Response to Written Questions from Senator Joseph Biden

Response to Written Questions from Senator Joseph Biden
by Gary Milhollin

Director, Wisconsin Project on Nuclear Arms Control and
Professor Emeritus, University of Wisconsin Law School

Committee on Foreign Relations
United States Senate

April 26, 2006

Questions 1 and 2. Are we right, or are we wrong, to seek a new status for India with respect to the Nuclear Non-Proliferation Treaty? If we are right, then should we treat India as a nuclear weapons state under the treaty, as a nonnuclear weapons state, or as something in between? If the answer is something in between, then what should that be? What standards should we set for India, and what rewards should be provided for India’s meeting those standards?

Answer. India is officially a nonnuclear weapon state under the Nuclear Non-proliferation Treaty, which defines such a state as one that has not `manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.’ Thus, India’s status cannot be changed without amending the treaty. The United States, as a member of the treaty, is obliged to recognize the definition, and to treat India in a manner in accordance with the treaty–that is, as a nonnuclear weapon state.

Under the administration’s plan, India would be treated better than both nuclear weapon states and nonnuclear weapon states. Nuclear weapon states are forbidden under the treaty (article 1) to assist any nonnuclear weapon state to acquire a nuclear weapon. This is a treaty obligation that India does not have. Also, nuclear weapon states have stopped producing fissile material for nuclear weapons, something that India will not be required to do and does not intend to do. Thus, India will be treated better than any nuclear weapon state under the administration’s plan.

Nonnuclear weapon states under the treaty are required to forswear nuclear weapons, something India has not done and does not intend to do, and nonnuclear weapon states are obliged under the treaty to accept `full-scope’ inspections that India does not accept and does not intend to accept. Also, both nuclear weapon and nonnuclear weapon states are obliged under article 3 of the treaty to restrict their nuclear exports, an obligation that does not apply to India because India is not a treaty member. Thus, India will also be treated better than any nonnuclear weapon state.

It follows from the two points above that under the administration’s plan, the United States will, in nuclear matters, treat India better than any other country in the world. This treatment is not justified by India’s promise to put a portion of its nuclear reactors under inspection. The portion exempted from inspection will produce more plutonium than India will ever need for nuclear weapons. Thus, India’s promise regarding inspections is illusory. Nor is the favorable U.S. treatment of India justified by India’s promise to refrain from testing nuclear weapons. This promise is not made under any treaty obligation; it is only voluntary and not binding. Nor is the favorable treatment justified by India’s steps to establish export controls, which are still new in India and untested. India has consistently tried to evade export controls when they have been applied by other countries, including the United States.

Question 3. How great is the risk that the administration’s nuclear deal with India will indirectly help India’s nuclear weapons program, by relieving India of the need to choose between guns and butter in its use of its domestic uranium resources; lead other countries to decide that they, too, can develop nuclear weapons and endure the world’s reaction, because it will be only temporary; produce increased instability in South Asia, due either to India’s increased plutonium production or to its greater capability for plutonium production, even if it does not make use of that capability; lead other nuclear suppliers to trade with their clients that have nuclear weapons; or lead the rest of the world to reject nonproliferation measures that require any economic sacrifice, because they view nonproliferation as embodying too great a double standard?

Answer. This question is answered in my testimony, which describes the risks to worldwide export controls and nonproliferation efforts that the administration’s plan would produce.

Question 4. How can we maximize such benefits of the nuclear deal as increased energy for India, produced in an economically rational manner; limiting India’s increased demands in world oil and gas markets; and India’s transition from an aggrieved nonaligned state to a stakeholder in the international system and in the world’s nonproliferation regimes?

Answer. The proposed nuclear deal will not increase India’s energy output to any significant extent. The reason is that nuclear power supplies only about 2 percent of India’s electricity, which in turn is but a small fraction of India’s overall energy consumption. Even if India’s nuclear power output could be increased by 50 percent (which seems unlikely) such a step would only increase India’s overall electricity output by 1 percent at most, and would only increase India’s overall energy output by a fraction of 1 percent. That is not a significant increase in the energy available to India, and thus would not reduce India’s demand for oil and gas.

India is not an aggrieved state. India decided to pursue nuclear weapons with full knowledge of the cost such a decision would have on its diplomatic standing. India’s calculation was that nuclear weapons would increase its prestige in the world more than it would lower it. India has been content to live with that decision; so should we.

Question 5. There is some uncertainty as to what India will actually do under the nuclear agreement. Should Congress hedge against unexpected Indian behavior? For example, should we require annual reports on how the deal is going? Should the deal end if India tests a nuclear device, or diverts nuclear technology to its weapons program, or violates or ends its safeguards agreements, or proliferates to another country? Should Congress revisit the agreement every 5 years, to see whether it is still in our national interest?

Answer. The best, and, in fact, the only way for Congress to learn the details of what India will actually do, or promise to do, under the proposed nuclear deal is to wait until an agreement for nuclear cooperation is made. Once an agreement is presented for consideration, Congress can add any conditions to the agreement that seem warranted. Congress has never approved an agreement for cooperation without seeing the actual agreement. There is no reason to start doing so now.

Question 6. If we go ahead with the India nuclear deal, we will want to assure a level playing field for U.S. industry. Should we require that any changes in Nuclear Suppliers Group guidelines conform to the nonproliferation standards that we establish for the United States? Should we require that NSG guideline changes not enter into effect until our peaceful nuclear cooperation agreement with India enters into effect, so that firms in other countries don’t get to sell things months before our firms do?

Answer. Other suppliers have already reacted to the administration’s plan. Russia has just sold fissile material to India’s Tarapur reactors without notifying the NSG. Russia dared to do so only because the United States-India deal had been announced.

