The Henry J. Hyde U.S.-India Peaceful Atomic Energy Cooperation Act of 2006, which establishes the terms for lifting the decades’ long U.S. embargo on civil nuclear cooperation with India, was passed by Congress and signed by President Bush in December 2006. [1] The Indian government gave the law a cautious welcome while opposition parties in India were strident in their criticism of the law’s requirements. Paradoxically, the official Pakistani reaction was relatively muted, even though Washington had previously rejected Islamabad’s request to have the U.S. embargo lifted on civilian nuclear trade with Pakistan as well.

Varied Reactions in India
In their response to the legislation, Indian government officials stressed the civilian energy benefits of the overall agreement and the fact that it would allow the two sides to proceed to negotiations on a formal bilateral nuclear trade agreement, under the terms of Section 123 of the U.S. Atomic Energy Act of 1954. [2] For New Delhi, two issues that could hamper the transition from the Hyde Act to the Section 123 agreement are possible U.S. restrictions on the separation of plutonium from U.S.-origin spent nuclear fuel (“reprocessing”) and the law’s provisions for terminating U.S. nuclear cooperation if India conducts a nuclear test.

India favors reprocessing, but the United States has generally sought to limit this activity. Shyam Saran, India’s special envoy for the nuclear agreement, stated that New Delhi hoped the issue could be worked out during the negotiations on the Section 123 agreement. [3] He also stated that India would not accept a legal ban on nuclear testing and that the government had committed only to a unilateral moratorium. [4] But unnamed Indian sources pointed out that even if the Section 123 agreement did not contain a legally binding ban on future Indian tests, the threat that U.S. cooperation would be terminated if New Delhi broke the moratorium amounted to a significant constraint on India’s prerogatives in this critical area. [5] Indeed, some Indian critics claimed that the goal of such provisions is to freeze India’s nuclear weapon capability at the 20-kiloton level, the scale of the Nagasaki bomb, and prevent India from producing higher-yield weapons. [6]

Several prominent Indian nuclear scientists have expressed deep concern over the testing issue and have also criticized the provision of the Hyde Act that prevents India from stockpiling U.S.-origin uranium fuel. [7] Such stockpiling would enable India to weather any future disruption in U.S. nuclear fuel supplies, such as one that might occur if India conducted a nuclear test. M.R. Srinivasan, the former chairman of the Indian Atomic Energy Commission, declared that the anti-stockpiling provisions of the Hyde Act contradict commitments made in the July 2005 and March 2006 agreements between Indian Prime Minister Manmohan Singh and President George W. Bush, assuring India reliable future fuel supplies. [8] Furthermore, Anil Kakodkar, head of the Department of Atomic Energy (DAE), stated that if the Hyde Act is implemented in its present form, it would be tantamount to “shifting of goalposts” from their original positions in the Singh-Bush undertakings. [9] In his view, sections of the legislation aim to cap India’s nuclear program through “a policy and philosophy of rollbacks.” [10] Nevertheless, some reports stated that the DAE has offered a cautious response because its civilian nuclear power generation target (8,000 megawatts by 2020) is crucially dependent on the success of the deal. [11]

India’s Communist parties have objected to the legislation, stating that its provisions do not offer full civilian nuclear cooperation and seek to bind India’s foreign policy to that of the United States. [12] They reference the clauses in the legislation calling on India to “fully and actively participate” with the United States in constraining Iran’s nuclear program. The opposition Hindu nationalist Bharatiya Janata Party (BJP) used the enactment of the legislation to criticize the overall U.S.-India deal, stating that it would not provide an assured fuel supply for India’s civilian reactors and would only increase Washington’s scrutiny of India’s nuclear weapons program. [13]

In order to quell domestic criticism, government officials (and other supporters of the legislation) have pointed out that several contentious provisions, including those calling for expanded Indian nonproliferation commitments and limiting the stockpiling of fresh nuclear fuel are, in fact, advisory, and not binding on the U.S. executive branch. [14] While several other political parties have expressed reservations about the legislation and its impact on bilateral relations, it is likely that their calculations have been influenced in part by domestic politics. It is likely that during the March 2007 assembly election in the important northern state of Uttar Pradesh, some parties are likely to use opposition to the India deal to appeal to voters with anti-American or intensely nationalistic leanings. [15]

