1

LEGAL METHODS SEMESTER II, JANUARY 2008 APRIL 2008

DEAL OR NO DEAL?
AN INVESTIGATION INTO THE INDO-US NUCLEAR DEAL

PROJECT PAPER

Submitted By:

PRASAD SUBRAMANYAN 07D3428 YEAR I, B.A., LL.B.

TABLE OF CONTENTS

INTRODUCTION
The India United States nuclear deal1 is one of the most hotly debated topics that have assaulted our country in recent times. Some herald it as an indication of Indias arrival in the world as a major power; others look upon it with suspicion and caution. Some claim it to be a cornerstone in Indias (and the United States of Americas2) foreign policy, while others raise no eyebrows, viewing Indias rising political power in the international scenario. But what is the deal? What does it entail? What does it imply? What rights does it guarantee to the parties, India and US? And what duties does it impose? How does this affect what is already present? Why are we opposing it, even though its a god send? Or is it a god send? I will try and answer all these questions, and a few others to the best of my effort in this paper. The deal in itself is inter-linked into a various strands of polity and international relations that have all been argued and debated upon. This paper will try and reveal some of the strands that present themselves in this matter. The deal entails cooperation between the Government of the United States of America and the Government of India on the matter of civilian nuclear cooperation, chiefly in terms of nuclear resources and technology. The deal has not actually been signed as of now. It has been negotiated and the deal has been officially passed through the Senate of the United States in large majority, but has found major obstacles in the Indian scenario, where due to various reasons, it stands in a stale mate. The deal is considered a cornerstone in the Foreign Policies of both parties. The US, because of its open condemnation of non-signatories of the NPT3 (and until now India included), and India, because it is seen as Indias rise to greater power in the international sphere, also, as some claim, India by committing to such an agreement might be siding itself with the US.
1

Formally known as, AGREEMENT FOR COOPERATION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF INDIA CONCERNING PEACEFUL USES OF NUCLEAR ENERGY (123 AGREEMENT), (Hereinafter the deal). 2 Hereinafter US. 3 Formally named as THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS. (Hereinafter the NPT).

The deal, put briefly, involves cooperation between India and the US in civilian nuclear technology, an undertaking to provide a framework for the exchange of nuclear technology and fuel. The deal for India implies access to the largely more superior US nuclear technology, fuel for its reactors and most importantly, access to the exclusive world of acknowledged nuclear weapon holders. For the US it implies the beginning of a strategic relationship with India, large financial benefits from the materials brought by India and a step to balance the power relations in Asia and the world. Opposition to the deal in India claim an impeachment of its sovereignty, which until now ensured that it was non-aligned to any power bloc or nation until now. Questions have also been raised regarding various clauses present in the Hyde Act4 and their implications on India. Non-Supporters of the deal in this camp claim that the US is retracting from its earlier position of non-tolerance of non-signatories of the NPT. Others fear that India will use the Uranium freed due to this deal to significantly increase its nuclear weapons numbers. During the course of this paper, I will try to elaborate on all the points stated above and provide a complete picture of what the Indo-US Nuclear Deal stands for, and what we can try and understand as a lawyer.

Formally acknowledged as the Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006. (Hereinafter the Hyde Act).

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES This paper will attempt a cursory analysis of the Indo-US nuclear deal. The legal as well as the political aspects of the nuclear deal will also be analyzed RESEARCH QUESTIONS The project will try to provide an overview of the deal itself, what both the parties gain and lose from it, with a view at attempting to answer specific questions, including What provisions form the crux of the deal? How will they apply to the parties? What will be the resulting obligations on their parts? Why there is some opposition on both the sides of the deal? What are the reasons behind such oppositions? Where does the deal as of now? These will be the two basic questions that shall be answered in course of this paper. SCOPE AND LIMITATIONS Due to lack of space, time and resources, this project will only focus upon covering the nuclear deal and the arguments supplied by the supporters and detractors of the deal. METHOD OF WRITING This paper is a mix of descriptive and analytical style of writing. SOURCES OF DATA Due to the contemporary nature of the subject of the paper, the sources of data have largely been newspaper articles, interviews given by the government of both countries. However, on the core matters of the deal, official website of the government and largely primary sources have been cited. MODE OF CITATION

6 A uniform mode of citation has been used throughout this project, based loosely on the style specified in THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Assn et al. eds., 18th ed. 2000).

THE INDO-US NUCLEAR DEAL

What is it?

