Norm Change and Contestation in the Nuclear Non-Proliferation Regime: the India-US Nuclear Deal

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2017 Norm Change and Contestation in the Nuclear Non-Proliferation Regime: The India-US Nuclear Deal

Bano, Saira

Bano, S. (2017). Norm Change and Contestation in the Nuclear Non-Proliferation Regime: The India-US Nuclear Deal (Unpublished doctoral thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/27127 http://hdl.handle.net/11023/3896 doctoral thesis

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Norm Change and Contestation in the Nuclear Non-Proliferation Regime: The India-US Nuclear Deal

Saira Bano

A THESIS

SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE OF DOCTOR OF PHILOSOPHY

GRADUATE PROGRAM IN MILITARY AND STRATEGIC STUDIES

CALGARY, ALBERTA

JUNE, 2017

A major dilemma for the non-proliferation regime is to engage non-NPT (Non- Proliferation Treaty) states (India, Pakistan, Israel, and North Korea) more effectively in the broader nuclear non-proliferation regime without weakening or discrediting the NPT. The Indo- U.S. Civilian Nuclear Agreement claims to bring India, as a “responsible” nuclear state, closer to the nuclear non-proliferation regime. It was criticized by the non-proliferation community, concerned that global non-proliferation norms would be undermined by treating India “exceptionally”. The United States sought an India-specific exemption from the non- proliferation rules and discouraged others from seeking such exemptions to limit the damage to the regime. The implications of the Indo-U.S. nuclear deal for the non-proliferation regime have been hotly contested in academic and policy circles; it is a first attempt to engage any non-NPT state but non-proliferation experts described it as a catastrophe for the regime. Yet a significant gap remains in our understanding of this on-going issue. No attempt has been made to assess its implications beyond speculation or to analyze this issue in detail in order to have a clear picture of its actual effect on the non-proliferation regime. This research project will address the question: how and to what extent has the Indo-U.S. nuclear deal affected key norms and rules of the non-proliferation regime? The United States did not act arbitrarily, but tried to modify the regime in such a way as to pursue its strategic objective regarding India because nuclear non-proliferation is also an important policy objective. This regime objective explains why the U.S., rather than establishing a set of rules that would apply to all states that have not signed the NPT, sought an India-specific exemption and is discouraging others from following suit to limit the damage to the regime. Therefore, demands by Pakistan, Israel and North Korea for a similar deal have received noncommittal responses from the United States. This dissertation argues that, on balance, the deal has constructively and positively engaged India with the non-proliferation regime, and despite some drawbacks the benefits seem likely to outweigh the costs. This evolution of the non- proliferation regime to accommodate India in turn would enhance that state’s interest in strengthening the regime, and so marks a positive step. On the theory level, this study highlights that in a regime analysis norm contestation theory in combination of realist constructivism, can account for changes and stability in international regimes, by looking at power structure, normative factors, domestic culture and elite perception. Realist constructivism provides a frame to help identify and organize some factors and processes that can help us understand and explain normative contestation and its outcomes – though the results of these processes may be highly contingent rather than easily predictable. Change is both conduct- and context-shaping and it is the interpretation of the powerful state, through normative structures, that rules most of the time.

ii Acknowledgements

This dissertation would not have been possible without the consistent advice and support of my advisor Dr. James Keeley. I will forever be grateful for his generosity with his time throughout this dissertation process and for the close reading and advice that he provided on earlier draft chapters. He has been the kind of advisor every graduate student hope for but few are fortunate enough to have. He has gone the extra mile at every turn, making the learning process a genuine interactive experience. He has been an inspiration to me throughout my graduate studies. I thank my supervisory committee members Dr. Gavin Cameron and Dr. Robert Huebert who were accessible for discussions, guidance, and encouragement and Dr. Terry Terriff for his time and writing reference letters for my various applications. Additionally, I must thank Dr. Duane Bratt, of Mount Royal University, for agreeing to join my defence committee, as its external examiner. I am thankful for the financial support provide by the SSHRC (Social Sciences and Humanities Research Council) and the CMSS (Centre for Military, Security and Strategic Studies), the University of Calgary to undertake this research project. My fellowship at the Stimson Center, Washington D.C., under the supervision of Michael Krepon, provided a wonderful environment to conduct interviews with U.S. policy makers and non-proliferation community. I owe a great debt to 32 U.S. officials and non-proliferation scholars who were willing to be interviewed for this project. Many were extremely generous with their time and expertise. Big thanks to my fellow students, Katie, Shaiel, Tim, Rebecca and Lauren, who have provided empathy, inspiration and friendship throughout my graduate studies. They kept me sane through it all. Administrative staff at the CMSS – Trisha (ex staff), Donna, Shelley and Nancy – has provided terrific support and coordination, freeing me to concentrate on other pressing matters. Above all others, my greatest thank goes to my family. I am grateful to my mothers, Ammi and Barri Ammi, for their countless love and prayers. They always believed in me and supported me on each step of the way. My brothers – Tallat Ayub, Faisal Mehmood, Fahad Mehmood and M. Junaid Dar – and my sisters – Nusrat Saghir and Riffat Kabir – have been eternal sources of motivation, support and love. They deserve a lot of appreciation for their unfailing belief and encouragement. Rest of the family members have also been a great support and cheerleaders throughout this process. I owe a debt of thanks to my husband, Chief Saab, and our two daughters, Maida and Soha. Chief Saab has been there every step of the way. His patience for this process has been unwavering and for that I am deeply grateful. My children provide me motivation and inspiration on a daily basis and I hope that they also seek out hard challenges and find the personal satisfaction in completing them.

iii Dedication

To my husband, Azhar Ayub For all his love, support, understanding, sacrifice, and patience throughout this arduous journey

To my daughters, Maida Azhar and Soha Azhar For their unconditional love, giving my life a greater meaning, and filling it with joy.

iv Table of Contents

Abstract ...... ii Acknowledgements ...... iii Dedication ...... iv Table of Contents ...... v List of Tables ...... vii List of Abbreviations ...... viii

CHAPTER ONE: Introduction…………………………………………………………….1 Background…………………………………………………………….1 Research Question……………………………………………………..3 Rationale for the Research……………………………………………..3 Key Non-Proliferation and Disarmament Norms……………………...4 Theoretical Framework………………………………………………...6 Organization of the Study……………………………………………...8

CHAPTER TWO: International Regimes, Norms and Contestation……………………..10 Defining International Regimes……………………………………...11 International Norms………………………………………………….17 Conventional Constructivim………………………………...19 Critical Constructivism……………………………………...27 Norms Contestation………………………………………………….29 The Realist Constructivist Approach………………………………...34 Implications for Norms Constestation……………………………….36 Conclusion…………………………………………………………...52

CHAPTER THREE: Sources, Method and Application………………………………….53 Sources……………………………………………………………..53 Full-Scope Safeguard Norm……………………………………53 Additional Protocol Norm……………………………………..55 ENR Technology Ban Norm…………………………………...56 CTBT Norm……………………………………………………58 FMCT Norm…………………………………………………...61 Methodology………………………………………………………63 Application………………………………………………………..66 Conclusion………………………………………………………...69

CHAPTER FOUR: The Nuclear Non-Proliferation Regime and India………………….70 The Evolution of the NNPR………………………………………...71 India's Role in the NNPR Negotiation……………………………...76 The Peaceful Nuclear Explosion (PNE) of 1974…………………...82 The 1998 Nuclear Tests…………………………………………….88 Norms Contestation and Realist Constructivism…………………...92 Conclusion………………………………………………………….95

v CHAPTER FIVE: The India-U.S. Nuclear Deal…………………………………………96 Origins of the Indo-U.S. Nuclear Deal………………………………97 Contours of the Indo-U.S. Nuclear Deal……………………………100 The Hyde Act……………………………………………………….102 Contradiction between the Hyde Act and the 123 Agreement…111 A Controversial Deal……………………………………………….114 Arguments against the Deal…………………………………..114 Arguments in favor of the Deal………………………………..124 Theoretical Implications……………………………………………131 Conclusion………………………………………………………….134

CHAPTER SIX: The India-IAEA Safeguard Agreement and Additional Protocol…….136 The Separation Plan…………………………………………………..137 The India-IAEA Safeguard Agreement………………………………148 The Politics of IAEA Approval…………………………....149 Indian Separation Plan……………………………………151 Implications for the Full-Scope Safeguard Norm……………………..153 Pakistan…………………………………………………...157 Israel………………………………………………………162 North Korea……………………………………………….163 Reactions of other States………………………………….163 The Additional Protocol ………………………………………………169 Bilateral Agreements and Tracking Provisions………………………..170 Theoretical Implications……………………………………………….171 Conclusion……………………………………………………………..172

CHAPTER SEVEN: The NSG India-specific Waiver……………………………………175 The NSG India-specific Waiver……………………………………176 Historical Support for India…………………………….176 (a) First Draft (March 2006)……………………………..177 (b) Second Draft (August 13, 2008)………………………….179 (c) Third Draft (September 3, 2008)…………………………183 (d) Final Draft (September 6, 2008)…………………………185 India's bid for the NSG Membership………………………………..190 Implications for the ENR Technology Ban Norm…………………..204 Implications for the CTBT and FMCT Norms……………………...211 Theoretical Implications…………………………………………….223 Conclusion…………………………………………………………..225

CHAPTER EIGHT: Conclusion…………………………………………………………...229

BIBLIOGRAPY……………………………………………………………………..……..239 Appendix A……………………………………………………………………………...... 264 Appendix B………………………………………………………………………………...266 Appendix C………………………………………………………………………………...268 Appendix D………………………………………………………………………………...291

vi List of Tables

Table 1: Constradictions between the Hyde Act and the 123 Agreement………………. 115

vii

List of Abbreviations

ABM Anti-Ballistic Missile CD Conference on Disarmament CIRUS Canada India Research U.S. (nuclear reactor) CRS Congress Research Service CTBT Comprehensive Test Ban Treaty DAE Department of Atomic Energy DoD Department of Defence ENDC Eighteen Nation Disarmament Committee FMCT Fissile Material Cut-off Treaty IAEA International Atomic Energy Agency ITER International Thermonuclear Experimental Reactor NSSP Next Steps on Strategic Partnership LTBT Limited Test Ban Treaty MEA Ministry of External Affairs MTCR Missile Technology Control Regime NNPA Nuclear Non-proliferation Act of 1978 NPR Nuclear Non-Proliferation Regime NPT Nuclear Non-Proliferation Treaty NSG Nuclear Suppliers Group NWS Nuclear Weapon States NNWS Non-Nuclear Weapon States PNE Peaceful Nuclear Explosion START Strategic Arms Reduction Treaty UNGA United Nations General Assembly UNSC United Nations Security Council U.S. United States WMD Weapons of Mass Destruction

viii

Chapter One: Introduction

India’s quest for advanced nuclear technology posed a persistent challenge to the NPT- centric nuclear non-proliferation regime. Despite the imposition of technological embargoes, the U.S. failed to prevent India’s nuclear breakout in 1998, and was unable to deal effectively with the post-proliferation challenge posed by India. In the changed security environment, the Bush Administration realised the importance of India in balancing rising China and insisted that leaving India outside the non-proliferation regime was not beneficial to international security. In the debates that followed the signing of the U.S.-India nuclear cooperation agreement, there was an intense focus on possible implications of the nuclear agreement for the nuclear non- proliferation regime, with a majority of scholars fearing that engaging India in nuclear commerce would be detrimental to the regime. Other scholars claimed that this deal has successfully brought India closer to the regime.1 This research employs norms contestation and realist constructivist approaches in regime analysis to understand how the U.S.-India nuclear agreement has affected the key norms and rules of the global nuclear non-proliferation regime by deviating from the established expectations of the regime.

Background The NPT is a nearly universal (except for four countries) treaty and the cornerstone of the global non-proliferation regime. The NPT is a bargain between NWSs (Nuclear Weapons States) and NNWSs (Non-Nuclear Weapons States) in which NWSs agreed to share nuclear technology for peaceful purposes and gradually disarm, through negotiations in good faith, their nuclear arsenals while NNWSs agreed not to develop nuclear weapons and to accept IAEA safeguards on their peaceful nuclear activities. The non-NPT states cannot be coerced to join the NPT as NNWS, nor is it possible to admit them as Nuclear Weapon States (NWS) due to the complexity involved in amending the treaty. The indefinite extension of the NPT in 1995 solidified this gap. After the India-U.S. nuclear deal, India is getting the benefits of nuclear energy along with its nuclear weapons program, creating a tension within the regime.

1 Nicholas Burns, “America’s Strategic Opportunity with India”, Foreign Affairs, Vol. 86, Nov/Dec, 2007; Ashley Tellis, Testimony for “U.S.-India Atomic Energy Cooperation: Strategic and Nonproliferation Implications”, Senate Foreign Relations Committee, Washington, D.C., April 26, 2006. 1

On July 18, 2005, U.S. President George W. Bush and Indian Prime Minister Manmohan Singh in a joint statement announced a framework for nuclear cooperation between the two countries, which brought an end to more than three decades of sanctions against India following its 1974 nuclear test. The United States had to change its domestic law to facilitate this nuclear cooperation. The U.S. President has the authority to waive these sanctions against India, with the approval of the U.S. Congress. The Hyde Act, approved by the U.S. Congress and signed by President Bush into law on December 18, 2006, provides the required waiver authority to the President, but contains seven conditions that must be met before exercising it. Among these requirements are a credible civil-military separation plan by India, an India-IAEA Safeguards Agreement and a consensus decision by the Nuclear Suppliers Group to exempt India from its export guidelines – specifically the full-scope safeguards (FSS) requirement. The United States did not act arbitrarily, but tried to modify the regime in such a way as to pursue its strategic objective regarding India because nuclear non-proliferation is also an important policy objective. It altered the rules of the regime by the passing of the Hyde Act, (changing U.S. domestic laws for India), obtaining the Nuclear Suppliers Group (NSG) waiver on nuclear trade for India, (achieving consensus in the NSG after intense diplomacy), and by India signing India-specific International Atomic Energy Agency (IAEA) Safeguards Agreement. This regime objective explains why the U.S., rather than establishing a set of rules that would apply to all states that have not signed the NPT, sought an India-specific exemption and is discouraging others from seeking a similar agreement. The question is how far the United States will be able to limit the effects of this “exception”. Will it be able to prevent other holdout states from entering the regime on similar terms? Will the treatment it has offered India – much less if similar treatment is extended to other hold-out states – strengthen or erode the regime through its effects on regime norms? What are the reservations of NNWSs and how they reacted to the deal? Will it reduce incentives for NNWSs to belong to the NPT by giving a non- NPT state the benefits of nuclear energy along with its nuclear weapons program?

Research Question

My study investigates the following research question: how and to what extent has the

Indo-U.S. nuclear deal affected key norms and rules of the nonproliferation regime? Related questions include the following:

• How did the U.S. attempt to accommodate India within the nuclear non-proliferation regime? • Will this deal remain India-specific? • Will the deal increase dissatisfaction among NNWSs by undercutting the NPT bargain? • How has this deal affected the interpretation of central norms of the non-proliferation regime (full-scope safeguards, the Additional Protocol and a ban on enrichment and reprocessing (ENR) technology) and disarmament norms (CTBT and FMCT)? • How did power manifest itself in the contestation over these norms and their interpretation?

Rationale for the Research

It is pertinent to investigate and critically analyse the significance of the 2005 U.S. nuclear pact with India, as it marked a reversal of the decades-old Washington policy of restricting India’s access to nuclear technologies, with significant implications for nuclear non- proliferation. This policy reversal impinges on the credibility of the U.S. as a leading promoter of the nuclear non-proliferation regime and is feared by some to threaten the regime itself. Successive U.S. administrations demonstrated a strong commitment to the nuclear non- proliferation regime and strictly adhered to the technological embargoes launched in response to India’s 1974 peaceful explosion. The nuclear pact with India creates an inconsistency in the U.S.’s non-proliferation policy and impinges on the “legitimacy and fairness”2 of the nuclear regime. The Bush Administration, through the 2005 nuclear pact, agreed to provide civilian

2 T.V. Paul, “The US-India Nuclear Accord: Implications for the Nonproliferation Regime.” International Journal, Vol. 62, No. 4, 2007. P. 846.

nuclear technology to India, which never signed the NPT and thus is not eligible for such cooperation under NPT auspices and prior U.S. policy. For more than three decades, the U.S. and India shared an estranged relationship regarding nuclear technology. The U.S. was engaged in strengthening the NPT and building up export control regulations. India, on the other hand, had been opposed to all the major treaties of the nuclear non-proliferation regime. Despite decades of such nuclear divergence, the U.S. offered to sign a nuclear pact with India. This encourages investigation into the motivations of the Bush Administration. The U.S. is trying to keep this deal India-specific and is discouraging other non-NPT states from following this precedent in order to limit the damage to the regime. It is important to investigate the implications of the deal and its attendant developments for the key norms of the non-proliferation regime. This is the right time for a critical investigation of this issue, as this is a recent change in U.S. non-proliferation policy and there is lack of comprehensive research on – though much speculation about – the implications of this nuclear agreement for the non-proliferation regime. Thus, the research is both timely and important. This study highlights how contending perspectives of a leading nuclear non-proliferation regime promoter (the U.S.) and a regime nonparticipant (India) impinge on the regime. This research fleshes out the change in U.S. nuclear non-proliferation policy during the Bush Administration that culminated in a U.S.-India nuclear agreement in July 2005 and how far Washington has been successful in keeping these changes India-specific. There are few comprehensive studies to analyse the implications of the deal for the non-proliferation regime; this study overcomes this knowledge deficit. This study is also significant for norm contestation and realist constructivist theories. Norm contestation theory in combination of realist constructivism, can explain the importance of particular agents in generating change in patterns of international politics. It can also look at structural constraints on agency and mechanisms through which agency might generate change.

Key Non-Proliferation and Disarmament Norms It is important to examine the impact of the India-U.S. nuclear deal and attendant developments in its implementation on the broader nuclear non-proliferation regime. The India-

U.S. nuclear deal and related changes challenge fundamental norms and rules which have served as the linchpin of the nuclear non-proliferation regime. The primary norm of the nuclear non- proliferation regime is the NPT’s bargain. The NPT is a bargain between NWSs and NNWSs in which NWSs agreed to share nuclear technology for peaceful purposes and gradually disarm their nuclear arsenals while NNWSs agreed not to develop nuclear weapons and to accept IAEA safeguards. In this way this primary norm has two components: nuclear trade for peaceful purposes and nuclear disarmament. With respect to nuclear trade, India now receives the same benefits of nuclear trade as NPT parties but without signing the NPT in any capacity. The NSG guidelines require IAEA full-scope safeguards for nuclear exports. India was exempted from this requirement. The NSG also adopted new guidelines which limited the export of sensitive nuclear technologies to NPT member states, but India is trying to get this technology without its NPT status. With respect to nuclear disarmament, India has promised to support the important nuclear disarmament treaties like CTBT (Comprehensive Test Ban Treaty) and FMCT (Fissile Material Cut-Off Treaty) but whether this support has contributed effectively to the desired end or this deal has enabled India to increase its nuclear weapons is a matter of investigation. In this way this project would examine two norms. First is the norm of nuclear trade under safeguards, which includes full-scope safeguards, the IAEA Additional Protocol, the NSG waiver and the access to enrichment and reprocessing technologies. Second is the nuclear disarmament norm, which includes the comprehensive prohibition of nuclear tests and the prohibition of fissile material production.3 On nuclear trade, the United States is trying to get an exemption for India without opening the door for other non-NPT states. On nuclear disarmament, the United States is trying to draw India into a closer relationship with the regime and is trying to manage the consequences of a nuclear-armed India for the regime. Opponents of the deal argued that, by creating an exception for India, the agreement would undercut the NPT "bargain" (trading safeguarded access to peaceful nuclear energy for a foregoing of nuclear weapons), undermine the NSG's restrictions on nuclear supply and, by allowing India's access to the international uranium market free India's domestic uranium production for its nuclear weapons program. Critics of the deal argued that it would weaken the

3 A Fissile Material Cut-off Treaty (FMCT) has yet to be negotiated and its terms remain to be defined. Therefore, the prohibition of fissile material production norm is a “norm in emergence”. 5

NPT which is the primary and the most important multilateral treaty in the non-proliferation regime. India is now enjoying the benefits of nuclear energy along with its nuclear weapons program, which reduces the incentives of other states, including current NNWSs in the NPT, to belong to the NPT. This deal would convince states like North Korea that they can break the rules and not only get away with it, but eventually be rewarded. The proponents of the deal argue that over thirty years of sanctions placed on India could not deter it from emerging as a nuclear power and now it is in the strategic interests of the United States to bring India into the non-proliferation regime.4 The Bush Administration justified the deal on the basis of India’s access to clean nuclear energy, the opportunity to bring India into the “nonproliferation mainstream” and the creation of job opportunities for Americans in providing nuclear goods and services. The Bush Administration stated that the objectives of the deal are to help India to become a great power, assist to fulfill its energy needs, and engage New Delhi to strengthen the non-proliferation regime. The first two objectives demonstrated strategic and economic interests. Helping India to become a great power would maintain a balance of power in Asia against China’s emergence as a long term “strategic rival” to the United States. India’s growing military power and regional dominance made it an attractive ally to balance China.

Theoretical Framework This study applies norms contestation and realist constructivism in regime theory to examine the impact of the agreement on the non-proliferation regime. International regimes are considered as social structures with the function of creating norms and shared understandings, and are defined as “principled and shared understandings of desirable and acceptable forms of social behavior.”5 Critical Constructivism introduced the concept of “norms contestation”, which underlined the need to go beyond the traditional understanding of international norms – a static understanding that norms are mostly black boxes regulating states’ behaviour or constituting

4 T. V. Paul and Mahesh Shanker, “Why the U.S.-India Nuclear Accord is a Good Deal”, Survival, Vol. 49, No. 4, 2007. 5 Friedrich Kratochwil and John Gerard Ruggie, “International Organization: A State of the Art or an Art of the State”, International Organization, Vol. 40, No. 4, 1986. P. 764. 6

states’ identity. Critical constructivists argue that norms not only have a constitutive dimension, but also a structural dimension. Norms entail a “dual quality” since they are constructed with discourses, but at the same time they structure the discourses that are held about their meaning.6 The logic of contestation argues that the legitimacy of norms depends on contestation. Interpretation and meaning are regarded as a prerequisite for successful norm acceptance because meaning is given by a variety of different interpretations developed in social interaction.7 Critical constructivism, however, excludes the role of power in this norm interpretation and meaning construction. These cannot be understood outside of the context of power relations as the “dual quality” of a norm is not the same for everyone and depends on power relations. Power is embedded in all social structures; this in turn shapes the interests and identities of agents. Attempts to resist or advocate norms suggest that they are mediated by agents, who give norms varied content and seek to link them to or separate them from others in the broader normative environment. This, in turn highlights power as integral to the processes of social construction, determining who can do and who cannot or what can or cannot be done. This does not mean that powerful agents can do everything; rather agents are constrained not only by relations of power but also by the existing normative structure. These biases compel powerful agents to interpret norms and normative contexts in a manner that attempts to justify exemptions or violations as socially acceptable. Realist constructivism aims to understand how norms emerge out of a particular power relationship and how new norms change existing power structures. Realist constructivism emphasizes the role of agency in explaining normative change.8 Norms contestation theory, in combination with realist constructivism, allows analyzing not only the impact of the nuclear deal on the regime but also how other factors have influenced the changes by tracing the process of meaning construction of these norms. Realist constructivism’s assumption that powerful agents can generate a change but at the same are constrained by a normative structure broadens our

6 Antje Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters, (Cambridge: Cambridge University Press), 2008. 7 Antje Wiener and Uwe Puetter, “The Quality of Norms is What Actors Make of It Critical Constructivist Research on Norms”, Journal of International Law and International Relations Vol. 5, No. 1, 2009. 8 Samuel Barkin, Realist Constructivism: Rethinking International relations Theory, (Cambridge: Cambridge University Press, 2010). 7

understanding and explains why the United States modified the non-proliferation regime to conclude the India-U.S. nuclear agreement and presented these changes as India-specific to discourage other states from following this precedent. Since the announcement of the deal in 2005, the United States is trying to keep these changes as India-specific. Norm contestation and realist constructivism help to explain the subsequent developments in the nuclear non- proliferation regime and how far the United States is able to present these changes as India- specific.

Organization of the Study Aside from this chapter, the study proceeds through eight chapters.

Chapter II examines the theoretical framework. Adopting a norms contestation approach combined with realist constructivism in regime theory provides the useful tools to analyze the norms change following the India-U.S. nuclear deal.

Chapter III describes the research methodology, sources and application of the theoretical approach on the selected non-proliferation and disarmament norms.

Chapter IV examines the evolution of the nuclear non-proliferation regime and India’s relations with it. India has always claimed that the NPT is a “discriminatory” treaty that practices a form of nuclear apartheid. It stresses the lack of mutuality of obligations on the part of NWS to disarm while the NNWS are expected to not arm themselves. New Delhi refused to sign or join the treaty and consequently was excluded from the nuclear forums derived from the NPT. This chapter highlights India’s interpretation of the non-proliferation and disarmament norms.

Chapter V reviews the Indo-U.S. nuclear deal and the controversy around it noting some of the arguments in favor and against it. This chapter also introduces the components of the deal: the basic requirements it places on both the U.S. and India.

Chapter VI reviews the India-specific IAEA Safeguards and Additional Protocol (AP). This

chapter also compares India’s IAEA agreements with those of the NPT NWSs’ Safeguards and AP agreement with the IAEA. The implications of the separation plan for the full-scope safeguards and AP norms are also discussed in this chapter.

Chapter VII examines the NSG waiver: the four texts of the waiver draft and the changes that occurred from one text to the next. This analytical narrative of the negotiation of the waiver helps us to understand the opposition of particular states to the waiver and what non-proliferation conditions they wanted to include. The Indian resistance to include any non-proliferation conditions other than those it already agreed to in the 2005 joint statement and the insistence of particular states on including strong conditions created a deadlock for some time, but at the end these states agreed under U.S. pressure. This chapter analyzes how the norm/rules issues arose and were handled in the NSG waiver and what it implies for India’s membership and for the ENR technology ban, CTBT and FMCT norms.

