Max Postman: Indian Ambassador Describes Bush Plan to Dodge Legal Restrictions on Nuclear Transfers to India

*Yet another insightful guest post by Max Postman, intern-extraordinaire at the Center

Last week, the United States and India reached an agreement on implementing civil nuclear cooperation. One of the sticking points that had delayed a final agreement, however, was the issue of Indian nuclear testing.

According to the Hyde Act, nuclear cooperation with India ceases to be legal if India tests a nuclear weapon. Section 106 of the Act explicitly states, “A determination and any waiver under section 104 [which allows for U.S. nuclear cooperation with India] shall cease to be effective if the President determines that India has detonated a nuclear explosive device after the date of the enactment of this title.”

India, however, is strongly averse to signing any agreement that may limit their freedom of action vis-à-vis nuclear weapons.

And so it finally became clear this week how the testing issue was resolved: Indian Ambassador to the U.S. Ronen Sen revealed that the White House has explicitly assured India that, in the event of a nuclear test, the President will circumvent the Hyde Act by enlisting other countries to ship fuel to India.

Sen told The Tribune that India has been given "clear-cut assurances on fuel supplies [in the event of a nuclear test]…Asked if the U.S. had committed to working with its other allies to ensure a continued fuel supply to India if the U.S. cuts off its own supply, Sen said, "That is very clear.”

This would amount to an “extraordinary rendition” of nuclear fuel. An Indian nuclear test is unlikely, but if it does occur, it will almost certainly be under a new administration. The Bush administration—and now India—apparently expect a future president to moot American law on nuclear transfers in the same way the Bush administration stymied laws against torturing detainees: By enlisting another country to do what the law prevents them from doing directly.

This news also serves to illustrate the flimsiness of the Indian “moratorium” on nuclear testing. India has not signed the Comprehensive Test Ban Treaty, but the government cites the moratorium as mitigating the consequences of their remaining outside the treaty. However, Indian insistence that fuel shipments not be interrupted by a hypothetical nuclear test, and U.S. willingness to provide this assurance, indicates that both parties are assuming that the moratorium will be terminated, not maintained, in the future. This underscores the wide gap that exists between binding legal commitments under the Comprehensive Test Ban Treaty and the vague, non-binding moratoriums assumed by states like India.