The question that first arises in this context is, what is the Indo-US Nuclear deal? The deal is formally acknowledged as AGREEMENT FOR COOPERATION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF INDIA CONCERNING PEACEFUL USES OF NUCLEAR ENERGY (123 AGREEMENT).5 This is the actual bilateral treaty that seeks to enforce all the conditions bargained for, the promises made and the duties that follow them. The deal as the name suggests concerns the cooperation between the two countries on the peaceful use of nuclear energy. The deal is based on the joint statement made by the heads of both the countries on July 18th, 2005.6 The joint statement issued by both the heads was made on the occasion of the Prime Minister of Indias visit to the United States.7 The joint statements was the first indication of the presence of possibility of such a deal, a possible strategic partnership with the US and India.

U.S. Department of State, U.S. AND INDIA RELEASE TEXT OF 123 AGREEMENT, available at

http://www.state.gov/r/pa/prs/ps/2007/aug/90050.htm, (last visited on 7th March, 2008). (Hereinafter 123 Agreement).

6

Embassy of India, INDIA U.S. JOINT STATEMENT, available at

http://www.indianembassy.org/press_release/2005/July/21.htm, (last visited on 7th March, 2008). (Hereinafter Joint Statement).

7

See Embassy of India, VISIT OF PRIME MINISTER DR. MANMOHAN SINGH TO THE UNITED STATES OF AMERICA, available

at http://www.indianembassy.org/press_release/2005/July/pm_2005.htm, (last visited on 7th March, 2008). For an assortment of articles on the statement made and various issues discussed by the heads, See Embassy of India, SELECTED U.S.
NEWS REPORTS DURING

PRIME MINISTER DR. MANMOHAN SINGH'S

VISIT TO
th

U.S., available at

http://www.indianembassy.org/press_release/2005/July/Press.htm, (last visited on 7

March, 2008). For a

OF

itinerary of the Prime Ministers tour and the stories associated with them, See Rediff.com, PMS US TOUR 2005, available at http://in.rediff.com/news/pmustour05.htm, (last visited on 7th March, 2008).

8 The Joint statement included inter alia,8 an announcement of a possible agreement on civilian nuclear cooperation. In this regard, President of the United States of America, George Bush Jr. 9 recognized the rising energy demands in the modern era and that he appreciated Indias strong commitment to WMD10 and he recognized India as responsible state. Therefore, stating that he would work towards achieving full civilian nuclear cooperation between both the countries. The Prime Minister of India, Dr. Manmohan Singh also agreed to take responsibility and assume the same rights and duties that other leading countries with advanced nuclear technology. He also agreed to bring India under the purview of the IAEA 11 and its accompanying safeguards, including signing an additional protocol12 with regards to civilian nuclear technology. He also agreed to separate Indias civilian and military nuclear reactors like all nuclear weapon countries under the IAEA.13 President Bush expressed his pleasure in response to the assurances provided by Prime Minister Manmohan Singh and stated that both the countries would work towards fulfilling the promises stated in a phased manner. The President also stated that these shall be reviewed when he would visit India in the following year.
8

The Joint statements also set out agreements on matter related to a) The Economies of both the countries, b) Energy and Environment, c) Democracy and Development, d) Non-Proliferation and Security, e) High Technology and Space. See Joint Statement, supra note 6. See also David C. Mulford, TWO GREAT DEMOCRACIES, The Wall Street Journal (18th July, 2005) available at http://www.indianembassy.org/US_Media/2005/July/WSJ.htm, (last visited on 8th March, 2008); U.S.-INDIA th SUMMIT HAS HIGH STAKES, Pittsburgh Post-Gazette (19 July, 2005) available at http://www.indianembassy.org/US_Media/2005/July/PG.htm, (last visited on 8th March, 2008); Bruce Fein, EMBRACING INDIA, Washington Times (19th July, 2005) available at http://www.indianembassy.org/US_Media/2005/July/WT.htm, (last visited on 8th March, 2008); Bryan Bender, US TO AID INDIA ON NUCLEAR POWER; PRIME MINISTER, BUSH HAIL NEW ERA OF COOPERATION, Boston Globe (19th July, 2005) available at http://www.indianembassy.org/US_Media/2005/July/BG.htm, (last visited on 8th March, 2008).; EDITORIAL: GETTING CLOSER TO INDIA, Chicago Tribune (19th July, 2005) available at http://www.indianembassy.org/US_Media/2005/July/CT.htm, (last visited on 8th March, 2008). 9 Hereinafter President Bush. 10 Weapons of Mass Destruction. See United Nations, WEAPONS OF MASS DESTRUCTION, available at http://disarmament.un.org/wmd/, (last visited on 8th March, 2008). 11 International Atomic Energy Agency. See International Atomic Energy Agency, ABOUT THE IAEA, available at http://www.iaea.org/About/index.html, (last visited on 8th March, 2008). 12 MODEL PROTOCOL ADDITIONAL TO THE AGREEMENT(S) BETWEEN STATE(S) AND THE INTERNATIONAL ATOMIC ENERGY AGENCY FOR THE APPLICATION OF SAFEGUARDS, INFCIRC/540, available at http://www.iaea.org/Publications/Documents/Infcircs/1997/infcirc540c.pdf , (last visited on 8th March, 2008). The list of countries who signed an additional protocol with regard to the IAEA safeguards is also listed at, See also International Atomic Energy Agency, ADDITIONAL PROTOCOL TO NUCLEAR SAFEGUARDS AGREEMENTS, available at http://www.iaea.org/OurWork/SV/Safeguards/sg_protocol.html, (last visited on 8th March, 2008); International Atomic Energy Agency, NON-PROLIFERATION OF NUCLEAR WEAPONS & NUCLEAR SECURITY - IAEA SAFEGUARDS AGREEMENTS AND ADDITIONAL PROTOCOLS pp. 11-12 (May, 2005) available at http://www.iaea.org/Publications/Booklets/nuke.pdf, (last visited on 8th March, 2008). 13 Other then this, he also agreed to continue Indias moratorium on nuclear weapons testing, work with the US on a multilateral fissile material cut-off treaty, discourage any type of nuclear proliferation and adhering to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines. Joint Statement, supra note 6.