Chapter VIII offers the conclusion in which both the empirical questions regarding the regime and various implications for the theories this study is drawing on are covered. Contrary to the general perception, that the U.S.-India nuclear agreement weakens the nuclear non-proliferation regime, this research demonstrates that the deal, despite some drawbacks, brought India within the realm of global nuclear governance. In a regime analysis, norm contestation theory in combination with realist constructivism provides a comprehensive approach by taking into account power structure, normative factors, domestic culture and elite perception to explain changes and stability in international regimes.

Chapter Two: International Regimes, Norms and Contestation: A Case for Realist Constructivism

The theoretical debate over international regimes has retained its importance over the last three decades. International relations theories have contributed conceptual frameworks to the understanding of the complex dynamics of regimes but each theory has limitations. Regime studies have marked a significant change in the study of international organizations by shifting away from formal international organizations to issue-specific institutions.9 This study uses norm contestation theory to highlight the dynamic nature of international regimes, as norms are considered as a fundamental part of regimes. Norm contestation theory argues that norms not only have a constitutive dimension, but also a structural dimension. Norms entail a “dual quality” in which they are constructed with discourses, but at the same time structure the discourses that hold their meanings.10 Norm contestation theory arises out of the critical constructivist approach. This approach has broadened the current understanding of norms but has ignored the role of power and consequently cannot fully explain the factors involved in normative change or stability. Critical constructivists assume that all stakeholders have equal capacity for contestation but have failed to take into account the fact that contestation and interpretation by powerful states have different effects as compared to weak states. This study applies the realist constructivist approach, which explores the interaction of norms and power in the sense that they affect change in one another. In norm contestation, the power of an interpreter matters and significantly affects the pattern of normative change. A norm contestation theory in combination with a realist constructivist approach is capable of comprehending norm dynamics of strategic manipulation, reinterpretation or innovation. This chapter is divided into five sections. The first section reviews the definitions of regimes offered by different scholars and the role of norms in these definitions, and adopts Kratchwil and Ruggie’s definition of a regime for this study. The second section briefly explains

9 Regimes and institutions are treated as synonymous concepts in this study. Both are non-material phenomena and include not only explicit rules and organizations but also implicit norms. Therefore, international regimes are issue-specific institutions. See Oran R. Young “International Regimes: Toward a New Theory of Institutions”, World Politics, Vol. 39, No. 1, 1986. P. 107. 10 Antje Wiener, “The Dual Quality of Norms and Governance Beyond the State: Sociological and Normative Approaches to ‘Interaction’”, Critical Review of International Social and Political Philosophy, Vol. 10, No. 1, 2007. P. 49. 10

how international norms are conceptualized in international relation theories and how different branches of conventional constructivism view norms as stable and static phenomena. The third section highlights critical constructivism’s research on norms contestation to underline the dynamic character of norms. The fourth section offers the realist constructivist approach to emphasize the importance of power in norms contestation, and analyses the benefits of a norms contestation theory in combination with realist constructivism in the study of regimes. The final section concludes by arguing that the proposed approach gives better understanding of norm dynamics by taking into account structure, social context, domestic debates and how material factors affect the outcome. Realist constructivism does not elevate norms over material interests, but rather seeks to understand the complex interactions of these factors. International regimes and their norms enable, shape, and constrain state behavior but also are the result of state political action.

Defining International Regimes Finding a universally-acceptable definition of international regimes has been daunting and controversial task. John Ruggie introduced the term to the IR discipline in the mid-1970’s and defined it as “set of mutual expectations, rules, and regulations, plans, organizational energies, and financial commitments which has been accepted by a group of states.”11 Since then, the concept of international regimes has been an important part of international relations theory, but it was criticized regarding its clarity and utility. Susan Strange made a pithy comment when she characterized the study of international regimes as prone to failure because of its “woolliness” and “imprecision”.12 Friedrick Kratochwil also criticized the concept for being “vague” and called for its conceptual development.13 In response, many of those favorable to the concept have made attempts to seek clarity at the conceptual level.

11 John Gerard Ruggie, “International Responses to Technology: Concepts and Trends”, International Organization, Vol. 29, No. 3, 1975. P. 570. 12 Susan Strange, “Cave! Hic Dragones: A Critique of Regime Analysis”, International Organization, Vol. 36, No. 2, 1982. pp. 484-86. 13 Friedrich Kratochwil, “The Force of Prescription”, International Organization, Vol. 38, No. 4, 1984. P. 685. 11

Many scholars have defined regimes in terms of patterned behavior of states. Trevor Tate argues that “an international regime is an authoritative arrangement among international actors (states) that facilitates the accomplishment of specific goals through a process involving coordination of expectation and modification of certain behavior patterns.”14 Puchala and Hopkins state that “a regime exists in every substantive issue area in international relations where there is discernibly patterned behavior. Wherever there is regularity in behavior, some kinds of principles, norms, and rules must exist to account for it.”15 These definitions overlap in certain common features like issue area and patterned behavior. Defining regimes in terms of patterned behavior, however, obscures certain analytical issues such as how regimes constrain, enable, mediate, or change states’ behavior. Stephen Krasner’s definition is considered as the standard, with fairly widespread acceptance. He defines international regimes as “implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” He then proceeds to define each component of a regime. “Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision- making procedures are prevailing practices for making and implementing collective choice.”16 Krasner distinguishes between principles and norms on the one hand and rules and decision- making procedures on the other hand. Principles and norms are defining features of the regime and change in them marks change of the regime itself, while alterations in rules and decision– making procedures can be regarded as adjustments within the regime. Krasner’s definition can also help in assessing regime effectiveness, as he argues, “if actual practice is increasingly inconsistent with principles, norms, rules, and procedures, then a regime has weakened.”17 In this way Krasner’s definition claims to take into account three kinds of changes: change of regime, change within regime, and changes in regime effectiveness.

14 Trevor McMorris Tate, “Regime-Building in the Nonproliferation System”, Journal of Peace Research, Vol. 27, No. 4, 1990. P. 402. 15 Donald Puchala and Raymond Hopkins, “International Regimes: Lessons from Inductive Analysis”, International Organization, Vol. 36, No. 2, 1982. P. 247. 16 Stephen Krasner, “Structural Causes and Regime Consequences: Regimes as intervening Variable”, International Organization, Vol. 36, No. 2, 1982. P. 186. 17 Ibid. P. 188. 12

Despite – or perhaps because of – its descriptive richness, this standard definition has been criticized for its lack of precise meaning. Critics argue that relationships among the four components – principles, norms, rules and decision-making – are conceptually ambiguous and in the real world it is difficult to distinguish between them. Oran Young referred to the hierarchy of components as a “list of elements that is hard to differentiate conceptually and that often overlap in real-world situations.”18 Haggard and Simmons make a similar point by noting that principles “shades off into norms” and “norms, in turn, are difficult to distinguish from rules.”19 Krasner’s definition has been criticized by neoliberal institutionalist and constructivist scholars, who in turn offer their own definitions. Robert Keohane defines a regime as “institutions with explicit rules, agreed upon by governments, that pertain to particular sets of issues in international relations.”20 This definition is straightforward and is less complex. Keohane describes the existence of a regime with reference to the existence of rules only, instead of various other components. In practice, however, Keohane, by singularly focusing on rules and eliminating other elements of regime, makes the concept of regime conceptually thin. Defining international regimes only by explicit rules obscure the implicit understandings or expectations that are important in explaining cooperation. Oran Young highlighted the dynamic character of regimes. He treats regimes as social institutions, which develop or evolve over time. He argues that Krasner’s “distinction among principles, norms and rules lack intersubjective meaning”21 and defines international regimes as “social institutions consisting of agreed upon principles, norms, rules, procedures and programs that govern the interactions of actors in specific issue areas.”22 For Young, “social institutions are identifiable practices consisting of recognized roles linked by clusters of rules or conventions

18 Oran Young, “International Regimes: Toward a New Theory of Institutions”, World Politics, Vol. 39, No. 1, 1986. P. 106. 19 Stephan Haggard and Beth A. Simmons, “Theories of International Regimes”, International Organization, Vol. 41, No. 3, 1987. P. 493. 20 Robert Keohane, “Neo-liberal Institutionalism: A perspective on World Politics”, in Robert Keohane, (ed.) International Institutions and State Power: Essays in International Relations Theory, (Boulder, Colorado: Westview Press, 1989), p. 4. 21 Marc A. Levy, Oran R. Young and Michael Zurn, “The Study of International Regimes,” European Journal of International Relations, Vol. 1, No. 3, 1995. P. 273. 22 - Ibid. P. 274.

governing relations among the occupants of these roles.”23 Young focuses more on the social and ideational aspects of regimes. He notes the tendency to approach international regimes in static terms, arguing, “international regimes do not become static constructs even after they are fully articulated. Rather, they undergo continuous transformations in response to their own inner dynamics as well as to changes in their political, economic, and social environments.”24 Young’s “institutional bargaining model” is composed of self-interested actors pursuing their joint interests through effective coordination, but he also portrays states as role-players rather than utility-maximizers; this brings his position closer to constructivists.25 William Zartman regards an international regime as “a living organism par excellence,” and highlights the limitations of any static representation of regimes.26 He explores the intersection of regime theory and negotiation theory to make sense of processes through which regimes persist by “maintaining their flexibility, their ability to change in response to varying needs for coordination and problem solving that gave them birth, and their adaptability to the shifting constellations of power and interest among their members.” 27 A regime’s sustainability depends on its ability to adapt and transform and remain vital to the interests of its members. States do not merely comply with regime rules and norms: rather, they adjust those rules and norms according to their changing interests. This evolutionary nature of regimes makes them contested, unstable and continuously adapting. He concludes, “a regime is more than simply ‘rules, norms, regulations and behaviors’…it is the institutionalized effort to shape, monitor, and support these outputs, with the understanding that institutionalization remains inter – and not supranational.”28 But this approach tends to disregard the normative context, which is also essential to a proper understanding of the regime – and changes in the regime – they underlie.

23 Oran Young, International Cooperation: Building Regime for Natural Resources and the Environment, (Ithaca, N.Y.: Cornell University Press, 1989). pp. 12-13. 24 Oran R. Young, “Regime Dynamics: The Rise and Fall of International Regimes”, International Organization, Vol. 36, No. 2, 1982. pp. 290-91. 25 Andreas Hasenclever, Peter Mayer, and Volker Rittberger, Theories of International Regimes, (New York: Cambridge University Press, 1997). pp. 68-69. 26 William Zartman, “Negotiating the Rapids: The Dynamics of Regime Formation”, in Bertman Spector and William Zartman, (ed.) Getting it Done: Post-Agreement Negotiation and International Regimes, (Washington D. C.: United States Institute of Peace, 2003). P. 17. 27 Ibid. 28 Ibid. P. 19. 14

This normative context not only shapes states’ identities and interests but also limits actors’ room to maneuver. Constructivists focus on the shared social knowledge that shape states’ interests by emphasizing that ideology, social learning and identities affect the propensity of states to cooperate and abide by norms and rules embedded in a regime. Alexander Wendt has suggested that institutions not only reflect the interests of states, but also “transform [their] identities and interests”.29 The core insight is that “cooperation cannot be completely explained without reference to ideology, the values of actors, the beliefs they hold about the interdependence of issues, and the knowledge available to them about how they can realize specific goals.”30 Regimes provide an epistemic function, as they assist in the creation of consensual knowledge as the basis of cooperation.31 In this way, preferences and interests remain fluid as knowledge changes. International regimes, according to constructivism, are considered as social structures with the function of creating norms and shared understanding. They never are an objectively given set of principles, norms, rules and procedures. Their function is to construct identities and interests by delineating what are socially acceptable norms, but at the same time actors reinterpret and re-define regimes in response to changing context. For their part, emphasizing the importance of inter-subjective meanings for international cooperation, Kratochwil and Ruggie define international regimes as “principled and shared understandings of desirable and acceptable forms of social behavior.”32 The inter-subjective basis of regimes highlights the socially acceptable behavior and helps to create stable expectations. Regimes provide legitimation, as regime norms and rules prescribe some behaviors and proscribe others.33

29 Alexander Wendt, “Anarchy is what States Make of it: The Social Construction of Power Politics”, International Organization, Vol. 46, No. 2, 1992. P. 412. 30 Stephen Haggard and Beth A. Simmons, “Theories of International Regimes”, International Organization, Vol. 41, No. 3, 1987. pp. 509-10. 31 Peter M. Haas “Epistemic Communities” in Joel Krieger ed. The Oxford Companion to Comparative Politics Vol. 1, (Oxford: Oxford University Press, 2013). pp. 351-359. 32 Friedrich Kratochwil and John Gerard Ruggie, “International Organization: A State of the Art or an Art of the State”, International Organization, Vol. 40, No. 4, 1986. P. 764. 33 Ian Hurd, “Myths of Membership: The Politics of Legitimation in UN Security Council Reforms”, Global Governance, Vol. 14, No. 2, 2008. 15

The unprecedented surge in the number and scope of international regimes has resulted in increasing overlap across agreements. This phenomenon is called “international regime complexity”, an extension of the regime concept in the literature. Raustiala and Victor defined international regime complexity as “an array of partially overlapping and non-hierarchical institutions governing a particular issue area.”34 In 2009, a symposium in Perspective on Politics35 and in 2013 a special issue of Global Governance36 were published to sharpen the understanding of international regime complexity. There is an academic debate about the positive and negative consequences of regime complexity. Optimists argue that regime complexity provides effective manageable structures, linkages across agreements to increase compliance and new enforcement mechanisms.37 Pessimists, on the other hand, point out the negative consequences including forum-shopping to avoid inconvenient rules, regime-shifting through creating parallel norms, strategic ambiguity by forming opposite agreements, bounded rationality caused by the complexity, inter-institutional competition that may lead to conflict, and the possibility that complexity may benefit the powerful more than others.38 The concept of international regimes is most commonly discussed in the literature of international political economy, human rights, and environmental politics; the concept has expanded to security regimes despite Jervis’ warning in early 1980’s that it is difficult to utilize the concept of regime in the security realm due to the “nature of the subject.”39 Robert Jervis defined security regimes as “principles, rules, and norms that permit nations to be restrained in their behavior in the belief that others will reciprocate.”40 This definition has focused on the constraining power of security regimes on states’ behavior but ignored how these regimes

34 Kal Raustiala and David G. Victor, “The Regime Complex for Plant Genetic Resources, International Organization, Vol. 58, No. 2, 2004. P. 279. 35 Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity”, Perspectives on Politics, Vol. 7, No. 1, 2009. 36 Amandine Orsini, Jean-Frederic Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost for Global Governance”, Global Governance, Vol. 19, No. 1, 2013. 37 Robert O Keohane and David G. Victor, “The Regime Complex for Climate Change”, Perspectives on Politics, Vol. 9, No. 1, 2011. pp. 8-9. 38 Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity”, Perspectives on Politics, Vol. 7, No. 1, 2009. pp. 16-17. 39 Ibid. P. 359. 40 Ibid. P. 357. 16

change, evolve, and adapt to the changing security demands. Harald Muller defined security regimes as “systems of principles, norms, rules and procedures regulating certain aspects of security relationships between states.”41 Muller argues that a security regime is believed to exist when it affects states’ behavior by “terminating unilateral self-help”.42 His definition is much like the Krasner’s definition of regime with the addition of the security element. Much of the literature on security regimes has focused on their formation, their constraints on state behavior, and their ability to enhance transparency to promote peace. Few studies have focused their research to analyze changes in security regimes, particularly in the nuclear non-proliferation regime. It is important to understand how norms change in order to account for the dynamics of regimes. Since the focus of this study is the key non-proliferation and disarmament norms, the Kratochwil and Ruggie’s definition is best suited to examine changes in these norms by taking into account the normative context and the significance of shared inter-subjective meanings. By using this definition I will examine the significance of the India-U.S. nuclear deal for the key non-proliferation and disarmament norms in order to account for the complex dynamics of the regime. According to this definition regimes are “shared understandings” of “acceptable forms of social behavior.” When the U.S. changed international and domestic norms in order to carve out an India-specific nuclear deal, this was against the existing shared expectations of the nuclear non-proliferation regime. How are this deal and the justification provided by the U.S. for this change being interpreted by the members of the regime? I investigate how far this agreement, by changing fundamental norms of the regime, has transformed that regime. The United States is trying to limit this normative change by making these changes India-specific. How far is the United States successful in limiting this change?

International Norms How do IR theories conceptualize and define international norms? Rationalist approaches, neorealism and neoliberalism, rely on utility maximization in explaining the role of

41 Harald Muller, “The Internationalization of Principles, Norms, and Rules by Governments: The Case of Security Regimes”, in V. Rittberger and O. Mayer, (ed.), Regime Theory and International Relations, (Oxford: Oxford University Press, 1993). P. 361. 42 Ibid. 17

norms while constructivist approaches point out the normative factors in norm compliance. Conventional constructivism challenges the rationalist approaches by highlighting the normative influences, norm emergence and internalization and explain the variations in the normative influences. Krasner’s description of international norms as “standards of behavior defined in terms of rights and obligations” is based on a rationalist approach with an emphasis on norms as solutions to international coordination problems among states. This definition does not explain how norms emerge or how they shape and change states’ interests. James March and Johan Olsen have identified two logics of action in explaining the difference between rationalist and constructivist approaches: the logic of consequences and the logic of appropriateness. Following a logic of consequences, rationalist scholars argue that norms are consequentialist in nature and are designed to solve coordination problems to maximize the utilities of states. States, motivated by utilitarian cost-benefit analysis, observe norms when and because they calculate that the benefits of compliance outweigh the costs.43 A logic of consequences sees states’ interaction as based on rational calculations to maximize self-interests. A logic of appropriateness explains states’ behavior as the product of rules and identities, in which political actions are determined not by how to maximize self-interests but by appropriate roles in a given identity.44 Both neorealism and neoliberal institutionalism subscribe to rationalism. Neorealists argue that norms “reflect state calculation of self-interest based primarily on the international distribution of power.” Hegemonic states create and maintain norms “so that they can maintain their share of world power, or even increase it.”45 Hegemons have the resources and capability to enforce these norms either by providing public goods or by imposing economic and military sanctions. Norms are likely to change with the rise and fall of hegemons.46

43 Robert Axelrod, “Promoting Norms”, in The Complexity of Cooperation: Agent-Based Models of Competition and Collaboration, Robert Axelrod, (Princeton, NJ: Princeton University Press, 1997). pp. 40-41. 44 James March and Johan Olsen, Rediscovering Institutions: The Organizational Basis of Politics, (New York: Free Press, 1989). pp. 24-26. 45 John Mearshiemer, “The False Promise of International Institutions”, International Security, Vol. 19, No. 3, 1994/5. P. 13. 46 Robert Gilpin, The Political Economy of International Relations, (Princeton: Princeton University Press, 1987). P. 91. 18

Neoliberal institutionalism, on the other hand, argues that states may continue to comply with norms even in the absence of hegemonic coercion. States conform to norms because of long-term absolute – as oppose to relative – material incentives, which Keohane calls “the shadow of the future”. Accepted norms facilitate cooperation, reduce transaction costs and minimize uncertainties.47 Norms are regulative in that they “prescribe, proscribe, and order behavior”48 and act as “rules of the road”.49 In this way norms are regarded as intervening variables within rationalist approaches and norm adherence is explained either on a voluntary utilitarian basis or as states are forced into compliance. Constructivists, on the other hand, stress logics of appropriateness and emphasize that norms not only solve coordination problems but also constitute states’ interest and identities. From this perspective, norms are treated as independent variables which create “mutual expectations” and may “guide”, “inspire”, “rationalize” or “justify” state behavior.50 Norms “embody a quality of ‘oughtness’ and shared moral assessment”.51 States conform to norms under feeling of obligation within a given identity. Constructivist research has demonstrated that norms are more than rational calculation and that normative factors play an important role in international politics. This study employs a constructivist approach to norms and adopts their standard definition of norms as “collective expectations for the proper behavior of actors with a given identity.”52

47 Robert Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, (Princeton: Princeton University Press, 1984). pp. 75-76. 48Annika Bjorkdhal, “Norms in International Relations: Some Conceptual and Methodological Reflections”, Cambridge Review of International Affairs, Vol. 15, No. 1, 2002. P. 15. 49 Gregory A. Raymond, “Problems and Prospects in the Study of International Norms”, Mershon International Studies Review, Vol. 41, No. 2, 1997. P. 214. 50 Friedrich Krachtochwil and John Gerard Ruggie, “International Organziation: A State of the Art on an Art of the State”, International Organization, Vol. 40, No. 4, 1986. P. 767. 51 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change”, International Organization, Vol. 52, No. 4, 1998. P. 892. 52 Peter Katzenstein, “Introduction: Alternative Perspectives on National Security” in Peter Katzenstein, (ed.), The Culture of National Security: Norms and Identity in World Politics, (New York: Columbia University Press, 1996). P. 5. 19

Conventional Constructivism Conventional constructivist research on norms is generally clustered into three areas: 1) normative influence on state behavior; 2) norm emergence and diffusion; and 3) variation in normative influence.

In its initial structural perspective, early empirically-oriented constructivist research sought to counter rationalist theories by demonstrating that norms are independent variables which constitute, shape, and constrain state behavior. Audie Klotz demonstrated in her antiapartheid case that norms shape state behavior along with strategic and economic interests. The racial equality norm led many states to adopt sanctions against South Africa despite their economic and strategic interests.53 Martha Finnemore argued that international organizations teach new norms to states and, after socialization to these norms, states redefine their interests.54 International organizations “use their knowledge and authority not only to regulate what currently exists but also to constitute the world, creating new interests, actors, and social activities”.55 Norms “influence which ideas gain political access” and “govern the entry of ideas into the policymaking process”.56 Richard Price57 and Nina Tannenwald58 demonstrated how the taboos surrounding chemical and nuclear weapons use have created self-reinforcing norms of non-use of these weapons. Dimitrakopoulos suggests that international norms not only shape the actors’ perception of their interests as well as their strategies but also provide legitimacy to some form of political actions.59 Barkin and Cronin claim that international norms determine the rules

53 Audie Klotz, Norms in International Relations: The struggle against apartheid, (Ithaca and London: Cornell University Press, 1995). P. 19. 54 Martha Finnemore, National Interests in International Society, (Ithaca: Cornell University Press, 1996). P. 3. 55 Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in World Politics, (Ithaca: Cornell University Press, 2004). P. 7. 56 - Albert S. Yee, “The Causal Effects of Ideas on Policies”, International Organization, Vol. 50, No. 1, 1996. P. 92. 57 Richard Price, The Chemical Weapons Taboo, (Ithaca: Cornell University Press, 2007). 58 Nina Tannenwald, The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945, (Cambridge: Cambridge University Press, 2007). 59 Dionyssis G. Dimitrakopoulos, “Norms, Interests and Institutional Change”, Political Studies, Vol. 53, No. 4, 2005. 20

of sovereignty and, in case of conflict, lend legitimacy to either national or state sovereignty.60 Similarly, Finnemore argues that norms help to define those humanitarian interventions that are acceptable and legitimate.61 This early constructivist research thus, demonstrated the importance of normative factors as against a consideration purely of material factors. After establishing that norms influence state behavior, constructivist research focused on how norms emerge and diffuse in the international community. Finnemore and Sikkink developed the “norm life-cycle”, in which they identified three phases: norm emergence, norm cascades, and norm internalization. In the first phase, “norm entrepreneurs” frame and promote a new norm leading to a “tipping point” after which it achieves a critical mass of adherents. In the second stage, norm cascade, states become socialized into the new norm. In the final stage, the norm is internalized, after which it is taken for granted.62 Risse has shown the value of argumentation and persuasion as central to the emergence of norms and advocated the “logic of arguing” – a logic of action in which states are prepared to change their ideas in the wake of the better argument.63 This highlights the importance of communicative action in the process of norm internalization by actors.64 Ideational change was also considered as a causal mechanism that facilitates norm emergence.65 The Great Powers create and promote norms because they reflect not only the economic and security interests of dominant members of international society but also their moral interests and emotional dispositions.66 Ikenberry and Kupchan argue that states may adopt and internalize

60 Samuel Barkin and Bruce Cronin, “The State and The Nation: Changing Norms and Rules of Sovereignty” International Organization, Vol. 48, No. 1, 1994. P. 108. 61 Martha Finnemore, The purpose of intervention: Changing beliefs about the use of force, (Ithaca: Cornell University Press, 2003). 62 - Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change”, International Organization, Vol. 52, No. 4 1998. 63 Thomas Risse, “Let’s Argue!”: Communicative Action in World Politics”, International Organization, Vol. 54, No. 1, 2000. 64 Nicole Deitelhoff and Herald Muller, “Theoretical Paradise – Empirically Lost? Arguing with Habermas”, Review of International Studies, Vol. 31, No. 1, 2005; Nicole Deitelhoff, “The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case”, International Organization, Vol. 63, No. 1, 2009. 65 Michal Ben-Josef Hirsch, “Ideational Change and the emergence of the international norm of Truth and Reconciliation Commission”, European Journal of International Relations, Vol. 20, No. 3, 2014. 66 Ethan A. Neddelmann, “Global Prohibition Regimes: The evolution of Norms in International Society”, International Organization, Vol. 44, No. 4, 1990. 21

norms under the influence of a hegemon. “[N]ational leaders internalize the norms and value orientations espoused by the hegemon and, as a consequence, become socialized into the community formed by the hegemon and other nations accepting its leadership position.”67 Therefore, norms are advocated by those who are superior in the “hierarchical social order” and states in lower ranks follow the norms to improve their position in this social hierarchy.68 The role of “epistemic communities” – networks of experts – is also highlighted in creating and diffusing norms. Proponents of this research argue that policy makers define state interests and formulate policies depending on how the technical and complex issues are framed by their advisors.69 Keck and Sikkink establish the importance of “transnational advocacy networks” in the diffusion of international norms.70 It is also argued that persuasion should be considered a most important mechanism for changing states’ interests.71 Other scholars have examined norm diffusion through emulation72 and mimicry73 as a separate mechanism. Attention is also being given to norms that have degenerated74 or failed to come into being.75 Critics of constructivism have noted that it does not specify sufficiently which norms are likely to prevail under what conditions, or deal adequately with variations in the impact of international norms.76 Constructivist researchers responded by focusing on the nature of norms,

