Foreign Relations Law - Nuclear Nonproliferation - Congress Authorizes the President to Waive Restrictions on Nuclear Exports to India

Harvard Law Review, May 2007 | Go to article overview

Foreign Relations Law - Nuclear Nonproliferation - Congress Authorizes the President to Waive Restrictions on Nuclear Exports to India


FOREIGN RELATIONS LAW--NUCLEAR NONPROLIFERATION--CONGRESS AUTHORIZES THE PRESIDENT TO WAIVE RESTRICTIONS ON NUCLEAR EXPORTS TO INDIA.--Henry J. Hyde United States--India Peaceful Atomic Energy Cooperation Act of 2006, Pub. L. No. 109-401, tit. I, 120 Stat. 2726 (to be codified at 22 U.S.C. [section][section] 2652c, 8001-8008, and 42 U.S.C. [section] 2153(d)).

Although preventing the further spread of nuclear weapons remains the principal concern of American nonproliferation policy, the United States must also confront the challenges posed by nations that have already developed nuclear weapons without the authorization of the Treaty on the Non-Proliferation of Nuclear Weapons (1) (NPT). Dealing with these de facto nuclear powers requires navigating a central tension: On one hand, deterring other states with nuclear ambitions calls for a hard-line policy of isolation and nonrecognition to discredit any notion that developing nuclear weapons is a ticket to world power status. On the other hand, the devastating threat posed by these weapons suggests the need for a policy of engagement to ensure that nations behave responsibly with their newly acquired arsenals. In resolving this tension, the United States has traditionally pursued the hard-line approach. Indeed, since India conducted its first nuclear test in 1974, (2) the United States has isolated it from the community of responsible nuclear states, refused to recognize it as a nuclear power, and denied it civil nuclear cooperation. (3) In a dramatic reversal, however, President George W. Bush signed into law the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (4) (USIPAECA), implicitly acknowledging India as a nuclear power and opening the door to civil nuclear cooperation between the two nations. Although the USIPAECA correctly perceives the deficiencies of the NPT regime, its criteria for nuclear cooperation fail to address the full range of threats posed by a world in which many countries develop nuclear weapons despite nonproliferation efforts.

The USIPAECA exempts India from certain provisions of the Atomic Energy Act of 1954 (5) (AEA) in order to facilitate the completion of a nuclear cooperation agreement conditionally reached by President Bush and Indian Prime Minister Manmohan Singh on March 2, 2006. (6) At the time of this deal, the AEA prohibited exports of "nuclear materials and equipment or sensitive nuclear technology" to India because it had conducted atomic tests and was operating a nuclear weapons program without being one of the five nuclear weapons states recognized by the NPT. (7) Accordingly, to allow nuclear cooperation to proceed, the USIPAECA authorizes the President to waive the AEA provisions barring nuclear exports (8) if he determines that India has provided a "credible plan to separate civil and military nuclear facilities" and identified these civil facilities to the International Atomic Energy Agency (IAEA); (9) placed civil nuclear facilities under IAEA safeguards; (10) made "substantial progress" toward an "Additional Protocol" (11) agreement with the IAEA; (12) cooperated with the United States in negotiating a multilateral treaty to stop the production of fissile materials for use in nuclear weapons; (13) supported American and international efforts to restrict the spread of enrichment and reprocessing technology; (14) strengthened export controls and adhered to international guidelines designed to secure nuclear materials and ballistic missile technology; (15) and obtained consensus permission from the Nuclear Suppliers Group (16) (NSG) to receive nuclear materials. (17)

Recognizing that creating such an exception for India might lead other nuclear powers outside the NPT to demand equal treatment, Congress outlined criteria in the USIPAECA that it expects such states (18) to meet before receiving consideration for a similar nuclear cooperation agreement. First, the country must have "demonstrated responsible behavior with respect to the nonproliferation of technology related to nuclear weapons and the means to deliver them. …

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