Last year Condi whizzed down to New Delhi to prevent
India from finalizing technical and commercial contracts for a $4.5 billion
natural gas pipeline – the so-called "Peace Pipeline" – that would
transit Pakistan but provide Iranian natural gas mostly to India.
Iran proposed making India effectively a "partner" in the gas pipeline,
oil refining and other energy related projects to the tune of $40 billion.
Well, an Iranian-Pakistani-Indian Islamic law-friendly energy "partnership"
would never do. So, Condi proposed, as a mutually exclusive alternative, a U.S.-Indian
Nuclear Cooperation Agreement.
Of course, under the terms of the Atomic Energy Act, such an agreement required
Now, India – although a member of the International Atomic Energy Agency –
had never become a signatory to the Treaty
on Non-Proliferation of Nuclear Weapons.
So, when India tested a "nuclear explosive device" in 1974, Congress
passed the Nuclear Non-Proliferation Act, requiring any future recipient of
US nuclear exports to submit to "full scope" IAEA Safeguards. Nuclear
exports to any recipient state which subsequently detonated a "nuclear
explosive device" were to be terminated.
Furthermore, the US took the lead in establishing the Nuclear Suppliers Group,
a 40-plus member voluntary organization which includes the U.S., UK, Russia,
China and France.
NSG "Guidelines for
Nuclear Transfer" have long required the acceptance by the recipient state
– whether NPT signatory or not – of IAEA Safeguards on certain imported items.
But, as a consequence of what the IAEA found in Iraq in the aftermath of the
first Gulf War, the NSG soon promulgated "Guidelines for Transfers of Nuclear-Related
Dual-Use Equipment, Material and Related Technology."
Since then, if any new NSG transfers are required by NSG Guidelines
to be made subject to IAEA Safeguards, NSG guidelines now require all
existing nuclear equipment at all facilities in the country be made subject.
Russia built two IAEA Safeguarded 1000 MWe nuclear power plants at Koodankulam
and intended to build four more.
But, largely as a result of US pressure, the director of the Russian Federal
Atomic Energy Agency announced last year that Russia would be unable to construct
That is, unless India agreed to subject its entire nuclear program –
including its weapons program – to the full-scope IAEA Safeguards regime.
Of course, India is unwilling to do that.
And to make matters worse, in 1998 India had conducted a series of nuclear
So, that meant that the US-India deal Condi was proposing was not only contrary
to NSG guidelines, but was prohibited under US law.
In its closing hours, the 109th Congress passed the US-India
Peaceful Atomic Energy Cooperation Act [.pdf], which supplied conditional
Congressional exceptions to existing law.
Yes, if the President can make certain specific "determinations"
he may exempt the US-India Nuclear Cooperation Agreement from certain prohibitions
in the Atomic Energy Act. He must determine, inter alia, that
"The NSG has decided by consensus to permit supply to India of nuclear
items covered by the guidelines of the NSG"
The Act goes on to say it "shall" be US policy to
"Act in a manner fully consistent with the Guidelines for Nuclear Transfers
and the Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Materials,
Software and Related Technology developed by the NSG, and decisions related
to the those guidelines, and the rules and practices regarding NSG decisionmaking."
Well, that tears it.
Congress has made exemptions to US law effectively conditional on either India
accepting full-scope IAEA Safeguards on all its nuclear programs, or
the NSG drastically revising – virtually repealing – its existing guidelines.
Within hours of signing the US-India PAEC Act, King George issued a "signing
statement" in which he declared, inter alia
"Section 103 of the Act purports to establish U.S. policy with respect
to various international affairs matters. My approval of the Act does not constitute
my adoption of the statements of policy as U.S. foreign policy. Given the Constitution's
commitment to the presidency of the authority to conduct the Nation's foreign
affairs, the executive branch shall construe such policy statements as advisory.
"Also, if section 104(d)(2) of the Act were construed to prohibit the
executive branch from transferring or approving the transfer of an item to India
contrary to Nuclear Suppliers Group transfer guidelines that may be in effect
at the time of such future transfer, a serious question would exist as to whether
the provision unconstitutionally delegated legislative power to an international
Well, Congress is likely to be grateful for Bush’s concern about whether the
conditional exemption to existing law they have provided is "constitutional"
Of course, if the PAEC Act is unconstitutional, then the US-India Nuclear Cooperation
Agreement is illegal. A non-starter.
And even if Bush gets the NSG to essentially repeal its guidelines, the US-India
Nuclear Cooperation Agreement may still be a non-starter.
Well, for one thing, the US doesn’t have much nuclear to offer.
Last week Chinese Minister Ma Kai did sign a Memorandum of Understanding
with US Energy Secretary Samuel Bodman, under which certain US technology will
be provided to China.
China had earlier announced its decision to award Westinghouse Electric a multi-billion
dollar contract to build four AP 1000 nuclear power plants in China.
it chose Westinghouse partly because of "technology transfer and issues
of self-reliance and localization of technology."
Westinghouse has already transferred design and manufacturing capabilities
to France, Japan, and South Korea. In fact, Westinghouse technology transfers
have allowed South Korea to become self-reliant in the design and construction
of nuclear power plants, components and fuel.
But, until recently, Westinghouse Electric was owned by British Nuclear Fuels,
a Brit government-owned company. Toshiba bought Westinghouse from the Brits
earlier this year.
Toshiba? Japan? Then why did the Chinese find it necessary to sign an MOU with
Well, much of the technology incorporated in the AP-1000 was developed when
Westinghouse was US-owned. In particular, the "canned" reactor cooling
pumps were developed for our nuclear Navy.
Now, all that technology – and more – will be "transferred" to China.
Could Chinese "knock-off" AP-1000 plants – already capable of burning
Russian-supplied mixed-oxide (MOX) fuel – be transferred by China to Pakistan?
Or to India?
Well, only if China consents to the expected Bush-Rice request for virtual
repeal of the NSG Guidelines.