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December 23, 2006

Condi's Diplomatic Triumph


by Gordon Prather

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 Congressional approval.

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 them.

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 weapons tests.

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.

Conditional?

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 body."

Well, Congress is likely to be grateful for Bush’s concern about whether the conditional exemption to existing law they have provided is "constitutional" or not.

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.

Why?

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.

China said 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 our DOE?

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.


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Physicist James Gordon Prather has served as a policy implementing official for national security-related technical matters in the Federal Energy Agency, the Energy Research and Development Administration, the Department of Energy, the Office of the Secretary of Defense and the Department of the Army. Dr. Prather also served as legislative assistant for national security affairs to U.S. Sen. Henry Bellmon, R-Okla. -- ranking member of the Senate Budget Committee and member of the Senate Energy Committee and Appropriations Committee. Dr. Prather had earlier worked as a nuclear weapons physicist at Lawrence Livermore National Laboratory in California and Sandia National Laboratory in New Mexico.

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