Friday, July 27, 2007

Rep. Markey to Bush: India Nuclear Deal Must Abide by Congress’ Conditions for Nuclear Cooperation

*The third guest post by Max Postman, intern-extraordinaire at the Center

On Wednesday, July 25, the agreement on U.S.-Indian nuclear cooperation formed last week in Washington was approved by the Indian cabinet. The controversial deal, which would allow U.S. transfers of nuclear material and technology to a country that has always remained outside the Nuclear Non-Proliferation Treaty and developed nuclear weapons, must now pass muster with the United States Congress. Congress made an exception to U.S. laws to allow cooperation with India through the Hyde Act of 2006, but congressional permission came with several caveats concerning nuclear fuel reprocessing, permanent safeguards, and termination of cooperation in the event of an Indian nuclear test.

The day after the deal’s approval by the Indian cabinet, Rep. Edward Markey (D-MA) and 22 other members of congress sent a letter to President Bush stating that congressional approval of the deal would be “put in doubt” if the agreement does not comply with the conditions for congressional approval laid out in the Hyde Act.

Though the text of the deal has not yet been made public, Undersecretary of State for Political Affairs Nicholas Burns insisted that the agreement reached is “well within the bounds of the Hyde act.” However, press reports that the deal makes no mention of nuclear testing and allows Indian reprocessing suggest that the deal reached may be contrary to the spirit, and possibly the letter, of the non-proliferation provisions of the legislation.

If Members of Congress who have warned of the dangers of the deal, such as Rep. Ed Markey, oppose the implementation agreement provisions, they will have to muster majority support in both houses to block the deal. After the text of the agreement is released publicly, it will be possible to consider the question of Hyde Act compliance in more detail. And consider we shall!

See the full text of Markey’s letter below:

July 25, 2007

The Honorable George W. Bush
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

As you continue negotiations with India over nuclear cooperation, we write to underscore the necessity of abiding by the legal boundaries set by Congress for any such cooperation.

As you know, an Agreement for Nuclear Cooperation between the United States and India must be fully consistent with the letter and the spirit of the Henry Hyde U.S.-India Peaceful Atomic Energy Cooperation Act of 2006, and the Atomic Energy Act (AEA) of 1954 as amended. The Hyde Act and the AEA set the minimal conditions for nuclear trade with India.

We understand from press reports that there are differences between U.S. and Indian negotiators on several key issues which were addressed by the Hyde Act; the negotiations are therefore defined in large part by the necessity to comply with U.S. law. Among the minimal conditions under U.S. law are:

  • No nuclear testing. Current law states that nuclear cooperation shall be terminated, and the U.S. would have the right to demand the return of all material, equipment, and technology, if India again tests a nuclear explosive.
  • Permanent, unconditional safeguards. Current law states that the International Atomic Energy Agency safeguards applied to declared Indian materials and facilities must be “in perpetuity in accordance with IAEA standards, principles, and practices.”
  • No fuel assurances if agreement is violated. Current law states that the United States should seek to prevent nuclear transfers to any country with which the U.S. has suspended nuclear cooperation. This would be triggered if India violates the Agreement for Nuclear Cooperation and the United States terminates cooperation, for instance if India tests a nuclear explosive.
  • Reprocessing and Enrichment Prohibitions. Current law prohibits the transfer of sensitive nuclear technology to India, including uranium enrichment, plutonium separation, and heavy water production-related equipment and technology except under certain narrow circumstances. Congress also preserved the requirement for U.S. prior consent for the reprocessing or enrichment of U.S. origin nuclear material. As you correctly stated on February 11, 2004: “Enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.”
  • Cooperation shall not assist weapons program. Current law states that no U.S. cooperation shall directly or indirectly assist India’s nuclear weapons program.

Article I. Section 8 of the United States Constitution provides the Congress with the sole authority to regulate foreign commerce. Through the AEA, the Congress has delegated the authority to negotiate international agreements concerning nuclear trade to the Executive, subject to certain restrictions. The Agreement for Nuclear Cooperation is subject to the approval of Congress, and any inconsistencies between the Agreement and the relevant US laws will call congressional approval deeply into doubt.

