Therefore, if the intention of either the US or NSG members is to find a formula to tie down India to a regime of no testing irrespective of a changing international nuclear order, then it would be advisable for India to categorically state that it is indifferent to any changes in NSG guidelines or US laws since under these conditions India would not engage in nuclear transfers from any of these countries. It cannot afford to import nuclear technology and equipments from the US or any of the NSG countries if they hold the threat over its head of stopping transfers if India were to conduct a test under any circumstance.

On the other hand, the NSG members do have an interest in assuring themselves that transfers of nuclear technology, equipment or materials to India by its members do not assist India’s nuclear weapon programme. We shall discuss later how this can be managed.

• Does India need to address the issue of testing differently in the 123 agreement and the NSG Guidelines? Why?

First of all, the reference to testing is part of US laws. Sec. 123 of the Atomic Energy Act (AEA) 1954 lists nine mandatory requirements to be included in the 123 agreement. Sec. 104(a)(1) of The Henry Hyde United States-India Atomic Energy Cooperation Act of 2006 (HH Act) permits the president to exempt the 123 agreement with India from the requirement of only of these nine, namely Sec. 123 a(2) — which requires fullscope safeguards on all nuclear activities in a non-nuclear weapon state, which is what India is under the AEA. Further, the HH Act also states (Sec. 103 (b) (9)) that it is the policy of the United States to “Ensure that the text and implementation of any agreement for India arranged pursuant to Section 123 of the Atomic Energy Act of 1954 (42 USC 2153) meet the requirements set forth in subsections a(1) and a(3) through a(9) of such section.” Sec. 123 (a)(4) of the AEA states that “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 special nuclear material produced through the use therefore, if the cooperating country detonates a nuclear explosive device...” Since the HH Act exempts India only from Sec. 123 (a)(2), Sec. 123(a)(4) has to be part of the 123 agreement in one form or another. The NSG, on the other hand, has no reference to any testing by the recipient state, or sanctions as a result thereof, in any of its guidelines. A clause on cessation of nuclear transfers as a result of nuclear testing would be unique to the Indian case.

... contd.