India, US, 123… testing

G. Balachandran explains

• What has delayed the completion of the 123 negotiations?

While a number of issues seem to have delayed the process of completing the 123 negotiation, the one issue that has most relevance for Indian national security is the one that relates to nuclear testing by India. However, it would be incorrect to suggest that the issue of testing is only in respect of the 123 agreement. Equally disturbing is the reference to testing by India in all the four alternatives before the Nuclear Suppliers Group (NSG) for possible amendment of Paragraph 4 of the NSG Guidelines on nuclear transfers including the one that was circulated by the US government last year.

• What is at the heart of the testing issue?

While India may not be a nuclear-weapon state under the NPT, it is a de facto nuclear weapon state. The primary rationale for the Indo-US nuclear agreement with obligations on both sides was to accommodate India in international civil nuclear commerce as a de facto nuclear weapon state.

There are currently five — China, France, Russia, UK and USA — NPT defined nuclear weapon states, three self declared nuclear weapon states — India, North Korea and Pakistan — on the basis of having conducted nuclear tests, one state — Israel — presumed to have nuclear weapons and any number of states capable/desirous of developing nuclear weapons.

The five NPT nuclear weapon states have declared a moratorium on nuclear testing and all are signatories to the Comprehensive Test Ban Treaty (CTBT) although only three of these five countries — France, Russia and United Kingdom — have ratified the treaty. India and Pakistan too have declared unilateral voluntary moratoriums although neither has signed the CTBT. Since the CTBT has not come into force, the NPT nuclear weapon states are not legally barred from conducting any nuclear tests. They do not face any difficulties if they resume testing any time — other than any criticism of such a test by others in the international community. In the normal course of circumstances, India and Pakistan too would not face any constraints on testing except, of course, some sanctions by US and others — as happened after the 1998 tests by these two countries.

However, under the terms of either the 123 agreement or any one of the current alternatives under consideration by the NSG members, the US or members of NSG respectively would cease to transfer any items or technology controlled by the NSG Trigger List, if India were to conduct another test. Such a broad condition on continuation of supplies would simply be unacceptable to India.

• Why is this condition unacceptable to India?

India unilaterally declared a moratorium on further testing in 1998 after its nuclear tests. There is no reason to believe that conditions since then have changed to warrant any testing by India now. None of the other nuclear weapon states existing at that time, that is 1998, have conducted any tests since then. The one nuclear test conducted since then by another country, North Korea, was not considered to be of such a national security threat to India that India felt it had to review its moratorium policy. However, a test by one or more of the other six recognised nuclear weapon states may pose a threat to India’s national security.

Under such a circumstance — a breach of announced moratorium on nuclear testing by one or more of these six nuclear weapon states — may require India also to reconsider its own moratorium on nuclear testing. India cannot, therefore, afford to give an unconditional “under no circumstances” moratorium on nuclear testing.

However, neither can India take refuge behind the façade of national security to keep its nuclear testing options open without any condition. It would have been advisable, if at the time of its announcement of its moratorium, India had set forth the terms under which it would continue with the moratorium. Regrettably, it did not do so then. This error was compounded when Prime Minister Manmohan Singh too repeated the moratorium without any conditions. It is time India defined the contours of its moratorium policy more narrowly than it has done so far.

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.

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.

Therefore, the inclusion of a clause requiring termination of transfers in case of testing by India would be far more detrimental in the NSG guidelines than in the case of 123 agreement.

However, as mentioned earlier, the NSG does have an interest in assuring that none of the transfers made by NSG members assist India’s nuclear weapon programme. The NSG can, therefore, modify its guidelines to require that NSG members cease transfers of nuclear material and equipment if India conducts a test using equipment, materials supplied by any NSG member or special nuclear material produced from the use thereof of such material and equipment.

• So what are India’s options?

What is of immediate need is for all sides to shed their exaggerated evaluation of their indispensability. Dr Kakodkar, chairman of the Indian Atomic Energy Commission stated in an agency interview that “if the 123 agreement does not go through, India has other options.” The only option is no Indian engagement in international civil nuclear commerce, unless Dr. Kakodkar believes that (a) NSG will modify its guidelines to suit India even in the absence of a 123 agreement or (b) one or more members of NDG will either defy NSG Guidelines or withdraw from the NSG. The chances of either of these options manifesting itself are very small, if at all.

On the other hand, neither the US nor the NSG should think that the relaxation of US laws or NSG Guidelines is a matter of life or death for India. India has been outside of the mainstream on international nuclear commerce for nearly two decades. It has a healthy indigenous nuclear industrial and research base and can sustain its nuclear programme without any external assistance albeit at a slower pace.

Further, it has accepted as a precondition a number of obligations — not imposed on NPT non-nuclear-weapons states — such as the requirement of an additional protocol, adherence to NSG and MTCR Guidelines, harmonisation of export control list.

The successful culmination of the Indo-US nuclear agreement will be a win-win situation for all concerned — India, the US and the NSG members — if they work cooperatively and not with hidden agendas such as debilitating India’s nuclear security or using external transfers to build its nuclear capabilities. None of the parties can hope to achieve 100 per cent of their requirements. They all have to settle for less than 100 per cent which is feasible.

The writer is visiting fellow at IDSA and NMF