeed, Indian Foreign
Secretary Shyam Saran asserted in a February 18, 2008, statement that, under the 123
agreement, India is entitled to build a strategic fuel reserve “to last the lifetime of
such reactors.” And a spokesperson for India’s ruling Congress Party indicated that
reserve supplies of fuel would enable India to continue operating its reactors even if135
other countries halted cooperation in response to an Indian nuclear test.
P.L. 109-401 contains several provisions that could be in tension with the July
agreement. For example, Section 103 (b) (10) addresses the issue of a fuel reserve:
Any nuclear power reactor fuel reserve provided to the Government of India for
use in safeguarded civilian nuclear facilities should be commensurate with
reasonable reactor operating requirements.
With regard to supplying India with nuclear fuel after a nuclear test, Section 103 a.
(6)136 says that the United States should
134 In a February 18, 2008 statement, Saran asserted that, under the 123 agreement, India is
entitled to build a strategic fuel reserve “to last the lifetime of such reactors.”
135 “BJP, Left On ‘Unholy Alliance’ To Oppose N-Deal: Congress,” Press Trust of India,
September 5, 2008.
136 As noted above, the President’s signing statement says that he “shall construe” Section
Seek to prevent the transfer to a country of nuclear equipment, materials, or
technology from other participating governments in the NSG or from any other
source if nuclear transfers to that country are suspended or terminated....”
Similarly, Section 102 (13) expresses the sense of Congress that the United States
“should not seek to facilitate or encourage the continuation of nuclear exports to
India by any other party if such exports are terminated under United States law.”
However, President Bush’s September 10 message transmitting the agreement
to Congress characterizes the agreement’s fuel-supply assurances as “political
commitments” that are not “legally binding” because the agreement is only a
“framework agreement” that does not compel specific nuclear cooperation.
Furthermore, according to the State Department, the “disruption of fuel supplies”
referred to in the agreement refers only to disruptions “that may result through no
fault” of India’s.137
Regarding the question of non-U.S. suppliers, Washington has not sought
commitments from any other country to supply fuel to India. The “United States
would be compelled to encourage transfers of nuclear fuel to India by other” NSG
members if supply disruptions “occur through no fault of India’s own,” according to
the State Department.138 However, these assurances “are not ... meant to insulate
India against the consequences of a nuclear explosive test or a violation of
nonproliferation commitments.” Indeed, such U.S. commitments “would no longer
apply” if the United States were to terminate the agreement in response to an Indian
With respect to fuel reserves, the agreement does not define what it means to
“support an Indian effort to develop a strategic reserve.” Furthermore, the State
Department suggests that the United States may not supply India with a fuel reserve
sufficient for the lifetime of India’s reactors, though the department’s 2008 responses
to Questions for the Record do not specify the size of any such reserve.139
P.L. 110-369- Key Provisions
As noted above, the House passed H.R. 7081, which approved the nuclear
cooperation agreement, September 27, 2008.140 The Senate Committee on Foreign
Relations had, following a September 18 hearing and subsequent markup, approved
identical legislation, S. 3548 (introduced by Senator Christopher Dodd), September
23. The Senate passed H.R. 7081 October 1. President Bush signed P.L. 110-369
into law October 8.
137 Questions for the Record, 2007 (#16).
138 Ibid. (#18).
139 Ibid. (#19-20).
140 H.R. 7039, a bill identical to H.R. 7081, was introduced by Representative Alana
Ros-Lehtinen September 24. The next day, Representative Howard Berman introduced H.R.
P.L. 110-369, the United States-India Nuclear Cooperation Approval and
Nonproliferation Enhancement Act, obviated the 30-day consultative period, as well
as other procedures cited in sections 123 b. and d. of the AEA. Section 101 of the bill
states that “notwithstanding the provisions for congressional consideration and
approval of a proposed agreement for cooperation” in those two sections, “Congress
hereby approves the United States-India Agreement for Cooperation on Peaceful
Uses of Nuclear Energy.” It also states that the agreement “shall be subject to”
applicable U.S. laws as if it had been approved according to section 123’s provisions.
Declarations of Policy
P.L. 110-369 contains several declarations of U.S. policy. Section 102 (a) states
that “it is the understanding of the United States” that the agreement’s provisions
have the meanings conveyed in the authoritative representations provided by the
President and his representatives to the Congress and its committees prior to
September 20, 2008, regarding the meaning and legal effect of the Agreement.