67 G. John Ikenberry and Charles A. Kaupchan, “Socialization and Hegemonic Power”, International Organization, Vol. 44, No. 3, 1990. P. 289. 68 Ann E. Towns, “Norms and Social Hierarchies: Understanding International Policy Diffusion “From Below””, International Organization, Vol. 66, No. 2, 2012. 69 Peter Haas, “Epistemic Communities and International Policy Coordination”, International Organization, Vol. 46, No. 1, 1992. 70 Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics, (Ithaca: Cornell University Press, 1998). 71 Rodger A. Payne, “Persuasion, Frames, and Norm Construction”, European Journal of International Relations, Vol. 7, No. 1, 2001. 72 Beth A. Simmons, Frank Dobbin, and Geoffrey Garrett, The Global Diffusion of Markets and Democracy, (Cambridge, UK: Cambridge University Press, 2008). 73 Jason C. Sherman, “Power and Discourse in Policy Diffusion: Anti-money Laundering in Developing States”, International Studies Quarterly, Vol. 52, No. 3, 2008. 74 Diana Panke and Ulrich Petersohn, “Why International Norms Disappear Sometimes”, European Journal of International Relations, Vol. 18, No. 4, 2012. 75 Jennifer L. Bailey, “Arrested Development: The Fight to End Commercial Whaling as a Case of Failed Norm Change”, European Journal of International Relations, Vol. 14, No. 2, 2008. 76 Jeffrey J. Checkel, “The Constructivist Turn in International Relations Theory”, World Politics, Vol. 50, No. 2, 1998. 22

domestic factors, and on combination of logics of consequences and appropriateness in order to explain variations in normative impact. International norms are likely to succeed if they cohere with an existing normative framework or fit with already established political cultures.77 This congruence not only describes the degree of fit between competing international norms but also between international and domestic norms.78 The degree of norm strength79 and legalization80 explain the variations in normative impact. It is argued that those norms that are characterized by “precision, obligations, and the delegation with legalization” have a better chance of success.81 On the other hand, it is also argued that norms are not reducible to law: in fact strong norms may be weak in law, as Percy,82 Tannenwald,83 and Price84 have shown with respect to the anti-mercenary norm, and the nuclear and chemical taboos respectively. It is the high moral value embedded in a norm that prevents the states from violating that norm to maintain their reputation as civilized members of an international community. Apart from the nature of norms, domestic factors are also taken into account to explain the variations between different states’ reception of international norms. Cortell and Davis have argued that the “normative fit” of global norms at the domestic level explains compliance variations. They further note that this normative fit is not given, but rather “domestic actors search about for new ideas to legitimize their self-interested preferences” and international norms

77 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, ed. The Power of Human Rights: International Norms and Domestic Change, (Cambridge, UK: Cambridge University Press, 1999). P. 271. 78 Ann Florini, “The Evolution of International Norms”, International Studies Quarterly, Vol. 40, No. 3, 1996. 79 Jeffrey W. Legro, “Which Norms Matter? Revisiting the ‘Failure’ of Internationalism”, International Organization, Vol. 51, No. 1, 1997. pp. 34-35 80 Judith L. Goldstein, Miles Kahler, Robert O. Keohane and Anne-Marie Slaughter (eds.), Legalization and World Politics (Cambridge, MA: MIT Press, 2001). 81 Miles Kahler, “Conclusion: The Causes and Consequences of Legalization”, International Organization, Vol. 54, No. 3, 2000. P. 679. 82 Sarah V. Parcy, “Mercenaries: Strong Norm, Weak Law”, International Organization, Vol. 61, No. 2, 2007. 83 Nina Tannenwald, The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945, (Cambridge: Cambridge University Press, 2007). 84 Richard Price, The Chemical Weapons Taboo, (Ithaca: Cornell University Press, 2007). 23

provide that legitimation.85 Jeffrey Checkel suggests that by incorporating a theory of domestic factors constructivism could explain the variations. He argued that an international norm would be internalized in a particular state through the “cultural match” with domestic norms.86 Similarly, Jeffrey Legro advocates an idea of “organizational culture” and argues that states adopt an international norm if an organizational culture is compatible with that norm.87 Risse and Sikkink have presented a five-phase spiral model of norms diffusion to explain the variations in the extent to which states have internalized the human rights norms. The five- phases are repression, denial, tactical concession, prescriptive status, and rule-consistent behavior. In the final phase a norm is internalized and taken for granted.88 In the security area, the variations of normative influence have been explained by combinations of domestic politics and ideational change.89 To face the challenge of “ubiquity”90 of norms – failure to explain dissimilarities in norms compliance – conventional constructivist research has proposed a synthesis of rationalism and constructivism to explain norm defiance. Both constructivists and rationalists recognize that actors conceive and interpret their interests in a social context. “Material structures matter,” Andrew Hurrell and Terry Macdonald argue, “but these material structures cannot be understood outside of the shared knowledge and shared understandings held by the actors themselves.”91 Therefore, norms are not in conflict with, but rather are constitutive of, material interests.

85 Andrew P. Cortell and James W. Davis, “How do international institutions matter? The Domestic impact of international rules and norms”, International studies quarterly, Vol. 40, No. 4, 1996. P. 25. 86 - Jeffrey J. Checkel, “Norms, Institutions, and National Identity in Contemporary Europe”, International Studies Quarterly, Vol. 43, No. 1, 1999. 87 Jeffrey W. Legro, “Culture and preferences in the International Cooperation Two-Step”, American Political Science Review, Vol. 90, No. 1, 1996. 88 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, ed. The Power of Human Rights: International Norms and Domestic Change, (Cambridge, UK: Cambridge University Press, 1999). 89 Peter Katzenstein, (ed.), The Culture of National Security: Norms and Identity in World Politics, (New York: Columbia University Press), 1996. 90 Paul Kowert and Jeffrey W. Legro, “Norms, Identity, and Their Limits” in Peter Katzenstein, (ed.), The Culture of National Security: Norms and Identity in World Politics, (New York: Columbia University Press, 1996). P. 486. 91 Andrew Hurrell and Terry Macdonald, “Ethics and Norms in International Relations”, in Walter E. Carlsnaes, Thomas Risse, and Beth A. Simmons, (ed.) Handbook of International Relations, (London: Sage, 2013). P. 69. 24

“Norms do not simply constrain but also enable and empower action.”92 James Fearon, a leading rationalist, and Alexander Wendt, a leading constructivist, conclude that some kind of synthesis is possible between rationalism and constructivism, and both approaches should be seen as methodological tools rather than diametrically opposed ontologies.93 A combination of logics of appropriateness and logics of consequences can explain why actors with divergent interests comply with norms and also can explain norm defection. Martha Finnemore argues for “strategic social construction” – a process in which actors are rational and sophisticated in their cost-benefit analysis to achieve their objectives of changing the preferences of other actors. She further argues that the two logics of actions are “intimately connected”.94 Similarly, Herrmann and Shannon state that “the logic of material consequences and normative appropriateness are not mutually exclusive and can be interconnected in several ways.” The conceptual distinction between the two logics of actions is often blurred.95 Actors are strategic, but it is social context that defines and shapes strategic behavior.96 A number of scholars, most prominently Jeffrey Checkel, have emphasized the importance of “bridge-building”97 between rationalism and constructivism. Jeffrey Checkel, by analyzing socialization in the European Union (EU), argues that leaders embrace certain normative behaviors in the hope that they will get material benefit.98 Schimmelfennig applies

92 Ibid. 93 James Fearon and Alexander Wendt, “Rationalism v. Constructivism: A Skeptical View” in in Walter E. Carlsnaes, Thomas Risse, and Beth A. Simmons, (ed.) Handbook of International Relations, (London: Sage, 2002). 94 Martha Finnemore, National Interests in International Society, (Ithaca: Cornell University Press, 1996). P. 30. 95 Richard Hermann and Vaughn Shannon, “Defending International Norms: Role of Obligation, Material Interest, and Perception in Decision Making”, International Organization, Vol. 55, No. 3, 2001. P 622. 96 Harald Muller, “Arguing, Bargaining, and All That: Communicative Action, Rationalist Theory and the Logic of Appropriateness in International Relations”, European Journal of International Relations, Vol. 10, No. 3, 2004; Michael Barnett and Liv Coleman, “Designing Police: Interpol and the Study of Change in International Organizations”, International Studies Quarterly, Vol. 49, No. 4, 2005; Leonard Seabrooke, The Social Sources of Financial Power: Domestic Legitimacy and International Financial Orders, (Ithaca: Cornell University Press, 2006). 97 Jeffrey T. Checkel, “International Norms and Domestic Politics: Bridging the Rationalist/Constructivist Divide”, European Journal of International Relations, Vol. 3, No. 4, 1997. 98 Jeffrey T. Checkel, “Why Comply? Social Learning and European Identity Change”, International Organization, Vol. 55, No. 3, 2001; Jeffrey T. Checkel, “International Institutions and Socialization in Europe: Introduction and Framework”, International Organization, Vol. 59, No. 4, 2005. 25

rationalist approaches to explain the international socialization of Central and Eastern Europe to democracy norms to demonstrate that an effective socialization depends on “the balance between the international and domestic costs and benefits of compliance over an extended period of time.”99 In this way, scholars have identified both material and normative elements to describe why states adopt new norms and have adopted an eclectic approach that incorporates both approaches.100 While conventional constructivism helps to identify the means by which norms are first initiated, are internalized, and persist and how international norms constitute interests and identity through socialization, there are areas where significant limitations are apparent. First, the conventional constructivist approach emphasizes the regulative and constitutive nature of norms but still treats them as static objects. This approach has demonstrated the replacement of one norm with another but little attention is paid to understand how norms themselves change without necessarily being replaced. The meanings of norms are held constant through-out the life cycles. But meanings may change in all stages of the life cycle, even if the cycle is completed and norms are internalized. Conventional constructivist studies treat norms as “’neo-positivist’ causal variables”.101 Norms do not exist independent of political actions that actors enact them. This, in turn, strengthens, weakens, and changes norms. Treating norms as static entities makes it

99 Frank Schimmelfennig, “Strategic Calculation and International Socialization: Membership Incentives, Party Constellations, and Sustained Compliance in Central and Eastern Europe”, International Organization, Vol. 59, No. 4, 2005. P. 827. 100 Michael Zurn and Jeffrey T. Checkel, “Getting Socialized to Build Bridges: Constructivism and Rational Choice, Europe and the Nation-State”, International Organization, Vol. 59, No. 4, 2005; Markus Kornprobst, “Argumentation and Compromise: Ireland's Selection of the Territorial Status Quo Norm”, International Organization, Vol. 61, No. 1, 2007; Pepper D. Culpepper, “The Politics of Common Knowledge: Ideas and Institutional Change in Wage Bargaining”, International Organization, No. 62, No. 1, 2008; Judith Kelley, “Assessing the Complex Evolution of Norms: The Rise of International Election Monitoring”, International Organization, Vol. 62, No. 2, 2008; Alastair Iain Johnston, “Treating Institutions as Social Environments”, International Studies Quarterly, Vol. 45, No. 4, 2001; Richard K. Herrmann and Vaughn P. Shannon, “Defending International Norms: The Role of Obligation, Material Interest, and Perception in Decision Making”, International Organization, Vol. 55, No. 3, 2001; Joseph Jupille, James A. Caporaso and Jeffrey T. Checkel, “Integrating Institutions: Rationalism, Constructivism, and the Study of the European Union”, Comparative Political Studies, Vol. 36, No. 1-2, 2003; Daniel L Nielson, Michael J Tierney, and Catherine E Weaver, “Bridging the Rationalist-Constructivist Divide: Re-engineering the Culture of the World Bank”, Journal of International Relations and Development, Vol. 9, No. 2, 2006. 101 Mark Laffey and Jutta Weldes, “Beyond Belief: Ideas and Symbolic Technologies in the Study of International Relations”, European Journal of International Relations, Vol. 3, No. 2, 1997. P. 195. 26

difficult to explain normative change. It eliminates the very processes of construction of meaning. 102 Second, conventional constructivism suggests a degree of permanence with regard to compliance behavior. It assumes that “an established norm, once adopted, is either simply obeyed or disregarded”103 and actors follow accepted norms unproblematically. It pays little attention to the situations in which “compliance conditions are challenged by norm followers” that offer “an empirical access point for studying changes in the normative structure”.104 Third, this approach tends to minimize the degree of political conflict inherent in norm creation, adherence and promotion. It tends to overemphasize the cooperative dimension of international relations. Rather even established norms are subject to a constant battle over their interpretation and precise meaning.105

Critical Constructivism Critical constructivism, like conventional constructivism, also is based on the social construction of reality and the mutual constitution of structure and agents, but it places more emphasis on the importance of language and the continuously changing nature of norms. Norms establish rules of the game through intersubjective meanings and enable actors to pursue their interests within that structure. They allow the “actors to direct their actions towards each other, communicate with each other, appraise the quality of their actions, criticize claims and justify choices”.106 Norms influence actors as they render action meaningful, form the basis for justification and reduce complexity, but not in the same stable, isolated, and causal manner that tends to be found in conventional constructivism. Krook and True argue that “the life cycles of international norms do not resemble linear models of norm emergence and diffusion; rather,

102 Jeffrey M. Chwieroth, “Normative Change from Within: The International Monetary Fund's Approach to Capital Account Liberalization”, International Studies Quarterly, Vol. 52, No. 1, 2008; Wayne Sandholtz, Prohibiting Plunder: How Norms Change, (NY: Oxford University Press, 2007). 103 Kees Van Kersbergen and Bertjan Verbeek, “The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union”, European Journal of International Relations, Vol. 13, No. 2, 2007. P. 221. 104 Antje Wiener, “Contested Compliance: Interventions on the Normative Structure of World Politics”, European Journal of International Relations, Vol. 10, No. 2, 2004. P. 189. 105 Antje Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters, (Cambridge: Cambridge University Press, 2008). 106 Fredrick Kratochwil, “The Embarrassment of Changes: Neorealism as the Science of Realpolitik without Politics”, Review of International Studies, Vol. 19, No. 1, 1993. P. 76. 27

these trajectories are fraught with contestation and reversals as state and non-state actors compete to identify, define and implement these norms.”107 In this way, norms at any level (institutional, domestic, or international), are not internalized by actors in the way presented in much conventional constructivist thought. Rather norms remains contested throughout their life. Antje Wiener explains the differences between the conventional and critical constructivist approaches. She notes that scholars working in the conventional constructivist approach focus on the “structuring power of norms and their influence on state behavior in world politics.” The norms are treated as relatively stable causes for action. This is in contrast to critical constructivists who focus on the “meaning of norms as constituted by and constitutive of specific use.” She argues, The former’s focus on reaction to norms is helpful to indicate the influence of one fundamental norm over another. The latter’s interest in relations to norms enhances the understanding of how intersubjectivity plays out in international relations and identifies avenues towards change based on normative structure as entailing meaning that is actually “in- use”.108

The former explains compliance with norms and/or norm diffusion via the logic of appropriateness and logic of arguing, while the latter understands divergence in normative meaning via the logic of contestedness. Attention is shifted to “variation in the interpretation of meaning in the different domestic contexts where compliance with a norm is expected”109 as opposed to making assumptions that they are understood and interpreted uniformly at domestic levels. This variation in meanings can be tracked through analyzing elite interviews, “official documents, policy documents, political debates and media contributions”.110 To highlight the fact that norms remain dynamic and contested even after their internalization, critical constructivism has focused on norm contestation and norm localization.

107 Mona Lena Krook and Jacqui True, “Rethinking the Life Cycles of International Norms: The United Nations and the Global Promotion of Gender Equality”, European Journal of International Relations, Vol. 18, No. 1, 2012. P. 106. 108 Antje Wiener, “Enacting Meaning-In-Use: Qualitative Research on Norms and International Relations”, Review of International Studies, Vol. 35, No. 1, 2009. P. 179. 109 Antje Wiener, “Contested Compliance: Interventions on the Normative Structure of World Politics”, European Journal of International Relations, Vol. 10, No. 2, 2004. P. 199. 110 Ibid. P. 201. 28

In norm localization, Amitav Acharya criticizes Checkel’s “cultural match” concept, and Legro’s “organizational culture”, for being too static and proposes his own theory based on constitutive localization. He argues that local actors not only adopt but also reconstitute international norms in order to make them congruent with domestic structures. Norms are reinterpreted in different regional and domestic contexts by local actors.111 Norm diffusion is a two-way and continuously interactive process.112 In this way, norm takers play an active role in socialization and influence the meaning of the norms.113

Norm Contestation114 Critical constructivist studies have highlighted how contestation is the consequence of the generic nature of norms, in which actors have to operationalize them in specific situations. Norms do not provide rules for every situation. The operationalization of generic norms gives rise to different solutions to the same problem and an array of permissible interpretations. This tension between general rules and specific situations lies at the core of Sandholtz’s cyclic model of norm change. According to this, disputes over the context-dependent application of norms are inevitable due to the indeterminacy and contradictions inherent in norms. Normative change, however, does not come automatically but is thought to be triggered by disputes arising from applying a norm to a specific situation.115 Gregg claims that “normative indeterminacy” – “where norms are indeterminate, no theory, rule, or principle constrains us to interpret or apply the norm

111 Sally Engle Merry, Human Rights & Gender Violence: Translating International Law into Local Justice, (Chicago: Chicago Law and Society, 2006); Susanne Zwingel, “How Do Norms Travel? Theorizing International Women’s Rights in Transnational Perspective”, International Studies Quarterly, Vol. 56, No. 1, 2012. 112 Amitav Acharya, Whose Ideas Matter? Agency and Power in Asian Regionalism, (Ithaca and London: Cornell University Press, 2009). 113 Alice Ba, “Who's Socializing Whom? Complex Engagement in Sino-ASEAN Relations”, Pacific Review, Vol. 19, No. 2, 2006. 114 There are two types of contestation. First, contestation can result from conflicts between different norms. For example, in the case of humanitarian intervention the sovereignty norm comes into conflict with human-rights norms. Second, different interpretations of the same norm create space for contestation. This study is focusing on the latter type of contestation. 115 Wayne Sandholtz, Prohibiting Plunder: How Norms Change, (NY: Oxford University Press, 2007). pp. 9-23. 29

in a particular way” – is inescapable.116 International agreements are mostly the lowest common denominator of the members’ demands. Therefore, international treaties are often ambiguous and vague; actors draft broad formulations so that the outcome of the negotiation is acceptable for all parties involved. The reason for broadly-stated agreements is to include as wide a range of signatories as possible.117 Kersbergen and Verbeek have argued that actors are more likely to adopt vague norms because it allows them to “stick to their own interpretation” and this allows them to use such a situation strategically for their own interests. In this way norm adherence is greater in the case of vague norms.118 The operationalization of norms in specific situations requires interpretation. Actors with different cultural backgrounds are likely to have different and contested interpretations, and this in turn changes the meaning of that norm. Jacobson claims that when diverse actors interpret a norm, diverse understandings are inevitable.119 Gregg explains To apply a norm is to interpret it; to interpret it is to reconstruct its meaning and therefore the criteria of its validity. The very identity of a norm first emerges with its interpretation. Because it is interpretive, identity is variable or changeable, never settled. Meaning is created time and again. The creation of meaning is contingent on all sorts of factors such as the interpreter’s choice of method, or various kinds of presuppositions, or the speaker’s political beliefs. Canons of interpretation cannot eliminate these interpretive uncertainties.120

Hoffmann claims that “norms are born anew everyday as actors instantiate them through their beliefs and actions”.121 He investigates how states had different understanding of a universal climate governance norm and how these diverse understandings influenced the

116 Benjamin Gregg, Coping in Politics With Indeterminate Norms, (Albany: SUNY Press, 2003). P. 1. 117 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, (Harvard: Harvard University Press, 1998). 118 Kees Van Kersbergen and Bertjan Verbeek, “The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union”, European Journal of International Relations, Vol. 13, No. 2, 2007. P. 221. 119 John Kurt Jacobson, “Dueling Constructivism: A Post-Morten on the Ideas Debate in Mainstream IR/IPE”, Review of International Studies, Vol. 29, No. 1, 2003. P. 57. 120 Benjamin Gregg, Coping in Politics With Indeterminate Norms: A theory of Enlightened Localism, (Albany: SUNY Press, 2003). P. 22. 121 Mathew Hoffmann, “Norms and Social Constructivism in International Relations.” In Robert A. Denemanee (ed.), The International Studies Encyclopedia. (Oxford: Wiley-Blackwell, 2010). P. 5419. 30

evolution of this norm.122 By looking at the case of the World Bank Group, Susan Park analyses the role of contestation in the evolution of the sustainable development norm. She argues that the World Bank and member states, but notably also environmentalists, played an important role in reconstituting this norm. She notes, “Socialization is not a linear process but one of continuous interaction between agents and structures”.123 It is through processes of contestation that norms are applied and interpreted, and thus are affected in the scope and detail of their meanings. Antje Wiener seeks to develop a theory of contestation to understand how the normative structure of meaning-in-use is continuously re-enacted by a multiplicity of agents (community, social group, and individual).124 Every norm has a specific cultural and social context which gives rise to different interpretations and this meaning-in-use gives “access to specific meanings that are influential at a specific time and place.”125 Norm contestation refers to conflicts around the normative structure of meaning-in-use of a norm,126 which emerge when norms gain validity in different cultural contexts.127 Wiener emphasizes that these cultural contexts need to be understood and accounted for, as cultural practices are constitutive for meanings that actors lend to a norm. A focus on individual interpretations helps to identify the cultural validation of a norm. Analysis of cultural practices is useful in uncovering the “hidden meanings of norms which deviate from the texts of legal documents”.128 This means norms are “contested, unless and until a mutually satisfactory interpretation is established through discursive intervention which may or may not be conflictual”.129 Wiener has identified three segments in the cycle of contestation as well as three stages

122 Mathew Hoffmann, Ozone Depletion and Climate Change: Constructing a Global Response, (Albany: SUNY Press, 2005). 123 Susan Park, World Bank Group Interaction with Environmentalists: Changing International Organization Identities, (Manchester: Manchester University Press, 2010). P. 8. 124 Antje Wiener, A Theory of Contestation, (Berlin Heidelberg: Springer-Verlag, 2014). 125 Antje Wiener, “Enacting Meaning-In-Use: Qualitative Research on Norms and International Relations”, Review of International Studies, Vol. 35, No. 1, 2009. P. 180. 126 Antje Wiener, “Contested Compliance: Interventions on the Normative Structure of World Politics”, European Journal of International Relations, Vol. 10, No. 2, 2004. 127 Antje Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters, (Cambridge University Press, 2008). P. 33. 128 Antje Wiener, “Enacting meaning-in-use: Qualitative research on norms and international relations”, Review of international studies, Vol. 35, No. 1, 2009. P. 181. 129 Antje Wiener, “Contested Compliance: Interventions on the Normative Structure of World Politics”, European Journal of International Relations, Vol. 10, No. 2, 2004. P. 202. 31

of norm implementation. The three segments include social recognition, formal validity, and cultural validity. Constituting, referring and implementing are the three stages of norm implementation. Formal validity is contested at the constituting stage, where a community endorses a norm by signing a treaty or convention. The contestation is more visible in the social recognition segment at the referring stage, “when different social groups do not agree about which is the appropriate behavior in a given situation.” At the implementation stage the cultural validity is most likely contested where individuals with different “background experience and normative baggage” apply the norm in a specific situation.130 This is how a norm may be agreeable at the international level, but its actual meaning may change in the implementation context. Wiener emphasizes that there is a “legitimacy gap” between broader norms and specific implementation. She suggests that this gap can be filled by the principle of contestedness, which warrants access to “regular contestation (as opposed to ad-hoc contestation) for all involved stakeholders”.131 As contestation is a political practice which gives “power of defining the meaning-in-use of the norms that govern a political community”, access to this contestation is important “for a just and legitimate political order”.132 Wiener argues that contestation is not detrimental to the normative structure but lends it greater flexibility.133 “Contestation is central for establishing the legitimacy of compliance processes” and “it is constitutive towards social legitimacy”.134 Wiener has identified three factors that enhance the contestation of normative meaning of norms. First is crisis: “situations of crisis in which the process of interpretation based on social institutions is radically cut short.” Second is historical contingency: the interpretation of the meaning of norms depends on the social environment, both cultural and organizational, in which they are interpreted, which changes over time. Third is changes in governance process:

130 Antje Wiener, A Theory of Contestation, (Berlin Heidelberg: Springer-Verlag, 2014). pp. 29-30. 131 Ibid. P. 1. 132 Ibid. P. 10. 133 Antje Wiener, “The Dual Quality of Norms and Governance Beyond the State: Sociological and Normative Approaches to ‘Interaction’”, Critical Review of International Social and Political Philosophy, Vol. 10, No. 1, 2007. 134 Antje Wiener, “Contested Compliance: Interventions on the Normative Structure of World Politics”, European Journal of International Relations, Vol. 10, No. 2, 2004. P. 218. 32

“contestation is enhanced under the condition of expanding governance processes beyond the boundaries of a particular community of interpretation.”135 Although critical constructivist studies recognize that norms can be weakened136 or strengthened137 by norm contestation, “the threshold, when contestation turns to be a weakening instead of a strengthening force, remains unclear.”138 Deitelhoff and Zimmermann specify the relationship between contestation and norm stability by arguing that “contestatory discourses around the application of a norm” strengthen it by defining the scope conditions and regulating rules, whereas “justificatory discourses, in contrast, directly target the validity of a norm” and this may lead to a weakening or erosion of the respective norm.139 Critical research on norms emphasizes that norms are stable – norms do exhibit a certain degree of stability, as they are recognizable by the common expectations that they structure – and flexible as they are in a “constant state of dynamism and flux”.140 Conventional constructivist studies also recognize that norms do not exist in a political or normative vacuum and a focus on competition allows one to look specifically at the interaction and the constitutive effects of norm. According to Finnemore, even a stable global norm “leaves substantial room for interpretation and contestation”.141 As new norms emerge through competition, decisions taken at the point of contention may appear to contradict or deviate from the prevailing interests and the previous known normative framework. Wiener argues that both behaviorist and reflexive approaches are important to comprehend the norm changes. “Exploring the construction and change of norms

