The United States has been eager to strengthen its cooperation with India, which it views as a strategic hedge against China. Since the early 2000s India and the United States have tried to concoct ways to cooperate in the peaceful uses of nuclear energy. This has not been easy, though, because of United States and international non-proliferation standards.
The United States Nuclear Non-Proliferation Act of 1978 as it amended the Atomic Energy Act of 1954 imposed the adoption of safeguards as a prerequisite for nuclear exports to NNWS. For the United States to export nuclear materials and technologies to a NNWS a cooperation agreement with that state must be concluded. The United States has signed about 27 cooperation agreements with NNWS and a cooperation agreement with India lasted from 1963 to 1993. The United States supported the Indian nuclear program since its beginnings in the mid-1950s by helping to build a nuclear power reactor — the Tarapur nuclear power reactor. India’s ‘peaceful’ nuclear explosion in 1974 provided incontrovertible evidence of what was known to be inevitable: nuclear technology transferred for peaceful purposes can be diverted to military use. As a response to the Indian nuclear test, the United States cooperated with other countries to develop the NSG. The establishment of the NSG hampered India’s imports of nuclear-related technologies and materials. The United States cooperation with India had now to be based on a series of exceptions to the general United States non-proliferation laws.
On July 18, 2005, the prime minister of India and the president of the United States adopted a joint statement on cooperation including the field of nuclear energy. The joint statement accords to India the status of a legitimate NWS. India agrees to assume the same responsibilities and practices as other NWS with advanced nuclear technology. These responsibilities and practices include:
• separation of civilian facilities from military nuclear facilities and programs;
• placement of civilian nuclear facilities under the IAEA safeguards;
• adherence to the 1997 additional protocol with respect to civilian nuclear facilities;
• maintenance of the Indian moratorium on nuclear testing;
• commitment to continue negotiations for the conclusion of a FMCT;
• commitment not to transfer enrichment and reprocessing technologies to states that do not have such technologies and to support international efforts to limit the spread of such technologies; and
• application of the NSG and the MTCR guidelines.
Moving from a joint statement to a bilateral agreement was fraught with difficulties. There was a concern that exceptions made for India would fuel demands for exceptions for other countries that have acquired nuclear weapons outside the NPT. Including India in the nuclear non-proliferation order (NPO), as a NWS, could generate a bad precedent as it would signal to other states that their developing nuclear weapons applications can be forgiven and potentially rewarded.
The agreement was adopted on August 3, 2007. Both the parties recognize that nuclear energy can help meet growing energy demands in a cleaner and more efficient manner and contribute to energy security. The agreement is a cooperation agreement on the civilian use of nuclear energy and it is understood that a line of separation should exist between the civil and the military programs in both the states. None of the technologies or materials to be traded and exchanged, based on the agreement, is to be used for military purposes. The agreement covers all aspects of the nuclear fuel cycle. The United States conveys its commitment “to the reliable supply of fuel to India.”
In return, India undertakes to place its civilian nuclear facilities in perpetuity under India-specific safeguards negotiated between India and the IAEA. State parties grant each other consent to reprocess or otherwise alter the form and content of the material transferred between them. In this respect, India will establish a national reprocessing facility dedicated to the reprocessing of nuclear material under IAEA safeguards.
The agreement provides for the storage of nuclear materials transferred under the agreement that must be subject to the IAEA physical protection requirements, and for the protection of environment, health and safety. Specific provisions for the termination of the agreement, addressing the return of material and equipment, are included. Based on the safeguards agreement negotiated between India and the IAEA, India has placed fourteen nuclear facilities under IAEA safeguards. Furthermore, after intensive lobbying by the United States, India ‘received clearance’ in the NSG based on which India can receive now nuclear equipment and materials from states that belong to the group.
Excerpt from Nuclear Weapons: Justice and the Law by Elli Louka (forthcoming summer 2011)