US-India Nuclear Co-op – Some Rules

As most of you probably know, the recently-announced US-India agreement to pursue nuclear cooperation still has some obstacles to overcome in Congress.

So I thought I’d provide some information from people who are way smarter than I am on this issue.

1. “This CRS report”: by Sharon Squassoni.

2. The summary at the bottom of the post. Unfortunately, I am not allowed to ID the author, but please believe me when I say s/he is on top of the issue.

My .02: the possible nuclear agreements coming down the pike would be problematic for several other reasons.

*First,* they would unquestionably “violate NSG guidelines”: According “to the NSG:”:

bq. a full-scope safeguards agreement with the IAEA [is] a condition for the future supply of Trigger List items to any non-nuclear-weapon State.

[BTW, another good, concise summary of the NSG can be found “here”:]

As Sharon points out, this could be a problem at a time when we’re trying to tighten the NSG rules. For example, here are some “US proposals”: from February 2004:

* the members of the Nuclear Suppliers Group [should] ensure that states which renounce enrichment and reprocessing technologies have reliable access, at reasonable cost, to fuel for civilian reactors.

* The 40 states in the Nuclear Suppliers Group should refuse to sell uranium enrichment or reprocessing equipment or technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants.

* …all states should sign the IAEA Additional Protocol, which greatly expands the Agency’s tools to detect clandestine nuclear activities. Signing of the Additional Protocol should be a condition for countries seeking equipment for their civilian nuclear programs by next year.

*Second,* the recent agreement appears contrary to the spirit of Article I of the NPT, which reads:

bq. Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

*Third,* it also seems to be in tension with Article III of the NPT. Here’s part of it, but go “read the whole thing:”:

1. Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this article shall be applied to all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.

2. Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article

Needless to say, there’s a lot more to be said about this deal. And it’s pretty much all bad.

Anyway, here’s the text from the unnamed author, with some minor alterations:

*US Nuclear Cooperation with India: Legislative Implications*

*I. The Basics.* Under US law (the Atomic Energy Act), the United States can engage in nuclear cooperation with other countries only pursuant to an “Agreement for Cooperation”.

Nuclear cooperation in this sense covers the transfer of nuclear facilities and equipment, nuclear fuel and related nuclear materials, dual-use items, and technology (covering services, expertise, blueprints, etc).

Each of these items is licensed by a different US federal agency:

* The Nuclear Regulatory Commission licenses exports of reactors, nuclear equipment, and nuclear fuel.

* The Dept of Energy authorizes technology transfers.

* The Dept of Commerce authorizes exports of dual-use goods.

* The State Department negotiates the Agreements for Cooperation.

*II. Full-Scope safeguards*

Starting with the enactment of the Nuclear Non-Proliferation Act of 1978, “non-nuclear-weapon states” (as recognized in the NPT) must have IAEA safeguards over all of their nuclear materials — this is a necessary precondition for nuclear cooperation with the United States. In 1992, the Nuclear Suppliers Group finally endorsed this standard. In 1995 and in 2000, the states parties of the NPT also endorsed this standard. Such safeguards are not required of the five recognized nuclear-weapon states (US, Britain, France, China, and Russia). The Non-Aligned Movement (NAM) has also repeatedly endorsed this standard.


*III. Agreements for Nuclear Cooperation*

Sec. 123 of the Atomic Energy Act lays out the basic requirements of US Agreements for Cooperation. Sec. 123(a)(2) requires all non-nuclear-weapon states to have full-scope IAEA safeguards. Agreements for Cooperation are negotiated by the Secretary of State, approved by the President, and sent to Congress (both houses), which has a fixed period of continuous session to review the agreement. Congress can adopt a joint resolution stating that it “does not favor” the Agreement — for agreements that the President exempts from any of the norma*l criteria (e.g. full-scope safeguards), such agreements shall not become effective without a joint resolution stating that the Congress “does favor” the agreement.

Sec. 129 spells out certain actions that would constitute “conduct resulting in termination of nuclear exports” . These include the following standards to apply to any non-nuclear-weapon state that has at any time since 10 March 1978 — (a) detonated a nuclear explosive device (India claims it detonated five in 1998); (b) terminated or abrogated IAEA safeguards (India’s 1974 test involved the use of plutonium from uranium and heavy that were covered by a “peaceful use” pledge); (c) materially violated an IAEA safeguards agreement; or (d) “engaged in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices, and has failed to take steps which, in the President’s judgment, represent sufficient progress toward terminating such activities.”

*IV. Nuclear facilities, equipment, fuel, and materials*

The Atomic Energy Act provides the basic legal authority for the NRC to authorize the export of nuclear facilities, equipment, fuel, and materials. Sec. 126 outlines the basic export licensing process and Sec. 127 contains some specific criteria governing the approval of such exports.

Sec. 127(1) requires IAEA safeguards as required by Article III(2) of the NPT; it also prohibits the use of any exported item “for any nuclear explosive device or for research on or development of any nuclear explosive device.”

Sec. 128 states specifically that full-scope IAEA safeguards shall be “a condition of continued United States export of source material (e.g. uranium), special nuclear material (e.g. plutonium or enriched uranium), production or utilization facilities (e.g. fuel cycle plants or reactors), and any sensitive nuclear technology to non-nuclear-weapon states”. The specific licensing regulations published pursuant to this law are found in 10 Code of Federal Regulations Part 110. Sec. 110.42 spells out the criteria the NRC uses in issuing licenses — the first criterion is that IAEA safeguards “as required by Article III(2) of the NPT will be applied”; for non-nuclear-weapon states, full-scope IAEA safeguards are explicitly required in sec. 110(42)(a)(6). The criteria also provide that no export shall be used “for any nuclear explosive device or for research on or development of any nuclear explosive device.”