135 Antje Wiener, “Contested Meanings of Norms: A Research Framework”, Comparative European Politics, Vol. 5, 2007. P. 7. 136 Diana Panke and Ulrich Petersohn, “Why International Norms Disappear Sometimes”, European Journal of International Relations, Vol. 18, No. 4, 2012. 137 Antje Wiener, “Enacting Meaning-In-Use: Qualitative Research on Norms and International Relations”, Review of International Studies, Vol. 35, No. 1, 2009; Cristina G. Badescu and Thomas G. Weiss, “Misrepresenting R2P and Advancing Norms: An Alternative Spiral?” International Studies Perspectives, Vol. 11, No. 4, 2010. 138 Nicole Deitelhoff and Lisbeth Zimmermann, “Things We Lost in the Fire: How Different Types of Contestation Affect the Validity of International Norms”, Peace Research Institute Frankfurt, Working Paper No. 18, 2013. P. 1. 139 Ibid. 140 Mathew Hoffmann, “Norms and Social Constructivism in International Relations.” In Robert A. Denemanee (ed.), The International Studies Encyclopedia. (Oxford: Wiley-Blackwell, 2010). P. 5419. 141 Martha Finnemore, National Interests in International Society, (Ithaca: Cornell University Press, 1996). P. 139. 33

within their socio-cultural contexts conveys one part of the story, while studying the role of norms as causing rule-following behavior conveys the other”. She suggests that both are important to take into account “the dual quality of norms as stable and structuring, on the one hand, a flexible and constructed, on the other.”142

The Realist Constructivist Approach While norm contestation in the study of norms goes beyond a static understanding of norms, it does not focus on the role of power in this process. Critical constructivists assume that all stakeholders have equal capacity for contestation and have failed to take into account the fact that contestation and interpretation by powerful actors have different effects as compared to weak states. Wiener assumes that equal access to regular contestation enhances the legitimacy of a political order, but ignores the fact that powerful actors dominate the discourses, buy consent or threaten to weaker states, and manipulate public opinion in their favor. It is important to take into account how power disparities affect norm contestation to explain empirical patterns, including the strategic construction, interpretation and reinterpretation of norms so that they fit with one’s preferred action, and forum-shopping in search of an institution to justify self- interested behavior. Powerful actors convince others that their interpretation is correct and bring rhetorical, strategic and material resources to bear in support of their position. In this way powerful states are in a better position to propagate their interpretation. To fill this lacuna, this study applies the realist constructivism approach, which explores the interaction of norms and power in the sense that they affect change in one another. In norm contestation, the power of an interpreter matters and significantly affects the pattern of normative change. Samuel Barkin, in Realist Constructivism: Rethinking International relations Theory,143 develops the main features of a potential realist-constructivist synthesis. He not only highlights the point of convergences, but also the points of divergences. Not all realist research has to incorporate constructivist features, and not all constructivist research has to deal with power the

142 Antje Wiener, “Contested Meaning of Norms: A Research Framework”, Comparative European Politics, Vol. 5, No. 1, 2007. P. 51. 143 Samuel Barkin, Realist Constructivism: Rethinking International relations Theory, (Cambridge: Cambridge University Press, 2010). 34

way realists do. The core inquiry of the realist constructivist approach is the different forms of power and their respective effects on the social construction of international politics. In this way the realist constructivist approach is balancing realism’s focus on power with constructivist’s focus on norms and ideas as morality in the way Carr originally envisioned as a comprehensive understanding of international politics. The key features of such a realist-constructivist synthesis are as follows. Barkin’s first step is to define the core elements of both realism and constructivism. The core concept of Realism, Barkin writes, is power politics. Not all forms of realism are compatible with constructivism. Barkin is referring to classical realism, as opposed to structural realism, which views power as relative and relational. By conceiving of power as relational and as ascribed to corporate agents one can avoid definitions that focus on the centrality of states, material capabilities, or rational action. Defining Realism in power politics terms opens the door to a relationship with constructivism that these other definitions would keep closed. The concept underlying constructivism is intersubjectivity. By defining constructivism in terms of intersubjectivity, Barkin has avoided concepts such as idealism, co-constitution, or logics of appropriateness, that are designed to mark out a territory that is necessarily contrary to Realism. Defining realism and constructivism through their core concepts makes it possible to explore a creative relationship between the two positions. Second, this combination of realism and constructivism is possible because both share a foundation in a logic of the social rather than a logic of the individual. Classical realism shares a social logic with constructivism because its key unit of analysis is the states, which is a social aggregation. The logic of the social relates to constructivism’s core mechanism that preferences are socially constructed instead of exogenously given and these socially constructed preferences have an impact on the behavior of the agents. Since both approaches share the logic of the social, both share an interest in the construction of the national interest and insist on the need for reflexivity. In this way a realist constructivist approach is possible.144 The realist emphasis on power politics can be a useful way to correct the constructivist tendency to produce an apolitical account of social construction, and constructivism’s notion of

144 Ibid. 35

intersubjectivity can sharpen realist conceptualization. The combination is fruitful particularly because constructivism tells us about “how to study politics, but little about how politics work”, and realism tells us about “how politics work, but not how to study them”.145 A realist constructivist approach to norm contestation is rewarding because it takes into account how norms and power are co-constitutive and how both constrain and enforce each other. Realist constructivism aims to understand the “dialect between ideas and power, with a special focus on the carriers of norms and morality.” It looks at the way in which “power structures affect patterns of normative change in international relations and, conversely, the way in which a particular set of norms affect power structure.”146 Realist constructivism emphasizes the role of agency in explaining normative change. Sterling-Folker explains normative change through cognitive shifts and argues that sociality contains within it the seeds of both cooperation and conflict, both in-group and out-group behaviors.147 Realist constructivism assumes that human nature is social, and that it includes both in-group and out-group dynamics. In this way it can explain the importance of particular agents in generating change. It can also look at structural constraints on agency and mechanisms through which agency might generate change.

Implications for Norm Contestation

Power disparities do have influence in the meaning construction of a norm. Powerful states exert a more decisive influence on this process than other states and dominate the discursive structure. Negligence of power is a mistake, since power games are an essential part of the argumentation process, particularly since the capacity to argue is unevenly distributed among participants. The particular way in which issues are framed and norms are interpreted empowers certain arguments and actors at the expense of others. Discourses are understood to work to define and to enable, and also to silence and to exclude, for example, by limiting and restricting authorities and experts to some groups, but not others, endorsing a certain common sense, but making others meaningless, impracticable, inadequate or otherwise disqualified. This

145 Ibid. P. 156. 146 Samuel Barkin, “Realist Constructivism”, International Studies Review, Vol. 5, No. 3, 2003. P. 337. 147 Jennifer Sterling-Folker, Theories of International Cooperation and the Primacy of Anarchy, (New York: State University of New York Press, 2002). 36

leads us to analyze dominating discourses and their structuring of meaning as connected to implementing practices and ways of making these intelligible and legitimate. However, even dominating discourses require work to “articulate” and “rearticulate” their knowledge and interpretation.148 The causal arrows of norms flow both ways: i.e., norms are simultaneously a product of power and a constraint upon its exercise. If a norm was completely unresponsive to state interests, it would risk being sidelined and slipping into insignificance. On the other hand, norms that are infinitely pliable cease to perform their legitimizing function, because subordinate states will view them a mere reflection of powerful states. Power that collides too openly with universal values and the common interest of the international community remains precarious. Might does not always make right, and the strongest, as Jean-Jacques Rousseau once noted, “is never strong enough to be always the master unless he transforms strength into right, and obedience into duty”.149 The following model, based on norms contestation and realist constructivism, explains regime change by taking into account the normative as well as power structures and how states work around a norm if that norm is in conflict with their perceived national interests. States are strategic, work to convince others that their interpretation is correct and bring rhetorical, strategic and material resources to bear in support of their position. In this way powerful states are in a better position to propagate their interpretations.

148 Jennifer Milliken, “The Study of Discourses in International Relations: A Critique of Research and Methods”, European Journal of International Relations, Vol. 5, No. 2, 1999. P. 229. 149 Jean-Jacque Rousseau, The Social Contract and Discourses, (London: J. M. Dent and Sons Ltd, 1941). P. 8. 37

(Domestic structure) (Normative Structure) (Power Structure)

State Interests Contested Norms Relative State Power

Intersubjective Dominant Discourse

Regime Change

Following paragraphs explain the proposed model.

State Interests: Critical constructivism argues that state interests are intersubjective beliefs that are shared among people. State interests are constructed by dominant groups in society. State officials and policy makers, who are charged with acting on behalf of the state, interpret state interests which should be properly understood as a product of social construction. It is through the social construction of interests with intersubjective and culturally established meanings that the international system and the place of the state in it is understood. Wiener argues that in order to understand the dual nature of norms – stable and flexible – we need to understand the “complexity of contextual variables”: how policy makers interpret national interests of a state in a particular time and place. A norm is considered as stable if it resonates with the “nationally entrenched” contextual variables. If a norm is in conflict with contextual variables then its flexibility comes into play, given that states reinterpret it in a socially acceptable way. Therefore, it is important to identify the “situatedness” of decision makers – “it stresses the crucial impact of differently established understandings of constitutional norms and demonstrates the impact of nationally embedded norms on decision-makers' behaviour in

supranational contexts.”150 Norms not only structure decision-makers' behaviour, but are also constructed by them. Samual Barkin uses the word “public interest” to provide a point of contact between classical realism and constructivism. He argues, “Being a public interest, the national interest is a social construct – it is intersubjective understandings that contribute content to the national interest, that give the state social purpose.”151 Realist constructivism emphasizes that state interests not only have an intersubjective social purpose but are also historically contingent. Constructivism tells us how policy makers bring change in the state’s social purpose by either acting appropriately or strategically through the interaction of agent and structure in the construction of state interests. Classical realists stress the importance of the element of morality in power politics and call foreign policy an act of “balancing of the demands of power on the one hand and morality on the other – as a dialectic between power and morality.”152 Morgenthau recognizes the importance of culture by arguing, “the kind of interest determining political action in a particular period of history depends upon the political and cultural context within which foreign policy is formulated.” He applied the same observation to the concept of power as “its content and manner of its use are determined by the political and cultural environment.”153 In this way, the pursuit of state interests and power are determined by the local habits, characteristics, and traits that a culture creates. Morgenthau allocated to culture a significant and contingent role in his theory: both interest and power are culturally determined in some way or other. This aspect of his theory has been overlooked, as the concepts of interest and power are highlighted but the contexts in which they operate are largely ignored. It is a major assumption of Morgenthau that cultural differences divide us and make it harder for different actors to have the same opinions in international politics. He claims, “Even if American, Russian, and Indian would speak with each other, they would speak with different tongues, and if they uttered the same words, those words would signify different objects, values, and aspirations to each of them.” He further argues, “The same item of information and the same

150 Antje Wiener, “Forging Flexibility - the British 'No' to Schengen”, ARENA Working Papers, 2000. 151 Samuel Barkin, Realist Constructivism, (New York: Cambridge University Press, 2010). P. 67. 152 Ibid. P. 74. 153 Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 3rd Edition, (New York: Alfred A. Knopf, 1965). P. 9. 39

idea mean something different to an American, a Russian, and an Indian; for that item of information and that idea are perceived by, assimilated to, and filtered through minds conditioned by different experiences and molded by different conceptions of what is true, good, and politically desirable and expedient.”154 Therefore, it is important to understand the cultural differences in which state interests and power are formulated and operate. Power: Power asymmetries influence norm contestation as powerful actors are in a better position to propagate their interpretation. Due to Neorealism’s domination in the IR field, scholars did not systematically reflect on the concept of power. Power has usually been measured in terms of economic/military strength and other approximations based on the assumption that that power is nothing more than material capacity.155 The power-as-a-resource approach treats material resources as if they were automatically translated into effective power. This, however, fails to distinguish between potential and actual power, i.e., it confounds (material) resources with influence over outcomes. As well, by ascribing general fungibility to certain material power resources, such as money and weapons, it fails to take into account that power may be issue-area specific. In addition, the focus on material power overlooks other, non- material, forms of power that may apply in different issue areas and thus complement material forms of power. This study adopts Morgenthau’s definition of power as comprising anything “that establishes and maintains the control of man over man”, including not only physical means of coercion but equally “the most subtle psychological ties by which one mind controls another”.156 Morgenthau was aware of the multi-faceted and complex nature of power. This definition not only takes into account the relational aspect of power, it also gives due consideration to the fact that the exercise of power is not only visible in situations of conflict, in which compliance is forced through physical coercion or material inducements, but also in situations in which one actor shapes the preferences of another actor and thus prevents conflict from arising in the first place, “Is it not the supreme exercise of power”, Steven Lukes asks, “to get another or others to

154 Ibid. P. 265. 155 Kenneth Waltz, Theory of International Politics, (New York: McGraw-Hill, 1979). P. 131. 156 Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 3rd Edition, (New York: Alfred A. Knopf, 1965). P. 10. 40

have the desires you want them to have – that’s is, to secure their compliance by controlling their thoughts and desires?”.157 Classical Realism, which Barkin draws on, has argued that non-material factors are central to a complete understanding of power politics in IR, that power politics is contextual and relative, and that material capabilities do not alone determine outcomes. Constructivism draws on broader meanings of power than does Realist power politics but the latter is compatible with Constructivists’ understandings, being both relational and social. Classical Realism’s concept of power is broader than is generally credited by its critics and demands a relational approach to understanding power. “A Realist Constructivism is a Constructivism in which a concern for power politics, understood as relational rather than structural, is central. It is well placed to see that not only do discursive and normative structures need to be constantly recreated, but that they often must be recreated against opposition, and that to recreate them to reflect a particular political morality can require the application of power as well as reason”.158 Classical Realists emphasized the role of legitimacy in the use of force. Power requires a direct link with legitimate social purpose. Carr advocated the role of legitimacy in the use of force and was always in favor of the utilization of an ideological mask of power in order to get acceptability at the international level.159 Classical Realists recognize that the application of pure military power as anything other than a final measure is at best inefficient, at worst counterproductive, and is unjustifiable. Morgenthau wrote that the distinction between coercion and legitimate power is “not only philosophically valid but also relevant for the conduct of foreign policy” because legitimate power stands a better chance of influencing the will of the subjects than raw coercion. He explains Legitimate power, that is, power whose exercise is morally or legally justified, must be distinguished from illegal power. The power of the police officer who searches me by virtue of a search warrant is

157 Steven Lukes, Power: A Radical View, (London: MacMillan, 1974). P. 23. 158 Samuel Barkin, Realist Constructivism: Rethinking International Relations Theory, (New York: Cambridge University Press, 2010). P. 156. 159 Edward Hallett Carr, Twenty Years Crisis’ 1919-1939, (NY: St. Martin’s Press, 1946). pp. 132-45. 41

qualitatively different from the power of a robber who performs the same action by virtue of his holding a gun.160

The constructivist perspective on legitimacy holds that all actors, institutions and social orders depend on social sanction to determine their degree of rightful identity, interests, practices, norms and procedures and hence the degree to which these actions warrant respect and compliance.161 In this view, it is the dependence on social recognition that sets legitimacy apart from other norms and social values.162 While legitimacy claims often draw on legality, morality, and constitutionality, legitimacy is a composite of, an accommodation between, such values.163 Hence, legitimation reveals collective understandings about the rules, norms and procedures that structure international politics; it does not reflect a common morality.164 This approach is useful to describe perceptions of legitimacy pertaining to specific institutions or actions, and how they may be in the process of change. Notions of legitimacy as well as the definition of what constitute legitimate practices are historically contingent: they will alter as normative and political contexts change. Importantly, since perceptions of legitimacy may vary over time, the analysis of international legitimacy is not the same as exonerating the findings as universally just or moral. The international politics of legitimation is denoted by contestation, judgment and discussion revolving around norms, the distribution of power, and the search for consensus.165 States make justifications, known as legitimacy claims, regarding their identities, interests, practices and institutional designs.166 The constructivist argument that states behave strategically when they seek legitimacy by associating their actions with existing norms is central to this

160 Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 3rd Edition, (New York: Alfred A. Knopf, 1965). P. 34. 161 Christian Reus-Smit, “International Crises of Legitimacy” International Politics, Vol. 44, No. 2/3, 2007. P. 158-9. 162 Ibid. P. 160. 163 Ian Clark, “Setting the Revisionist Agenda for International Legitimacy”, International Politics, Vol. 44, No. 2/3, 2007. P. 207. 164 Katharine Coleman, International Organizations and Peace Enforcement: The Politics of International Legitimacy, (Cambridge: Cambridge University Press, 2007). P. 28-32. 165 Ian Clark, Legitimacy in International Society, (Oxford: Oxford University Press, 2005). P. 4. 166 Ian Clark, “Setting the Revisionist Agenda for International Legitimacy”, International Politics, Vol. 44, No. 3/2, 2007. P. 326. 42

understanding. When states breach common rules, they do not publically admit to having done so. Instead they argue that they were in fact complying with some accepted standards of conduct.167 In so doing, they seek to reconstruct and reinterpret the norms in ways they think will serve their interests.168 In response other states consider the fit of claims to their normative preferences to assess how legitimate they hold those claims to be. This audience will tend to respond approvingly to rule adherence and penalize rule-breaking unless a majority of states are persuaded that a new rule or a new interpretation of existing rules is tolerable within the institutional environment.169 Legitimation of a normative order hence requires self-restraint on the part of the powerful states. Legitimacy is not a quality that can simply be created and then left to operate by itself: it is a soft power resource that has to be handled with great caution and cultivated carefully, and that is all too easily squandered through arrogant and unilateral policies.170 Hence, international legitimation processes link state practice and international norms because agents and structure are co-constitutive. In consequence, although powerful states can influence norms more than less powerful states, they must do this through the normative structure. This constrains them because there is a limit to available plausible justifications: while norms are flexible, they are not infinitely so.171 Hence norms are both constraining and enabling of state power. In each legitimation process, a tolerable consensus has to be found among relevant actors on how norms are to be reconciled and applied.172 Additionally, once a state has made its interpretation of a shared norm clear, such a statement may entrap the actor, constraining the future range of its available actions. 173 Claims of legitimacy for future actions –

167 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, (Oxford: Oxford University Press, 2000). P. 9 & 24. 168 Ian Hurd, “Breaking and Making Norms: American Revisionism and Crises of Legitimacy “International Politics, Vol. 44, No. 2/3, 2007. P. 196. 169 Ibid. P. 197. 170 Ian Hurd, “Legitimacy, Power and the Symbolic Life of the UN Security Council”, Global Governance, Vol. 8, No. 1, 2002. P. 47. 171 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, (Oxford: Oxford University Press, 2000). P. 925. 172 Ian Clark, Legitimacy in International Society , (Oxford: Oxford University Press, 2005). P. 201. 173 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, (Oxford: Oxford University Press, 2000). P. 26. 43

including similar actions by other states – will be under pressure to be consistent with this earlier claim. The Norm Contestation Cycle: Power plays an important role in the norm contestation cycle. In the three stages – constituting, referring and implementing - and three segments - social recognition, formal validity and cultural validation – powerful actors, especially hegemons, attempt to create and maintain norms that reinforce their control over international system. Hegemons create and institutionalize norms that serve their interests. Lesser states are socialized to these norms.174 Caroline Fehl argues, “[C]hanges in the distribution of material capabilities and in prevailing moral discourses create conflicting pressures for deepening and lessening institutional inequality. How these countervailing pressures are resolved depends on the constraining and conditioning impact of past institutional choices. Strong veto points embedded in pre-existing institutions inhibit reforms”. She further claims, “At the same time, institutional models and procedural precedents increase the likelihood that similar forms of (un)equal institutions are reproduced and similar reforms repeated in the evolution of the regime.”175 Institutional designs and voting rules empower states in a variety of ways. Most international organizations work on a one-country, one-vote basis. This has the effect of empowering smaller states at the expense of larger ones. Relatively few international organizations work on a principle other than one-country, on vote, but some key institutions work this way. The voting rules of the Security Council, with its five veto powers, have institutionalized the roles of those five powers as the core voices on matters of international security. At the same time, there are different vote thresholds in different institutions. A consensus-based voting empowers all member states especially smaller states, a majority-voting system the median country and veto-voting a few major countries. Even in the segment of cultural validation, individual actors are not free to interpret and implement a norm as they wish as norms are intersubjective and need approval from other actors. In this domain, powerful actors are in a position to marginalize or reject an interpretation which is counter to theirs. David

174 G. John Ikenberry and Charles A. Kaupchan, “Socialization and Hegemonic Power”, International Organization, Vol. 44, No. 3, 1990. 175 Caroline Fehl, “Unequal power and the institutional design of global governance: the case of arms control”, Review of International Studies, Vol. 40, No. 3, 2014. P. 530. 44

Dessler identified rules as a source of power and argued that rules are the material conditions of actions, which agent appropriate and through which action reproduces and transforms.176 Resources available to powerful states enable them to construct the meaning of a norm disproportionately. At the same time, norms also constrain the excessive use of power, as normative structures put restrictions on the unhindered exercise of power. Military, economic and political resources enable powerful states to influence the incentive structure of weaker states. Hard power provides a bargaining leverage to induce consent and deter opposition.177 Powerful states are influential in other regimes, which enhances their bargaining advantages by issue-linkages. This “regime complexity” also benefits the powerful states by increasing the likelihood of forum-shopping in which actors strategically select from among a set of institutional avenues that will advance their specific interests.178

Intersubjective Dominant Discourse: Norms and power are deeply intertwined. Powerful actors can possess discursive power. International regimes provide powerful states with a forum for shaping the values, perceptions, preferences, and consequently the behavior of other states. It was Foucault who emphasized the “productive” power of discourses, arguing that power should not be equated with something that is purely repressive, censoring, and prohibiting; rather, “power produces domains of objects and rituals of truth”.179 Attempts to apply Foucault’s theorizing to the international realm have therefore focused on explaining how actors use norms as a form of “productive” power to promote political ends.180 Norms are not the opposite of power, but rather a vehicle through which this type of power is exercised. Powerful states are privileged storytellers, whose ideas over time may come to be accepted as social facts by other states. Leading states exercise disproportionate influence over

176 David Dessler, “What’s at Stake in the Agent-Structure Debate?”, International Organization, Vol. 43, No. 3, 1989. P. 467. 177 Randall W. Stone, Controlling Institutions: International Organizations and the Global Economy, (Cambridge: Cambridge University Press, 2011). 178 Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity”, Perspectives On Politics, Vol. 7, No. 1, 2009. 179 Michal Foucoult, Discipline and Punish: The Birth of the Prison, (London: Allen Lane, 1975). P. 194. 180 Michael Barnett & Raymond Duval, “Power in Global Governance” in Michael Barnett & Raymond Duval, (ed.) Power in Global Governance, (Cambridge: Cambridge University Press, 2004). P. 3. 45

normative discourses because they possess critical communication resources. They can afford to maintain large diplomatic corps, which enable them to follow international developments and to interact in a wide range of forums on a wide range of issues with other states. This makes it possible for them to object in a timely fashion to developments that run counter to their interests. Small states, by contrast, often lack the resources to engage in extensive diplomacy. The sheer number of communicative interactions thus makes it possible for a powerful state to propagate its interpretation of a norm more effectively than smaller states. Hence, “power, in the sense of communication resources, may be a significant part of the norm story”.181 Power resides in part in the powerful state’s ability to use discourses as a means to persuade other states of the rightness of its views, and to shape international opinion in its favor. But powerful states wishing to popularize their claims in legal discourses will have to take into account existing norms and package their own ideas accordingly. The powerful state must try to construct a normative fit between its subjective ideas on the one hand and existing intersubjective norms on the other hand. Even powerful states cannot change the norms unilaterally by simply engaging in a certain practice but must construct an intersubjective consensus amongst their peers to gain legitimacy for their practice. Normativity arises not out of facts, but out of an intersubjective acceptance of these facts as norms. The powerful states participate in language games in which they seek to construct a normative fit – or cognitive consonance – between their subjective notions of right and wrong on the one hand and international norms as cognitions on the other hand. Norms do not exist in a vacuum, but usually encounter a highly competitive environment composed of already- institutionalized norms, with which novel normative claims compete. The most effective way of promoting such claims is thus to demonstrate coherence between a new norm or interpretation and existing collective standards of appropriate behavior. Therefore, states must either convince others that their interpretation is most logical, or that they constitute necessary changes to these already existing normative standards. Now, in the process of discursive socialization, it matters not only who socializes and what ideas are being diffused, but also when attempts at socialization occur. Timing is a key

181 Ann Florini, “The Evolution of International Norms”, International Studies Quarterly, Vol. 40, No. 3, 1996. P. 375. 46

factor for the success or failure of norm interpretation efforts. Some historical circumstances may be more conductive to the diffusion of novel ideas than others; therefore, the factor of time plays a significant role in understanding how certain ideas ripen into widely accepted standards of behavior while others fall by the wayside.182 Crises highlight the necessity of reevaluating policies and developing alternative approaches. It is therefore widely acknowledged that external and internal shocks offer windows of opportunity for states to promote their claims and transform international norms.183 Powerful states have the powers to define the meanings of concepts and norms: who defines, for instance, what it means to be a “civilized state”, what “good governance” entails and how deviations from these standards will be sanctioned. This does not imply that powerful state can shape and reshape international norms as they please – norms are not commands. Norms, by definition, are intersubjective standards of appropriate behavior, which renders them distinct from ideas, which are subjectively held values and beliefs. Powerful states thus have to make an effort to create this intersubjective quality.

Regime Change: Barkin claims that norms change in response to changing material conditions or when agents “challenge existing norms (i.e. do not behave appropriately) or to deploy those norms strategically.” He emphasizes, “[T]he only way for norms to change in a socially constructed world is through agency”.184 A norm contestation theory in combination with realist constructivism has the following four benefits for regime studies: first, the study of international regimes could explain regime change by focusing on the interplay of structure and agency. Second, this approach gives more space to agency and can analyze how agents handle opportunities and constraints created by structures to produce change or maintain the status quo. In this way this approach can explain the importance of specific agents in generating change in patterns of international regimes. Third, this approach takes power as relative and relational.

