Nuclear Cooperation with India: A Further Threat to Nuclear Nonproliferation

Tasneem Jamal

Ernie Regehr

The Ploughshares Monitor Autumn 2005 Volume 26 Issue 3

The international community has overwhelmingly rejected trade in nuclear materials and technology with India ever since the latter conducted a series of nuclear test explosions in 1998. That position of fundamental principle is now under threat, not because of any agreed multilateral change in nonproliferation strategy but because the Bush Administration in Washington has unilaterally decided to ignore established nonproliferation guidelines. As well, Canada’s recently announced shift in its approach toward India, while still in compliance with international regulations, could signal a weakening of resolve even among nonproliferation hardliners.

Until now the international community has been unwavering in its insistence that the three states still outside the Nuclear Non-Proliferation Treaty (NPT) – India, Israel, and Pakistan – must join the NPT as non-nuclear weapon states. As recently as 2000, Canada and the United States, together with all other States Parties to the Nuclear Non-Proliferation Treaty, “call[ed] upon those remaining States not party to the Treaty to accede to it, thereby accepting an international legally binding commitment not to acquire nuclear weapons or nuclear explosive devices and to accept IAEA [International Atomic Energy Agency] safeguards on all their nuclear activities.” The 2000 NPT Review Conference explicitly declared that the nuclear tests by India and Pakistan “do not in any way confer a nuclear-weapon-State status” on them (NPT RevCon 2000).

The central point of the NPT, which came into force in 1970, is to limit the officially recognized nuclear weapons club to its pre-NPT membership: US, Russia, UK, France, and China. The Treaty codifies an international norm that holds that all other states are to remain non-nuclear weapon states and are prohibited from acquiring nuclear weapons. Furthermore, their access to civilian nuclear technology is made contingent, by the Treaty, on their verifiably honouring that prohibition. In return the five nuclear weapon states promise to eliminate their nuclear arsenals – eventually.

President Bush, when announcing the American intention to move to “full civil nuclear energy cooperation and trade with India,” said, through a State Department “fact sheet,” that India “should receive the benefits and accept all the responsibilities of the world’s leading states with advanced nuclear technology” (US Dept. of State 2005) – the final phrase being a euphemism for “nuclear weapon” state. This move toward accepting India as a de facto nuclear weapon state is emblematic of the Bush Administration’s policy of selective non-proliferation – rather than insisting on the NPT’s universal prohibition on the acquisition of nuclear weapons, the US is committed to actively opposing only the nuclear weapons aspirations of regimes of which it disapproves. Washington’s cooperation with India’s civilian nuclear programs on the same terms as apply to officially acknowledged nuclear weapon states is a unilateral re-definition of the nuclear weapons club, without any consultation with the international community to ensure a rational and cooperative approach to nonproliferation.

Canada knows something about the risks of civilian nuclear cooperation with India, which ended in a nuclear explosion in 1974. While India called it a “peaceful” nuclear explosion, everyone else recognized it as a weapons test, which led Canada to cut all nuclear links with India and to adopt a policy that ties any resumption of nuclear cooperation to India’s dismantling of its nuclear weapons program. Although Canada’s recent announcement certainly does not follow the American 180-degree about-turn toward full civilian nuclear cooperation with India, Ottawa has nevertheless taken a road that could weaken global nonproliferation standards and resolve. Despite India’s acquisition of nuclear weapons, its refusal to join the Non-Proliferation Treaty, its refusal to sign and ratify the Comprehensive Nuclear Test Ban Treaty, and its refusal to join the global moratorium on the production of fissile material for weapons purposes, Canada now “welcomed India’s support of international nuclear non-proliferation norms” (Foreign Affairs Canada 2005).

That is hardly the kind of support nuclear nonproliferation needs just now; and the softening of attitudes towards India’s nuclear policies and programs is valued by India, not so much as a benefit to its civilian nuclear power program but as a validation of its nuclear weapons program. The Indian Express newspaper called the US-India agreement of last August “a road map for India’s integration with the global nuclear order as a full fledged nuclear weapon state” (Mohan 2005). Unlike the United States, the Canadian announcement does not include an intention to trade in nuclear materials and technology, but even minimal collaboration and cooperation supports what India wants most – political acceptance as a de facto nuclear weapon state.

Canada’s policy prohibiting the export to India of materials and technology designed specifically for civilian nuclear use remains unchanged. “Before Canada will consider entering into nuclear cooperation with any non-nuclear-weapons state, i.e. any country other than the U.S.A., the U.K., France, Russia and China, that state must,” according to current policy (Foreign Affairs Canada 2004), “a) make a legally binding commitment to nuclear non-proliferation by becoming a Party to the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT), or an equivalent, internationally legally binding agreement; and b) thereby accept full scope safeguards by the International Atomic Energy Agency on all of its current and future nuclear activities.”