In addition, our concern over India’s ties to Iran have grown more acute with the formation this spring of a Joint Defense Working Group between the two countries. India’s deepening military-to-military relationship with Iran, even as Iran has continued to develop nuclear technology in defiance of repeated United Nations Security Council sanctions resolutions, places congressional approval of the Agreement for Nuclear Cooperation in jeopardy.


Edward J. Markey
Howard Berman
Brad Sherman
Ellen Tauscher
Dan Burton
Henry Waxman
Jane Harman
Jeff Fortenberry
Adam Schiff
Rick Larsen
James Langevin
Mark Udall
Barbara Lee
Michael Capuano
James McGovern
Rush Holt
Doris Matsui
Raul Grijalva
Peter Defazio
Chaka Fattah
Rosa DeLauro
Lynn Woolsey
Sam Farr


Anonymous said...

If I'm not mistaken, ElBaradei has come out in favor of the U.S. agreement with India, which I found surprising given its potential to undermine the NPT Treaty. He believes it may instead draw India into the fold. I am guessing it is the missing elements of the Hyde Act which are essential for maintaining this posture?

In the later vlog, Leonor discusses that the NPT states will have to agree to an exception for India. How good are the chances of that given the position of most non-nuclear states?

Anonymous said...

This post aims to get a handle on:

1. India’s uranium and plutonium tradeoffs

2. the lack of influence of future Australian Uranium sales over India’s nuclear weapon stocks and

3. the problems an Australia-India nuclear deal will cause any future Australian Labor Party (Rudd) government.

Most of the information here is based on comments provided (or websites located) by an esteemed (yet modest) nuclear and missile expert "Anonymous". I have to admit that I know less about nuclear power or weapon physics than other areas so if Anonymous or others want to suggest any corrections I'd be happy to consider them.

Australia on Tuesday July, 31 2007 promised to support the Indo-US civil nuclear deal in the Nuclear Suppliers Group (NSG) and indicated its readiness to supply uranium to India.

This was conveyed by Australian Foreign Minister Downer to Indian External Affairs Minister Pranab Mukherjee during a meeting in Manila when the recently-concluded Indo-US civil nuclear deal came up for discussion among other issues.

Previously, Canberra had reservations on supplying uranium to India as India is not a signatory to the nuclear Non-Proliferation Treaty.

The 45-nation NSG is required to modify by consensus its guidelines to allow the international community to have civil nuclear trade with India.

Australia, known to have the one of largest reserves of uranium, said it would extend cooperation by supplying the nuclear fuel as and when India finalises safeguards agreement with International Atomic Energy Agency.

Downer told Mukherjee that the Australian Cabinet will meet soon to take a decision on exporting uranium to India.

Downer separately told Australian journalists that the two leaders discussed the Indo-US civil nuclear deal and he congratulated New Delhi on the agreement.

"I said with this agreement now having been initiated, of course, it has ratification processes to go through, that we will begin to look at this whole question of exporting uranium to India," Downer was quoted as saying by the Australian media.

1. and 2. Weapons over Nuclear Power Generation

Problem - If Australia did not sell Uranium to India, would this limit the existing Indian weapons nuclear program or, at least, influence India's weapons decisions?

Arun Sharma et al have done an analysis of Indian Uranium mining.

Sharma advises:

1. Indian strategic nuclear weapons use approximately 3 Kg Plutonium.

2. India has large un-safeguarded Plutonium stockpile (conservatively estimated to between 3,000 Kg and 6,000Kg), a fraction of that will suffice to make hundreds of nuclear weapons if India choose to exercise the option.

3. Indian pressurised heavy water reactor (PHWR) reactors that are outside IAEA safeguard [and have received sufficient Uranium to convert into?] about 2,400Kg weapon grade Plutonium - enough for 800 strategic nuclear weapons.

4. Current Indian reserves of Uranium are estimated between 77,500 – 94,000 tonnes, enough to support 12,000 MWe power generation for 50 years.

5. Current Indian PHWR reactors that are outside IAEA safeguard annually require 116 tonnes of natural-uranium when operated in a mode optimized for power generation. When operated in a mode optimized to generate weapon-grade Plutonium they require just 747 tonnes of natural-uranium annually, in the process they generate 745 Kg weapon grade Plutonium, which is enough for 248 nuclear weapons per year.