182 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change”, International Organization, Vol. 52, No. 4, 1998. P. 909. 183 Kendall W. Stiles, “The Power of Procedure and Procedures of the Powerful: Anti-Terror Law In the United Nations” Journal of Peace Research, Vol. 43, No. 1, 2006. P. 37. 184 Samuel Barkin, Realist Constructivism: Rethinking International Relations Theory, (New York: Cambridge University Press, 2010). P. 58. 47

Fourth, by taking domestic factors into account, this approach highlights the neglected relationship between culture and agent. Interrelated beliefs and ideas have an influence over actors and in order to understand agency it is important to understand the context of these beliefs and ideas and the placement of actors within the social structure and the material resources they can bring to bear on each other.

These four points are explained as follows:

First, realist constructivism’s approach to regime change involves a dynamic interplay of structure and agent, of material and ideational factors. Strategic actions take place in a material as well as an ideational environment. This material and ideational environment exerts constraints on states’ autonomy but also empower them to achieve their interests in a legitimate way. Regimes are built on ideas and it is important to interrogate the extent to which ideas become codified and the conditions under which these ideas are contested, challenged and replaced. Realist constructivism is concerned with the conditions under which perceptions are contested, challenged and replaced. It emphasizes the need for a consideration of processes of change over a significant period of time. Access to strategic resources and to knowledge of the institutional environment is unevenly distributed. This in turn affects the ability of actors to transform the context in which they find themselves. Actors’ perceptions of what is feasible, legitimate and desirable are shaped both by the institutional environment in which they find themselves and existing policy paradigms and worldviews. It is through such cognitive filters that strategic conduct is conceptualized and ultimately assessed. Interests are social constructions that are open to redefinition through ideological contestation. Second, state acts are determined by international as well as domestic structures. A conventional structurally-oriented constructivism tends to approach states – at least initially, as passive and reactive – as objects rather than active subjects. This does not leave much room for agency. It is odd that this version of constructivism downplays the role of agency, which is against its central argument of mutual constitution of agents and structure. Presumably, this may reflect both Wendt’s initial choice of an ideational alternative to a Waltzian structure, thus bracketing the state as an active agent, and the related theoretical strategic simplification of a structural approach to explaining patterns of state behavior and recurring systemic outcomes. But

to be agent means that an agent can resist both external and internal structural forces in its actions. It means that “Autonomous agents can override their preferences or intervene between input and output.”185 Agency cannot be adequately understood without taking into account both time and space. According to Barkin, a constructivist approach to the agency end of the agent-structure dialect can look at the effects of social structure on the self-understanding the agent, it can look at structural constraints on agency, it can look at the social mechanisms through which agency might express itself in particular historical contexts, and it can address questions of the importance of particular agents in generating change in patterns of international politics. But it cannot theorize agency because to predict what an agent will do is in effect denying that agent its agency.186 Third, in realist-constructivism regimes affect state power and state power affects regimes. Constructivists believe in a relational and constitutive understanding of power.187 A relational power relationship has both intended and unintended consequences, which can be either detrimental or beneficial to the interests of those affected in it. In power calculations the context of a particular situation is important.188 Regimes themselves are the subject and focus of political struggle. As classical realists have suggested, it is important to seek legitimacy and a moral justification for power politics. An ideological mask for strategic interests can serve the purpose of legitimacy and acceptability at the international level. International regimes provide a forum where states seek such legitimacy and in this way regimes are an effective tool of state policy. The main function of legitimacy is to justify coercive power and strategic interests. Legitimacy is linked to the creation of international regimes, which can institutionalize great power interests,

185 Martin Hollis, Reason in Action: Essays in the Philosophy of Social Science, (Cambridge UK: Cambridge University Press, 1996). P. 9. 186 Samuel Barkin, Realist Constructivism: Rethinking International Relations Theory, (New York: Cambridge University Press, 2010). P. 116. 187 Stefano Guzzini, “The concept of power: A Constructivist Analysis”, Millennium: Journal of international studies, Vol. 33, No. 3, 2005. 188 David Baldwin, “Power and International Relations”, in Walter Carlsnaes, Thomas Risse and Beth A. Simmons, (ed.) Handbook of International Relations, (Thousand Oaks, CA: Sage Publications, 2012). 49

and create an obligation to obey. Realist constructivism focuses on both the use of and constraints on relational power. International regimes provide mechanisms for power and also limits on state power. International regimes are not just concerned with solving common problems or promoting shared problems but are also sites of power and reflect power hierarchies and interest of powerful states. Powerful states effectively use international regimes for their interests, but these regimes also constrain great power ambitions. Powerful states need international regimes to legitimize their power to deal with shared problems and burdens of leadership. States need international regimes to share the material and political costs of protecting their interests and to gain necessary and desirable authority and legitimacy. In order to secure and sustain legitimacy regimes need to be seen to possess a degree of autonomy, i.e. they cannot be simply creatures responsive to the whims of the powerful. For powerful states, the trade-off in multilateralism is to invest regimes with sufficient autonomy on the one hand, whilst also seeking to maintain control on the other hand. Powerful states determine which issues get negotiated via regimes by bringing the agenda to decision-making in a specific issue area.189 Powerful states are also able to use their influence to keep a particular issue off the agenda in regimes.190 Power can also be expressed in the ability of a state to change the preferences of other states.191 The exercise of power is about shaping a context in which actors redefine their preferences and interests. International regimes provide a context in which powerful actors frame issues in a way that suit their interests. Since power is relational and constitutive, it depends on a particular situation to decide which aspect of power serves this purpose. Framing ideas and preferences as inevitable and necessary is exercise of power. Power is considered to be about the capacity of an actor to redefine the parameters and preferences of other states through persuasion and coercion. In this way realist constructivism provides a power-sensitive approach to regimes, in which regimes are used to exercise influence

189 Robert Dahl, “The Concept of Power”, Behavioral Science, Vol. 2, No. 3, 1957. 190 Peter Bachrach and Morton S. Baratz, “Two faces of Power”, The American Political Science Review, Vol. 56, No. 4, 1962. 191 Steven Lukes, Power: A Radical view, (Houndmills, England: McMillan Education, 1974). 50

by framing issues, designing preferences and implementing programs, and also recognizes limits on power. Fourth, it is necessary to consider how contextual conditions affect norm emergence and evolution independent of the content of the norms. There are contextual conditions where norms will arise, regardless of the content of the rules. The social context that the agents find themselves in is a key determinant of the influence of norm entrepreneurs as well as the structural patterns that emerge. When the social context is too complex, agents may not achieve intersubjective agreement, even when helped by the suggestions of a norm entrepreneur, because they cannot discern what the appropriate behavior should be. Social complexity will be related to: the number of competing ideas, the range of interpretations agents have of the social context, the material and persuasive power of the entrepreneur, the power of initial proponents that the entrepreneur convinces, and the history of the issue at hand among the actors. When the social context is complex, widely shared norms may have difficulty arising regardless of the activities of norm entrepreneurs. A norm that fits readily into an existing set of other norms is less likely to change as compared to a norm that seems to stand at odds with other norms, and thus in a degree of tension with them. Similarly, presumably a new interpretation of a norm that brings it into closer agreement with existing norms may be favoured over one that tends to increase tension with or divergence from other norms. It is also important to note that power cannot suppress changes in the normative structure for a long time. According to Archer, it is possible under well-ordered sociocultural conditions to suppress changes for some time, but in the long run it becomes impossible. At some point in time a situation will arise where even the cultural elite will see its own interest in accepting the demand for a revision of culture in order to minimize inconsistencies, or a situation where it will be forced to accept new cultural items in order to uphold its position.192 Norm contestation theory, in combination of realist constructivism, is in a better position than other forms of constructivism to account for changes and stability in international regimes by looking at power structure, normative factors, domestic culture and elite perception. Realist

192 Margaret Archer, Culture and Agency: The Place of Culture in Social Theory, (Cambridge: Cambridge University Press, 1996).

constructivism provides a frame to help identify and organize some factors and processes that can help us understand and explain normative contestation and its outcomes – though the results of these processes may be highly contingent rather than easily predictable. Change is both conduct- and context-shaping and it is the interpretation of the powerful state, through normative structure, that reigns most of the time.

Conclusion The dynamic interaction between agents and structure suggests that international regimes are the context within which states interact and are also consequences of power struggle. Power as the ability to frame strategic actions in a legitimate manner, makes international regimes an effective tool to achieve states’ strategic interests but also serves to constrain excessive use of force or arbitrary assertions of preferences. Actors try to dominate discourses and assert their interpretations within a structured discourse field. In the struggle to establish dominant interpretations, understood as widely shared intersubjective knowledge, power plays a decisive role – not only in terms of discursive structures in shaping the range of interpretations that are “sayable” but also in terms of the different capacities actors have for asserting their interpretations. This awareness of power puts into focus how dominant actors influence the meaning construction of norms and what political consequences power has in reproducing these interpretations.

Chapter Three: Sources, Method and Application

This chapter describes the sources, methodology and application of the theoretical framework. The chapter is divided into four sections. The first section explains sources in which the fundamental non-proliferation and disarmament norms are explained and in what ways the deal has implications for these norms. A brief historical evolution of these norms is also depicted. The second section describes the methodology. In methodology the primary and secondary sources are explained and also names of important interviewees are mentioned. The third section explains the application of the theoretical framework for this research. The fourth section offers conclusion.

Sources This study has selected basic non-proliferation and disarmament norms which have served as the linchpin of the nuclear non-proliferation regime. The deal and related changes have challenged these fundamental norms and rules. The following paragraphs will identify these norms and what implications the deal has for these norms.

Full-Scope Safeguards Norm Nuclear transfers to a NNWS are conditioned on IAEA safeguards on all current and future peaceful nuclear activities, what are called the full-scope safeguards (FSS) or comprehensive safeguards. The NPT does not prohibit cooperation with non-parties, but the revelations about the Iraqi nuclear weapons program led to the tightening of the nuclear exports controls and in 1992 the NSG adopted the policy of requiring IAEA full-scope safeguards, covering all nuclear facilities and activities, as a condition of nuclear supply.193 It was also decided at the NPT Review Conferences in 1995 and 2000 that non-NPT parties should not be eligible to the same degree of assistance as full NPT parties, and that full-scope safeguards and

193 “The NSG Guidelines”, The Nuclear Suppliers Group. 53

internationally binding commitments not to acquire nuclear weapons should be a prerequisite for new supply agreements.194 In this way the non-NPT states – India, Pakistan, and Israel (North Korea signed and then withdrew in 2003) – that do not accept full-scope safeguards were no longer eligible to have nuclear trade with the NSG member states. On September 6, 2008, as part of the India-U.S. Civil Nuclear Agreement, the NSG exempted India from its full-scope guidelines, making it the first country that had not signed the NPT to be allowed to have nuclear trade with NSG members. The 189 NPT member states have remained true to the original bargain and forsworn nuclear weapons in return for access to peaceful nuclear technology under full-scope IAEA safeguards. Many of these states have made this choice despite strong pressure to pursue the nuclear weapons path. The U.S.–India accord could also be a contributing factor for any future state that decides to pursue a weapons path. States such as Japan, South Korea, Turkey, Egypt and Saudi Arabia might all believe now that if they decide their security requires nuclear weapons, Washington would agree eventually to accept them into the nuclear club as well. As former U.S. Assistant Secretary for Non-proliferation Robert Einhorn put it, “the deal will lower the perceived costs of a country going nuclear in the future.”195 Other non-NPT states are demanding the similar deal. China is expanding its nuclear cooperation with Pakistan and is seeking a NSG membership for Pakistan along with India. Would the deal undercut the NPT “bargain” (trading safeguarded access to peaceful nuclear energy for a forgoing of nuclear weapons)? Would the deal weaken the full-scope safeguards norms by setting a precedent for states to follow? Would it undermine the attractiveness of the NPT and the credibility of the NSG as an effective organization to prevent nuclear proliferation? Would NNWSs leave the NPT due to this agreement? To answer these questions this study will assess the policies and statements of the other non-NPT states since the 2005 when the framework of this deal was announced. In order to assess the reaction of the NNWSs the NPT review conferences of 2010 and 2015 are reviewed.

194 See especially Section 12 of doc. NPT/CONF.1995/L.5 of the 1995 Review Extension Conference of NPT Parties. 195 Robert Einhorn presentation at Centre for National Policy, Washington, September 12, 2006. John Fox, “India Deal Could Spur New Nuclear States, Former U.S. Official Says”, NTI Global security Newswire, September 13, 2006. 54

The statements of the member states of the NSG meetings are also examined to evaluate the reservations of the NNWSs.

Additional Protocol (AP) The Additional Protocol (AP), contained in INFCIRC/540, is a legal document that supplements States’ IAEA safeguards agreements. In 1997 the IAEA Board of Governors asked each non-nuclear-weapon state that is a party to the NPT to conclude an Additional Protocol. Implementation of the Additional Protocol by NWSs is an important symbol in the effort to make this measure universal because it signals that they are willing to provide the same access (albeit with a national security carve-out) and undertake the same reporting requirements that other states are being asked to bear. The AP is designed to greatly expand the IAEA's verification capacity to prevent the development of clandestine nuclear programs. While an Additional Protocol is voluntary, once it enters into force it becomes legally binding for the State. As of March 2016 147 countries have signed it. The additional protocol strengthens the IAEA's ability to detect undeclared nuclear material and activities by requiring states to provide further information and access for safeguards inspectors. The IAEA has emphasized that, without an additional protocol, it is unable to provide credible assurance of the absence of undeclared nuclear material and activities. The NSG also decided on making the additional protocol as a condition of new nuclear supply. This is an obvious and necessary step to strengthen the non- proliferation regime. Under the deal, India agreed to sign an IAEA AP. Although the AP is ordinarily a voluntary measure, the U.S. Hyde Act adopted in 2006 stipulated that India must make "substantial progress toward concluding an additional protocol consistent with IAEA principles, practices, and policies that would apply to India's civil nuclear program" before the United States could engage in nuclear trade with India. In 2009, the IAEA approved an additional protocol to India's safeguards agreement, ostensibly providing the agency with greater authority to monitor India's civilian nuclear activities. For India, like other nuclear weapons states, the Additional Protocol is mostly symbolic, because the goal of detecting undeclared nuclear material has no meaning in the NPT NWSs and other states with unsafeguarded nuclear activities. The India-specific AP text basically contains

an obligation to provide limited reporting on exports to NNWS. It does not even go as far as the AP's for Russia and China, the weakest among NWS, and is viewed as setting a bad precedent for not only Pakistan, but also Brazil. Has India’s AP set a bad precedent for other states or is it a positive non-proliferation development in making this norm universal? This study compares the Indian AP to the AP accepted by the NWSs. It is also compared to the AP accepted by NNWSs. Is it generally more restrictive than the former but less restrictive than the latter (i.e., in some sense located between them)? Is it weaker in some aspects than the plans accepted by the NWSs? This comparison will help to assess whether the India’s AP is a bad precedent or a positive non-proliferation development.

Enrichment and Reprocessing Technology (ENR) Ban Norm ENR technology used for producing fuel for nuclear reactors can also be used to produce weapons-usable materials – highly enriched uranium and plutonium – for direct use in nuclear weapons. It is “difficult and challenging” for the IAEA to detect facilities that enrich uranium and plutonium. Furthermore, the production of nuclear fissionable materials not only adds to the risk of state-level proliferation, it also increases the dangers of nuclear theft and illicit trafficking.196 It is increasingly realized that “restraining the spread of reprocessing and enrichment capabilities must be a fundamental component of any nuclear nonproliferation policy.”197 The NPT does not prohibit access to enrichment and reprocessing technologies, which can be used to produce both nuclear fuel and fissile material useable in a nuclear weapon. In recognition of this potential danger, a number of proposals have surfaced in the last several years to limit the spread of ENR technologies. These have included: Offers of strengthened nuclear fuel assurances as incentives to countries to rely on the international market instead of acquiring their own ENR plants, offer of participation in multinational ENR facilities as an incentive to forgo national ENR facilities and to provide greater transparency and control of sensitive nuclear facilities, arrangements for supplier states to take back spent fuel from consumer states (so-called

196 Fred McGoldrick, “The U.S.-UAE Peaceful Nuclear Cooperation: Gold Standard or Fool’s Gold”, Policy Perspectives, November 30, 2010. P. 1. 197 Ibid. 56

“cradle-to-grave” fuel cycle services), development and deployment of proliferation-resistant fuel cycle systems and strengthening of supplier restrictions on the transfer of ENR facilities in the guidelines of the Nuclear Suppliers Group (NSG) which required only “restraints” till in 2011. The revelations about Pakistani nuclear scientist, Abdul Qadeer Khan, who had sold enrichment technology to North Korea, Iran, and Libya, and Iran’s clandestine nuclear program, has led to the renewed U.S. efforts to halt the spread of enrichment and reprocessing technologies. President George W. Bush on February 11, 2004 proposed seven steps to address the growing threat of WMD. He argued that the NSG should “refuse to sell enrichment and reprocessing equipment and technologies to any state that does not already possess full-scale, functioning enrichment and reprocessing plants.”198 He further agued that those states which renounce ENR technology should have reliable fuel supply for their civilian nuclear program with the condition of accepting the IAEA Additional Protocol for their nuclear imports.199 The Group of Eight (G8) endorsed much of Bush’s proposal and announced it would work for new NSG Guidelines that would prevent supplier states from exporting ENR technology to states posing a potential threat of proliferation.200 The G-8 countries imposed a moratorium on new ENR technology transfers for one year, which has been extended annually. Several NSG member states considered the halt of ENR technology exports as violation of their rights under Article IV of the NPT, which gives an “inalienable right” to NNWS to “develop research, production and use of nuclear energy for peaceful purposes without discrimination.”201 Following the President’s speech the United States made a major diplomatic effort in the NSG to upgrade its guidelines on the transfer of enrichment and reprocessing materials, equipment and technology. After four years of failing to obtain support for a ban on E&R transfers, in 2008 the U.S. finally went along with efforts to adopt a more flexible, criteria-based approach, but the NSG had been unable to reach agreement on such criteria till 2011. The NSG

198 “President Announces New Measures to Counter the Threat of WMD,” February 11, 2004, at http://www.whitehouse.gov/news/releases/2004/02/20040211-4.html. (Accessed May 29, 17) 199 Ibid 200 Gabrielle Kohlmeier, “G-8 Summit Advances Bush Proposals”, Arms Control Today, Vol. 34, No. 7, 2004. 201 Treaty on the Non-Proliferation of Nuclear Weapons, available at http://www.un.org/disarmament/WMD/Nuclear/NPT.shtml (Accessed May 29, 17) 57

adopted new guidelines which limited the export of sensitive nuclear technologies to NPT member states, India is trying to get this technology without its NPT status. What impact would Indian efforts have for the ENR technology ban norm? How is India’s NSG waiver and membership likely to affect this norm? The detailed analysis of the Indian NSG waiver: the four texts of the waiver draft, the changes that occurred from one text to the next, statements of the member states regarding the ENR technology guidelines, informal understanding of the membership regarding exporting this technology to India and New Delhi’s reaction to the ENR technology guidelines will help to assess the implications for the ENR technology ban norm. The examination of India’s bid for a NSG membership and its implications for this norm will also be evaluated by reviewing the NSG meetings.

Comprehensive Test Ban Treaty (CTBT) Norm Because of the 1950’s were a decade of an intense super power nuclear arms race, high- yield atmospheric nuclear tests were carried out in large numbers by both the Soviet Union and the United States. The demand to regulate nuclear testing started after a U.S. thermonuclear test in 1954 “over shot” and led to widespread contamination of the nearby Marshal Islands and of a Japanese fishing boat, causing the immediate death of a fisherman and lasting sickness of the rest of the crew as well as of several inhabitants of the archipelago. As a consequence, a number of islands had to be evacuated in ensuing years. Early attempts to stop these tests, consequently, focused on their environmental legacy and impact on public health.202 In 1954, Indian Prime Minister Jawaharlal Nehru was the first to propose the total elimination of all nuclear explosions world-wide.203 In the ensuing debate, the United States and the Soviet Union came close to a comprehensive test ban, but agreement foundered on the issue of verification. The two countries

202 The United States estimates that about 11,000 American deaths between 1951 and 2000 are attributable to atmospheric testing. The global death rate – including future casualties – might well be of the order of several million. See Andrei D. Sakharov, “Radioactive Carbon from Nuclear Explosions and Non-threshold Biological Effects”, Science and Global Security, Vol. 1, No. 3. 1990. 203 Prime Minister Jawaharlal Nehru Statement in the Lok Sabha, April 02, 1954. Available at http://www.indianembassy.org/policy/Disarmament/disarm2.htm. (Accessed May 29, 17) 58

then agreed on Limited Test Ban Treaty (LTBT), which entered into force in 1963 and which prohibited all explosive nuclear weapons tests with the exception of underground tests.204 Although the LTBT succeeded in containing the adverse effects of testing on humans and the environment, it failed to curb or at least slow down the nuclear arms race: on the contrary, American nuclear testing “increased substantially after the LTBT was signed.”205 Thus, the treaty merely shifted the arms race underground. Furthermore, it dampened the calls to end all nuclear tests and somehow stole the thunder from the political demand for a CTBT for several decades. A promising CTBT debate would only be resurrected in the context of post-Cold War détente. At the 1995 NPT Extension Conference, the NWSs made a commitment to non- proliferation and disarmament objectives including the attainment of a CTBT “no later than 1996.”206 Ultimately, on September 10, 1996 the United Nations General Assembly adopted the treaty207 but it has not yet entered into force. The treaty will enter into force after 44 states (those possessing power reactors at that time) have ratified it. Among those states, nine states have not ratified the treaty: China, Egypt, Indonesia, Iran, Israel, and the United States have signed but not ratified the treaty; India, Pakistan and North Korea have not signed yet.208 The CTBT has prominence in the context of the NPT as NNWSs would refrain from advancing their nuclear aspirations. In 1996, India blocked the treaty from entry into force due to its traditional approach to nuclear disarmament and its national security concerns. New Delhi stated :

Nuclear Weapon States are determined to continue to rely on nuclear weapons for their security and visualize the CTBT not as a serious

204 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, U.S. Department of State. Available at http://www.state.gov/t/isn/4797.htm (Accessed May 29, 17) 205 Steve Fetter, Towards a Comprehensive Test Ban, (Cambridge: Ballinger, 1998). pp 10-11. 206 "Principles And Objectives For Nuclear Non-Proliferation And Disarmament," May 1995. Available at http://www.acda.gov/decision.htm. (Accessed May 29, 17) 207 Resolution adopted by General Assembly, Fiftieth Session, September 17, 1996. Available at http://www.un.org/documents/ga/res/50/ares50-245.htm 208 Current CTBT status is available at http://www.ctbto.org/ (Accessed May 29, 17) 59

disarmament measure but merely as an instrument against horizontal proliferation.209

India and Pakistan conducted a series of underground nuclear tests in May 1998 and India has maintained its moratorium on nuclear testing since. The reaction of the international community to the May 1998 Indian and Pakistani tests points to the existence of a strong test ban norm. Immediately after these tests the UN Security Council stated through its president that India and Pakistan violated a “de-facto moratorium” on testing.210 The international community followed suit and the tests were condemned by the G-8 members, the P-5, the Arab League, the ASEAN regional forum,211 and finally by the UN Security Council, through resolution 1172.212 This resolution is of particular interest since in addition to condemning the two states it also called “upon all states not to carry out nuclear weapon tests explosion or any other nuclear explosion in accordance with the provisions of the CTBT.”213

After the 1998 nuclear tests, the Indian Ministry of External Affairs stated:

These tests have established that India has a proven capability for a weaponised nuclear programme. They also provide a valuable database which is useful in the design of nuclear weapons of different yields for different applications and for different delivary systems. Further they are expected to carry Indian scientists towards a sound computer simulation capability which may be supported by sub-critical experiments if considered necessary.214

After these 1998 nuclear tests, the Bharatiya Janata Party (BJP) government in India became ready to engage in negotiations with the U.S. on CTBT ratification to end its isolation but when in October 1999 the U.S. Senate rejected ratification of the treaty, India decided to wait

209 Statement by India on June 20, 1996, at the Conference on Disarmament. Available at http://www.indianembassy.org/policy/Disarmament/disarm2.htm. (Accessed May 29, 17) 210 “Security Council Deplores Nuclear Tests by Pakistan”, May 29, 1998, (United Nations Security Council, 1998). 211 Hilary Synnott, “Causes and Consequences of South Asia’s Nuclear Tests”, The Adelphi Papers, Vol. 39, No. 332, 1999. pp- 27-31. 212 United Nations Security Council, “Resolution 1172” (S/RES/1172), 1998. 213 Ibid. 214 Statement by the Indian Ministry of External Affairs, May, 11, 1998. Available at http://nuclearweaponarchive.org/India/Indianofficial.txt (Accessed May 29, 17) 60

and see.215 The Obama Administration brought the CTBT back onto the international agenda. In his Prague speech, President Obama stated that “to achieve a global ban on nuclear testing, my administration will immediately and aggressively pursue U.S. ratification of the Comprehensive Test Ban Treaty”216 but failed to do so. If the U.S. ratifies the treaty in future, there will be enormous pressure on India to sign and ratify it, but the inconclusive nature of the testing debate in India currently prevents Indian policy makers from adopting a clear policy regarding the CTBT. It is argued that the India-U.S. nuclear deal could significantly lower the costs in any Indian cost/benefit analysis of whether to resume nuclear testing. India could stockpile fuel to protect against impact of sanctions. The commercial interests of suppliers would bloster those in India who would argue that it could conduct nuclear tests and then sign the CTBT with relative confidence that sanctions would not be applied, would have no pratical effect, or would quickly be removed. In the deal India only committed to continue its unilateral moratorium on nuclear testing. Will the deal lower the cost of nuclear testing or will it reinforce India’s strategic constraint by enhancing its stake in the regime? The texts of the India-U.S. nuclear agreement, Hyde Act, India-Japan nuclear agreement will be examined to assess the likey implications of the deal for the test ban norm. The debate in the NSG meetings and statements of the member states regarding India’s future tests and signing of the CTBT will be analyzed. India’s domestic debate regarding further nuclear tests will also taken into account to analyze the implications for this norm.