Interestingly, the Indian military has backed the government on the negotiations. Its leadership has determined that the Hyde Act will not impede India’s strategic nuclear capability and that defining the contours of nuclear cooperation with Washington is a political decision to be made by the country’s civilian leaders. [16] For the military, the U.S. nuclear cooperation legislation is a signal of wide support
in Washington for a broader India-U.S. partnership that includes growing transfers of American advanced conventional military equipment. [17]

As might be expected, the Indian business community, which foresees a jump in trade ties with the United States, especially in high technology areas, has also supported the legislation. [18] Private companies such as Tata Power, Sterlite, and Reliance Energy are preparing to enter the nuclear power sector and have been awaiting approval to do so from the Indian government, as well as the conclusion of necessary external agreements, such as the India-U.S. Section 123 agreement. [19]

Pakistani Reactions
Pakistan marked the passage of the Hyde Act by testing the 300-kilometer-range Hatf III ballistic missile on December 9, 2006, the same day that the U.S. Congress took its final action on the law. [20] In general, though, Islamabad’s reaction has been muted. Pakistani Foreign Ministry spokesperson Tasnim Aslam, referring to the Indo-U.S. nuclear agreement, declared that, “Our position is very clear. We have our energy requirements and we should have access to nuclear technology to meet our energy requirements. That position remains unchanged.” [21]

Brigadier (retd.) Feroz Khan, now a visiting professor at the U.S. Naval Postgraduate School, in Monterey, California, speculated as to the reason for this matter-of-fact response. He stated that because the deal had already moved ahead, Islamabad considered it counter-productive to protest too strongly, fearing that this would renew focus on the nuclear smuggling activities of Pakistani nuclear scientist A.Q. Khan. Resistance might also create new U.S. pressures that could disrupt Pakistan’s efforts to advance its own nuclear weapons program. [22]

However, other commentators in Pakistan, such as former Foreign Secretary Tanvir Ahmad Khan, echoed the long-standing official view that the U.S.-India agreement is discriminatory and could spur an arms race in the Subcontinent. [23] They noted that the U.S. legislation endorsed India’s plan for separating its civilian from its military nuclear facilities, a plan under which eight Indian nuclear power installations would be outside the purview of International Atomic Energy Agency inspections and free to produce fissile material for up to 50 nuclear weapons a year. [24] Thus, the general view in Pakistan, in the words of one respected analyst, Talat Masood, was that the American legislation would “make Pakistan much less secure.” [25]

Although criticism in Pakistan has generally been low-key, commentators there have noted the intense criticism of the agreement by some Indians. The debate in India has led some Pakistani analysts to speculate that the nuclear deal might have significant negative consequences for New Delhi. [26] In particular, they have noted the opposition of some Indian analysts to the provisions regarding further Indian nuclear testing. [27]

Moreover, Tanvir Ahmad Khan has suggested that if, as a consequence of the Indo-U.S.
agreement, the 45-member Nuclear Suppliers Group (NSG) ends its own embargo on nuclear trade with India, this weakening of the NSG rules could eventually benefit Pakistan’s nuclear
program. [28] Such a change could make conditions more conducive for Pakistan to reach a similar nuclear arrangement, for example, with China.

Notably, the expected nuclear agreement between Pakistan and China, which was to be concluded during the November 2006 visit of Chinese President Hu Jintao to Islamabad was not, in fact, signed. [29] The reason for this, according to Brigadier Feroz Khan, was the desire to avoid creating the impression that such a deal was purely a reaction to the Indo-U.S. agreement. [30] In his view, Beijing will eventually fulfill all of Pakistan’s nuclear needs, but will wait for a more propitious time. [31] Khan also stressed that because of the U.S.-India deal, India will be able to meet its civilian nuclear fuel requirements from outside sources, allowing it to devote all of its currently limited domestic uranium resources to its strategic nuclear program. Thus the U.S. legislation, in signaling the progress of the U.S.-India deal, could spur Islamabad to increase its own fissile material stocks and enlarge its minimum deterrent. [32]

Conclusion
There is a palpable divide in India on the bilateral nuclear cooperation agreement, based on domestic political imperatives and doubts in the scientific community. New Delhi has stated that it will address these concerns in the Section 123 agreement negotiations, which will now become the focus of increased attention by observers throughout the Subcontinent.

Sharad Joshi – Monterey Institute Center for Nonproliferation Studies