From the figures above one can clearly see that there is no merit in the argument that supplies of Uranium from Australia, Canada or even the US and Russia will be of any consequence to Indian nuclear weapons programs.

It seems India has mined much more Uranium [in India at a rate higher than consumption for power production] in its 20 power reactors or in its two (weapons grade) plutonium production reactors.

If there was ever a desire to restrict the amount of Uranium used in the weapon’s program to service power needs this is being further offset by (at least) two influences:

Supercritical centrifuges for Uranium enrichment - Albright et al have discovered that India is now producing carbon fiber supercritical centrifuges for Uranium enrichment. It may already have the capacity to make all the weapons grade Uranium it needs. Thus regardless of Canadian or Australian Uranium sales, the Indian weapons production will be unconstrained.

Prototype Fast Breeder Reactor (BFBR) - According to Glaser about 150 kg of weapons grade Plutonium will be generated annually in the blankets of the Indian prototype Fast Breeder Reactor. Assuming 5 kg per pit (machining losses etc).

That is 30 bombs per year in addition to existing capacity (from Dhruva and 8 CANDU units - CIRUS reactor is to be shut down to placate Canada)

The Tellis report (Atoms for War, Carnegie Endowment, 2006) is particularly interesting (but long). He estimates
- 45kg of weapons grade Plutonium per each of the eight unsafeguarded 220 MWe CANDU reactors if 1/4 core load is used for low burnup.

Based on this Anonymous has made the following estimates:

- assuming India used just 1/8 core loads (less effect on power production) the 8 CANDU reactors would produce 180 kg of weapons grade Pu per year. The power losses could be made up with two thermal (coal fired) power plants.

- add 30 kg from Dhruva,

- and the 150 kg from the PFBR, then:

India can produce a total of 360 kg of Plutonium per year (enough for 72 pits assuming 5 kg required including milling losses). The Indian Department of Atomic Energy (DAE) wants to replace CIRRUS with a bigger version of Dhruva so additional Pu would be available.

Based on the figues Anonymous estimates that India will have the capacity for 72 thermonuclear devices (hydrogen bombs) a year, using just a fraction of India's indigenous Uranium ore (this means no foreign Uranium directly used).

3. Agreement With India Will Create Problems for Rudd

Nuclear issues always cause problems for the Australian Labor Party (ALP) led by Kevin Rudd)) mentioned previously in an earlier post on the possibility of Australian Uranium Enrichment.

If Australia were to export Uranium to India it will need to negotiate a nuclear safeguard agreement to govern the uses to which Australian uranium can be put.

If the Howard Government proceeds along these lines before the election it will create some difficulties for Kevin Rudd and the ALP. If Rudd maintains ALP opposition to uranium sales to India he will face political trouble from pro-Indian Australians and from the mining industry. But if Rudd is elected with the anti-uranium policy intact and he pursues the policy in government, he will have to repudiate an agreement, at least in principle, to supply India with uranium.

Moreover, if the US-India nuclear deal is ratified by both nations' parliaments, it will inevitably win broad international acceptance. A Rudd Labor government would thus be left in the ludicrous position of defending ground that everyone else has long since abandoned.

Further Comment

If Sharma's figures are correct, India has far more weapons grade Plutonium than has been previously estimated, more than it would (ever need even if India seeks nuclear parity with its large enemy - China).

Several Indian reactors are now operating at low capacity due to a shortage of uranium (it will take a few years for the new Uranium mines to begin production) yet India's weapons programs has not visibly been effected. So it seems India is prepared to divert much of its uranium for weapons uses at the expense of civilian nuclear power uses.

So if there were any overall shortage of Uranium India would choose to burn its high sulphur coal for power in preference to limiting Uranium available for weapons.

Hence any denial of Australian Uranium may simply increase greenhouse gas emissions in India. In any case India always has alternate sources of Uranium (even if at higher prices) including the US, Canada and Russia.

I think that if a (centre-right leaning) Rudd Labor Government came to power (the election may be in November 2007 or before) the interests of Uranium mining companies and mine workers would prevail. Rudd would maintain a Uranium sales to India agreement . But Rudd may well renegotiate for strengthened safeguards (some effect but not onerous) clauses to placate Australian environmental and anti-proliferation concerns.