by Brian Cloughley

India has failed to achieve membership of the Nuclear Suppliers Group (NSG), which is a group of countries seeking “to contribute to the non-proliferation of nuclear weapons through implementation of two sets of Guidelines for nuclear and nuclear-related exports.”  Given that members of the NSG already supply India with uranium, New Delhi’s campaign is intriguing, especially as one of the Group’s main requirements is that suppliers of nuclear-associated material may authorise such trade “only when satisfied that the transfer would not contribute to the proliferation of nuclear weapons.”

It could not be clearer that this international agreement forbids provision of nuclear expertise or material to a country that has not ratified the Nuclear Non-Proliferation Treaty (NPT), which the US State Department describes as “the cornerstone of the nonproliferation regime.”

But even cornerstones can be undermined, and that process began when President George W Bush started negotiations with Prime Minister Manmohan Singh in 2005 to produce a US-India nuclear cooperation agreement. It took considerable effort by both sides to come to a mutually satisfactory arrangement whereby India would have access to nuclear material and technology consistent with the primary US aim of entry to the potentially large Indian market for construction of nuclear power stations. The commercially-based Agreement for Cooperation between the Government of the United States of America and the Government of India concerning Peaceful Uses of Nuclear Energy of 2007 is known as the 123 Agreement, because it was necessary to amend Section 123 of the US Atomic Energy Act 1954 which governs ‘Cooperation with Other Nations’. 

India declined to abide by the Act’s specification that it “must have full-scope International Atomic Energy Agency safeguards, essentially covering all major nuclear facilities,” because this would involve inspection of weapons-related establishments, and Washington promptly removed this inconvenient requirement.
The modified Act seemed to clear the way for nuclear collaboration on a major scale, but there has as yet been no commitment by US nuclear plant manufacturers, mainly because they do not want to be held financially responsible for a nuclear accident at a power station which they designed or built.
It is accepted worldwide that national nuclear plant operators are accountable in the event of accidents, but India’s Civil Liability for Nuclear Damage Act, 2010, and Rule 24 of the Civil Liability for Nuclear Damage Rules, 2011, provide for the right of recourse, pursuit of which could involve foreign enterprises being held liable for damages.

In February 2015, India’s Ministry of External Affairs stated that the Civil Liability Act “channels all legal liability for nuclear damage exclusively to the operator” — but Clause 17 of the Act specifies that operators are permitted to seek financial recourse from suppliers after paying compensation for “patent or latent defects or sub-standard services,” which are, naturally, open to legal interpretation in the event of a disaster, which is no doubt being borne in mind by India’s legislators who have not forgotten the 1984 disaster at the Union Carbide chemical plant at Bhopal that killed and maimed many thousands of people. 
While there have as yet been no commercial benefits to the US from its nuclear accord with India, there have been other effects, including some that are less than desirable in the context of “proliferation of nuclear weapons”, which is condemned by the Nuclear Suppliers Group.

The Arms Control Association notes that “In September 2008, in a move led by the United States, the Nuclear Suppliers Group eased long-standing restrictions on nuclear trade with India by the group’s members. NSG rules generally forbid the sale of nuclear goods, such as reactors and fuel, to non-NPT countries.”  Before this ‘easing’ of international constraints, India had been unable to import uranium and was therefore entirely reliant on its own mines, which produce only low-grade ore but are in the long term capable of providing fuel to any number of nuclear facilities, civilian and military. The only drawback is that domestic processing would be enormously expensive. Importing uranium is very much cheaper.

As a result of being excused from the international stipulation requiring its adherence to the NPT before being permitted to import nuclear fuel and technology, India negotiated nuclear cooperation arrangements with eleven nations, including the holder of the world’s largest uranium deposits, Australia, whose government’s 1977 Uranium Export Policy had specified that “customer countries must at a minimum be a party to the NPT and have concluded a full-scope safeguards Agreement with the IAEA.” But profit beats morality, and, as noted by the Centre for Strategic and International Studies, “Australia was the last domino to fall when it created an exception for India to its export policies in December 2011.”

Following the US-India nuclear agreement the president of the Federation of American Scientists wrote in Arms Control Today that “by granting India access to uranium, the deal allows India to divert its indigenously-mined uranium to military applications without detracting fuel from the civilian program” — and that is the crux of the entire affair.
The Nuclear Suppliers Group, at the urging of the United States, approved a measure that assists India to produce more nuclear weapons more economically.   The “cornerstone of the nonproliferation regime” was dealt a massive blow. Although the US Hyde Act of 2006 requires the President to inform Congress of non-compliance with “the provision of nuclear fuel in such a manner as to facilitate the increased production by India of highly enriched uranium or plutonium in unsafeguarded nuclear facilities” it is impossible for the US to certify that this is not taking place because there is no provision for verification. This is what is usually called a stitch-up.

Membership of the NSG remains a major foreign policy goal for India, and US support for its ambition was formally indicated in 2015 joint statement by President Obama and Prime Minister Modi which “committed [them] to continue to work towards India’s phased entry” to the Group.  The US has made it clear that the requirement for “full compliance” with the Nuclear Non-Proliferation Treaty or other “equivalent international nuclear nonproliferation agreement” is irrelevant. 

It is intriguing how international agreements can be reinterpreted, distorted, massaged or just plain ignored when it suits Washington’s policies — and, it seems, the pockets, prosperity and re-election prospects of America’s Legislators.