That policy is in fact mandated by Article III of the NPT and prohibits exports of nuclear materials to “any non-nuclear weapon State for peaceful purposes,” unless that material is subject to NPT-mandated safeguards administered by the IAEA, and unless the recipient state has made a legal commitment not to acquire nuclear weapons. In 1995 and 2000 NPT States Parties all agreed that this safeguard requirement meant “full-scope safeguards,” in which all of a country’s nuclear facilities are subject to inspections to verify that none aid the pursuit of nuclear weapons. India has agreed to IAEA safeguards for its civilian nuclear programs, but there is no clarity on which facilities India will define as military and thus exclude from safeguard arrangements. India could meet the full-scope safeguard test only by eliminating its military nuclear programs and accepting non-nuclear weapon state status, thereby bringing all its nuclear facilities under safeguards.

So, even though Canada has announced new areas of nuclear cooperation with India (Foreign Affairs Canada 2005), the new policy does not affect the prohibition on exports of uranium and other nuclear material, including CANDU reactors or other nuclear equipment or technology, and heavy water. These materials fit into the Nuclear Suppliers Group (NSG) category of “items that are especially designed or prepared for nuclear use,” which includes: “(i) nuclear material; (ii) nuclear reactors and equipment therefor; (iii) non-nuclear material for reactors; (iv) plant and equipment for the reprocessing, enrichment and conversion of nuclear material and for fuel fabrication and heavy water production; and (v) technology associated with each of the above items.”

The main change in Canadian policy deals with the transfer of a second category of materials, described by the NSG guidelines as dual-use items and technology “that can make a major contribution to an unsafeguarded nuclear fuel cycle or nuclear explosive activity, but which have non-nuclear uses as well, for example in industry.” Such dual-use items include a variety of industrial commodities that are not nuclear items in that they are not specially designed or prepared for nuclear use, but can be used in nuclear facilities.

Canada now indicates a willingness to supply India with such items for use in Indian civilian nuclear facilities that are under IAEA safeguards, “in accordance with the requirements of the Nuclear Suppliers Group’s dual-use guidelines” (Foreign Affairs Canada 2005). These extensive guidelines obligate the supplier to get credible assurances that the materials will not be diverted for use in any nuclear explosive activity or in any unsafeguarded nuclear fuel-cycle activity, but the supply of dual-use items to India under those circumstances does not violate existing international standards. Officials point out that the detailed arrangements that would permit dual-use items to be transferred to India still need to be negotiated.

But this change arguably puts Canada in violation of at least the spirit of its obligations under the NPT. The term “nuclear cooperation” in the Canadian policy statement could arguably exclude the “supply of nuclear-related dual-use items” if those items are supplied for use in Indian industry not linked to its nuclear facilities, but the Canadian policy announcement specifically says that Canada is prepared to supply dual-use materials for use in “Indian civilian nuclear facilities.” In other words, the new policy does allow nuclear cooperation in the absence of full-scope safeguards or a legally binding commitment from the recipient not to acquire nuclear weapons. Under the new Canadian policy, full-scope safeguards are now a prerequisite only for “nuclear transfers” as defined by the NSG guidelines. In the case of “nuclear-related dual-use” items as defined by the NSG guidelines, the only Canadian requirement now is that the facility for which it is supplied is under safeguards.

This new policy is not technically at odds with the Treaty or the 1995 and 2000 decisions. The 1995 and 2000 decisions refer specifically to nuclear materials and equipment “especially designed for” nuclear use. In 2000 States parties undertook “not to cooperate or give assistance in the nuclear or nuclear-related [dual-use] field to States not party to the Treaty in a manner which assists them to manufacture nuclear weapons or other nuclear explosive devices” (para 34). And, given that the Canadian policy confirms that the supply of such dual-use items is permitted only to civilian nuclear facilities under IAEA safeguards (and thus are subject to IAEA verification that they do not assist nuclear weapons programs), this policy change is in conformity with NSG guidelines as well as the 1995 and 2000 NPT Review Conference decisions.

So, the good news is that Canada has not followed the American lead to explicitly violate agreed global laws and principles regarding the transfer of nuclear materials. The bad news, however, is that Canada has joined the United States and others in sending a signal to India that the demand that India become a non-nuclear weapon state signatory to the NPT is weakening. If Canada, a nonproliferation leader, now strays from the fundamental principle that any civilian nuclear cooperation must be contingent on the unequivocal and verifiable rejection of all efforts to acquire nuclear weapons, then the prospects that the rest of the world will honour such a condition grows increasingly bleak.

Among the other announced changes is agreement by India to Canada’s ongoing effort to collaborate on safety measures. In addition, Canadian policy now permits scientific and technical contacts on civilian nuclear issues that are “within the public domain” and encourages further exploration of new peaceful uses for nuclear energy, “consistent with their international commitments.” It is hard to see what the concrete implications of these changes might be, but a clear political implication of the way in which the policy announcement was made – that is, without any clear statement that the changes are consistent with all international nonproliferation standards and that Canada will continue to hold India to its obligation to forego nuclear weapons and join the NPT as a non-nuclear weapon state – could be a loss of public resolve in the pursuit of universal adherence to the NPT.