9 After this, the consultations and negotiations started between both the parties. Thus, paving the way for the India United States civilian nuclear cooperation deal, which was announced when President Bush arrived in India during March 2006.14

CHIEF FEATURES OF THE DEAL

The deal provides a framework for civilian nuclear cooperation between both the countries. Most of the deal focuses on trying to provide rules and regulation regarding transfer of materials, defining and classifying the various subjects that surround the deal, implementation of IAEA safeguards and nuclear trade. However, the clauses in the deal that are of most importance in determining the obligations of the parties are The Preamble The Preamble, which serves as an introduction to the agreement and which sets out the outlook of what the agreement is based on and what, it serves to achieve is a good indication of the position of the parties on various policy matters. The prominent statements that stand out are Recognition by the parties of the significance of civilian nuclear energy and agreement to cooperate in this regard, so as to achieve cleaner and more efficient energy security. Mutual respect to the principles of sovereignty and non-interference.

Seeking to provide a framework for cooperation in matters of peaceful nuclear energy

and commitment to prevent proliferation of WMDs. Based on the join statement issued by both the countries on 18th July 2005.

In respect of the safeguards and other rules and regulations of the IAEA and seeking
to provide for a safer environment, as well as commitment to nuclear security and objectives of nuclear non-proliferation.15
14

See The White House, PRESIDENTS VISIT TO INDIA AND PAKISTAN, available at http://www.whitehouse.gov/infocus/india-pakistan/, (last visited on 8th March, 2008). See also The White House, PRESIDENT, PRIME MINISTER SINGH DISCUSS GROWING STRATEGIC PARTNERSHIP, available at http://www.whitehouse.gov/news/releases/2006/03/20060302-9.html, (last visited on 8th March, 2008); The White House, FACT SHEET: UNITED STATES AND INDIA: STRATEGIC PARTNERSHIP, available at http://www.whitehouse.gov/news/releases/2006/03/20060302-13.html, (last visited on 8th March, 2008). 15 123 Agreement, supra note 5.

10

If later on, a question of interpretation of the agreement is brought out into question, the Preamble will serve as a very important tool in deciphering the opinion of both the parties and in trying to understand the Article 2 Scope of Cooperation This article sets out the parameters of the agreement and areas for which the agreement seeks to provide a framework for. It also provides for the means of implementation of the agreement by both the parties.

Article 2(1) The Parties shall cooperate in the use of nuclear energy for peaceful
purposes in accordance with the provisions of this Agreement. Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes. The above article sets out the means through which the parties will go about implementing the deal. Important points to note in this regard is the affirmation that any civil nuclear cooperation will be done only under this agreement and most importantly, that each party will implement the agreement in accordance with its respective national laws. The interpretation of which holds the key to whether the Hyde Act can or cannot apply to the other country and what implications it will have on the actual agreement. This has been discussed later on in the paper.16

Article 2(4) The Parties affirm that the purpose of this Agreement is to provide for
peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party. Accordingly, nothing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material,
16

See supra p. .

11 equipment, components, information or technology transferred to them pursuant to this Agreement Another very important clause that is very important to note with regard to the deal. This in very clear and precise statements sets out the fact that nothing in the agreement will affect in any way or manner the unsafeguarded nuclear activities of either party. This is very relevant in light of worries of whether the various provisions in the Hyde Act, which seek to enforce a moratorium on nuclear weapons test by India. Even if the Hyde Act were to be brought into the matter of its interpretation, then this article stands very clearly in opposition of it. International Law in this regard only stands to enhance the position to Indias support, i.e. position of law in this regard will state that this article will stand out.17

Article 5(6) This article seeks to reassure a continuous and reliable nuclear fuel supply
to India.

