Secondly, not only does Sec. 123(a) of AEA require that the president be “provided an unclassified Nuclear Proliferation Assessment Statement which shall analyse the consistency of the text of the proposed agreement for cooperation with all the requirements of this Act, with specific attention to whether the proposed agreement is consistent with each of the criteria set forth in this subsection”, Sec. 123 (b) of AEA also requires that the president submit the “text of the proposed agreement for cooperation, together with the accompanying unclassified Nuclear Proliferation Assessment Statement to the Committee on Foreign Relations of the Senate and the Committee of Foreign Affairs of the House of Representatives.” Therefore, even if the language used in the 123 agreement is in line with the Indian requirement that the 123 agreement make no reference to testing, still the 123 agreement will have to be shown to be consistent with, or at best not inconsistent with, the requirements of Sec. 123 (a)(4). Therefore, it will be very difficult for India to require that the 123 agreement allow explicitly for continuation of nuclear transfers even if India does conduct a test. The NSG has no requirement that its guidelines include any such conditions.

Thirdly, even if the 123 agreement has the offending clause on return of material and equipment or termination of supplies, India retains the option of not buying any material or equipment from the US and thereby avoiding all problems. However, if the NSG Guidelines contain the same offending clauses, India does not have any option, short of not buying any material or equipment from any of the NSG countries — in short foreclosing any nuclear transfers from any NSG member.

... contd.