As noted above, some lawmakers had previously expressed concern about
ambiguities in the agreement and whether it met the requirements of P.L. 109-401.
During the debate over the bill, Berman stated September 26 that “I continue to have
concerns about ambiguities in the agreement” and inserted the State Department’s
January 2008 responses to the committee’s questions into the record in order to
“clarify the meaning of these and other important issues.” The documents “constitute
key and dispositive parts of the ‘authoritative representations’ described in section
The law contains two other provisions apparently designed to clarify that the
agreement’s fuel reserve and fuel supply provisions are not intended to provide New
Delhi a way to test nuclear weapons without fear of consequence. The first, section
102 (b) (1), states that “in the event that nuclear transfers to India are suspended or
terminated” pursuant to U.S. law, “it is the policy of the United States to seek to
prevent the transfer to India of nuclear equipment, materials, or technology” from
other NSG participants “or from any other source.” This provision is also contained
in section 103 (a)(6) of P.L. 109-401.
The second, section 102 (b)(2), restates a provision contained in section 103 (b)
(10) of P.L. 109-401 regarding the fuel reserve:
Any nuclear power reactor fuel reserve provided to the Government of India for
use in safeguarded civilian nuclear facilities should be commensurate with
reasonable reactor operating requirements.
P.L. 110-369 contains two certification requirements that must be met before
the United States exchanges diplomatic notes with India — a step which, as noted
above, is necessary for the agreement to enter into force. Section 102 (c) requires the
President to certify to Congress that the agreement is “consistent with” U.S.
obligations under Article I of the NPT. Section 204 (a) requires the President to
certify to the Senate Foreign Relations Committee and the House Foreign Affairs
Committee that it is U.S. policy to work with NSG members “to agree to further
restrict the transfers of equipment and technology related to the enrichment of
uranium and reprocessing of spent nuclear fuel.” President Bush transmitted the
certifications, along with a Memorandum of Justification, October 20. The
memorandum provided no reasoning underlying the determinations.
In addition, Section 204 (b) states that
the President shall seek to achieve, by the earliest possible date, either within the
NSG or with relevant NSG Participating Governments, the adoption of
principles, reporting, and exchanges of information as may be appropriate to
assure peaceful use and accounting of by-product material in a manner that is
substantially equivalent to the relevant provisions [of the nuclear cooperation
There is no certification requirement for this provision, although section 204(c)
requires the President to submit a report every six months on U.S. efforts to achieve
Section 104 of P.L. 110-369 requires that, before the NRC can issue export
licenses, the President must determine and certify to Congress that India’s IAEA
safeguards agreement has entered into force and that New Delhi’s declaration of its
nuclear facilities to the IAEA “is not materially inconsistent with the facilities and
schedule” described in India’s separation plan.
P.L. 110-369 adds several reporting requirements to P.L. 109-401. It amends
section 104 (g)(1) to require that the President inform the Senate Foreign Relations
Committee and the House Foreign Affairs Committee of “any material
inconsistencies” with respect to content or timing between India’s separation plan
and the notifications New Delhi is to provide to the IAEA pursuant to paragraph 14
of the safeguards agreement. P.L. 110-369 also amends section 104(g)(2) to require
the President to report on a variety of activities that could be undertaken pursuant to
the nuclear cooperation agreement.
Section 202 of P.L. 110-369 amends section 123 of the AEA to require the
President to keep the Senate Foreign Relations Committee and the House Foreign
Affairs Committee “fully and currently informed of any initiative or negotiations141
relating to a new or amended agreement for peaceful nuclear cooperation.”
Procedures for Subsequent Arrangements
The nuclear cooperation agreement grants New Delhi consent to reprocess
nuclear material transferred pursuant to the agreement, as well as “nuclear material
141 H.R. 7061 required the President to consult with the House Foreign Affairs Committee
and the Senate Foreign Relations Committee regarding any such initiative or negotiations.
and by-product material used in or produced through the use of nuclear material, non-
nuclear material, or equipment so transferred.” However, India must first “establish
a new national reprocessing facility dedicated to reprocessing safeguarded nuclear
material under IAEA safeguards.” In addition, the United States and India must
“agree on arrangements and procedures under which such reprocessing or other
alteration in form or content will take place in this new facility.”
