In Focus. As the Executive Branch attempts to bend American and international law to allow a new agreement for US civil nuclear cooperation with India, proponents and opponents of this controversial nuclear deal would do well to read The Buddha Smiles: Absent-Minded Peaceful Aid and the Indian Bomb (1977), Roberta Wohlstetter's penetrating case study of how diplomatic confusion over the terms of US-India nuclear cooperation during the 1950s and 1960s unwittingly furthered the Indian nuclear weapons program, and facilitated New Delhi's construction and test of an atomic bomb.
Smiling Buddha: Not-the-Best of Intentions
On May 18, 1974, India stunned the world, especially its neighbor Pakistan, when it detonated "Smiling Buddha," its first nuclear explosive device. But what was equally, if not more, shocking was the way by which it had come to build the bomb: New Delhi had obtained the plutonium for Smiling Buddha using a reactor that Canada had built for India to use "for peaceful purposes only", and heavy water to moderate the reactor that the US had supplied again "for peaceful purposes."
Officials in the Indian government subsequently explained away their their test of an atomic bomb by claiming that the purpose and intent of Smiling Buddha had been "peaceful," and that the construction and detonation of this nuclear explosive device had not violated the express terms of India's nuclear cooperation agreements with the US and Canada.
America's initial responses to India's provocations were divided. Although the Executive Branch issued circuitous statements that, in the end, tended to support New Delhi's explanation, many in the Legislative Branch expressed unambiguous disapproval of India's nuclear detonation. As Roberta Wohlstetter recounted in The Buddha Smiles:
[After] India exploded a nuclear device ... the United States [Executive Branch] took the position that India had not violated the specific contract with the United States on the Tarapur reactor, because the plutonium used in the explosion had been extracted from the spent fuel in the Canadian-supplied reactor, the CIRUS. Some members of the US Congress were not satisfied with this explanation, which overlooked the peaceful use constraint on Indian use of American-supplied heavy water in the CIRUS, and which seemed to disregard India's violation of the spirit of the agreement on nuclear cooperation.
(For more on America's equivocal response, see former Nuclear Regulatory Commissioner Victor Gilinsky's April 2007 article on the US-India nuclear deal in The National Review Online.)
In sharp contrast, Canada not only rejected New Delhi's explanation of Smiling Buddha, but also moved to terminate Canadian nuclear cooperation with India. Wrote Wohlstetter:
The Canadians on the other hand stopped work under their agreement for the Rajasthan power reactor complex immediately after the explosion, even though it was plain that RAPP II, the second Rajasthan reactor, had nothing directly to do with the explosion. In May 1976 they refused finally to renew cooperation with India, since India refused to abandon its nuclear explosive program and would only defer it until completion of RAPP II. Since then Canada has refused cooperation with such countries as Pakistan, which have refused to disavow nuclear explosives.
Turning to policy implications of her case study, Wohlstetter added: "Canada's choice of policy is the one that the United States should follow: further nuclear cooperation with non-weapon states should be premised not merely on their literal fulfillment of all agreements with the US government, but on their entire nuclear program, and on the question as to whether that program is serving exclusively peaceful aims or advancing military ones also."
Congress Toughens Terms of US Nuclear Cooperation in Late '70s
In 1978, the US acted on the advice of Roberta Wohlstetter and others when Congress passed, and the President signed into law, the Nuclear Nonproliferation Act (NNPA) of 1978 (P.L. 95-242), Title IV of which amended Section 123 of the Atomic Energy Act of 1954 (P.L. 83-703) to require that so-called "123 agreements" to permit US civil nuclear cooperation with foreign governments, at a minimum, shall legally oblige:
- The importing government to maintain safeguards (as specified in the agreement) on all US-origin nuclear materials and technologies as long as it possesses them, even if the agreement terminates;
- The importing government, when it is a non-nuclear-weapon State as defined by the Treaty on the Nonproliferation of Nuclear Weapons (NPT), to have also concluded a full-scope, comprehensive safeguards agreement with the International Atomic Energy Agency (IAEA);
- The importing government not to use any US-origin nuclear materials or technologies, or any nuclear materials produced using US-origin nuclear materials or technologies, to build a nuclear explosive device or for any other military purpose;
- The importing government, except when it is a nuclear-weapon State as defined by the NPT, to return all US-origin nuclear materials and technologies transferred under the agreement if it either detonates a nuclear explosive device, or somehow abrogates or terminates the agreement;
- The importing government to obtain the US government's consent before re-transferring any US-origin nuclear materials or technologies;
- The importing government to secure adequately all US-origin nuclear materials and all nuclear materials produced using US-origin nuclear materials or technologies;
- The importing government not to reprocess/enrich or otherwise alter any US-origin nuclear materials, or any nuclear materials produced using US-origin nuclear materials or technologies, without the US government's approval;
- The importing government not to store any US-origin weapons-usable nuclear materials, or any weapons-usable materials produced using US-origin nuclear materials or technologies, in a facility that the US government has not approved in advance; and
- The importing government to subject to the requirements of this agreement any weapons-usable nuclear materials produced, or nuclear fuel-making facilities constructed, using US-origin nuclear materials or technologies.
