The Nuclear Suppliers Group and the Indo-US Nuclear Deal

This article was published in the Institute for Defence Studies and Analyses website as an IDSA Strategic Comment
 
In the midst of the domestic hullabaloo surrounding the nuclear deal in India, the United States convened a special meeting of the Nuclear Suppliers Group (NSG) on September 20, 2007 at Vienna on the sidelines of the IAEA Annual General Conference to brief members on the deal. The NSG derives its important position in international civil nuclear commerce from its membership, which currently stands at forty-five and includes a majority of countries engaged in nuclear trade. NSG members control roughly 80 per cent of the global uranium reserves and about 78 per cent of global uranium production.1 Currently, Namibia, Niger and Uzbekistan are the only three non-NSG countries producing significant amounts of uranium. However, they are party to Nuclear Weapon Free Zone Treaties and once the African and Central Asian nuclear weapon free zones come into force they too would insist upon full scope safeguards for any transfer of nuclear material or technology to non-nuclear weapon states as defined by the Nuclear Non-Proliferation Treaty (NPT). NSG members possess a stranglehold on the entire spectrum of nuclear technology, given that there is no supplier country outside of the NSG with civilian nuclear technology.

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Parsing the Indo – US 123 Agreement

This article was published as Pugwash India Backgrounder in the Indian Pugwash Society's in-house journal Proliferation and Arms Control, Vol IV, 6, August 2007

I) What is the 123 Agreement?

President Bush and  Prime Minister Singh (WPR)

The 123 Agreement [1] is an agreement for civil nuclear cooperation. It is called the 123 Agreement because in the US Atomic Energy Act, (AEA) 1954 civil nuclear cooperation with other countries is permitted under Section 123. The agreement is the follow-up action by the executive (the President, Secretary of State and the Secretary of Energy in consultation with the Nuclear Regulatory Commission) of an enabling legislation passed by the Congress (in the Indian case this was the Henry J. Hyde Act United States-India peaceful Atomic Energy Cooperation Act of 2006).

2) Does the agreement prohibit India from conducting a nuclear test in the future?

No. India has not given up its right to conduct a nuclear test anywhere in the 123 agreement. Article 14(2) of the 123 agreement says:

”The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.”

The above cited paragraph is an interpretation of the possible consequences of testing. It can be interpreted as making a differentiation between an ‘unprovoked’ test by India and an Indian nuclear test that follows similar actions by other states (viz. US, China or Pakistan) which “impacts national security or due to ‘serious concerns about a changed security environment.

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The 123 Agreement and the Indo-US Nuclear Deal

This was published as Pugwash India Backgrounder in Proliferation and Arms Control, Vol IV, 3, April May 2007. 

What is the 123 Agreement and why is it called so?

The 123 agreement is the proposed agreement for civil nuclear cooperation. It is called the 123 Agreement because in the US Atomic Energy Act, (AEA) 1954 civil nuclear cooperation with other countries is permitted under Section 123. The agreement is the follow-up action by the executive (the President, Secretary of State and the Secretary of Energy in consultation with the Nuclear Regulatory Commission) of an enabling legislation passed by the Congress (in the Indian case this was the Henry J. Hyde Act United States-India peaceful Atomic Energy Cooperation Act of 2006).

The United States has entered into Agreements for Cooperation with the following states or group of states (24 in total): Argentina, Australia, Bangladesh, Brazil, Bulgaria, Canada, China, Colombia, Egypt, European Atomic Energy Community (EURATOM), Indonesia, International Atomic Energy Agency (IAEA), Japan, Kazakhstan, Morocco, Norway, Republic of Korea, Romania, South Africa, Switzerland, Taiwan, Thailand and Ukraine.

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Civil Nuclear Cooperation with India - The Way Ahead

The article was published in the Indian Pugwash Society’s in-house newsletter Proliferation and Arms Control, Nov-Dec 2006, Vol III, No. 11, pp. 1-3. The article was published while I was Associate Fellow at the Society. 

With the “Henry Hyde United States–India Peaceful Atomic Energy Cooperation Act” receiving the Presidential assent, a significant milestone in the Indo-US civilian nuclear cooperation has been achieved. This is however, only the first of the three important steps that will follow before India can engage in civilian nuclear trade with the rest of the world.

The 123 Agreement

The first step involves the finalisation of a “123 agreement.” The reason why the agreement is called so because of section 123 of the US Atomic Energy Act (AEA)1954 that establishes an agreement for cooperation as a prerequisite for nuclear trade between the US and any other country.[i] Section 123 a (2) of the AEA 1954 states that “in the case of non-nuclear-weapon states, a requirement, as a condition of continued United States nuclear supply under the agreement for cooperation, that IAEA safeguards be maintained with respect to all nuclear materials in all peaceful nuclear activities within the territory of such state, under its jurisdiction, or carried out under its control anywhere.”[ii] In the case where the US is entering into nuclear cooperation with a country which has full scope safeguards, the agreement would come into effect within 90 days of its submission for congressional review unless a resolution of disapproval is passed in both Houses.

On the other hand nuclear cooperation with India would come into effect only if both Houses of Congress pass a joint resolution of approval within 90 days. If either chamber does not approve the resolution, the agreement does not enter into force. This is a much more difficult hurdle to cross as it would require concerted action on the part of the Bush administration. Given the changed composition of the Houses, this would be a much more difficult act to follow for the Bush administration. There is however a danger that both the US administration and the members of both the Houses would be aware of that is of the US energy companies being left behind in the race to capture the Indian nuclear market. The first mover would have a significant advantage over the late entrants and the Congress would not like to send out a negative message to the domestic lobby by dilly dallying on the issue.[iii]

Cognizant of this danger, the Bush administration had originally framed its legislation requiring a joint resolution of disapproval rather than a joint resolution of approval. This would have significantly reduced the leverage that the Congress would have had over the future of the nuclear agreement as in practice; it is very difficult to secure passage of such resolutions because a veto by the President of the joint resolution would require a two-thirds vote in both the Houses to override.[iv] However, both the Houses of the Congress rejected the administration’s approach saying that it did not provide for appropriate congressional oversight.[v]

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