Article 5(6)(a) The United States, in conformity with the Joint Statement made by the parties on July 18th 2005, commits to amend its domestic law, to work with its allies and the parties of the NSG to ensure reliable nuclear fuel for India.

Article 5(6)(b) The United States once again agrees to incorporate assurances regarding fuel supply in the under Section 123 of the US Atomic Energy Act, as well as in supporting India in its bid to ensure an India-specific safeguards and the negotiations included therein with the IAEA. The US also endeavors to help in procuring fuel supply from nations like France, Russia and the United Kingdom in case a disruption takes place.

Article (6)(c) With respect to the above two clauses, this article obliges Indio to negotiate a customized safeguard agreement with the IAEA, that it place its

17

See Vienna Convention on the Law of Treaties, May 23, 1969, 63 AJIL 875 (1969), 1155 UNTS 331 at art. 31. Article 31 of the above provides for interpretation of a treaty according to the meaning of the plain text i.e. more or less literal interpretation, and only in case of an ambiguity can a resort be taken to an instrument related to the treaty (and accepted by the other party). In this case, Article 2(4) of the deal ought to prevail over the Hyde Act/Instrument.

12 civilian nuclear reactors under the India-specific safeguard agreement to ensure uninterrupted functioning of these reactors even if foreign supply ceases.

Article 6(iii) - This article is also one of the most important clauses present in the
agreement. This clause provides reprocessing, altering and manipulation rights to either party of the nuclear materials that are transferred under the agreement. In this regard, India obliges to set up a new reprocessing facility, which will fall under the IAEA safeguards. This facility will be setup in consultations with the United Sates. It will also fall under Article(s) 7, 8 and 11 of the agreement.

Article 9 Nuclear material, equipment and components transferred pursuant to this

Agreement and nuclear material and by-product materialused [sic] in or produced through the use of any nuclear material, equipment, and components so transferred shall not be used by the recipient Party for any nuclear explosive device, for research on or development of any nuclear explosive device or for any military purpose. This article very clearly states that no material transferred under the agreement can be used any military purpose.

Article 10 IAEA Safeguards This clause stands as a basis for the implementation of
IAEA safeguards on Indian reactors post implementing the agreement. Chief Features incorporated under this clause are o All materials/technology transferred under the agreement will come under an India-specific IAEA safeguard agreement and an Additional Protocol. o If the IAEA decides that its safeguards are not possible to implement at any point of time in the future, the parties shall hold consultations and decide there after. o A through record has to be maintained so as to ensure transparency and accountability. The IAEA shall hold inspections, and on request of either parties can report to them on the status of the materials transferred under the agreement/deal.

13

Article 13(2) Consultations Each Party shall endeavor to avoid taking any action
that adversely affects cooperation envisaged under Article 2 of this Agreement. If either Party at any time following the entry into force of this Agreement does not comply with the provisions of this Agreement, the Parties shall promptly hold consultations with a view to resolving the matter in a way that protects the legitimate interests of both Parties, it being understood that rights of either Party under Article 16.2 remain unaffected. Provides the ground rules for holding consultations. Ensures that if under any circumstances differences crop up between the parties, consultations and negotiations are held so as to ensure that the agreement is left to carry on smoothly without being impractically rigid in its terms. It also holds up accountability and that guarantees no arbitrary withdrawal from the agreement by either party, without the presence of a valid reason.18

Article 14 Termination and Cessation This section deals with all the aspects that
surround the termination and withdrawal from the agreement, in case such a need arises.

Article 14(1) - Either Party shall have the right to terminate this Agreement prior to its
expiration on one year's written notice to the other Party. A Party giving notice of termination shall provide the reasons for seeking such termination. The Agreement shall terminate one year from the date of the written notice, unless the notice has been withdrawn by the providing Party in writing prior to the date of termination. This clause very clearly puts out the right of either party to withdraw from the agreement. This is very important to note, as many in India feel that the United States will simply withdraw from the treaty if India does anything opposed to the United States policy. However, it is also important to note that reasons have to be provided for termination. However, the crux of the matter also lies in the next clause.

18

See also infra Article 14(2).

14

Article 14(2) Before this Agreement is terminated pursuant to paragraph 1 of this

Article, the Parties shall consider the relevant circumstances and promptly hold consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination. The Party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations. The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security. Each word that is stated in this clause is very important to note. The following are the important features, and their implications o Before terminating the agreement as stated above, the relevant circumstances shall be considered and consultations promptly held to discuss the reasons given.