Section 201 of P.L. 110-369 specifies procedures to Congress to consider such
a subsequent arrangement. First, the President must transmit to the Senate Foreign
Relations Committee and the House Foreign Affairs Committee a report describing
the reasons for the proposed arrangement, a description (including the text) of the
arrangement, and a certification that the United States
will pursue efforts to ensure that any other nation that permits India to reprocess
or otherwise alter in form or content nuclear material that the nation has
transferred to India or nuclear material and by-product material used in or
produced through the use of nuclear material, non-nuclear material, or equipment
that it has transferred to India requires India to do so under similar arrangements
In addition, 30 days of continuous session must elapse after the President has
submitted the report. The proposed arrangement shall not take effect if Congress
adopts a joint resolution of disapproval within this 30-day period. Section 201
requires that such a resolution “be considered pursuant to the procedures set forth in
section 130 i” of the AEA. Section 205, however, shortens from 45 to 15 days the
amount of time that the Senate Foreign Relations Committee and the House Foreign
Affairs Committee have to report the resolution.142
142 See CRS Report RS22937, Nuclear Cooperation with Other Countries: A Primer, by
Paul K. Kerr and Mary Beth Nikitin.
Appendix A. Frequently Asked Questions About
U.S.-India Nuclear Cooperation
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.
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 2008 or 2009 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 did 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. The President determined
September 10, 2008, that these requirements discussed above have been met.
Appendix B. India’s September 5, 2008 Statement
on Disarmament and Nonproliferation
Statement by External Affairs Minister of India Shri Pranab Mukherjee on the Civil
To reiterate India’s stand on disarmament and nonproliferation, EAM has made the
A Plenary meeting of the Nuclear Suppliers Group to consider an exception for India
from its guidelines to allow for full civil nuclear cooperation with India is being held
in Vienna from September 4-5, 2008.
India has a long-standing and steadfast commitment to universal, non-discriminatory
and total elimination of nuclear weapons. The vision of a world free of nuclear
weapons which Shri Rajiv Gandhi put before the UN in 1988 still has universal
We approach our dialogue with the Nuclear Suppliers Group and all its members in
a spirit of cooperation that allows for an ongoing frank exchange of views on subjects
of mutual interest and concern. Such a dialogue will strengthen our relationship in
the years to come.
Our civil nuclear initiative will strengthen the international non-proliferation regime.
India believes that the opening of full civil nuclear cooperation will be good for India
and for the world. It will have a profound positive impact on global energy security
and international efforts to combat climate change.
India has recently submitted a Working Paper on Nuclear Disarmament to the UN
General Assembly, containing initiatives on nuclear disarmament. These include the
reaffirmation of the unequivocal commitment of all nuclear weapon States to the goal
of complete elimination of nuclear weapons; negotiation of a Convention on the
complete prohibition of the use or threat of use of nuclear weapons; and negotiation
of a Nuclear Weapons Convention prohibiting the development, production,
stockpiling and use of nuclear weapons and on their destruction, leading to the
global, non-discriminatory and verifiable elimination of nuclear weapons within a
We remain committed to a voluntary, unilateral moratorium on nuclear testing. We
do not subscribe to any arms race, including a nuclear arms race. We have always
tempered the exercise of our strategic autonomy with a sense of global responsibility.
We affirm our policy of no-first-use of nuclear weapons.
We are committed to work with others towards the conclusion of a multilateral
Fissile Material Cut-off Treaty in the Conference on Disarmament that is universal,
non-discriminatory and verifiable.
India has an impeccable non-proliferation record. We have in place an effective and
comprehensive system of national export controls, which has been constantly updated
to meet the highest international standards. This is manifested in the enactment of the
Weapons of Mass Destruction and their Delivery Systems Act in 2005. India has
taken the necessary steps to secure nuclear materials and technology through
comprehensive export control legislation and through harmonization and committing
to adhere to Missile Technology Control Regime and Nuclear Suppliers Group
India will not be the source of proliferation of sensitive technologies, including
enrichment and reprocessing transfers. We stand for the strengthening of the non-
proliferation regime. We support international efforts to limit the spread of ENR
equipment or technologies to states that do not have them. We will work together
with the international community to advance our common objective of non-
proliferation. In this regard, India is interested in participating as a supplier nation,
particularly for Thorium-based fuel and in establishment of international fuel banks,
which also benefit India.
India places great value on the role played by the IAEA’s nuclear safeguards system.
We look forward to working with the IAEA in implementing the India-specific
Safeguards Agreement concluded with the IAEA. In keeping with our commitment
to sign and adhere to an Additional Protocol with respect to India’s civil nuclear
facilities, we are working closely with the IAEA to ensure early conclusion of an
Additional Protocol to the Safeguards Agreement.