The international community faces a genuine dilemma regarding India. A major economic, industrial, military, and democratic power, India can do much to contribute to or frustrate global nonproliferation efforts. Therefore, the question is: how can India be mobilized in support of nuclear nonproliferation – including strict adherence to international restrictions on the transfer of nuclear materials – without explicitly or even implicitly accepting India as a nuclear weapon state, and thus ignoring its own egregious violation of nonproliferation norms? The least that must be expected is that changes in policy toward India be made within a multilateral context and in strict compliance with global standards.

The US policy shift is blatant in its violation of both multilateralism and global nonproliferation norms and in turning a blind eye to India’s violation of nonproliferation norms. Canadians need to be especially attentive to the need to ensure that the announced Canadian policy changes toward India are not a prelude to American-style reneging on international standards.

The US-India Civilian Nuclear Cooperation would specifically violate the 1995 and 2000 decisions that prohibit the transfer of nuclear materials if full-scope safeguards are not in place. For the agreement to be implemented, key US nonproliferation and energy laws will have to be amended. The US Nuclear Non-Proliferation Act of 1978, enacted largely in response to India’s 1974 detonation of a nuclear device, prohibits transfers of nuclear materials to a non-nuclear weapon state that detonates a nuclear device. The Atomic Energy Act and related Department of Energy regulations currently make authorization of the export of nuclear materials and technology conditional on the recipient country’s being a party to the NPT and subject to full-scope IAEA safeguards.

Washington appears ready to ignore India’s ongoing non-compliance with UN Security Council Resolution 1172 that “[c]alls upon India and Pakistan immediately to stop their nuclear weapon development programmes,” and “to cease development of ballistic missiles capable of delivering nuclear weapons.” India has agreed to support negotiations toward a multilateral Fissile Material Cut-Off Treaty (FMCT), but already in 1998 Resolution 1172 called on India to “cease any further production of fissile material for nuclear weapons.” The five official nuclear weapon states have agreed to a moratorium on such production until such time as an FMCT is agreed, but India has made no such pledge and remains in direct violation of the Security Council Resolution.

The best that can be said about Washington’s plans for nuclear cooperation with India is that they will face a fight in Congress – and should certainly meet opposition in the international disarmament community – and may never be implemented. On the same day that the US-India deal was announced, the House Energy Conference Committee passed with bi-partisan support a resolution opposing the export of nuclear technology to countries not party to the NPT and that have detonated a nuclear device. The same measure was defeated in the counterpart committee in the Senate, but Democratic Representative Ed Markey (2005), author of the measure, in opposing the exports said, “We are playing with fire by picking and choosing when to pay attention to the existing non-proliferation treaties.”

In a lengthy review of the issue, the Asia Times (Sen 2005) also predicted a “battle” on Capitol Hill and concluded that nuclear cooperation with India, which “has eschewed non-proliferation constraints and tested nuclear weapons,” sends a “hypocritical message” to countries that try to play by the nonproliferation rules. It endorses the Markey concern that, just when Russia and China have agreed to adhere to the Nuclear Suppliers Group rules, the United States is going to ignore them. “What will Russia say when they want to supply more nuclear materials or technology to Iran? You can be sure that Pakistan will demand equal treatment.”

It is this “picking and choosing” policy of selective non-proliferation – a strategy that worries less about the spread of nuclear weapons than about who gets them – that is spawning the most serious threat of horizontal nuclear proliferation that the world has faced in several decades. States on good terms with the US, and strategically important to Washington, can seemingly pursue nuclear weapon capabilities with impunity. Others on less favourable terms face a variety of challenges, including threats of regime change. But who will respect the double standard?

Canada’s obligation is to insist on the global standard: civilian nuclear cooperation must be contingent on the unequivocal and verifiable rejection of all efforts to acquire nuclear weapons.

Foreign Affairs Canada 2004, Bilateral Nuclear Cooperation and Canadian Nuclear Non-Proliferation Policy.

Foreign Affairs Canada 2005, “Canada Announces New Areas of Cooperation with India,” September 26, Foreign Affairs Canada News Release No. 171.

Markey, E. 2005, “House Energy Conference Committee questions logic of new India nuke strategy,” News from Ed Markey, July 19.

Mohan, C. 2005, “Singh, Bush press civilian nuclear button,” The Indian Express, July 19.

NPT RevCon 2000, 2000 Review Conference of the Parties of the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, New York, NPT/Conf.2000.28.

Nuclear Suppliers Group, introduction to INFCIRC/254, Part 1 and Part 2.

Sen, A. 2005, “Nuclear battle lines drawn,” Asia Times, August 12.

US Department of State 2005, “U.S.-India Civilian Nuclear Cooperation,” Fact Sheet, July 22.

Spread the Word