*V. Activities of US Citizens*

When other countries seek technical advice from US citizens relating to the use of nuclear materials, such individuals may provide such assistance but only as authorized by the US Secretary of Energy, pursuant to the terms of sec. 57(b) of the Atomic Energy Act. This law specifically makes it illegal for any person “to directly or indirectly engage in the production of any special nuclear material outside of the United States” except as specifically authorized under an agreement for cooperation and upon authorization by the Secretary of Energy.

The Department of Energy has issued regulations pursuant to this law in 10 Code of Federal Regulations, Part 810. These regulations provide the details of the licensing process, including the criteria that the Secretary “will take into account” in making the authorizations. The first such criterion is the existence of an agreement for cooperation. The second is whether the country is a party to the NPT. The third is whether the country has full-scope IAEA safeguards.

*VI. Dual-Use Goods*

Sec. 309(c) of the Nuclear Non-Proliferation Act of 1978 required the President to publish regulations to be implemented by the Department of Commerce for the control of the export of all items (except those that are NRC-licensed) that “could be, if used for purposes other than those for which the export is intended, of significance for nuclear explosive purposes.” These include so-called “dual-use” goods like special computers, lab equipment, machine tools, etc.

According to the “Commerce Country Chart” (15 CFR 738, suppl 1), exports to India are controlled for the following reasons (among others): chemical and biological weapons; nuclear non-proliferation; national security; missile tech; and regional stability. The Dept of Commerce has published several licensing standards governing the export of such items; these appear in 15 Code of Federal Regulations, Part 742.3. The items themselves are collectively called the “Nuclear Referral List” — these are simply goods that the Commerce Dept licenses that are controlled for nuclear non-proliferation reasons.

The specific licensing criteria appear in 15 CFR Part 742.3(b). Among these criteria to be applied are “the nonproliferation credentials of the importing country”, which are based on several factors, including: whether the state is a party to the NPT; whether it has full-scope IAEA safeguards; whether it has an agreement of cooperation with the US; whether the government of the importing country has policies that “are in support of nuclear nonproliferation”; the degree to which the government of the importing country “cooperates in non-proliferation policy generally”; and “information on the importing country’s nuclear intentions and activities.” In addition, goods may not be transferred if they “will be used directly or indirectly in any nuclear explosive activity or in any unsafeguarded nuclear activity (15 CFR 744.2).

3 thoughts on “US-India Nuclear Co-op – Some Rules

  1. RT


    The NPT conflict you mentioned does not arise because any reactor or associated technology sale to India will be to a facility under IAEA safeguards. That is a clear part of the India-US agreement.

    But the bigger point is that there’s no disguising the fact that this agreement means the end of the NPT, at least as we know it. The Bush administration is likely to get Congress to make changes to US laws after a bloody fight. NSG will be dicey but except for China all the Big-5 are for it. But once a single sale to India in violation of current NSG guidelines is completed, the dam will break and everyone and his Uncle will land up in Delhi with nuclear power offers.

    If the US-India deal goes through, it will be the end of the current NPT/NSG based nuclear order.

  2. Seema Gahlaut

    Some corrections are reqd in interpreting NPT and NSG.

    1. Article III.2 of the NPT states that:
    “Each State Party to the Treaty undertakes not to provide:
    (a) source or special fissionable material, or
    (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable
    material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall
    be subject to the safeguards required by this Article.”

    In effect, this only reqs “facility related safeguards.”’

    2. The fullscope safeguards are a reqt only of NSG – which is an informal (non treaty based) agreement.

    3. NSG, from a legal perspective, is quite arbitary in declaring commitment to NPT and in violating the NPT: it picks and chooses what it wants to accept from NPT. Example: NSG’s “Nonprolif principle”violates NPT because it reserves for NSG members the right to ignore adherence to the NPT or to a Nuclear Weapon Free Zone Treaty.

    3. Article I of the NPT actually says nothig about transfers of non-weapons/non-explosive devices/technologies.

    Indeed, if anythig, many of the members of NSG/NPT are in violation of this provision: US/UK maintain nukes in several NNWSs in Europe. Check this:

    4. Art. III of NPT: Each “non-nuclear-weapon State Party” to the Treaty undertakes to accept safeguards. The article and the treaty says nothing about non-parties.

  3. scrapsstuffs

    All the so-called problems that the US may face in getting this deal through Congress and NSG member countries is for the US to manage. India has nothing to do with this. This deal is strictly based on a reciprocal basis. If the US does not deliver, there is zero obligation on India to deliver.

    If this deal does not go through, what does India lose? The only thing I can think of is access to cheap LEU for the two BWRs at Tarapur (we can easily shut them down if fuel is not available – they don’t generate all that much power) and access to cheap natural uranium for the PWHRs (we prospect, mine, mill and produce what we need but we don’t have a lot of it and access to cheaper fuel would be good).

    So the bottom line is that the US needs to deliver, how they do it is none of India’s business. Pass all the laws you need, amend any that are needed, “manage NSG countries”, do whatever it takes, else the deal if off and India does nothing.

    There is zero question of India signing the NPT or the CTBT. Negotiations on FMCT will be DOA.


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