Fissile Material Cut-off Treaty (FMCT) Norm The FMCT, a proposed treaty to prohibit the production of fissile material for weapons use, is expected to stem the further spread of nuclear weapons. In the deal India committed to actively support the negotiations on an FMCT. The five official nuclear weapon states have

215 Strobe Talbott, Engaging India: Diplomacy, Democracy, and the Bomb, (Washington: Brookings, 2004). pp 170-190. 216 “Obama Prague Speech on Nuclear Weapons”, April 5, 2009. Available at http://www.huffingtonpost.com/2009/04/05/obama-prague-speech-on-nu_n_183219.html (Accessed May 29, 17) 61

agreed to a moratorium on such production until such time as an FMCT is agreed, but India has made no such pledge. Cessation of the production of fissile material – Highly Enriched Uranium (HEU) and Plutonium – for weapons use has been on the nonproliferation agenda since the dawn of the nuclear age. Proposals for the control of fissile material, like the Acheson-Lilienthal Report and the Baruch Plan, were unsustainable in the political climate of the Cold War. The end of the Cold War created an environment conducive to control fissile material production through an institutionalized process. In 1993, the United Nations General Assembly adopted Resolution 48/75L, which recommended “the negotiation in the most appropriate international forum of a non- discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices.”217 Although the CD established an ad hoc committee to negotiate the treaty, the diverse views of the member states delayed the negotiations and in 2004 they were further derailed when the Bush Administration opposed the inclusion of verification mechanism in the treaty.218 Will India’s declared willingness to help negotiate an FMCT be important for stregthening this norm? An FMCT is still to be negotiated and it is a “norm in emergence”. How far is India’s support vital for the nogoatiation of such a treaty? The negotiation history of the India-U.S. nuclear deal, the debate in the U.S. Congress for the Hyde Act, the NSG meetings for the Indian waiver, the Indian agreement with the IAEA, Pakistan blockade of the CD meeting to start negotiations for a FMCT, concerns of member states and India’s doestic debate about a perceived need for a fissile material stockpile will be analyzed to assess the impact of Indian support for the negotiation of a fissile material ban norm.

217 “Prohibition of the production of fissile material for nuclear weapons or other nuclear explosive devices”, UN General Assembly, Resolution 48/75L, December 16, 1993. http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N94/010/79/PDF/N9401079.pdf?OpenElement. (Accessed May 29, 17) 218 Annette Schaper and Morten Bremer Moerli, “The Fissile Material Cut-off Treaty as a nuclear security policy driver”, in Morten Bremer Moerli and Sverre Lodgaard, ed., Nuclear Proliferation and International Security, (London: Routledge, 2007), p. 234. 62

Methodology This project will analyze the creation and content of the Indo-U.S. nuclear deal,219 the Hyde Act,220 the NSG waiver for India,221 the IAEA-India Safeguards Agreement,222 the NPT review conferences (2010, 2015), NSG meetings, and the Indo-U.S. Reprocessing Agreement,223 among other documents (e.g. official statements, testimony and press releases). Apart from these primary sources, this study will also rely on secondary sources in which nuclear non- proliferation experts and academics either argued in favor or against the deal. The contents of the deal were means through which the United States pursued its objectives with respect to India, but this deal has been attacked as undercutting the very logic of the non-proliferation treaty.224 The agreement was clearly inconsistent with long-standing international nuclear policy. That policy – international non-acquiescence in the emergence of new NWSs – has been authoritatively formulated and repeatedly endorsed by the states parties to the NPT in the 2000 and 2010 NPT Review Conferences, NSG meetings and the U.N. Security Council (UNSCR 2009).225 The U.S.- India deal disregarded long-standing international nuclear non-proliferation policy by endorsing a novel legal category of a non-NPT nuclear state “in international good standing.” Developments since 2005 when the framework was announced give empirical material to look for actual effects and how far the U.S. has prevented undesired change. Pakistan’s, Israel’s and North Korea’s (other non-NPT states) demand for a similar deal, NNWSs reservations about the deal in the 2010 and 2015 NPT review conferences and the NSG meetings all have important implications for the non-proliferation norms.

219 India, Ministry of External Affairs, (2007). “Text of the Indo-U.S. Nuclear Agreement”, http://www.meaindia.nic.in/pressrelease/2007/08/03pr01.pdf (Accessed May 29, 17) 220 U.S. Government Printing Office, (2006). “The Text of Hyde Act’, available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=109_cong_bills&docid=f:h5682enr.txt.pdf (Accessed May 29, 17) 221 Nuclear Suppliers Group. “Text of U.S. NSG Proposal on India”, Carnegie Endowment for International Peace, August 13, 2008. 222 IAEA, “Agreement between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities," International Atomic Energy Agency, INFCIRC/754/Add.2, July 9, 2008. www.iaea.org. (Accessed May 29, 17) 223 India, Department of Atomic Energy (DAE) India, “India-U.S. Civilian Nuclear Cooperation- Reprocessing Agreement”, 2010. Available at http://www.dae.gov.in/ (Accessed May 29, 17) 224 George Perkovich, “Global implications of the U.S.-India deal”, Dædalus, Vol. 2, Winter 2010. 225 “United Nations Security Council Resolution 2009”, Available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1887(2009) (Accessed May 29, 17) 63

The research integrates document analysis with semi-structured and open-ended interviews with U.S. policy makers and non-proliferation scholars. I have chosen these methods for two reasons. First, I aim to obtain an in-depth understanding of the change in the U.S. nuclear non-proliferation policy to engage India in nuclear commerce, after three decades of technological isolation and its implications for the nuclear non-proliferation regime. Thus, this is a qualitative study with emphasis on understanding, describing and analyzing the implications of this policy change. Second, the issue under investigation is relatively uncharted, therefore, extensive information requires to be uncovered from primary documents, and I expect interviews with policy experts and former policy makers to shed light on the issue. During my three months research fellowship May–July 2015 at the Stimson Centre, Washington DC, I visited the Carnegie Endowment for Research, the Brookings Institution, the Heritage Foundation, Hudson Institute, United States Institute of Peace and the Council for Foreign Relations. During the research visits to institutions, I collected data from primary documents such as policy papers, congressional testimonies, conference papers and reports, and policy proposals. In addition, I collected secondary data from published materials such as newspaper articles, journal articles, and books. I conducted semi-structured and open-ended interviews with American scholars and policy experts (on nuclear non-proliferation, energy and related issues, South Asia and India) at various policy research and academic institutions. Based on my initial research, I prepared a list of participants I intended to interview. Later, I employed a strategy related to purposeful sampling, that is, snowball or network sampling.226 Patton remarks that this strategy involves identifying participants or “cases of interest from people who know ... what cases are information-rich, that is, good examples for study, good interview subjects.”227 Since the shift in U.S. nuclear non-proliferation policy raised a storm of controversy, one purpose of the study was to arrive at an objective analysis of the genesis of this change and the implications of this change for the nuclear non-proliferation regime. Therefore, I carefully selected a pool of interviewees with knowledge of nuclear energy, South Asia, and India, and expertise with non-proliferation

226 Sharan Merriam B., Qualitative Research and Case Study Applications in Education, (San Francisco: Jossey-Bass Publishers, 1998). P. 63. 227 M.Q. Patton, Qualitative Evaluation Methods, (California: Sage Publishers, 1990). P. 182. 64

and foreign policy; individuals with nongovernmental and governmental experience were included. The inclusion of interviewees from a variety of backgrounds enabled me to gain insight into different perspectives. For the purpose of conducting interviews, I followed a semi-structured and open-ended format. “This form of interviewing allows the researcher and participant to engage in a dialogue whereby initial questions are modified in the light of the participant’s responses and the investigator is able to probe interesting and important areas which arise.”228 Prior to the interviews, I prepared a questionnaire of common questions, along with certain questions related to the specific knowledge and expertise of the interviewee. I emailed these initial questions to the interviewee in advance. These questions were supplemented with questions that emerged during the course of the interview. I chose to conduct semi-structured and open-ended interviews because they allow greater flexibility of coverage and tend to produce richer data. Thirty two individuals who had substantial knowledge of U.S.-India, U.S.-South Asia, or nuclear energy and non-proliferation issues were available for interviews. Broadly, the questions were related to: factors that led to the major transformation in U.S. nuclear non-proliferation policy; the genesis of this transition; the motivations of the Bush Administration to offer India access to nuclear technology; and implications of the U.S.-India nuclear rapprochement for the non-proliferation regime. Responses of the interviewees were correlated with the data collected from primary and secondary resources. J. P. Rothe proposes two stages of data analysis. First, the researcher explores “for patterns that appear in the data, then interrelate them and link them to a context.”229 Second, the conceptual framework chosen by the researcher serves “as the vehicle for data analysis,” which he calls, “deep-structure analysis.”230 Similarly, Polkinghorne submits that data analysis continues “with a movement between the proposed structural description and the examples until

228 Jonathon A. Smith and Mike Osborn, “Interpretative Phenomenological Analysis”, in Jonathon A. Smith, ed., Qualitative Psychology: A Practical Guide to Research Methods, (London: Sage Publishers, 2003). P. 55.

229 J.P. Rothe, Qualitative Research: A Practical Guide, (Ontario: RCI/PDE Publications, 1993). P. 127. 230 Ibid. 65

an account can be given which clarifies the data in the fullest manner.”231 Thus, I allowed the findings to emerge from the structure of the data and analyzed them within the proposed theoretical and conceptual framework. I conducted 32 interviews with U.S. policymakers, who were involved in the India-U.S. deal negotiations, and with the non-proliferation community during my three months research fellowship at the Stimson Center, Washington D.C. in the summer 2015. I interviewed Philip Zelikow who served as counsellor to the State Department (February 2005–January 2007). As a senior policy advisor to Condoleezza Rice, Zelikow was central to decision-making with regard to the U.S.-India nuclear pact. Zelikow’ interview gave me insight into the motivations of the Bush Administration. I also interviewed Nicholas Burns at the Belfer Center, Harvard University. He served as Undersecretary of State for Political Affairs (2005–2007) and, indeed, had the toughest job in the negotiations of the controversial nuclear deal with India. Other prominent interviewees were: Ambassador Richard Boucher, (Assistant Secretary of State for South and Central Asian Affairs, 2006-2009), Robert Joseph (Under Secretary of State for Arms Control and International Security, 2005-2007), Ashley Tellis (one of the deal’s leading architect and a senior associate at the Carnegie Endowment for International Peace), Vikram Singh (Deputy Assistant Secretary of Defense for South and Southeast Asia, 2003-2007), Daniel Markey (the US State Department Policy Planning Staff, 2003-2007), Anish Goel (the U.S. State Department Policy Planning Staff, 2003-2008), and Toby Dalton (served in a variety of high- level positions at the U.S. Department of Energy, 2002-2010). I also interacted with Strobe Talbott, Deputy Secretary of State in the Clinton Administration, through email to know the Clinton Administration’s position on lifting nuclear sanctions against India. I could not interview Indian policy makers to have a comprehensive understanding of the issue. This is a limitation of this study. Few Indian policy makers including Shyam Saran (Indian Foreign Secretary 2004-2006), Shivshankar Menon (Indian Foreign Secretary 2006-2009) and M. K. Narayanan (Indian National Security Advisor 2005-2011) were in Washington DC during

231 Donald Polkinghorne, Methodology for the Human Sciences: Systems of Inquiry, (New York: State University of New York Press, 1983). P. 272.

my reseach fellowship. I requested these Indian policy makers for interview time and informed them about my research, but they declined. I respected their right to refuse participation and tried to compensate this limitation by relying on Indian official documents, statements and secondary literature. I also tried to fill this gap by asking questions to American policy makers about Indian strategies and objectives during the deal negotiations.

Application International regimes are based on norms produced and reproduced by social action. It is on the basis of the resulting intersubjective understanding that norms acquire meaning and regularity. However, while social norms are intersubjective understandings that acquire agreement for their existence, the presence of a gap between subjective and intersubjective appraisals of norms opens up opportunities for norm contestation. Norm contestation is therefore an instance of strategic social construction that aims at undermining or displacing an accepted intersubjective meaning through the formulation by actors of competing discursive intervensions that challenge the meaning of norms that embody conflictive interpretations of values. There is a particular role that powerful states enjoy in shaping norms: the power to act and to argue at a critical moment in order to crystalize a new norm; and the power to shape understanding of what is to count as practice and whose practice is to count within a normative structure. Thus, it is important to understand the choice of arguments as part of a strategic power-political game: in the case of India-U.S. nuclear deal the aim is to gain a degree of legitimacy, but to avoid precedents that would damage the non-proliferation regime. Applying norm contestation theory with combination of realist constrctivist approach on the fundamental non-proliferation and and disarmament norms require to take into account power disparities, normative structure, elite perceptions and intersubjective dominant discourses. These factors provide a comprehensive framework to analyze the norm changes and evolution within a regime through contestation. The fundamental norms in the nuclear non-proliferation regime are influenced by and shaped power structure, normative factors, domestic culture and elite perceptions.

The non-proliferation and disarmament norms are influenced by power disparities in which powerful states exerted decisive influence in the meaning contruction and interpretation of these norms. The United States has always remained the most influential actor in the regime. The U.S. and the group of guardians it leads mostly initiate only those norms that are consistent with its strategic interests. The non-proliferation norms first evolved from the principles espoused by the Atoms-for-Peace plan and susequently were debated during the NPT negotiations. Though the NPT was not a consensual affair, many states subsequently joined despite reservations on its bargain in the belief that it was the most reasonable way to avoid a nuclear conflagration. Therefore, the regime is unfair bargain shaped by the interests of the powerful states. The United States spent decades to require the NPT NNWSs to place their entire nuclear programs under permanent full-scope safeguards through material incentives and normative arguments. Most countries have allowed intrusive inspections into their nuclear programs because they stand to gain in two respects. First, by opening up these programs, countries obtain access to external suppliers of nuclear fuel, reactors, and other essential technologies. The Nuclear Suppliers Group (NSG) has agreed to condition sales of nuclear fuel and technologies on non-nuclear weapon states’ acceptance of full-scope safeguards on their nuclear programs. Second, as part of this bargain, countries under safeguards help assure their neighbours that they are not making nuclear explosives. After the beginning of the nuclear age, marked by the power demonstration of nuclear weapons’ destruction capacity during the Second World War, the international community realized that a spread of nuclear weapons would pose a major threat to international security. The normative structure is based on the belief that proliferation increases the likelihood of war and a peaceful use of nuclear technologies is compatible with the aim of non-proliferation of nuclear weapons. The NPT has provided the normative basis underpinning the regime: this is an explicit recognition by the international community that it is undesirable that additional states should acquire these weapons and an implicit acknowledgement that it is undesirable that any state should possess them. This normative basis is also a source of considerable contestation among NPT parties and of criticism by states which still refuse to adhere to it. This is because the treaty distinguishes between NWSs and NNWSs. While the former are only required to negotiate “in

good faith” on measure of nuclear disarmament, the latter are forbidden to possess nuclear weapons. States still criticize the perceived discrimination inherent in this distinction. The non-NPT states never signed the NPT and remained under sanctions due to their refusal to accept the full-scope safeguards. U.S. policy toward India focused nearly entirely on nuclear weapons concerns, with Washington and New Delhi on opposite sides of the issue. The Bush Administration viewed India as a strategic partner and offered it a nuclear deal to counter a rising China. The United States also had economic interests by capturing the potentially huge Indian nuclear market. Both the Indian government and the Bush Administration had to build consensus at domestic level in order to negotiate and sign this deal. The Indian government had to assuage the concerns that the deal would in any way restraint the nuclear weapons program. The Bush Administration, on the other hand, had to convince the Congress that the deal would not weaken the nuclear non-proliferation regime and would not help India in boosting its nuclear weapons program. Domestic politics substantially impeded – and may have entirely prevented – U.S. nuclear accommodation with India; when domestic obstacles were overcome, U.S.-India negotiations advanced; and even after negotiations advanced, domestic factors placed conditions on and affected the scope of the deal. In the end, U.S.-India negotiations only advanced when the conditions of nuclear cooperation satisfied key domestic constituents in both countries in order to conclude a historic and politically contentious nuclear deal. Building a dominant intersubjective discourse at the international level was an uphill task for the United States because the deal was against the “shared understanding” and “acceptable form of behaviour”. The United States had to build a normative fit in order to get consensus at the NSG. The deal was presented as an energy agreement and an essential step in order to help India to meet its energy requirements. It was argued that the deal would decrease New Delhi’s reliance on fossil fuel and would minimize environmental damage. India’s non-proliferation credentials were highlighted and the consensus was build by arguing that the deal would not damage the NPT. The deal was presented as an India-specific and it was argued that the NPT does not prohibit civilian nuclear cooperation with non-NPT states. The United States convinced the NSG member states that the deal would not contribute to the Indian nuclear weapons program and the non-proliferation commitments would increase New Delhi’s stakes in the regime. At the end, the United States had to threaten a few member states that blockade of the

consensus would have implication for its relations with those states. Therefore, the India-specific NSG waiver was obtained through normative arguments and material threats. Now the United States is trying to limit the damage to regime by keeping the deal and its attendant developments as India-specific. Looking at power structure, normative factors, domestic politics of other non-NPT states and reservations of the NNWSs at domestic and international level would help to determine the implications of the deal for the fundamental non- proliferation and disarmament norms.

Conclusion Norms are contested throughout their life cycle. It is important to take into account material, normative and cultural factors in analyzing the process by which norms are affected and changed. An analysis of the narrative of the contestation in building a dominant discourse helps to determine the implication of the norm contestation for the regime. The India-U.S. nuclear deal met considerable resistance at normative level. The United States promoted the deal and was able to override the resistance through normative arguments by presenting it an energy deal and through material factors by making it a top priority and investing considerable diplomatic efforts. The United States is keeping the deal as India-specific by arguing that India was a special case and the other two non-NPT states do not qualify for this special treatment. The norm contestation theory in combination of realist constructivism provides a framework to analyze how far the United States is successful in keeping the deal as India-specific.

Chapter Four: The Nuclear Non-Proliferation Regime and India

The Nuclear Non-Proliferation Regime (NNPR) is a framework of international institutions, agreements and understandings aimed at preventing the further spread of nuclear weapons and at effecting their eventual elimination. The foremost among them is the NPT with its near-universal membership. It prohibits all Non-Nuclear Weapons States (NNWS) party to the treaty from any pursuit of a nuclear weapons capability, whether through their own efforts or with external assistance. In return for this abstinence, assistance to their civilian nuclear program is permitted and advised by the member states. The mandate of the NPT is enforced by the IAEA (established in 1956). It obligates NNWSs to disclose all information pertaining to their nuclear programs, and facilitates exchange of relevant information between itself and a State Party (or Parties), or between States Parties. In addition, it possesses (and has exercised) the authority to conduct regular or surprise inspections of nuclear facilities of States Parties, even of an intrusive nature, particularly if it suspects that a State Party has not made a full and truthful disclosure of the activities that it is engaged in.232 Since the begining of the NNPR India supported a general and complete nuclear disarmament, but the U.S. and USSR sought to make nuclear non-proliferation a priority of the regime. India’s objections to the regime remaind persistent as the NNPR evolved primarily as a non-proliferation tool. Some of the subsequent developments of the regime were direct responses to India’s actions e.g. India’s 1974 nuclear test prompted the adoption of the IAEA full-scope safeguards and the formation of the NSG. India has always claimed that the NPT is a discriminatory regime that practices a form of nuclear apartheid. It stresses the lack of mutuality of obligations on the part of signatory Nuclear Weapons States (NWS) to disarm while the signatory NNWS are expected to not arm themselves

232 Apart from The NPT and IAEA, scholars also list other components of the regime: Zangger Committee, Nuclear Suppliers' Group (NSG), Convention on the Physical Protection of Nuclear Material, Partial Test Ban Treaty (PTBT), Comprehensive Test Ban Treaty (CTBT), Additional Protocol (AP) of IAEA, the regional nuclear-weapon-free-zone in Southeast Asia, Africa and Latin America and the Outer- Space Treaty. The closest thing to a common denominator among all these views of the regime would be the inclusion of the NPT and the IAEA safeguards, which make up the core of the nuclear non- proliferation regime. For debate on the components of the regime see James D. Fry, Legal Resolution of Nuclear Non-Proliferation Disputes, (Cambridge: Cambridge University Press, 2013). pp. 20-8. 71

in the hope that the scourge of nuclear weapons will be removed from the face of the earth. As expected, the country refused to sign or join the treaty and consequently was excluded from the nuclear forums derived from the NPT. It is important to analyze India’s relationship with the nuclear non-proliferation regime and how New Delhi’s position changed vis-à-vis the regime norms. India is a unique case of an outlier surviving outside the regime’s overarching system, as a nuclear-capable state with prolonged record of resistance (and selective adherence), but ending up seeking opportunities to engage with the regime norms. The ideological and policy shifts that had shaped India’s transformative journey from a perennial outlier to one seeking greater integration with the regime, though, also exemplifies the underlying strategic paradoxes and dogmatic incongruities. This chapter briefly examines the evolution of the NNPR and India’s relation with it in order to locate the India-NNPR development with respect to the fundamental norms of the regime. This chapter outlines India’s initial stance on disarmament and non-proliferation, its subsequent development of its nuclear capability, and the regime’s response to that and how India becomes a problem for the regime. It is divided into six sections. The first section briefly describes the evolution of the NNPR and how core norms of non-proliferation (full-scope safeguards, Additional Protocol, ban on ENR technology) and disarmament (CTBT and FMCT) developed over time. The second section offers a brief assessment of India’s relationship with the regime. What role did India play in the regime negotiations and what were New Delhi’s concerns regarding the regime’s character? The third section depicts how India misused western technological aid, intended for civilian purposes, to explode a nuclear device, which it termed a “peaceful” nuclear test, in 1974. As a consequence, the application of export controls left India outside the international nuclear order. The fourth section explains how, with the regional security environment becoming more fluid, the indefinite extension of the NPT and the “entry into force” clause within the CTBT narrowing India’s options, the country decided to conduct a series of nuclear tests in May 1998. This section also analyses the Clinton Administration’s approach towards India and New Delhi’s desire to be accepted as a nuclear weapon state by the regime. The fifth section explains implications for the theoretical framework based on norm contestation and realist constructivism. The sixth section offers the conclusion.