That said, US law permits the Executive Branch to negotiate a 123 agreement that exempts the importing government from one or more of the above requirements, but Congress first must pass a joint resolution to permit such an exemption before the Executive can formally submit the text of agreement for Congressional review and approval.
In addition, the Nuclear Suppliers Group (NSG), a group of nuclear exporting governments that formed in response to India's 1974 detonation of a nuclear bomb, came to prohibit the export of nuclear material, equipment and technology and nuclear-related dual-use items to nations lacking full-scope IAEA safeguards. Members of the NSG, however, can agree by consensus vote to exempt a government from this prohibition.
US-India Civil Nuclear Cooperation in the 21st Century?
The Nuclear Nonproliferation Treaty (the final text of which India played an influential role in negotiating, but did not sign) recognizes only five nuclear-weapon States: the US, the USSR (now Russia), Great Britain, France and China. All other governments, even de facto nuclear-armed States like India, Pakistan and Israel, are considered by the NPT and international law to be de jure non-nuclear-weapon States. Moreover, as a de jure non-nuclear-weapon State, nuclear-armed India has not concluded a full-scope safeguards agreement with the IAEA. Thus, to make the US-India nuclear deal acceptable to American and international law, the Executive Branch must get: Congress to exempt India from certain requirements of the Atomic Energy Act (e.g., Section 123's full-scope IAEA safeguards requirement); India to conclude with the IAEA some sort of safeguards agreement that covers the entire Indian civil nuclear program; and NSG Member States to agree to exempt India and thus allow it to participate in international nuclear commerce.
With the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (P.L. 109-401), Congress waived certain requirements of the Atomic Energy Act so as to allow the Executive Branch to negotiate and conclude a 123 agreement with India. But the Hyde Act also imposed some strict requirements on terms of the agreement -- for example, Sec. 104(a)(3)(b) and Sec. 109 of the Hyde Act reiterate that the legal exemption of India from certain requirements of the Atomic Energy Act shall cease if India detonates another nuclear explosive device.
On August 3, 2007, the Department of State publicly released the text of the US-India 123 agreement. Once again, the agreement contained the sort of ambiguities that Roberta Wohlstetter had warned about in The Buddha Smiles -- in particular, a lack of legal clarity with respect to what the consequences of another Indian nuclear explosive test would be, and whether the President would be legally required, or simply have the option, to terminate civil nuclear cooperation with India. (For more on this and other criticisms of the 123 agreement's final text, see Daryl Kimball and Fred McGoldrick's analysis.)
In addition, there are now concerns regarding precisely what sort of safeguards agreement India will conclude with the IAEA; how the prospect of "India-specific" IAEA safeguards might impact the NPT-IAEA safeguards system more generally; and whether Indo-American nuclear cooperation will again unwittingly assist India's military nuclear program, this time by freeing up India's dwindling supply of accessible nuclear fuel for exclusive use in its nuclear weapons program.
At a time when American and Indian officials are offering conflicting statements about the precise terms and strategic implications of the Indo-American civil nuclear deal, Roberta Wohlstetter's The Buddha Smiles: Absent-Minded Peaceful Aid and the Indian Bomb (1977) provides a sober reminder of the need for the Executive and Legislative Branches either to press for clear, unequivocal terms and bilateral understandings regarding what is and is not proscribed by the US-India 123 agreement to permit bilateral civil nuclear cooperation, and what consequences shall follow in the event of violations -- or, failing that, to pass on the Indo-American nuclear deal altogether.
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