Following protracted negotiations over the past six months,
Washington and New Delhi have finally reached agreement on the text
of the so-called 123 Agreement enabling civil nuclear cooperation
between the two countries for the first time in 30 years. Two years
in the making, this deal has tested the strength of the bond
between India and the United States as well as the institutional
flexibility on both sides necessary to usher in a new era of
cooperation on nuclear issues.
The 123 Agreement will greatly strengthen the U.S. strategic
position in Asia by solidifying a partnership with a 1 billion -
strong, economically booming democracy bordering another and less
predictable rising power: China. The Administration has indicated
that it will submit the agreement to Congress after India and the
International Atomic Energy Agency negotiate a safeguards agreement
and the 45 nations of the Nuclear Suppliers Group come to a
consensus decision that allows civil nuclear transfers to India.
Congress should support this historic effort.
Moving to Resolve the Reprocessing
The text of the agreement carefully ensures that the U.S. stays
in line with its Nuclear Nonproliferation Treaty (NPT) obligations
and with the requirements of the Hyde Act, while addressing key
Indian concerns that threatened to derail the landmark initiative
altogether. Last December President George W. Bush signed into law
the Henry J. Hyde United States-India Peaceful Atomic Energy
Cooperation Act exempting India from certain requirements of the
U.S. Atomic Energy Act of 1954 and allowing for U.S. civil nuclear
cooperation with India.Throughout the negotiations, India
consistently defended its right to reprocess nuclear fuel under
this agreement. The Administration ultimately accepted Indian
demands regarding this right but distinguished between the right
and an entitlement to U.S. assistance in the pursuit of
reprocessing activities. In fact, any action on reprocessing will
depend on the conclusion of a subsequent agreement, as required by
Section 131 of the U.S. Atomic Energy Act of 1954.
India, for its part, committed to stand up a dedicated,
safeguarded reprocessing facility to ensure that U.S.-origin
nuclear fuel is not diverted to its weapons program. The
last-minute proposal by India to address U.S. concerns regarding
diversion of civil nuclear technology to its weapons program was
key to clinching the agreement.
Members of Congress who were adamant about denying India
reprocessing rights may be reluctant to accept the compromise, but
they should consider the fact that India 's construction of a new
reprocessing facility under international safeguards will actually
bring India 's nuclear program into greater conformity with the
international nonproliferation regime.
Congress should also bear in mind that, after the 123 Agreement
is passed, it can guide the subsequent negotiations on the
arrangements for reprocessing. No doubt U.S. congressional
monitoring of the construction and implementation of the new
dedicated reprocessing facility will be necessary to ensure that no
corners are cut. Beyond merely ensuring that the fuel is not used
for weapons development, Congress will have to take care that less
obvious violations of the spirit of the agreement do not occur,
including application of U.S. technology to any other facility,
whether it is civilian or military.
If India goes against the spirit of the 123 Agreement,
Washington will have the right to demand back the plutonium that is
stripped out through reprocessing. This is a critical element of
the agreement to ensure that the U.S. cannot be accused of
violating its NPT obligations. This right is embedded in Article 14
of the agreement, which allows either party to terminate the
agreement on the basis of a one-year written notice.
Fuel Assurances for India Consistent
with NPT and Hyde Act
Ensuring that the U.S. maintained the right of recapture" (the
ability to demand back any U.S.-origin nuclear fuel or technology)
in the event of a future Indian nuclear test was an important part
of the agreement from the U.S. perspective. The U.S. Congress
remains concerned, however, about related clauses in the agreement
that say the U.S. will help India develop a strategic reserve" of
nuclear fuel for the entire lifetime of the reactors. The U.S. also
agrees to create conditions" for India 's assured and full access"
to the international fuel market.
On the surface, this language may appear at odds with the
nonbinding provisions of the Hyde Act that urge Washington to limit
India 's access to fuel supplies from other countries in the event
of a termination of the bilateral agreement. However, the 123
Agreement language does not violate the Hyde Act since the fuel
access provisions are a part of the agreement itself and would
terminate along with the agreement if, for example, an Indian
nuclear detonation triggered Section 106 of the Hyde Act
terminating U.S. -India civil nuclear cooperation.
India will play an increasingly significant role in shaping the
economic and political environment in Asia and beyond in the years
to come. Given that India has strong standing in the international
community and has been a responsible steward of its nuclear assets,
placing India 's nuclear program on par with that of North Korea or
Iran is not only disingenuous; it is bad foreign policy. In fact,
India 's behavior is consistent with a policy to establish
objective criteria for civil nuclear cooperation with de
facto nuclear weapons states.
This 123 agreement, however, does not resolve a fundamental
disagreement between the United States and India. The U.S.
continues to support the objectives of the NPT and to adhere to its
requirements. India does not support the NPT and seeks to be
recognized as a de jure nuclear weapons state. The purpose
of this agreement is to limit the negative impact of this enduring
disagreement on the broader U.S. -Indian relationship.
If, however, India chooses to behave in a way that can raise
legitimate questions regarding whether U.S. civil nuclear
cooperation with India is inconsistent with U.S. NPT obligations,
India will risk jeopardizing its broader relationship with the U.S.
The ultimate goal for U.S. nonproliferation policy, despite the
enduring disagreement between Washington and New Delhi regarding
the NPT and the fact that it may be only a distant prospect, is to
bring India into the NPT fold.
For its part, the U.S. needs to use the political space for
closer bilateral ties permitted by this agreement to address the
security concerns that have whetted the Indian appetite for nuclear
weapons. This includes the U.S. stepping up its diplomacy to
encourage India -Pakistan peace efforts, particularly nuclear
confidence building, to avoid a nuclear arms race in the region and
reduce the risk of nuclear exchange.
The view of the international community will become clearer once
the Nuclear Suppliers Group takes up the issue this fall. So far,
key countries like Russia, France, and the United Kingdom appear to
support this deal. These countries understand India 's increasingly
important role on the world stage. It would be a shame if
Washington let this deal slip away and missed an opportunity to put
itself in a strong, strategic position to meet the challenges of
the 21st century.
This deal will help to solidify a partnership with a country
that is both the world 's largest democracy and one of the world 's
fastest growing economies. It represents strategic, forward-looking
policy and will benefit America 's national security interests in
Asia and beyond for many years to come.
Lisa Curtis is
Senior Research Fellow on South Asia in the Asian Studies Center at
The Heritage Foundation. Baker Spring is F.M. Kirby
Research Fellow in National Security Policy in the Douglas and
Sarah Allison Center for Foreign Policy Studies, a division of the
Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.