If it is so determines, the part seeking the termination has the right to cease further cooperation if and only if it determines after consultations that no mutually acceptable resolution of the outstanding issues has been issued.

o Fundamental change in circumstances shall be taken into account in lieu of the termination and the subsequent consultations held.

Article 14(3) If a Party seeking termination cites a violation of this Agreement as the
reason for notice for seeking termination, the Parties shall consider whether the action was caused inadvertently or otherwise and whether the violation could be considered as material. No violation may be considered as being material unless corresponding to the definition of material violation or breach in the Vienna Convention on the Law of Treaties. If a Party seeking termination cites a violation of an IAEA safeguards

15 agreement as the reason for notice for seeking termination, a crucial factor will be whether the IAEA Board of Governors has made a finding of non-compliance. This clause sets out what would count as a violation of the agreement, namely referring to the Vienna Convention on the Law of Treaties.19 The report of the IAEA is also of utmost importance in deciding what would be the breach itself. An allegation of say, India using fuel transferred under the agreement would be in itself a material breach; but if this allegation is made by an independent private source instead of in a report of the IAEA, that would hardly leave it to be credible enough to validate an immediate termination.

Article 14(5) This clause reiterates the need for consultation and reconciliation in case
differences arise, citing the serious implications of demanding the return of transferred materials and technology.

Article 14(6) This clause lays down the framework on the question of compensation
over the request for returning the materials that were transferred under the agreement subsequent to the termination of the agreement. A possible gray area in this regard would be, whether, in case of a withdrawal from the treaty the United States would actually compensate India for the amount invested in the reactors? Or just for the relocation or transfer of the materials? Principles of promissory estoppel would account for the former, while rules of strict interpretation might favor the latter.

Article 14(9) The arrangements and procedures concluded pursuant to Article 6(iii)
shall be subject to suspension by either Party in exceptional circumstances, as defined by the Parties, after consultations have been held between the Parties aimed at reaching mutually acceptable resolution of outstanding issues, while taking into account the effects of such suspension on other aspects of cooperation under this Agreement.

19

See Convention, supra note 17, art. 60. A Breach is defined as a material breach of a treaty, for the purposes of this article, consists in:(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

16 Provides power to the parties to suspend the various procedures and practices set out in Article 6(iii).20 Thus, withdrawing reprocessing rights if the situation is exceptional. This might be taken up by the United States if it so stands. Article 15 - Settlement Of Disputes Any dispute concerning the interpretation or implementation of the provisions of this Agreement shall be promptly negotiated by the Parties with a view to resolving that dispute.

20

See Article 6(iii) at pp. 12.

17

A CRITIQUE
Both sides have their supporters and non-supporters to the deal. An analysis of the nuclear deal cannot be complete without investigating why the deal is being pushed for on both sides of the agreement. I shall present the debate that ranges in the United States and what is the position of the same in India.

FROM THE PERSPECTIVE OF THE UNITED STATES

Since the joint statement made by the heads of the two countries on July 18 th, 2005, there has been a great uproar of whether the deal is advantageous to the United States or not. Since, like any contract, the deal also involves giving up of certain rights/ taking up new duties in return for other advantages and new rights, the deal has its own share of supporters and dissuaders. In the United States, the key debates ranged around two basic arguments

Whether the allowing India into the exclusive club of acknowledged nuclear-haves
without India being a signatory of the NPT will undermine the credibility of the US as a leader of global efforts to restrain nuclear proliferation.21 Arguments have been offered for both the sides, while the Bush Administration solemnly states that India as a state that has had nuclear weapons since 1974 has proven itself as a responsible holder of nuclear weapons and has had no record of nuclear proliferation towards any country. Others claim that, by acknowledging India as a holder of nuclear weapons and seeking to legitimize it, the United States is seriously undermining the need to sign the NPT as a non-nuclear weapon state. Detractors of the deal in the United States claim that allowing India into the fold will seriously undermine the purpose of the NPT and could even be illegal under Article 1 of

21

Will Marshal and Wesley Clark, WARMING TO THE INDIA NUCLEAR DEAL, The Hill (23rd May, 2006), available at http://thehill.com/op-eds/warming-to-the-india-nuclear-deal-2006-05-23.html, (last visited on 9th March, 2008).