The Evolution of the NNPR The NNPR is an interlocking web of international treaties and suppliers cartels that have over the years developed a set of elaborate guidelines and procedures for countries to follow in the conduct of their nuclear policies. The NNPR is based on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the safeguards systems applied by the International Atomic Energy Agency (IAEA), and the Nuclear Suppliers Group (NSG). This regime was based on the understanding that the benefits of civil nuclear power carry the potential threat of military application, as civilian nuclear programs may provide necessary infrastructure, know-how, and training that can be utilized to manufacture nuclear weapons. The IAEA safeguards system and the NSG export controls were established to prevent the proliferation of nuclear weapons as a by-product of civilian nuclear cooperation. In 1953, U.S. President Eisenhower discarded the policy of strict nuclear secrecy enshrined in the MacMahon Act of 1946. In his December 8, 1953, “Atoms for Peace” speech before the General Assembly of the United Nations, he proposed the establishment an international agency to allocate nuclear fuel to serve mankind in the peaceful uses of nuclear energy.233 This led to the creation of the International Atomic Energy Agency (IAEA). Shortly after this speech, the U.S. Congress passed the Atomic Energy Act (AEA) of 1954, which for the first time allowed nuclear cooperation for peaceful purposes under safeguards. At the international level, both superpowers – the United States and the Soviet Union – found a common ground on nuclear non-proliferation as neither wanted to see nuclear weapons spread to additional states. In a proliferated world, danger could come from adversaries and allies alike: while nuclear-armed adversaries could threaten the superpowers’ interests directly, actions by nuclear-armed allies could inadvertently draw their patrons into confrontations that could well spiral out of control.234

233 “President Eisenhower’s ‘Atoms for peace’ speech”, December 8, 1953. Available at http://atomicarchive.com/Docs/Deterrence/Atomsforpeace.shtml. (Accessed May 29, 17) 234 John Simpson, Hassan Elbahtimy, Isabelle Anstey, and Darryl Howlett, NPT Briefing Book 2015, (London: Kings College, 2015). P. 3. 73

Unlike the case of horizontal nuclear non-proliferation, the superpowers could not agree on arms control and disarmament despite several attempts in the 1950s and early 1960s to negotiate different initiatives in this regard. The first of these were Soviet-American negotiations that begun in the 1950s with a view to halting and ultimately reversing the arms race. These proceeded on a three-pronged track: the first, ultimately unfruitful, consisted of negotiations on general and complete disarmament (GCD) which aimed to address nuclear weapons in the broader context of the Cold War military build-up;235 the second sought the negotiation of a Comprehensive Nuclear Test Ban Treaty (CTBT); while the third sought a Fissile Material Cut- off Treaty (FMCT) to limit the amount of fissile material available for use in weapons.236 Negotiations on a CTBT resulted in a moratorium on testing from 1958-61, but could not deliver a permanent treaty due to differences between the superpowers over the level of intrusiveness needed to verify the treaty. In the end, only a Limited Test Ban Treaty (LTBT) banning tests in the atmosphere was concluded in 1963, due to growing awareness of the danger of such testing to human health.237 Attempts at a FMTC were abandoned in 1964, once again over issues of verification. There was a growing pressure on the U.S. and the U.S.S.R. to negotiate a non- proliferation treaty due to the concerns that nuclear weapons would spread to more and more countries – making the world less safe, and some type of nuclear use more likely. The NPT negotiations themselves really got started after the unanimous approval of a 1961 UN General Assembly resolution (the Irish Resolution) on negotiation of a treaty that would ban countries without nuclear weapons from acquiring them and that would require the inspections by the IAEA. In particular, the resolution asked the countries possessing nuclear weapons to “undertake to refrain from relinquishing control of nuclear weapons and from transmitting information necessary for their manufacture” to nations not possessing nuclear weapons. It also recommended that states not possessing nuclear weapons “undertake not to manufacture or

235 Ibid. P. 5. 236 Ibid. 237 Thomas Reed and Danny Stillman, The Nuclear Express: A Political History of the Bomb and Its Proliferation, (Minnesota: Zenith Press, 2009). pp. 62-67. The period from 1961 to 1963 saw over 200 nuclear tests, including the largest test ever, the 58Mt “Tsar Bomba” which was tested in the atmosphere. The 1963 Limited Test Ban Treaty banned tests in the atmosphere, in outer space, and under the sea, but not underground. 74

otherwise acquire control of such weapons.” It urged nuclear-weapon and non-nuclear-weapon states to “cooperate to those ends.”238 By the mid-1960s, in order to prevent the proliferation of nuclear weapons, informal talks between the U.S. and the U.S.S.R. revealed that a non-proliferation treaty was within reach. In March 1962, under the aegis of the United Nations, the Eighteen Nation Disarmament Committee (ENDC) was established to engage the superpowers in nuclear arms control negotiations. India was one of the eight nonaligned nations to participate actively in the deliberations of the ENDC. In 1965, the Americans submitted their first public draft of a non- proliferation treaty to the ENDC in Geneva, the principal forum for disarmament negotiations.239 This was soon followed by a Soviet counter-proposal. Both drafts provided for a treaty of unlimited duration and consisted of only two articles, focused solely on horizontal non- proliferation. Article I obligated nuclear states not to disseminate these weapons in any way, while Article II committed non-nuclear states not to acquire such weapons. The early drafts were challenged by a number of ENDC members who objected to the unequal distribution of rights and responsibilities in the proposed treaty. In essence, the superpowers were asking the non-nuclear states to forever foreswear the right to acquire nuclear weapons while themselves assuming no obligation to reduce or eliminate their arsenals.240 Particularly, “the Non-Aligned Eight”, a group of eight states in the ENDC not belonging to either of the superpower blocs, submitted a joint memorandum calling for any non-proliferation treaty to be coupled with or followed by tangible steps to halt the arms race and eliminate nuclear weapons.241 The superpowers refused to give in to demands to add provisions demanding “tangible steps” toward disarmament. In response to growing criticism, the superpowers finally accepted the inclusion of a vaguely formulated article promising “negotiations in good faith” towards the

238 UN General Assembly Resolution 1665, December 4, 1961 (the Irish Resolution). 239 The ENDC was co-chaired by the U.S. and the U.S.S.R. Other members were U.S. allies (U.K., Canada, France, and Italy) Soviet allies (Czechoslovakia, Poland, Romania, Bulgaria) and non-aligned states (Brazil, Burma, Egypt, Ethiopia, India, Mexico, Nigeria, Sweden). 240 Robert S. Norris, and Hans M. Kristensen, “Nuclear Notebook: Global Nuclear Stockpiles: 1945- 2006”, Bulletin of the Atomic Scientists, Vol. 62, No. 4 (July/August 2006). http://thebulletin.metapress.com/content/c4120650912x74k7/fulltext.pdf. (Accessed May 29, 17) 241 Ibid. 75

cessation of the nuclear arms race. A number of ENDC members also objected to intrusive verification safeguard measures. The U.S. and the U.K. tried to break the deadlock with a public announcement that they would themselves, as NWS, accept IAEA safeguards on all their nuclear activities except those of a military nature. In this way a norm of separating civilian facilities from the military ones and accepting IAEA safeguards on the former by NWSs emerged.242 In return for NNWS’ acceptance of intrusive verification measures in the form of mandatory safeguards, the NWS, foremost the United States, recurrently and emphatically affirmed that the “inalienable right” to develop peaceful nuclear energy was absolute. In practice, this implied that state parties could theoretically construct the complete infrastructure for nuclear weapons construction without manufacturing an actual device, as long as they remained a party to the treaty. The content of U.S. negotiations and consultation with its allies and other powers on treaty duration and conditions for withdrawal between 1966 and 1968 leave no doubt that leaving open the option for “nuclear latency” was an important – perhaps even the important – selling point for the NPT.243 Along these lines, Washington repeatedly underscored to its allies, but also in public, that the “only technological development prohibited by the treaty” was actual nuclear weapons or devices. This meant it was allowable to have facilities producing enriched uranium, the stockpiling of fissionable material, or plutonium-fueled or fast breeder reactors, as long as these activities were under safeguards.244 The superpowers were forced to accede to demands from the ENDC members on issues relating to disarmament and cooperation on the peaceful uses of nuclear energy.245 The eventual compromise that resulted was referred to as the “grand bargain” of the NPT: non-proliferation in

242 See IAEA documents INFCIRC/263, INFCIRC/288, and INFCIRC/327 for the agreements pertaining to, respectively, the UK, USA, and the USSR. 243 The NPT does not prohibit a non-nuclear weapons signatory country from establishing its own uranium enrichment facilities. At the time of negotiating the treaty the United States assumed that the uranium enrichment route to nuclear weapon was unachievable for other countries and could be contained by an enforceable system of safeguards. See John Krige, “The Proliferation Risks of Gas Centrifuge Enrichment at the Dawn of the NPT”, The Nonproliferation Review, Vol. 19, No. 2, 2012. 244 Ronald Popp, “Introduction: Global Order, Cooperation between the Superpowers, and Alliance Politics in the Making of the Nuclear Non-Proliferation Regime”, The International History Review, Vol. 36, No. 2, 2014. 245 Dimitris Bourantonis, “The Negotiation of the Non-Proliferation Treaty, 1965-1968: A Note”, The International History Review, Vol. 19, No. 2, 1997. pp. 350-57. 76

return for access to nuclear technology and eventual nuclear disarmament. The NPT, at the heart of the non-proliferation nuclear order, recognizes the five states that had tested nuclear weapons prior to January 1, 1967 as Nuclear Weapon States (NWSs). Other states could only join the NPT as Non-Nuclear Weapon States (NNWSs), renouncing their right to manufacture or otherwise acquire nuclear weapons and accepting safeguards over their peaceful nuclear activities. The NWSs (U.S., U.S.S.R/Russia, U.K., and eventually France and China) would agree not to disseminate nuclear weapons (Art. I), together with other states would facilitate the spread of nuclear technology for peaceful uses (Art. IV), and would move towards eventual nuclear, as well as general and complete, disarmament (Art. VI). For their part, NNWSs agreed to forego nuclear weapons (Art. II), and to accepted appropriate IAEA safeguards on their nuclear programs to verify compliance (Art. III). It is important to note that the NPT initially permitted nuclear exports to non-signatory states, with the initial safeguard requirement in the NPT only being the application of item-specific safeguards (such as the pre-NPT INFCIRC/66 system): the NPT did not prohibit nuclear trade with non-parties. The full-scope safeguards requirement was adopted in 1995, after which non-NPT states were excluded from nuclear commerce. The NPT was opened for signature in 1968, and came into force in 1970 with nearly 100 signatories. The Italian foreign ministry once described the NPT as the first unequal treaty of the 20th century. Over time, though, most countries came to accept this infringement of sovereignty and the double standard of the treaty in the belief that it was the most reasonable way to avoid a nuclear conflagration.246 Today, the NPT is in force in 189 states, making it one of most universally observed treaties of all time (except India, Pakistan, Israel and North Korea).247 The indefinite extension of the NPT in 1995 and the Indian and Pakistani nuclear tests of 1998 solidified a structural gap in the nuclear non-proliferation regime. On the one side, every state in the world except India, Pakistan, Israel and North Korea, is now party to the NPT, whose duration is meant to be permanent. On the other side, because India, Pakistan and Israel remain outside the treaty with

246 George H. Quester, “Nuclear Proliferation: Linkages and Solutions”, International Organization, Vol. 33, No. 4, 1979. P. 546. 247 United Nations Office for Disarmament Affairs (UNODA) website, UNODA Treaties Database, http://unhq-appspub-01.un.org/UNODA/TreatyStatus.nsf. (Accessed May 29, 17) 77

no readiness to join as Non-Nuclear-Weapon States, they are omitted from NPT-related forums and many non-proliferation rules derived from the NPT.

India’s Role in the NNPR Negotiations India was energetically engaged in nuclear disarmament negotiations for several decades. In the 1950s India had pioneered a call for a comprehensive ban on nuclear testing as well as a freeze on the production of nuclear fissile material. In 1988 in the United Nations General Assembly, the Indian Prime Minister, Rajiv Gandhi, laid out a bold initiative for the elimination of nuclear weapons by the year 2010. In terms of non-proliferation efforts, India actively participated in the NPT negotiations, but it refused to sign the treaty due to its discriminatory nature, the Chinese threat it faced and a prestige factor. In a pioneering effort, the Indian Prime Minister, Jawaharlal Nehru, called for a cessation of nuclear testing on 2 April 1954, an immediate standstill agreement on nuclear tests by the two superpowers until a comprehensive disarmament agreement was elaborated by the United Nations.248 In December 1954, at the U.N. General Assembly (UNGA), India repeated its proposal for a total cessation of nuclear testing. In the light of Cold War tensions, the proposal did not have any immediate impact. Nevertheless, India’s proposal to probe the effects of radiation was adopted unanimously, and in 1955 the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) was created.249 Thus, India was instrumental in placing a comprehensive nuclear test ban on the international agenda. The superpowers did engage in intermittent talks and announced limited moratoriums on nuclear tests, but their mutual distrust prevented any substantial steps toward nuclear disarmament. In high-level ENDC discussions, the U.S., the U.K., and the erstwhile USSR negotiated the Limited Test Ban Treaty (LTBT), which was formally signed on 5 August 1963. The LTBT was significant in controlling nuclear fallout in the atmosphere, but by not including underground explosions it failed to realize the goal of a complete nuclear test ban. Nonetheless,

248 Savita Datt, “A Comprehensive Test Ban: Problems and Prospects,” Indian Defense Review, Vol. 10, No. 1, 1995. P. 22. 249 This has the mandate to assess and report on the levels and effects of exposure to ionizing radiation on the world population. http://www.unscear.org/unscear/en/about_us.html. (Accessed May 29, 17) 78

in the context of the tense Cold War period, India hailed the conclusion of the LTBT as a significant step toward nuclear disarmament. Prime Minister Nehru commented “It is highly important and significant because after years of discussions and arguments, this has happened and it breaks the ice as it were and gives an opportunity to go ahead with regard to disarmament and in putting an end, gradually, perhaps, to cold war attitudes of nations to each other.”250 On 8 August 1963, the day the LTBT was opened for signatures, India became the first nonnuclear weapon state to sign the LTBT.251 Given the tense Cold War situation, India, in a bid to overcome the looming threat of mutual annihilation, emphasized the adoption of several collateral measures en route to global disarmament. That is, in the absence of progress toward a disarmament treaty, India emphasized adoption of certain subsidiary measures such as: non-dissemination of nuclear weapons, a verified freeze on nuclear weapons, halting the manufacture of fissionable material, and a guarantee of the prevention of surprise nuclear attack.252 As for the non-proliferation efforts, the NPT was opened for signatures in 1968 and adopted in 1970. India was a vigorous participant during the early years of the negotiations (1964-67), when it called for a universal treaty that would seek an early date for the elimination of all nuclear weapons. It expressed its profound disappointment at the conclusion of the NPT process, however, stating that the world would now be forever divided into two categories of “unequal states”, the nuclear “haves" and “have-nots".253 More importantly for India, since the treaty recognized only those states as NWS that had conducted a nuclear explosion by January 1, 1968, India was to be relegated to a NNWS status under the NPT framework. India’s refusal to accept this treaty rested on three factors. One, the treaty discriminated between NWS and NNWS. Subscribing to the NPT as a NNWS meant accepting this condition in perpetuity. Two, India had faced a humiliating defeat at the hands of China, which had

250 Jawaharlal Nehru, “India’s Foreign Policy: Selected Speeches, September 1946-April 1961”, (Publications Division, Ministry of Information and Broadcasting, Government of India, 1961). P. 187. 251 K. Subrahmanyam, “India First Country to Accede to Partial N-Test Ban Treaty,” The Times of India, February 13, 1995. 252 R. K. Nehru, Remarks at the Eighteen Nations Committee on Disarmament, Final Verbatim Record of the Conference of the Eighteen Nation Committee on Disarmament, 162 Meeting (ENDC/PV162, United Nations General Assembly, January 31, 1964). P. 14. 253 Shyam Bhatia, India’s Nuclear Bomb, (Ghaziabad: Vikas Publishers, 1979). 79

acquired a nuclear capability that would be recognized under the NPT. Thus, joining the NPT as a NNWS would prevent the country from acquiring a measure of nuclear deterrence against a nuclear-armed enemy. Third, the issue of prestige was important for India: being a large country with democratic values and ancient civilization and accepting NNWS status was against its sense of its international stature. On 15 September 1965, India, along with other nonaligned nations, submitted a joint memorandum to the U.N. General Assembly (UNGA) outlining the basic approach for an appropriate treaty for thwarting the proliferation of nuclear weapons.254 This led to U.N. General Assembly Resolution 2028 for initiation of deliberations in the ENDC on the formulation of a nuclear non-proliferation treaty.255 Subsequently, the Indian delegation in the ENDC participated vociferously in the deliberations to draft a treaty that would curtail both vertical and horizontal proliferation. Along the lines of U.N. Resolution 2028, the Indian representative, Vishnu C. Trivedi, stipulated five conditions for a universal non-proliferation treaty. The treaty should: (i) lead to genuine nuclear disarmament; (ii) provide equitable obligations to nuclear weapon powers and nonnuclear weapon states; (iii) be linked to a comprehensive test ban; (iv) include a ban on production of weapons grade fissile material; and (v) should be fool-proof and contain no loopholes.256 India was greatly disappointed with the formulation of a partial and discriminatory treaty. The absence of mutuality of obligations built into the NPT compounds this asymmetry. On the one hand, the NNWS have to foreswear the pursuit of nuclear weapons as a condition for membership in the NPT. On the other hand, the NWS do not have to assume any explicit obligation regarding the time line for nuclear disarmament, if indeed they are committed to it. Trivedi, called it a futile exercise of imposing “nonarmament on unarmed countries” and compared the treaty to a 17th century Indian emperor who banned drinking while being a

254 Disarmament Commission, Official Records: Supplement for January-December 1965, Document DC/227, (New York: United Nations, 1966). P. 40. 255 United Nations General Assembly Resolution 2028, Non-Proliferation of Nuclear Weapons, Twentieth Session, November 19, 1965. P. 7. 256 K. Subrahmanyam, “India’s ‘NO’ to observer at NPT Extension Conference,” Times of India, January 25, 1995. 80

drunkard.257 On 14 May 1968, at the 57th Meeting of the First Committee of the U.N., the Indian ambassador, M.A. Hussain, listed India’s objections to the NPT as follows: the treaty (i) does not genuinely curb the proliferation of nuclear weapons; it simply stops the dissemination of weapons to NNWS but does not constrain the continued manufacture, stockpiling, and sophistication of nuclear weapons by the existing NWS; (ii) accords a privileged status to the NWS; (iii) does not provide for balanced and equitable obligations between NWS and NNWS; (iv) does not constitute a significant step toward nuclear disarmament, as Article VI fails to put in place a legal obligation for cessation of the nuclear arms race; and (v) is discriminatory with regard to IAEA safeguards and controls which are imposed only on NNWS.258 Contrary to the deliberations in the ENDC and India’s emphasis, the NPT was framed with a narrow focus only on the horizontal spread of nuclear weapons, and not on nuclear disarmament. Due to these objections India refused to sign the treaty. The NPT required all signatory states that had not tested weapons by January 1, 1967 to renounce any future nuclear capabilities and join the treaty as Non-Nuclear Weapon States. On the other hand, states that had already crossed the nuclear threshold were not required to roll back and were admitted in the privileged position of Nuclear Weapon States. India could not join either of these categories. India had not yet conducted nuclear tests, and joining the treaty as a NNWS meant giving up a possible nuclear deterrence capability against China. That meant China would be included as a NWS and India would be relegated to NNWS status permanently – a status unacceptable to India. In this context, Jyotika Saksena comments, India “was penalized for not conducting a nuclear explosion before 1974.”259 India’s rival neighbour, China, on the other hand could join the treaty as a Nuclear Weapon State as it had aggressively pursued a nuclear weapons program. Teresita Schaffer, the former U.S. State Department leading expert on South Asia, argues, “The NPT was written to allow five countries to have their bombs and

257 V.C. Trivedi, Remarks at the Eighteen Nations Committee on Disarmament, Final Verbatim Record of the Conference of the Eighteen Nation Committee on Disarmament, 298 Meeting (ENDC/PV298, United Nations General Assembly, May 23, 1967). P 16. 258 As cited in, K. Subrahmanyam, “Indian Attitudes Towards NPT,” in Bhupendra Jasani, (ed.), Nuclear Proliferation Problems, (Almquist and Wiksell: Stockholm International Peace Research Institute, SIPRI, Stockholm, 1974). pp. 259-60. 259 Jyotika Saxena, “Regime Design Matters: The CTBT and India’s Nuclear Dilemma”, Comparative Strategy, Vol. 25, No. 3, 2006. P. 220. 81

nobody else, and this particularly angered the Indians that Chinese were inside and they were outside.”260 Badr-ud-din Tayabji, the Indian Representative at the IAEA General Conference in September 1965, hinted that India was capable of producing nuclear weapons but had refrained from doing so.261 More or less similar views were expressed by Vishnu C. Tridevi, the Indian representative at the First Committee of the UN General Assembly, a month later when he said that technologically India was undoubtedly “a very advanced nuclear capable country” and that the Indian stance to refrain from manufacturing nuclear weapons was a political decision. 262 Indian officials have pointed out that if the NPT had been negotiated seven years later or if India had been able to explode its first device seven years earlier, then India would have been accepted into the NPT as a NWS. The issue of prestige was always very important to the newly decolonized and resource- poor country that won its independence through the unique means of non-violent protest. Its democratic form of government had underlined its liberal values. Its civilian nuclear industry had made impressive strides. In the aftermath of independence in August 1947, Prime Minister Jawaharlal Nehru launched an ambitious nuclear program meant to boost the country’s prestige and self-reliance in energy. It sought recognition for both its restraint in pursuing the offensive option and its mastery over a technologically complex field such as nuclear science. Thus, relegating it to the status of a NNWS was considered unacceptable. Nuclear weapons were also considered as instruments of influence and prestige aimed at enhancing the country’s international status. The 1964 Chinese nuclear tests triggered a nuclear debate in India. Peter Lavoy notes that, after China exploded its first nuclear device in October 1964, some Indians believed that India must match China’ s nuclear capabilities for reasons of prestige: “India has to have a bomb if it is to hold sway in the world. Not to make it would betray

260 Interview with Teresita Schaffer on July 2, 2015. 261 Jagdish P. Jain, Nuclear India, Vol. II, (New Delhi: Radiant Publishers, 1974). P. 169. 262 Ibid. P. 173. 82

a lack of will to live – to survive – in this jungle of international strife. Not to make it would be to let the whole world treat us as some third-rate country.”263 Stephen P. Cohen identified three groups in this debate. The first group were the “nuclear abolitionists”, who rejected outright the idea of India pursuing the nuclear weapon option. The rationale for this was the Gandhian tradition of non-violence and nuclear disarmament. The second group, the “nuclear hawks”, strongly supported the nuclear option and argued that nuclear weapons would provide an absolute deterrent against massive Chinese conventional military power and its unknown nuclear stockpiles. The third group, the “contingent hawks”, argued in favor of the nuclear option but wanted India to cross that threshold only in the event that “new strategic/political threats appeared, such as revived conflict with India or any unspecified crisis.”264 Indian policy followed the view of the third group. It developed the nuclear technology, but did not test a nuclear explosive (which it presented as a “peaceful nuclear test”) until 1974, and did not at that time declare itself a nuclear weapon state.

The Peaceful Nuclear Explosion (PNE) of 1974 In 1953, President Eisenhower, in his famous “Atoms for Peace” speech at the plenary meeting of the United Nations General Assembly, proposed to work with nonnuclear states for harnessing nuclear energy for peaceful purposes.265 This led to nuclear cooperation with several countries including sales of research reactors and participation of foreign scientists in nuclear research projects. In 1956, Canada signed a nuclear cooperation agreement with India and agreed to supply India with CANDU reactors. Subsequently, the U.S. also joined the nuclear pact and agreed to supply 10 tonnes of heavy water for the CANDU reactors. The so-called CIRUS (Canada India Research US)266 reactor became critical on July 10, 1960, and fully operational in 1963. Nuclear

263 Peter Lavoy, “South Asia’s Nuclear Revolution” in Raju G. C. Thomas (ed.) The Nuclear Non- Proliferation Regime: Prospects for the 21st Century, (London: Palgrave MacMillan, 1998). P. 262. 264 Stephen P. Cohen, India: An Emerging Power, (Washington, D.C.: Brooking Institute Press, 2001). pp. 163-64. 265 See, Eisenhower’s famous “Atoms for Peace” speech at the plenary meeting of the United Nations General Assembly, December 1953. Available at http://www.atomicarchive.com/Docs/Deterrence/Atomsforpeace.shtml. (Accessed May 29, 17) 266 Global Fissile Material Report 2010, pp. 117-8. 83

cooperation between India and the United States took a concrete shape in 1963 when two 210 MW boiling water reactors (BWRs) were ordered for the Tarapur Atomic Power Station (TAPS) on a turnkey contract from General Electric (GE). Prior to this, in addition to the supply of heavy water (21 tons) to CIRUS, the bulk of the US cooperation resided in exchanges of scientific information, flowing from the 1953 Atoms for Peace plan initiated during the Eisenhower Administration.267 However, the Indian peaceful nuclear explosion (PNE)268 in 1974 proved to be the tipping point for cessation of nuclear collaboration. It was alleged that India used the plutonium produced from the CANDU reactors to conduct the “peaceful” explosion in contravention of the CIRUS agreement. That is, India had diverted nuclear technologies imported from Western nations – intended for peaceful nuclear purposes – toward building nuclear weapons. Subsequently, it was reported that India also utilized the CANDU reactor as a “design prototype” to build Dhruva reactors for the production of plutonium.269 The belief was that India had broken the terms of the CIRUS agreement. As Robert Gillette puts it, India “had climbed into the nuclear clubhouse on the shoulders of Canadian technology and Canadian aid.”270 India was considered a defaulter on several counts: violation of the CIRUS agreement, betrayal of the Canadian government’s trust, misuse of Canadian aid, and the challenges to the NPT system. The 1974 PNE made Western nations conscious of existing loopholes in the non- proliferation accord and heightened their dilemmas regarding the potential use and misuse of nuclear technologies and the concomitant risk of chain reactions. Viewed from the western perspective, the Indian PNE had the potential to create a domino effect, with other developing countries following suit and diverting peaceful nuclear technologies to military purposes. Henry

267 Satu Limaye, U.S.-lndian Relations: The Pursuit of Accommodation, (Boulder, CO: Westview Press, 1993). pp. 93-136. 268 The interest in peaceful use of nuclear explosives in 1960’s provided a cover for India’s claim. The NPT Article V, now effectively obsolete, permits NNWS access to NWS research and development on the benefits of nuclear explosions conducted for peaceful purposes. As the perceived utility of peaceful nuclear explosions has diminished over time, the relevance of this clause has lost much of its practical value. It is now moot due to the restriction on all nuclear explosions mandated by the CTBT. 269 Dana R. Dillon and Baker Spring, “Nuclear India and the Nonproliferation Treaty”, Backgrounder, May 18, 2006. P. 4. 270 Robert Gillette, “India: Into the Nuclear Club on Canada’s Shoulders,” Science, Vol. 184, No. 4141, 1974. P. 1053. 84

Kissinger remarked that “The Indian nuclear explosion ... raises anew the spectre of an era of plentiful nuclear weapons in which any local conflict risks exploding into a nuclear holocaust.”271 It was realized that item-specific safeguards were not enough to prevent the proliferation of nuclear weapons. Consequently, the focus shifted to imposing full-scope safeguards and restricting the export of sensitive nuclear technology. Quite logically, then, India had to be restricted, and this explains the imposition of technological embargoes against India. New Delhi came to be regarded as a “nuclear pariah” but, significantly, was not considered a rogue state.272 In response to the Indian test, the United States took two measures to ensure that peaceful nuclear cooperation could not contribute to nuclear proliferation. First, at the international level, the United States endeavored to establish an effective NSG, with guidelines covering nuclear exports to states without nuclear weapons. The focus was particularly on discouraging exports of sensitive nuclear technologies such as enrichment and reprocessing. The NSG agreed to exercise restraint in the transfer of sensitive nuclear facilities, technology and weapons-usable materials and to establish special controls on exports of ENR. Since then, the members of the NSG have exercised considerable restraint in the transfer of sensitive nuclear technologies to countries that lack such capabilities. Some NPT developing states viewed the Guidelines as an excessive control on nuclear technology which would undermine their “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination” as set down in NPT Article IV.273 India criticized the Group as discriminatory and a tool of supplier states to retain their dominance in this technology – a suppliers’ cartel.274 Second, at the domestic level, the United States introduced the Nuclear Non-Proliferation Act (NNPA) of 1978 (amending the AEA of 1954), which tightened the requirement for nuclear

271 The US Department of State Bulletin, Vol. 72, No. 1875, 1975. P. 707. 272 Michael A. Levy and Charles Ferguson, “U.S.-India Nuclear Cooperation: A Strategy for Moving Forward,” Council Special Report, (Washington D.C.: Council for Foreign Relations, February 2007). P. 3. 273 Text of the NPT available at http://www.iaea.org/Publications/Magazines/Bulletin/Bull104/10403501117.pdf (Accessed May 29, 17) 274 Newsbrief, Program for Promoting Nuclear Non-Proliferation, (Great Britain: Third Quarter 1997), p. 2. 85

cooperation. The NNPA imposed tough conditions on nuclear exports: full-scope safeguards and the termination of the agreement if a state holds a nuclear test or engages in activities related to nuclear weapon manufacturing.275 In 1992, after Iraq’s nuclear weapon program was discovered, the NSG adopted the same condition of full-scope IAEA safeguards for nuclear exports.276 The 1995 NPT Extension and Review Conference endorsed the policy of full-scope safeguards. Paragraph 12 of the Conference decision “Principals and Objectives for Nuclear Non- proliferation and Disarmament” stated that “all of the major suppliers agreed as a matter of policy to require full-scope or comprehensive safeguards as a condition for new exports.”277 The final document of the 2000 NPT Review Conference also reaffirmed this principal278 which demonstrated the international community’s support for this nuclear supply policy. India consistently opposed this full-scope safeguards policy and argued that it has changed the very definition of non-proliferation. It initially aimed at only preventing the acquisition and proliferation of nuclear weapons. The definition was extended to cover all the related technologies for peaceful purposes. New Delhi criticized that full-scope safeguards were discriminatory, as those were not applicable to the facilities and laboratories of the NWSs.279 At the domestic level, U.S. nuclear exports are subject to Section 123 of the AEA (42 U.S.C. 2153).280 Section 123, clause A, lists nine criteria that a proposed agreement must meet, but allows the President to exempt an agreement from any of these nine requirements with Congressional approval. These nine requirements are:

