Looking for compromise in the US-India nuclear deal

On August 3, 2007 the United States and India set out the details of their proposed Agreement for Cooperation on Peaceful uses of Nuclear Energy. This “123 agreement”[i] would bring significantly more of India’s civilian nuclear facilities under an international inspections regime, but it also in effect calls for the international community to embrace India as a de facto nuclear weapon state without requiring in return that India accept even the most basic disarmament obligations of nuclear weapon states. In the process, rather than bringing constraints to India’s nuclear weapons activities, the proposed deal would actually facilitate a significant expansion of India’s nuclear arsenal.

Despite the new agreement between the US Administration and India, it remains a proposed deal which will take effect only if it receives the unanimous approval of the Nuclear Suppliers Group (NSG – of which Canada is a member)[ii] and after India negotiates appropriate safeguards agreements with the International Atomic Energy Agency (IAEA). NSG approval would mean specifically that civilian nuclear cooperation with India would be exempted from the current provision that, with the exception of the five nuclear weapon state (NWS) signatories to the Nuclear Non-Proliferation Treaty (NPT),[iii] civilian nuclear cooperation is acceptable only with countries under full-scope safeguards. Full-scope safeguards in turn mean that all of a particular country’s nuclear facilities are subject to IAEA inspections.

In other words, India would then have the same access to nuclear materials for civilian systems as do NWS, but India is not a party to the NPT and thus is not directly bound by the Treaty’s Article VI disarmament provisions, nor is it bound by the significant additional obligations that the NWS agreed to in the context of the 1995 and 2000 NPT Review Conferences.[iv] Without requiring India to formally assume any of the disarmament obligations of the NWS, and without receiving any concrete undertakings from India regarding a permanent halt to nuclear testing and the production of fissile materials for weapons purposes, the US-India deal as it now stands imposes severe costs on the global nuclear non-proliferation regime and should not receive the approval of the NSG (because the NSG operates by consensus, a Canadian vote against the ccurrent deal would ensure that).

This is not an argument for the status quo. Under current arrangements nuclear cooperation with India is eschewed in favour of regular entreaties (including through UN Security Council Resolution 1172) for it to end all its nuclear weapons programs, place all its remaining nuclear programs under IAEA safeguards, and join the NPT as a non-nuclear weapon state. Under these arrangements India has with impunity tested nuclear weapons, refuses to sign the Comprehensive Test Ban Treaty (CTBT) and thus ensures that it will not enter into force,[v] continues to produce fissile materials for weapons purposes, and gradually builds up its inventory of nuclear warheads.

Clearly, some change is needed. The prospects for Indian (or Pakistani or Israeli) disarmament outside of the context of general nuclear disarmament and significantly altered regional security conditions are not promising, to put it mildly, and without some internationally agreed changes, India will continue to expand its arsenal and there will be inevitable erosion from the current consensus against civilian nuclear cooperation. Already Russia has signaled a move toward large-scale nuclear cooperation,[vi] Australia has said it will sell uranium to India,[vii] and the French are in talks toward a deal similar to the US-India deal.[viii] If civilian nuclear cooperation with India (and ultimately with Pakistan and Israel) is inevitable, it should at a minimum be through a multilateral, coordinated policy that gains concrete disarmament commitments from these three de facto nuclear weapon states that are outside the NPT.

The outlines of a compromise policy have gradually emerged out of the debate over the US-India deal. In exchange for recognizing the reality of India’s situation as a de facto nuclear weapon state, including a nuclear arsenal in accord with India’s minimum deterrence doctrine, the international community would no longer demand immediate nuclear disarmament as a condition of civilian nuclear cooperation but would require, a) a moratorium on nuclear testing and ratification of the CTBT to facilitate its entry into force in accordance with the unanimous view expressed in 1995 and 2000 by all signatories to the NPT, including all the NWS, and b) it would require assurances that civilian nuclear cooperation will not facilitate expansion of its nuclear arsenal.

The 123 agreement fails to meet the terms of such a compromise.

In the first instance, civilian nuclear cooperation is not made contingent on a halt to testing. In the event of another Indian test, US legislation authorizing the deal currently would prohibit continued US nuclear cooperation (for example the supply of reactor fuel), but in a slightly bizarre move, in the 123 agreement the US promises that it would advocate on behalf of India to assure it of continuing nuclear supplies from other sources even while it bans such supplies from the US.[ix]

Secondly, the deal facilitates the expansion of India’s ongoing production of fissile materials for weapons purposes. Without an Indian moratorium on the production of such materials (all five NWS currently adhere to such a moratorium), its access to foreign uranium for its civilian programs would allow it to use all its domestic uranium for an expanded weapons program.

If, as seems inevitable, India is now to be treated as if it were a nuclear weapon state, India needs to be moved to accept that new status within the context of a series of clear and binding disarmament obligations by making civilian nuclear cooperation with India contingent on at least the following undertakings:

• A declaration by India that it regards Article VI of the NPT as the expression of a global norm requiring the elimination of nuclear weapons, and that it regards itself and other non-signatories to the NPT as legally bound by that norm;
• An immediate moratorium on nuclear testing along with an undertaking to work with Pakistanso that both sign and ratify the CTBT within a reasonable timeframe; and
• A moratorium on the production of fissile materials for weapons purposes and an undertaking to support the immediate commencement of negotiations toward a Fissile Materials Cut-off Treaty (FMCT).

[i] Section 123 of the US Atomic Energy Act requires that any nuclear cooperation between the United States and any other country be defined through an agreement submitted to the President that sets out the “terms, conditions, duration, nature, and scope of cooperation.” Section 123 of the act also outlines some essential elements of those terms and conditions that must be included in the agreement. The text of the AEA is available at http://epw.senate.gov/atomic54.pdf.

[ii] The Nuclear Suppliers Group is a 45 nation group of suppliers that sets guidelines for trade in nuclear materials.

[iii] China, France, Russia, United Kingdom, United States.

[iv] India’s approach toward disarmament obligations agreed to by NWS is explored in a forthcoming Ploughshare Working Paper, “India and the disarmament obligations of nuclear weapon states.”

[v] CTBT requires ratification by all states with nuclear programs or capabilities before it can enter into force.

[vi] Vladimir Radyuhin, “Russia vows strong support in NSG,” The Hindu, August 15, 2007 (http://www.hindu.com/2007/08/15/stories/2007081561711600.htm).

[vii] “Australia will sell uranium to India,” The Times of Indiam August 16, 2007 (http://timesofindia.indiatimes.com/India/Australia_will_sell_uranium_to_India/rssarticleshow/2283648.cms).

[viii] “France and India in nuclear deal,” BBC news, February 20, 2006 (http://news.bbc.co.uk/2/hi/south_asia/4731244.stm); “France and India hold nuclear cooperation talks,” Energy Daily, New Delhi, July 30, 2007 (http://www.energy-daily.com/reports/France_And_India_Hold_Nuclear_Cooperation_Talks_999.html).

[ix] The 123 agreement says (Article 5.6.b.iv: “If a disruption of fuel supplies [from the US] to India occurs [say, in the aftermath of an Indian test], the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.” (http://www.state.gov/r/pa/prs/ps/2007/aug/90050.htm