18 the NPT,22 and either way would seriously undermine the objectives and purpose of the NPT. Supporters for the deal argue that India has proven itself as a responsible nuclear power and has had no history like other nuclear weapons holders, both inside and outside the NPT of having any proliferation record.23 The indigenous resources freed due to the import of nuclear fuel through the deal will result in India rapidly expanding its nuclear arsenal. The other chief argument made in this regard is that India will use the resources that are freed through the deal for its nuclear weapons, thus increasing its nuclear arsenal without any worry of running out of resources. The propagator of this theory George Petrovich who in his papers argues that the resources freed due to the deal will be used by India to increase their nuclear weapons output and would entirely defeat the process of having an non-proliferation treaty. Indeed it has been asserted that with the deal, India will be able to increase its production of nuclear weapons from 6-10 to several dozen a year.24
22

See The Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 UNTS 161; 7 ILM 8809 (1968); 21 UST 483 available at http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf, (last visited on 9th March, 2008), at art. 1. HEARING BEFORE THE COMMITTEE ON INTERNATIONAL RELATIONS, HOUSE OF REPRESENTATIVES, Serial No. 109135 (26 October, 2005) available at http://commdocs.house.gov/committees/intlrel/hfa24204.000/hfa24204_0.HTM#0, (last visited on 9th March, 2008). See also George Perkovich, FAULTY PROMISES, (Carnegie Endowment for International Peace, Sept., 2005), available at http://www.carnegieendowment.org/files/PO21.Perkovich.pdf, (last visited on 9th March, 2008) (hereinafter Perkovich Faulty Promises), George Perkovich, THE U.S.-INDIA DEAL: CAN AN ASIAN NUCLEAR BUILD UP BE AVOIDED?, (Carnegie Endowment for International Peace, May, 2006), available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=18316, (last visited on 9th March, 2008). See generally, Orde F. Kittrie, Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, 28 MICH. J. INTL L. 337 (May 2007). 23 SPEECH OF HON. CHARLES B. RANGEL OF NEW YORK IN THE HOUSE OF REPRESENTATIVES, Serial Nos. E1041, Wednesday, June 7, 2006. See Perkocvich Faulty Promises, supra note 22; Ashley J. Tellis, PREPARED TESTIMONY TO THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS SUBJECT: THE U.S.-INDIA GLOBAL PARTNERSHIP: LEGISLATIVE OPTIONS (May, 2006), (Hereinafter Tellis Testimony); Ashley J. Tellis, SHOULD THE US SELL NUCLEAR TECHNOLOGY TO INDIA? PART II, YaleGlobal Online (November 2005) available at http://yaleglobal.yale.edu/display.article?id=6487, (last visited on 9th March, 2005). See generally Ashley J. Tellis, INDIA'S EMERGING NUCLEAR POSTURE: BETWEEN RECESSED DETERRENT AND READY ARSENAL (Rand Corp., 2001 Edn.). 24 See Joseph Cirincione as cited in Ashley J. Tellis, ATOMS FOR WAR? U.S. INDIAN CIVILIAN NUCLEAR COOPERATION AND INDIAS NUCLEAR ARSENAL pp. 5 (Carnegie Endowment for International Peace, 2006), (Hereinafter Atoms for War); See also Daryl G. Kimball, DANGEROUS DEAL WITH NEW DELHI, Baltimore Sun, (9th March, 2006); Henry Sokolski, PREPARED TESTIMONY TO THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS SUBJECT: BACKING THE U.S. - INDIA NUCLEAR DEAL AND NONPROLIFERATION: WHATS REQUIRED", (October 2005).

19 The Senior Associate at Carnegie Endowment for International Peace, Ashley J. Tellis has extensively argued against this both in front of the senate and in general publications. Tellis in his book Atoms for War? U.S.-Indian Civilian Nuclear Cooperation and Indias Nuclear Arsenal puts forward clear cut arguments on why allegations of India expanding its nuclear arsenal stand incorrect.25 Tellis argues that the above argument is based on two chief assumptions, that That India seeks to have the largest nuclear arsenal possible with its available resources; and

That India does not yet have the resources available to produce the amount of nuclear
weapons it wants to have. Tellis argues that both assumptions are baseless and in fact illogical. He argues that India is not in anyway running out of resources rapidly but actually is facing a bottleneck situation where the available Uranium in the from of ore is not in a position to be extracted due to lack of infrastructure at the ground level and that even if the deal does not go through, India will make it through the situation without facing too much trouble.26 He also extensively argues that India does not seek to maintain the largest nuclear arsenal possible and infact has restrained itself at times from overdoing its nuclear weapons program. Infact figures put forward by Tellis point towards a more relaxed and languid approach to nuclear weapons production. 27 The United States seeks to gain strategic and political advantage by placing India in a better position to gain energy security with respect to China. The chief points argued in this regard are

To dissuade or prevent China from competing harmfully with it, the United States must
mobilize states on Chinas periphery to balance Chinese power.

25 26

See generally Atoms for War, supra note 24; Tellis Testimony, supra note 23. See Atoms for War, supra note 24, at pp. 8. 27 Id at pp. 11-15.

