U.S. nuclear Act ignored Rice plea on key points

Based on the Government of India's objections to the draft U.S.-India nuclear cooperation Bill, SecState Condoleezza Rice wrote to Congress asking for nine specific changes in the text. Though these changes fell woefully short of what India wanted, she felt these were the minimum necessary in order to secure New Delhi's approval for the historic but controversial deal.

Unfortunately for Rice -- and India -- the six Congressmen and Senators who "conferenced" the final version opted to make only cosmetic changes. Virtually all dealbreakers have been left intact.

12 December 2006
The Hindu

U.S. nuclear Act ignored Rice plea on key points
Administration called some of these `deal breakers'

Siddharth Varadarajan

NEW DELHI: The final version of the United States law authorising nuclear commerce with India failed to incorporate key eleventh hour suggestions made by Secretary of State Condoleezza Rice, despite her claim that some of the Indian objections they were intended to overcome were "deal-breakers."

Lobby NSG against India

Rice suggestion: In her letter to Senator Richard Lugar, Dr. Rice had said that the provision urging the President to lobby against nuclear fuel supplies to India if the U.S. terminates nuclear cooperation should be changed. "Although non-binding... India has taken the position that this is a deal-killer, arguing that this provision is directly at odds with the U.S. pledge to facilitate nuclear supply to India." She suggested changing the wording to say the U.S. "should not seek to facilitate or encourage the continuation of nuclear exports to India" by others if the U.S. ends its exports.

Final provision: This suggestion was rejected. Under Statements of Policy, Section 103 (a) (6) states that the U.S. shall "seek to prevent the transfer to a country of nuclear equipment, materials or technology from other participating governments in the NSG or from any other source" if the U.S. terminates its exports under the U.S.-India Act or any other U.S. law.

Full nuclear cooperation

Rice suggestion: She said the Bill's language singled out India by banning transfers related to enrichment, reprocessing and heavy water production. Prime Minister Manmohan Singh has also assured Parliament that India would not accept anything less than full cooperation, including access to these technologies.

Final provision: This suggestion was rejected, though Congress cleverly replaced the word "Prohibition" from the title of the relevant clause with the more anodyne "Exports, re-exports, transfers and re-transfers to India related to enrichment... " and re-framed the clause to highlight what is permissible rather than what is being denied. Thus, 104 (d)(4), like the earlier Senate Bill, allows the sale of such equipment only to multilateral or bilateral facilities on Indian soil intended to provide "alternatives to national fuel cycle capabilities" or a "proliferation resistant fuel cycle". Indian national facilities would still be denied this technology.

Sequencing

Rice suggestion: The Secretary of State had said the requirement that the Indian safeguards agreement with the International Atomic Energy Agency (IAEA) should have already entered into force before the U.S. lifts its restrictions should be changed. Her suggestion was that the agreement should be fully negotiated and ready for submission to the IAEA Board of Governors for approval.

Final provision: Rather than incorporating this suggestion, Section 104 (b)(2) says "all legal steps prior to signature" by India and the IAEA must have been completed, which means approval by the IAEA Board must have been secured. What this does is to lock in to place the Indian safeguards agreement even before the U.S. completes all its legal steps to allow nuclear commerce with India. If Congress introduces new conditions at that stage, India will find it politically costly to return to the IAEA Board for fresh approval.

Termination clause

Rice suggestion: She had noted India's objection to the provision that nuclear cooperation would be automatically terminated if the country violated the guidelines of the NSG or Missile Technology Control Regime. As she herself noted, "[These] regimes set policy guidelines rather than legal prohibitions and operate by consensus, making it difficult to determine and agree on violations." She urged that the provision be modified into a statement of policy or a reporting provision since India considered it a case of "moving the goalposts."

Final provision: The goalposts have still been moved, but by a little less than before. The Act retains the U.S. "determination" of Indian missile exports as a trigger for the termination of nuclear cooperation but moderates the automaticity by allowing for an exception that the Indian Government has had no role to play in the impugned export and is taking corrective legal action. But in effect, this means India cannot enter the business of exporting missiles with a range of more than 300 km to other countries — including those which are MTCR adherents — without triggering the end of nuclear cooperation.

In other respects, Dr. Rice's suggestions were incorporated, especially the one on Iran, where she urged the removal of the clause demanding a Presidential determination that India is "fully and actively participating in U.S. and international efforts" to sanction Iran. This clause, however, has been incorporated as a reporting requirement and will still figure as a perpetual point of pressure.

Fallback safeguards

On intrusive fallback safeguards, the Act in its final form incorporates Dr. Rice's tactical suggestions.

The specifics of fallback safeguards have not been spelt out though it is clear the enforcement of perpetuity safeguards as envisaged by Article 123(a)(1) of the U.S. Atomic Energy Act must necessarily involve site visits by U.S. inspectors as and when the IAEA is unable to do the job. As for the controversial threat reduction programme, the Act renames it a "scientific" programme but maintains the same role for the National Nuclear Security Administration (NNSA), the nodal U.S. nuclear weapons agency, that Indian scientists are objecting to.