The Indo-US Civil Nuclear Co-operation Agreement in the House of Representatives

On July 27, 2006, the US House of Representatives overwhelmingly passed the bill HR 5682 for United States and India Nuclear Co-operation Promotion Act of 2006. This bill was submitted to the House by its International Relations Committee, after modifying the bill HR 4974 which was referred to the House by the US Administration. The House in an “up-or-down vote” passed this bill by a wide margin, with 359 members voting for and 58 opposing it. A number of amendments seen as killers were defeated on the floor of the House. One of these proposed to allow exports of uranium and other nuclear reactor fuel to India only after the president certified that India has stopped producing fissile material for its nuclear weapons. Another wanted a presidential certification that India had stopped producing fissile material during the preceding 365 days to obtain any item under the nuclear co-operation agreement.

The US Congress is passing the bill to implement the joint statement issued on July 18, 2005 by Manmohan Singh and George Bush. Some American analysts testified before the Congress that the US President could have facilitated nuclear commerce even without asking for amendments to the Atomic Energy Act of 1954. But the Bush administration argued that there are several advantages in amending the act to supply nuclear technology and materials to India.

The House repeated the pattern of voting on HR 5682 witnessed earlier at the Committee level. After holding five hearings between 2005 and 2006, the International Relations Committee had recommended its report to the House of Representatives. The report saw division among committee members, with 37 voting in favour and five opposing it. A few proposals, regarded as `killer amendments’, were defeated by the House Committee as well. In the House as in its committee, the bill was India-specific. Some non-proliferationists opposed any India-specific amendment and instead offered criteria-based changes.

The margin with which the bill was passed shocked its opponents in Washington. The New York Times editorialised that despite the changes made by the Committee in the bill, it is “still a bad deal” allegedly passed with the help of “money sloshing around up there”. The non-proliferation lobby, which has been opposing the deal, has generally fallen silent after the bill was passed in the House.

Supporters of the deal naturally appear jubilant. Describing the passage an extra-ordinary event and “the first key step to create the statutory authority,” they call it a landmark legislation ending the Cold War paradigm. They have also described the voting as “a non-proliferation victory for the US” and a “tidal shift” that heralds a new era of mutual respect and co-operation.

However, in India, in general, the passage of the bill was welcomed on a subdued note and the enthusiasm witnessed after the July 18, 2005 statement was definitely missing. Although the Indian Ministry of External Affairs welcomed the political consensus for the promotion of multi-dimensional Indo-US relationship, which includes civil nuclear energy co-operation, it still preferred to wait for the final outcome – ” the finalized text of the legislation which will emerge after a Senate vote and the reconciliation of the two Bills”. The spokesman of the Ministry wanted ‘parameters’ of the July 18, 2005 joint statement and the Separation Plan to be maintained intact. The Indian Prime Minister by and large echoed the same sentiments and ideas.

This raises the question: what are the provisions of the House bill that have disappointed people in India? The answer is: the oft-mentioned shifting of the goal post. What does it mean in the context of the nuclear deal? It means that the House bill has certain provisions, which mark a departure from the joint statement issued by Manmohan Singh and George Bush in July 2005. Earlier, the Indian Prime Minister and the government had conveyed to the United States that any departure from this joint statement would not be acceptable to India. When the House passed the bill, it defeated some killer amendments. It also removed some Nuclear Supplier Group related provisions for technical reasons, though some killer amendments remained in the text of the bill that was finally passed.

Some of the contentious issues are currently non-binding in nature, but others are. Non-binding provisions such as the Sense of Congress and the Statements of Policy have been continuously figuring in the Indian media and have been the subject of criticisms in the writings of a section of the Indian strategic community. Indian analysts are also frowning upon certain reporting requirements of the President to the US Congress. These provisions were incorporated in the bill to appease the US non-proliferation lobby opposing the nuclear deal. It is clear that Congressmen were aware that if these requirements were made binding, the deal would die immediately. Although non-binding provisions seem innocuous, still in the long-term they may act as irritants.

Many, who otherwise supported the July 18 joint statement, do not see certain binding provisions in the bill positively. Importantly, even the US administration in a policy statement explicitly mentioned section 4 (d) of the bill as an obstacle to Indo-US nuclear co-operation. This part imposes certain restrictions on nuclear transfers to India. The US Administration maintains that Section 4 (d) “would codify political guidelines of the Nuclear Suppliers Group (NSG) for future supply to India, with the result that the US would be the only NSG country legally bound by these requirements.”

Section 4 (b) (2) of the House bill demands a determination from the President that “India and IAEA have concluded an agreement requiring the application of IAEA safeguards in perpetuity in accordance with IAEA standards, principles, and practices (including IAEA Board of Governors Document GOV/1621 (1973) to India’s civil nuclear facilities, materials, and programs…” We would thus find a shift in US policy, if this provision were not modified in the final version. The separation plan of the government of India already saw a shift in policy when it agreed to the idea of safeguards in perpetuity. At least that plan had balancing or neutralizing provisions: a) India-specific safeguards in perpetuity, and b) uninterrupted supply of fuel to the safeguarded reactors, c) a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors, and d) facilitation of supply through a group of friendly supplier countries such as Russia, France and the United Kingdom. It is a well-known fact that a section of the non-proliferation community wanted perpetual safeguards against Indian civil facilities without any backup fuel supply arrangement and strongly opposed the fuel backup assurance given by President Bush after his India visit. It seems that at the Committee hearings even supporters of the deal caved in to the pressure of this section in this regard. More interestingly, when the US Administration expressed concerns over a few provisions of the bill after the House had passed it, it did not refer to the absence of fuel supply backup mechanism to be accompanied with safeguards in perpetuity in the text of the bill.

Yet another controversial provision in the bill is 4 (c) 2 (I) iii, which bans transfer of nuclear fuel that may contribute to the increased production of highly enriched uranium or plutonium in unsafeguarded nuclear facilities. This is generally seen as a shift from the full civil nuclear energy co-operation enunciated in the July 2005 joint statement. Curiously, even the US State Department supports the stand of no transfer of enrichment and reprocessing technology. The US government argues that the US does not transfer reprocessing and enrichment technology to any country.

The Indian political class and the strategic community also appeared unhappy about transforming India’s unilateral moratorium on nuclear testing into a legally binding obligation under the bill. Admittedly, the Indian political class currently does not need to test; but no one is sure of the future strategic environment and circumstances. Already the US Administration is putting pressure on Congress to get approval for the bunker buster and reliable replacement warhead programmes. Russia and China may resume nuclear tests afterwards.

Any divergence of course could jeopardize the delicate balance of rights and obligations accepted by both countries in the July 2005 joint statement. Ultimately, it could have an adverse impact on the very objective for which India and the United States walked that extra mile. The Indian establishment would find it rather difficult to accept an arrangement that will increase unnecessary uncertainty about the nuclear business. And the Indian security and strategic communities would resist any attempt to increase insecurity through such new conditions. The solution lies in adding a killer amendment to kill all the deal-breaking provisions in the bills being considered by the US Congress.