20

India is a rising power with great intrinsic merits, including its attachment to democracy,
and is a natural partner with the United States in the global system. The United States should cultivate a partnership with India and enhance Indias international power. A more powerful and collegial India will balance Chinas power in Asia.

To win over India, the United States should change national and international laws and
rules that bar technology cooperation with India due to Indias nuclear-weapons and ballistic missile programs. Changing these rules is necessary to cement the partnership, and such changes also will help India bolster its strategic capabilities, including nuclear weapons and ballistic missiles, which will further balance Chinas strategic power.28 Arguments against this debate that this will only allow China to seek similar reforms and will result not have the effect it seeks to have, setting a precedent for the Chinese who will follow the same path they did back in the 1990s, significantly providing help to the Pakistanis in their nuclear program. Critics of this argument fear the same on a much larger level this time.

FROM THE PERSPECTIVE OF INDIA

The Indian side of the debate has been argued vociferously with a large majority of people opposing the deal on various counts. Some of the issues are India is committing its foreign policy and thus sacrificing its sovereignty by agreeing to the nuclear deal. A large amount of opposition in India stems from the issue that by committing to the deal, India is forming a partnership with the United States which would seriously inhibit its ability to make independent and non aligned decisions on its foreign policy in the future. Supporters of the deal on the other hand argue that this is not so. That United States has made its position of respect for sovereignty and non-interference clear in the preamble to the agreement.
28

Perkovich Faulty Promises, supra note 23, at pp. 1-2.

21

India after this deal will become entirely dependent on the United States, especially in terms of energy security. Opposition to this deal in India also argue that by committing to the deal, India will place almost two-thirds of its nuclear reactors under IAEA safeguards. The fuel for these reactors shall be supplied by the United States and its allies, through the NSG. On withdrawal of fuel due to any kind of arousal of differences between the parties, India will be left without any fuel for its civilian nuclear reactors. Supporters argue that this deal only serves to legitimize India as a nation with advanced nuclear technology and allows it to contact any other country for fuel even in the aftermath of the breakage of the deal.

Provisions of the Hyde Act, the corresponding domestic version of the nuclear deal seem to have unreasonable demand and very clearly violate the sovereignty of India. A large opposition to the deal has come out of certain section of the Hyde Act. Which demand that o Indian foreign policy corresponds with that of the United States in the matter of Iran and in containing it. o India impose on itself a moratorium on nuclear weapons testing. o India sign a treaty to cut off production of fissile material needed for making nuclear weapons. However, it is to be noted that the above section come largely under the heading Statements of Policy and are in no way binding upon either government. Even if they are, it is important to note that the domestic legislation of on country cannot be binding or have any influence on the other country.

22

CONCLUSION
The Indo-US Nuclear deal has both its positive and negative impacts on both parties. Indeed, like any treaty, it involves surrendering some rights and gaining others. With its vast complexity and varied advantages and disadvantages, the nuclear deal does not stand as a clear Yes-Yes deal, neither is it a clear No-No. After going through the entire features of the deal, I conclude that I am for the deal to be signed in India. But this seems hardly possible with the Leftist parties taking a tough stand and refusing to budge from it. Even if the matter is put up for vote in front of the parliament, it will be voted out, simply because the Congress does not hold a full majority and relies upon the Leftist parties to give it support. This seems to have put it in a position of a stalemate.

23

BIBLIOGRAPHY

BOOKS
ATOMS
FOR

WAR? - U.S.-INDIAN CIVILIAN NUCLEAR COOPERATION

AND

INDIAS NUCLEAR READY ARSENAL,

ARSENAL, ASHLEY J. TELLIS, (2006). INDIA'S EMERGING NUCLEAR POSTURE : BETWEEN RECESSED DETERRENT ASHLEY J. TELLIS, (2001). PRINCIPLES OF PUBLIC INTERNATIONAL LAW, IAN BROWLIE, (2006)
AND

ARTICLES, HEARING (MANUSCRIPTS) & TESTIMONIALS HEARING BEFORE THE COMMITTEE ON INTERNATIONAL RELATIONS, HOUSE OF REPRESENTATIVES, SERIAL NO. 109135 (26 OCTOBER, 2005) GEORGE PERKOVICH, FAULTY PROMISES, (CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, SEPT., 2005) GEORGE PERKOVICH, THE U.S.-INDIA DEAL: CAN
AN

ASIAN NUCLEAR BUILD

UP BE

AVOIDED?,

(CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, MAY, 2006) ORDE F. KITTRIE, AVERTING CATASTROPHE: WHY THE NUCLEAR NONPROLIFERATION TREATY IS LOSING ITS DETERRENCE CAPACITY AND HOW TO RESTORE IT, 28 MICH. J. INTL L. 337 (MAY 2007) SPEECH OF HON. CHARLES B. RANGEL OF NEW YORK IN THE HOUSE OF REPRESENTATIVES, SERIAL NOS. E1041, WEDNESDAY, JUNE 7, 2006. ASHLEY J. TELLIS, PREPARED TESTIMONY TO THE HOUSE COMMITTEE ON INTERNATIONAL J. TELLIS, RELATIONS SUBJECT: THE U.S.-INDIA
PART II,

GLOBAL

PARTNERSHIP: LEGISLATIVE OPTIONS (MAY, 2006).

