14 Points

First, the agreement would exempt India from U.S. nonproliferation laws, which prohibit U.S. nuclear trade and cooperation with countries who have not signed the Non Proliferation Treaty (NPT). Without having text on the criteria justifying India’s exemption, the agreement promotes a policy that permits U.S. nuclear trade with only those it needs for security cooperation. Consequently, the existing agreement makes it difficult to negotiate with other nuclear ambitious countries. Those desiring nuclear programs would likely challenge the U.S. for not providing the basis for allowing India’s nuclear proliferation.

In testimonies to Congress last year, proponents of the deal offered some criteria supporting India’s preferential treatment. Secretary of State, Condoleezza Rice testified that India is the only country today that has a sophisticated nuclear program and recently displayed “responsible nuclear behavior” to justify nuclear cooperation. Ashley Tellis, a leading scholar of U.S.-India relations at the Carnegie Endowment, also claimed that India is one of the only non-NPT states that has “proven mastery over various nuclear fuel cycles, has an exceptional nonproliferation record, energy needs that cannot be satisfied without nuclear fuel, and can mitigate its damages to climate change and environmental degradation with this deal.”

These arguments distinguishing India’s “good behavior,” however, are not sufficient to justify India’s exemption. They are missing the crucial element of guaranteeing that India will comply with nonproliferation standards. Without having such criteria for U.S.-India nuclear trade, the U.S. weakens its bargaining power to negotiate with other nuclear ambitious countries against their nuclear proliferation activities. For example, Iran sees the U.S. promoting a hypocritical policy where it exclusively chooses which countries can access U.S. nuclear trade. Iran might use this argument against the U.S.’ efforts to condemn Iran’s nuclear proliferation activities. Iran has not yet raised the agreement’s “double standard” as its main motivation for accelerating nuclear capabilities. However, its eagerness to advance its nuclear program might motivate it to use the deal’s “double standard” problem to strengthen its bargaining.

India’s exemption could also open a floodgate for other non-NPT states, such as Israel and Pakistan, to demand civil nuclear trade agreements with the U.S. As a consequence of expanded unsafeguarded nuclear technology, these agreements could increase the risks of weaponry falling into the hands of non-deterable actors such as Al Qaeda or other non-state groups, who have been immune to conventional deterrence strategies.

In the long run, India’s exemption promotes the risk that Pakistan and Israel will pursue their nuclear desires with other nuclear supplier countries, such as China and Russia. Fearing U.S and India’s stronger strategic relationship through nuclear cooperation might intensify Pakistan and Israel’s desire to build up their nuclear programs. Therefore, they would engage in nuclear trade with China to gain more bargaining power and enhance their own strategic advantages.

Another flaw of the current nuclear arrangement is that it undermines the authority of the Nonproliferation Treaty (NPT). Under this agreement, the U.S. violates NPT rules not to, in the treaties words, “assist, encourage, or induce any non nuclear weapon states to manufacture or acquire nuclear weapons.” These violations pose a severe backlash on the nonproliferation regime since other nuclear supplier states, particularly China and Russia, are already following the U.S. in bending NPT rules for similar strategic interests.

China and Russia started engaging in “reckless transfers of nuclear technology to their own preferred partners,” according to Ashley Tellis of the Carnegie Endowment. Last year, when Russia could not send India nuclear fuel because of Nuclear Supplier Group (NSG) obligations, it still went ahead and sent a large fuel shipment to those reactors, justifying that it was permitted to send fuel to India under the NSG’s “safety exception.” Similarly, China and Pakistan have been discussing trade of reactor sales, suggesting that China may forgo NPT and NSG guidelines for nuclear cooperation. The U.S.’ illegal activities in the existing agreement could prompt China and Russia to continue its illegal NPT activities, and result in catastrophic damages to the nonproliferation regime. Non-NPT countries could gain access to nuclear materials without International Atomic Energy Agency (IAEA) safeguards and exacerbate the risk of non-state actors acquiring nuclear technology for nuclear proliferation.

Among the drawbacks of the current agreement, the greatest danger is the deal’s lack of safeguards to prevent India from using fissile material from U.S. exports. The risk of India using excess fissile material for nuclear weapons would undermine decades of U.S policy efforts to prevent U.S. assistance in spreading proliferation.

Proponents of the deal, such as Ashton Carter, argue that India desires to only maintain fissile material production to keep a “minimal deterrent” for security in the region. Immediately ending fissile material production would leave India vulnerable to a future attack from other regional nuclear states, such as Pakistan and China because it needs fissile material to protect its borders. In her 2006 Congressional testimony, Secretary Rice agreed with dismissing the ban on fissile material production because India’s concerns with a rising China and insurgent crisis in neighboring Pakistan would never have led India to sign an agreement with this ban.

Emphasizing India’s security concerns does not justify ignoring the ban on India’s fissile material production. Those concerns do not require nuclear solutions. Instead, the deal causes the irreversible damage of allowing India to proliferate whenever it feels threatened by its neighbors. Unnecessarily, the U.S. would be increasing the risk of proliferation in the world when it is in the national security interest to eliminate nuclear weapons from existence.

While the existing agreement poses serious proliferation problems, the deal can be improved to mitigate the challenges to nonproliferation standards. First, the deal must establish criteria for India’s exemption from U.S. nuclear trade laws. By setting high nonproliferation standards and requirements which only India has fulfilled, the U.S. would be able to reduce the risk of other non-NPT states from demanding nuclear cooperation, where it is not yet merited.

Second, the U.S. and India can participate in a nuclear fuel supply bank facilitated by the IAEA. India would only be able to access U.S. nuclear exports as long as it upholds international standards and nonproliferation commitments. Using the nuclear fuel bank to facilitate nuclear trade between India and U.S. would provide the necessary safeguards against India misusing nuclear exports for nuclear weapons production. Other non-NPT states and NPT states would feel less threatened that the deal would alter their regional security situation because the nuclear fuel bank provides a mechanism for countries to watch over one another’ s nuclear activities. Nevertheless, this proposals still has loopholes to resolve, including setting up competitive prices, establishing who has authority over regulatory decisions, and ensuring that political disputes between participating developed and developing countries do not interfere in the distribution of nuclear supplies. A more elaborate discussion of this proposal can be found in Arms Control Today’s “The Growing Nuclear Fuel-Cycle Debate” by Oliver Meir.

Last, the agreement must include concrete nonproliferation commitments by India in order to bind India to international standards. These commitments should include providing public assurances that it will not test nuclear weapons, will not export nuclear technologies or equipment to non-nuclear states, and will not engage in illicit nuclear trafficking.

These steps to implement the modified deal would allow the U.S.-India nuclear civil cooperation agreement to become worth pursuing for both U.S. national security interests in South Asia and for promoting U.S. nonproliferation goals in the long term. The exchange for nuclear cooperation with India would no longer be an egregious tradeoff against U.S. traditional nonproliferation commitments and “illusory” U.S.-India strategic commitments. Rather, the agreement would stand as an exemplary case of reconciling competing U.S. national security imperatives of promoting regional security interests and broader nonproliferation goals. The U.S. would be able to ensure its desire for a lasting security relationship with India while also laying the ground for improving its global commitments to promoting safe civil nuclear trade and nonproliferation of nuclear weapons.

Sandya Das is in her second year of the MPA program at the Woodrow Wilson School