The problem of undercutting by other suppliers could have been avoided if the administration had followed the procedures laid out by existing U.S. law. Consistent with those procedures, the administration could have informed other suppliers that the United States would take no action until an agreement for cooperation with India had been negotiated, until it had been approved by Congress, and until it had been blessed by the NSG. That way, the line would be held in the NSG until American companies were authorized to compete. By trying to short circuit the process, the administration has made it more likely that American companies will be outmaneuvered by foreign competition.

Neither Congress nor the administration can require unilaterally that NSG guidelines conform to changes in U.S. nonproliferation standards. The only way to reduce the risk of American companies being caught short is to follow the procedures prescribed by existing law, as stated above. This can still be done by informing the other NSG members that no change in U.S. export control behavior will occur until an agreement for cooperation is made with India, until Congress approves such an agreement, and until the NSG, itself, decides to change its guidelines to conform to the agreement. This approach has the best chance of holding the line in the NSG until American companies are free to sell.

Question 7. Should we require that the administration obtain any changes in NSG guidelines through the regular process, which requires consensus?

Answer. Yes. If the United States changes its export policy without the consent of the NSG, there will be grave harm to worldwide export controls. This harm would far exceed any benefit from the deal with India. In fact, if the administration implements the India deal without consensus in the NSG, the regime would suffer a loss in credibility from which it probably could not recover.

Questions 8 and 9. India is willing to cap its fissile material production in an international treaty, but not unilaterally. Many people believe that the United States is the party that is holding up progress on a Fissile Material Cut-off Treaty, by refusing to accept the existing mandate in the Conference on Disarmament to negotiate a treaty with verification provisions. Should Congress require that FMCT negotiations begin, under a Conference of Disarmament mandate, before the President can waive the law for India?

Several witnesses suggested that a moratorium on fissile material production for nuclear weapons purposes, either regional or also including the five recognized nuclear weapons states, might be a feasible objective. One witness added that in the context of the United States-India nuclear deal, India should be more open to transparency about its nuclear objectives and should look ahead to eventual nuclear arms reduction. Should Congress require that the executive branch pursue these initiatives and report regularly on its progress?

Answer. India’s statement that it would be willing to cap its fissile material production is similar to its statement, reiterated numerous times, that it would be willing to give up nuclear weapons if everyone else did so. India knows very well that a fissile material cut-off treaty is not much more likely to happen than everyone giving up nuclear weapons. Thus, its offer to cap production as part of such a treaty should be considered as rhetorical.

If India were serious about capping its fissile material production it could do so unilaterally, as all five nuclear weapon states under the NPT have done. Nothing stops India from doing so tomorrow. This would seem a reasonable step for a country that desires to be treated as a nuclear weapon state, that considers itself to be a nuclear weapon state, and that claims only to want enough nuclear weapons for a minimal deterrent. India already has enough weapons for such a deterrent against China, which has capped its fissile material production, and against Pakistan, which would probably cap its fissile material production if India did so. Thus, there is no reason for India not to agree to such a cap now, unless India has nuclear ambitions that transcend its region.

Questions 10 and 11. Should Congress limit the scope of U.S. nuclear fuel assurances to India, so as to maintain U.S. ability to impose effective nonproliferation sanctions or to abide by sanctions that the U.N. Security Council might impose someday?

Has India really accepted safeguards in perpetuity, or will `India-specific safeguards’ turn out to be something less? Should Congress require that safeguards really be in perpetuity, e.g., that India not be allowed to suspend safeguards if there is an interruption in nuclear fuel supplies? Should Congress require that safeguards apply to a reactor’s fuel or spent fuel after its removal from the reactor, and not just to the reactor itself?

Answer. These two questions concern the rights the United States should reserve in any agreement for cooperation with India. Fortunately, an excellent enumeration of such rights is already contained in the Atomic Energy Act, which presents criteria for nuclear cooperation that were carefully thought out by the experts who drafted that law. Those criteria contain the rights, including those specific to fuel supply and international inspections, the United States should insist upon in any new agreement with India.

As stated above, the best way for Congress to insure that the agreement guarantees essential U.S. rights is to withhold approval until Congress can see the agreement that is actually negotiated. There are numerous issues of great importance, including the ones the questions mention, that cannot all be foreseen at this time. It is prudent for Congress to reserve judgement until it can actually see whether there are gaps in the actual agreement.

Question 12. India has said that it accepts the responsibilities of a state with an advanced nuclear program. Should Congress require that India bind itself to the responsibilities contained in article I of the Nuclear Non-Proliferation Treaty, not to help other states to get nuclear weapons?

Answer. Yes. If India is negotiating in good faith, it should be willing to accept such an obligation.

Question 13. India’s nuclear separation plan is to be phased in over an 8-year period. Should the world’s nuclear trade with India be phased in, as well? If so, how? Should there be no sales involving a given facility until safeguards have entered into effect, or until India has provided the plans for a new facility to the IAEA?

Answer. Article 3 of the Nuclear Non-proliferation Treaty forbids the sale of `source or special fissionable material,’ or items `especially designed and prepared’ for producing special fissionable material to a nonnuclear weapon state such as India unless the sale triggers international inspection. Thus, no sale by a treaty member of such `trigger list’ items to an uninspected facility in India can take place without breaching the treaty.

Dual-use items are not subject to such a restriction, however, so once a green light is given to nuclear cooperation, a flood of previously controlled dual-use items is likely to go to India at once, regardless of the separation schedule for the reactors.

At India’s present stage of development, dual-use items could be of greater help in making nuclear weapons than will be additional fissionable material or additional reactors. Dual-use equipment is what one needs to miniaturize nuclear warheads to fit on longer range missiles, and to make the missiles themselves more accurate and powerful. India is now trying to do both, and will profit enormously in weapon development from being able to buy such equipment–for the first time–without restriction.