SHOULD THE US SELL NUCLEAR TECHNOLOGY TO INDIA?

YALEGLOBAL ONLINE

(NOVEMBER 2005). DARYL G. KIMBALL, DANGEROUS DEAL WITH NEW DELHI, BALTIMORE SUN, MARCH 9, 2006. JOSEPH CIRINCIONE, NUCLEAR CAVE IN, PACNET, 2006.
NO.

8A, PACIFIC FORUM CSIS, MARCH 2,

24

U.S. D E

EPARTMENT OF

STATE, U.S. AND INDIA RELEASE TEXT OF 123 AGREEMENT,

AVAILABLE AT HTTP://WWW.STATE.GOV/R/PA/PRS/PS/2007/AUG/90050.HTM.

MBASSY

OF

INDIA,

INDIA

U.S.

JOINT

STATEMENT,

AVAILABLE

AT

HTTP://WWW.INDIANEMBASSY.ORG/PRESS_RELEASE/2005/JULY/21.HTM.

U I I

NITED

NATIONS,

WEAPONS

OF

MASS

DESTRUCTION,

AVAILABLE

AT

HTTP://DISARMAMENT.UN.ORG/WMD/.

NTERNATIONAL

ATOMIC ENERGY AGENCY. SEE INTERNATIONAL ATOMIC ENERGY AGENCY, ABOUT

THE IAEA, AVAILABLE AT HTTP://WWW.IAEA.ORG/ABOUT/INDEX.HTML.

NTERNATIONAL

ATOMIC ENERGY AGENCY, ADDITIONAL PROTOCOL TO NUCLEAR AGREEMENTS,

AVAILABLE AT

SAFEGUARDS

HTTP://WWW.IAEA.ORG/OURWORK/SV/SAFEGUARDS/SG_PROTOCOL.HTML.

NON-PROLIFERATION

OF NUCLEAR WEAPONS & NUCLEAR SECURITY PP.

IAEA SAFEGUARDS AGREEMENTS AND ADDITIONAL PROTOCOLS (MAY, 2005) AVAILABLE AT HTTP://WWW.IAEA.ORG/PUBLICATIONS/BOOKLETS/NUKE.PDF. THE WHITE HOUSE, PRESIDENTS VISIT TO INDIA AND PAKISTAN,
HTTP://WWW.WHITEHOUSE.GOV/INFOCUS/INDIA-PAKISTAN/

11-12

AVAILABLE AT

MISC. INTERNET SOURCES

E S

MBASSY OF INDIA, VISIT OF PRIME MINISTER DR.

MANMOHAN

SINGH TO THE UNITED STATES OF AT

AMERICA,

AVAILABLE

HTTP://WWW.INDIANEMBASSY.ORG/PRESS_RELEASE/2005/JULY/PM_2005.HTM.

ELECTED U.S.

NEWS

REPORTS DURING PRIME MINISTER DR.

MANMOHAN

SINGH'S VISIT TO U.S.,

AVAILABLE AT HTTP://WWW.INDIANEMBASSY.ORG/PRESS_RELEASE/2005/JULY/PRESS.HTM.

25

EDIFF.COM,

PMS

US

TOUR

OF

2005,

AVAILABLE

AT

HTTP://IN.REDIFF.COM/NEWS/PMUSTOUR05.HTM.

DAVID C. MULFORD, TWO GREAT DEMOCRACIES, THE WALL STREET JOURNAL (18TH JULY, 2005). U.S.-INDIA SUMMIT HAS HIGH STAKES, PITTSBURGH POST-GAZETTE (19TH JULY, 2005). BRUCE FEIN, EMBRACING INDIA, WASHINGTON TIMES (19TH JULY, 2005). BRYAN BENDER, US TO AID INDIA ON NUCLEAR POWER; PRIME MINISTER, BUSH HAIL NEW ERA OF COOPERATION, BOSTON GLOBE (19TH JULY, 2005). EDITORIAL: GETTING CLOSER TO INDIA, CHICAGO TRIBUNE (19TH JULY, 2005).