ABC of 123 and other things in the Indo-US nuclear deal

The objective conclusion, as G. Balachandran explains, about the US legislation on nuclear cooperation is that there are areas for India to negotiate. But also that such negotiations are likely to produce results. Also important to understand is that the legislation, while an essential prerequisite for any change in the current Nuclear Suppliers Group (NSG) Guidelines governing civilian nuclear commerce, is only one of the many steps that need to be taken before India and the international community including the US can engage in such trade. The three major remaining actions that are still to be completed are, one, a Section 123 agreement for nuclear cooperation between India and the US, two, changes to NSG Guidelines and three, an India specific IAEA-India safeguards agreement.

Following are the key areas for India’s negotiators:

Sec. 123 Indo-US agreement for nuclear cooperation

Prime Minister Manmohan Singh in his statement to Parliament in August had categorically stated that, “The US has been intimated that reference to nuclear detonation in the India-US Bilateral Nuclear Cooperation Agreement as a condition for future cooperation is not acceptable to us.” Subsection 123 a.(4) of the US legislation is relevant here. It states “except in the case of those agreements for cooperation with nuclear-weapon states, 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.”

It would appear on the surface, therefore, that the text of the India-US cooperation agreement will have to incorporate reference to nuclear detonation in which case the PM’s statement in Parliament would require India to reject such an agreement. It is quite possible, however, that the negotiators will find some novel way to incorporate the spirit of subsection a.(4) without actually using the word “nuclear detonation” thereby circumventing the problem and enable the PM to keep to his word. In such a case the administration will have to lobby the US Congress once again since any such Section 123 agreement will still have to be approved by “a joint resolution stating that the Congress does favour such agreement.”

The bill also requires that the US President make some determinations before exempting the proposed agreement for cooperation with India. There should be no difficulty for the President in fulfilling the requirements of such a determination except, possibly, in respect of Indian adherence to the missile technology control regime (MTCR) and NSG (Section 104 b. (6) (C)). Although in the Joint Statement of July 18, 2005 India had agreed to ensure “that the necessary steps have been taken to secure nuclear materials and technology through... adherence to MTCR and Nuclear Suppliers Group (NSG) guidelines” the procedure and consequences of a formal adherence as per the requirements of these regimes may pose some problems. According to the Procedural Arrangement for the Nuclear Suppliers Group endorsed by the 2001 NSG plenary at Aspen, “adherence is accomplished by sending an official communication to the Director General of the IAEA stating that the Government will act in accordance with the Guidelines. This communication is to be intended for publication in the INFCIRC series.”

... contd.

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