1- Safeguards in perpetuity on transferred nuclear material and equipment; 2- Full-scope safeguards for all states without nuclear weapons; 3- Transferred material cannot be used for nuclear explosives or military purposes;

275 Sharon Squassoni, “Looking Back: The 1978 Nuclear Nonproliferation Act”, Arms Control Today, Vol. 38, No. 12, 2008. 276 See NSG Guidelines on www.nuclearsuppliersgroup.org. (Accessed May 29, 17) 277 “1995 NPT Review Conference Package of Decisions” available at http://www.reachingcriticalwill.org/legal/npt/1995dec.html#2 (Accessed May 29, 17) 278 “2000 NPT Review Conference Final Document” available at http://www.armscontrol.org/act/2000_06/docjun (Accessed May 29, 17) 279 J. N. Dixit, India-Pakistan in War and Peace, (London and New York: Routledge, 2002). P. 324. 280 Sharon Squassoni, “U.S. Nuclear Cooperation with India: Issues for Congress”, CRS Report for Congress, Order Code RL 33016, November 22, 2006. P. 23. 86

4- The United States has a right of material return in case a recipient state detonates a nuclear explosion or terminates or abrogates IAEA safeguards; 5- No re-transfer of nuclear material or classified data without U.S. consent; 6- Physical security of equipment and material; 7- No enrichment or reprocessing without prior U.S. consent; 8- Plutonium and Highly Enriched Uranium storage must be approved by the United States; 9- Anything produced from supplied items is subject to the above requirements.281

The requirement of full-scope safeguards excludes any possibility (unless the President exercises the waiver authority) of nuclear trade with India. New Delhi argued that the primary target of the provisions of the U.S. 1978 Act was to control and diminish India’s nuclear technological and defence capabilities and opposed its deleterious impact on India’s nuclear self- reliance capacities. Within a year, a dispute on TAPS surfaced when the United States decided not to supply Low-Enriched Uranium (LEU) fuel. India protested, since the bilateral agreement explicitly called for an uninterrupted US supply of fuel for a 30-year period. Conceding the validity of the claim, the United States arranged for France to supply the fuel to Tarapur until 1993.282 However, Paris also began to require full-scope safeguards in late 1981 and ceased supplying the LEU in early 1993.283 India then secured a supply of LEU from the China Nuclear Energy Industry Corporation in early 1995.284 New Delhi continued to insist that its 1974 test was a “peaceful” nuclear explosion, indicating the status of its technology, rather than granting legitimacy to nuclear deterrence. Then Indian Prime Minister Indira Ghandi insisted that it was a scientific test with no political or foreign policy implications. Regarding the West's condemnation of the Indian test, the standard Indian response was to castigate it as the advanced nations' determination to “crush India for its temerity.”285 The Western criticism was portrayed as an example of the hypocrisy of the

281 Ibid. P. 25. 282 Pearl Marshall, “India and France Renew Old Friendship,” Nucleonics Week, July 4, 1985. pp. 12-14. 283 Mark Hibbs and Ann Maclachlan, “India Can't Count on France For Tarapur Fuel Past 1993," Nucleonics Week, 16 April 1992, pp. 9-10. 284 “Hyderabad Reactor Begins Using Uranium From China,” Business Line, February 20, 1995. P. 9. 285 Raja Ramanna, Years of Pilgrimage: An Autobiography (New Delhi: Viking, Penguin, 1991). P. 92. 87

developed world in the wake of a scientific stride by a Third World country. The Western suspicion of a likely military aspect of the Indian explosion was dismissed by citing the official Indian position that the Pokhran test was a peaceful nuclear explosion and nothing more than that. Indian authors and decision-makers insisted – and still insist – upon accepting the official stance of New Delhi at its face value. Anything else was either hypocrisy or an attempt to crush India. The discourse which demanded that India should opt for nuclear weapons was premised upon the argument that genuine Indian national security could only be achieved through indigenous nuclear weapons, and anything less would be mortgaging that security to external powers. The issue of nuclear weapons was gradually becoming infused with nationalist pride. Opposition to the NPT would constitute a patriotic duty and support of the treaty could be construed as an act of possible national betrayal. For example, Brahma Chellaney remarks that the nuclear friction between India and the U.S. is actually an “intense struggle between one country’s determination to control the global diffusion of sensitive technologies and another country’s resolve rooted in security considerations to build technological independence.”286 At the time of the NPT Extension Conference in 1995, the nuclear-weapon states parties were in a position to broadly claim that the nuclear arms race was indeed over. Attention was focused on the conclusion of the Comprehensive Test Ban Treaty (CTBT) negotiations in the Conference on Disarmament (CD), on the logic that this would be the formal recognition of the end of the nuclear arms race. In those negotiations, India warned that, unless they were banned as well, computer simulations and sub-critical testing would allow the arms race to continue despite the prohibition on nuclear explosions. Most countries preferred to lock in the ban on actual nuclear explosions rather than delay conclusion of the CTBT. India cited the legal right of a sovereign country to not be forced into signing any treaty if doing so jeopardizes its “supreme national interests”.287 India stated that since it is flanked by a declared nuclear weapons power (China), and an undeclared nuclear weapons power (Pakistan), signing the CTBT without further testing its weapons would foreclose its options forever. This

286 Ibid. P. 44. 287 V.S. Mani, “India’s Tests: The Legal Issues," The Hindu, June 5, 1998. P. 12. 88

would tantamount to signing the NPT “through the back door”.288 Thus, India refused to sign the CTBT, virtually vetoed the treaty at the CD, and a few months later voted against it at the UNGA. In an alternative procedural move to break the deadlock, Australia introduced the CTBT at the 51st session of the UNGA, which required only a two- thirds majority. The 185 members of the UNGA passed this draft resolution by a vote of 158 to 3, with 5 abstentions, and 19 states not voting. Only Bhutan and Libya joined India in opposing the vote. The former is a peace- loving Buddhist country that is virtually an Indian protectorate, and the latter was at the time routinely designated as a “rogue” state. Immediately after the vote, U.S. State Department spokesman Nicholas Burns warned

We would advise those countries that are holding out against the will of the international community to think very carefully: do [they] really want to be the sole countries not in favor of the CTBT? ... I am speaking particularly about ... the Government of India which has taken such a difficult position against the will of the international community.289

The treaty now awaits ratification, but will still require Indian assent to enter into force.290 The indefinite extension of the NPT in 1995 in fact turned out to be the first step in what India perceived to be a growing contradiction with its ability to maintain its nuclear option.291 The Clinton Administration managed to extend the NPT indefinitely. All the signatories unanimously agreed to its extension indefinitely and unconditionally in its original form. This extension came as a dramatic shock for India, which now realized that New Delhi would come

288 C. Raja Mohan, “India not to sign the unequal treaty,” The Hindu, June 17, 1996. 289 Rajesh Gopalan, “India and the CTBT”, IPSG Newsletter, May 1997. 290 The treaty will enter into force 180 days after the 44 states listed in Annex 2 of the treaty have ratified it. These "Annex 2 states" are states that participated in the CTBT’s negotiations between 1994 and 1996 and possessed nuclear power reactors or research reactors at that time. As of 2016, eight Annex 2 states have not ratified the treaty: China, Egypt, Iran, Israel and the United States have signed but not ratified the Treaty; India, North Korea and Pakistan have not signed it. 291 Jasjit Singh, “India, Europe and Non-Proliferation, Pokhran II and After”, Strategic Analysis, Vol. 22, No. 8, 1998. 89

under acute pressure to sign the treaty.292

The 1998 Nuclear Tests

In May 1998, India unambiguously crossed the nuclear threshold. The new Bharatiya Janata Party (BJP) government carried out their election manifesto and declared India a nuclear weapon state after conducting five nuclear tests. The BJP-led coalition adopted this policy and rationalized the tests on the grounds of the nuclear threat posed by Pakistan and China.293 The official reasons for the tests also included that India could no longer keep its “nuclear options” open. The indefinite extension of the NPT in 1995 and the successful conclusion of the CTBT in 1997 increased, for India, the costs arising from its traditional posture of ambiguity with regard to nuclear weapons. India cited China as the driver for these nuclear tests: Defense Minister George Fernandez announced that China remained India’s potential enemy number one,294 and Prime Minister Atal Bihari Vajpayee, in writing to U.S. President Bill Clinton, justified the nuclear tests by citing the Chinese threat.295 There was a strong conviction in India that New Delhi was facing strategic encirclement through nuclear missile collusion between China and Pakistan: Beijing had substantially assisted Islamabad in its nuclear build-up and its technical know-how. This assistance reached at high point in 1992, when Beijing decided to sell 34 M11 ballistic missiles to Islamabad.296 Despite intense U.S. pressure,297 Pakistan followed India in staging its own tests, making South Asia “the most dangerous region”298 where two explicit nuclear powers directly confronted each other. Following the May 1998 nuclear tests, India adopted a unilateral moratorium on any

292 Raju G. C. Thomas and Amit Gupta, India’s Nuclear Security, (New Delhi: Vistaar Publications, 2000). P. 53. 293 George Perkovich, India s Nuclear Bomb: The Impact on Global Proliferation, (Berkeley, University of California Press, 1999). pp. 405-9. 294 Vijay Rana, “China and India’s Mutual Distrust”, BBC News, April 21. 2003. 295 “NUCLEAR ANXIETY; Indian's Letter to Clinton On the Nuclear Testing”, The New York Times, May 13, 1998. 296 Jeffrey Smith, “Report cites China-Pakistan Missile Links”, Washington Post, June 13, 1996. 297 Strobe Talbott, Engaging India: Diplomacy, Democracy and the Bomb, (Delhi/Washington: Viking/Brookings, 2004). Chapter 2. 298 Jonathan Marcus, “Analysis: The World’s Most Dangerous Place?”, BBC News, March 23, 2000. 90

further nuclear tests and announced that it was willing to convert its self-declared moratorium on further testing into a formal international undertaking “provided certain conditions were met.”299 These conditions were related to the acceptance of India’s special status as a declared Nuclear Weapon State by the NNPR. After an initial flurry of anger and sanctions following the Indian and Pakistani nuclear tests in May 1998, it became clear that neither state was going to give up its nuclear weapons and the world had to accept this reality. However, the Clinton Administration’s approach towards the Indian nuclear program remained to “cap, roll back, and eventually” eliminate it. Indian Foreign Minister Jaswant Singh and Strobe Talbott, U.S. Deputy Secretary of State from 1994 to 2001 and the chief U.S. negotiator with India, held eight rounds of discussions to explore opportunities for a better relationship between the two countries during 1998-2000. The seven rounds of talks between Jaswant Singh and Strobe Talbott in 2001 and 2002 can be viewed as a way to cautiously institutionalize India into the dominant order of global governance.300 India’s growing economy played an important role in improving the relations. In 2000, the economic growth rate was 6 percent as compared to 3.5 percent in 1980. President Clinton visited India in March 2000 to improve economic relations, and started a new beginning of “dynamic and lasting partnership” but the nuclear issue still remained a stumbling block.301 Addressing the Indian Parliament, President Clinton acknowledged the richness of Indian civilization, noted the country’s economic and scientific progress, and praised its adherence to democratic norms. Although the Clinton Administration refused to compromise on the nuclear non-proliferation policies, but India’s rise started putting pressure on the regime norms to accommodate New Delhi in some way and it was not possible for the United States to ignore the nuclear issue for a longer time. The surge in Indian material power facilitated a remarkably rapid shift from India being the target of the nuclear sanctions after the 1974 tests to a New Delhi’s new determination to

299 Statement by Brajesh Mishra, National Security Advisor and Principal Secretary to the Prime Minister, May 23, 1998.

300 Himadeep Muppidi, “Colonial and Postcolonial Global Governance”, in M. Barnett and R. Duvall, (ed.), Power in Global Governance, (Cambridge: Cambridge University Press, 2004). P. 289. 301 Brahma Chellaney, “The Clinton Visit: Hype and Reality”, Rediff.com, March 28, 2000. 91

confront the discriminatory regime and, further, to attain a high position in it. To a large extent, India’s worldview was transformed from that of a defensive, prickly state to one that today articulates the ambition to become a leading power. A few months after the 1998 tests, there were already suggestions that India should be enticed with civilian technology to adhere to non-proliferation norms.302 India’s economic growth was creating a “voracious appetite for electricity.”303 The resulting growing energy appetite of the rapidly industrializing country was to be met primarily by fossil fuels, largely coal and hydroelectricity. India’s electricity generation capacity had grown over 150-fold since independence and it was projected that the sector must grow by a further factor of five to six times, fueled largely by fossil fuels, to sustain the desired GDP growth.304 Such developments were poised to exacerbate the environmental crisis. Nuclear power as a clean and sustainable source of energy became the focus of attention. India’s growing nuclear energy needs were being recognized at the international level. India’s rising economy provided an opportunity for the nuclear suppliers to revise the nuclear non-proliferation norms. Strobe Talbott wrote in 2004 that the French government was eager to have a nuclear agreement with India in late 1998:

In September 1998, during a visit by Vajpayee to Paris, President Chirac had announced that France would conduct its own “strategic dialogue” with New Delhi. The French dangled the possibility that India might, with French help, become eligible for nuclear assistance of the kind forbidden to non-NPT states. If that happened, India would have broken free of the restrictions that resulted from its long standing refusal to join the NPT.305

Italy along with France was also supporting the idea to lift sanctions on India. “Seeing France and Italy breaking ranks, the United Kingdom and Germany showed signs of being

302 Christopher Warren, David A. Hamburg, and William J. Perry, Preventive Diplomacy and Preventive Defense in South Asia: The US Role, (Stanford, CA: Stanford University and Harvard University, 1999). 303 David J. Victor, “Nuclear Power for India is Good for Us All”, International Herald Tribune, March 16, 2006. 304 Manu V. Mathai, Nuclear Power, Economic Development Discourse and the Environment India, (New York: Routledge, 2013). P. 142. 305 Strobe Talbott, Engaging India: Diplomacy, Democracy and the Bomb, (Delhi/Washington: Viking/Brookings, 2004). P. 143. 92

tempted to step up the pace of restoring to normal their own relations with India.306 Russia and India have enjoyed strong strategic, military and economic relations since the Cold War, and Russia has always been in favor of lifting sanctions against India. In May 2000 Mikhail Ryzhov, a Russian Atomic Energy Ministry official, argued in favor of the recognition of the nuclear status of India and Pakistan and reasoned that both countries have nuclear weapons and can no longer be expected to sign the NPT as NNWS. He called this situation “unnatural” and needing to be addressed in such a way that “it does not promote and encourage further proliferation of nuclear weapons in the world”.307 Russia, France, Germany, the United Kingdom and Italy knew that, without US help, it would not possible to lift these sanctions against India, and had been proposing this idea, but this proposition was dismissed outright by the Clinton Administration, which refused to compromise its non-proliferation agenda. India, on the other hand, insisted on acceptance of its status as a nuclear weapon state and argued that the country has unilaterally proved its credentials as deserving this status or commensurate prestige.308 New Delhi argued that it has maintained effective export controls on nuclear materials as well as related technologies even though it was neither a party to the NPT nor a member of the NSG. India remained committed to non-proliferation and maintained stringent export controls to ensure that there was no leakage of the indigenously developed know-how and technologies.309 It could have traded its expertise and/or materials to any willing country for money, or leveraged it for securing larger foreign policy objectives. Thus, for instance, in 1978 “Colonel Mu’ammar al-Qaddafi’s government in Libya offered to pay India an amount comparable to its foreign debt (then about $17.89 billion) in exchange for nuclear weapons technology, but India declined.310 Given India’s traditional pro-Arab policy through the decades (1960-1990), but strategic dependence on Islamic states in the Middle East for oil

306 Ibid. 307 “Legalize India’s N-Status, Says Russia.” The Hindu, May 31, 2000. 308 There is little interest among NPT members to amend the treaty—with or without the India exception provision. Many of the technologically advanced states—notably Japan, Germany, Sweden, Italy, South Korea, Canada, and Australia—have upheld their pledge to remain NNWS. For them, it will be palpably unfair to “reward” India for developing nuclear weapons. 309 Jaswant Singh, “India Committed to NPT Regime – short of Joining it”, Indian Express, May 10, 2000. 310 Keith Bradsher, “Qaddafi said to seek atom-arms deal in 70’s”, New York Times, October 10, 1991. 93

imports and support for its position on Kashmir vis-a-vis Pakistan, Qadaffi and Libya could have played a vital role in “balancing” these divergent interests.311 Thus even though the country has been formally outside of the NPT, its conduct, has, it argued, always been in conformity with those expected of a NWS under the treaty. Therefore, it deserved a special status as a “nuclear capable” state.

Norm Contestation and Realist Constructivism Norm contestation rests on discursive interventions in a relational network. Emphasis on practical reasoning shows why and how actors with their characteristic cultural differences offer the reasons they do, take the roles in which they are cast, and arrive at decisions. Norm contestation theory assumes that in order to fill a legitimacy gap it is important that all those who could potentially be affected by a norm should have equal access to the contestation and their concerns should be heard and taken into account. The negotiations and development of the fundamental norms in the nuclear non-proliferation regime show that despite equal access to the contestations and concerns of NNWSs the superpowers were successful in imposing the discriminatory norms. The superpowers were able to make the NPT as a most universally observed treaty by constructing the nuclear proliferation issue as the biggest threat to international security. Most states accepted this discriminatory treaty in the belief that it was the most reasonable way to avoid a nuclear conflagration. The NWSs promised NNWSs access to nuclear technology for peaceful purposes without discrimination. They appealed to and convinced NNWSs through both normative and material reasons. Due to different national interests and “cultural baggage” India and the United States developed opposing positions vis-à-vis the nuclear non-proliferation norms. India, a member of the nonaligned nations (NAM), favoured the negotiation of a treaty that focused on universal disarmament, that is, a treaty that included equitable vertical and horizontal non-proliferation. On the contrary, the U.S. favoured the post-war nuclear weapons status quo and was concerned about the possible addition of new nuclear weapon states. In the post-1968 era, India gradually withdrew from centre stage in disarmament negotiations. It not only refused to sign the NPT that resulted from these negotiations, with the 1974 test it posed a considerable challenge to the non-

311 “Indo-Libyan Nuclear Accord,” Worldwide Report, September 24, 1984. P. 69. 94

proliferation regime. Subsequently, in 1998, in stark opposition to the non-proliferation regime, India went overtly nuclear. That is, India went from being a supporter to a challenger of international arms control. India consistently contested and opposed the non-proliferation norms for being discriminatory and the disarmament norms for being tool of non-proliferation rather than instruments of universal disarmament. Both countries developed contrasting position regarding the full-scope safeguards norm. India tried to justify its 1974 nuclear test as a “peaceful nuclear explosion” but failed to get legitimacy for this position at the international level. In response to this nuclear test the U.S. Congress passed the Nuclear Nonproliferation Act of 1978 (NNPA) barring nuclear exports including any “source material, special nuclear material, production or utilization facilities, and sensitive nuclear technologies” unless the recipients – nonnuclear weapon states – accepted IAEA safeguards on all its nuclear facilities.312 The United States effectively used its power to garner support for this norm at the International level and subsequently, the NSG and NPT also adopted the requirement of full-scope safeguards for nuclear trade. Thus, this requirement rendered India ineligible for nuclear trade.313 The full-scope safeguards norm emerged as a global norm because there was a wide consensus that no new state should be allowed to obtain nuclear weapons. This norm was interpreted as a necessary measure to counter the proliferation threat. India interpreted this norm as a discriminatory one because it tightens the rule of nuclear trade without imposing time-bound disarmament obligations. Due to this norm India remained as a pariah state. Supplier states also tried to restrict the transfer of ENR technology to reduce the risk of the proliferation of nuclear weapons. Supplier states justified the ban on ENR technology norm with various reasons: First, this technology increases the risk of the proliferation of nuclear weapons. Enrichment and reprocessing facilities can produce nuclear materials – highly enriched uranium (HEU) and separated plutonium – that are directly usable in nuclear weapons. Second, reprocessing plants are challenging and costly to inspect. The International Atomic Energy Agency (IAEA) faces technical and financial problems in ensuring timely detection of the

312 P. R. Chari, “An Indian Reaction to U.S. Nonproliferation Policy”, International Security, Vol. 3, No. 2, 1978. pp. 58-59. 313 Leonard Weiss, “India and the NPT”, Strategic Analysis, Vol. 34, No. 2, 2010. P. 26. 95

diversion of significant quantities of weapon-usable materials to nuclear explosive purposes. Third, it is difficult to detect, either through national technical means or international inspections or both, clandestine enrichment plants using such technologies as centrifuge or laser isotope separation. Finally, highly enriched uranium produced at enrichment plants and plutonium recovered from reprocessing facilities offer tempting targets for terrorists or other non-state actors. India strongly contested this norm and argued that supplier states wanted to retain their dominance on nuclear technology. India believed that it was the target of nuclear sanctions and the non-proliferation controls have largely emerged in “defensive” response to India’s nuclear and missile advancements. While India’s 1974 nuclear detonation impelled the secret formation of the London Club, later called the NSG, Indian development of space technology inspired the formation of the Missile Technology Control Regime (MTCR).314 India perceived the CTBT as an instrument of disarmament but it was a tool of non- proliferation, primarily aimed at preventing countries like India from building nuclear weapons. India complained that the CTBT failed to become a genuine step towards nuclear disarmament. It insisted that the treaty should be firmly linked to a time bound framework for complete elimination of nuclear weapons. An FMCT is yet to be negotiated but India supports a multilateral, non-discriminatory and verifiable treaty. Being a developing country India was not in a position to campaign hard for its interpretation of these norms or effectively use international organizations to institutionalize its version of interpretation. Being a super power the United States, on the other hand, was able to garner support of all the countries and was able to institutionalize and tighten the rules for the non-proliferation norms. Indian contestation of the non-proliferation and disarmament norms did not made a difference, despite being right on moral grounds, until and unless New Delhi started emerging as a major power. India’s rising economy appealed to supplier countries to start considering lifting sanctions against New Delhi and Washington also started thinking of accommodating India.

314 Brahma Chellaney, “Non-proliferation: An Indian Critique of U.S. Export Controls,” Orbis, Vol. 38, No. 3, 1994. P. 444. 96

Conclusion As power shifts and as the interest of powerful states evolve, so dominant patterns of international regimes will inevitably follow. Norms tend to reflect or to reinforce the interest of powerful states at particular times but this reflection should be through accepted normative structure. Norms do have compliance pull either by affecting the incentives or calculations of actors or by influencing the way in which interests are understood or preferences are constructed. Powerful actors have more options to strategically manipulate norms by depending on international regime, the capacity to shape social, political and economic processes and the ability to navigate successfully within a normative structure. Norms change in response to changing material conditions. India’s rising economy put pressure on the regime to revise its norm in favor of New Delhi. Due to India’s rising economy, the Clinton Administration improved relations with New Delhi, but refused to compromise on its non-proliferation policy by lifting nuclear sanctions against it. However, Russia, France, Germany, the United Kingdom and Italy were in favor of lifting nuclear sanctions against India due to their economic and strategic interests, but were aware of the fact that this would not be possible without U.S. help. India, on the other hand, needed to expand its nuclear energy base to meet its growing economy needs. New Delhi argued that it was not engaged in any overt activity that would serve to confront or weaken those ideals of the NNPR that it believes in. Thus even though the country has been formally outside of the NPT, its conduct has always been in conformity with those expected of a NWS. Accordingly, it has maintained a unilateral policy of strict control over exports of nuclear weapons, strategic materials, and technologies, often- forsaking considerable monetary and diplomatic advantages in the process. Therefore, India’s behavior would qualify for a special status in the NNPR. This is interesting, in that India has long denounced the treaty as “discriminatory” and now wants to be the part of this “discrimination”, which shows the acceptance of the regime by India.

Chapter V: The India-U.S. Nuclear Deal

On July 18, 2005, U.S. President George W. Bush and Indian Prime Minister Manmohan Singh in a joint statement announced a framework for nuclear cooperation between the two countries which brought an end to more than three decades of sanctions against India following its 1974 nuclear test. The United States had to change its domestic law and modify the nuclear non-proliferation regime to facilitate this nuclear cooperation. It altered the rules of the regime by introducing the Hyde Act, (changing domestic laws for India), and the Nuclear Suppliers Group (NSG) waiver for India (achieving consensus in the NSG after intense diplomacy). The United States had to change its domestic law to facilitate this nuclear cooperation. The Atomic Energy Act of 1954 (as amended by the Nuclear Non-Proliferation Act of 1978) governs U.S. nuclear agreements, and it prohibits nuclear trade with countries that do not accept full-scope safeguards as required, among other things, by Section 123. Section 128 requires full- scope safeguards to license nuclear exports and Section 129 terminates nuclear trade if a state conducts a nuclear test after 1978. However, the U.S. President has the authority to waive these conditions in a nuclear agreement with any country, with the approval of the U.S. Congress. The Hyde Act, approved by the U.S. Congress and signed by President Bush into law on December 18, 2006, provides that waiver authority to the President with respect to India, but contains seven conditions that must be met before exercising this waiver authority. Among these requirements are a credible civil-military separation plan by India, an India-IAEA Safeguards Agreement and a consensus decision by the Nuclear Suppliers Group to exempt India from its export guidelines − specifically the full-scope safeguards requirement. This chapter briefly examines how the Bush Administration viewed India as a strategic partner and developed the idea that lifting nuclear sanctions against New Delhi was in the national interest of the United States. The Bush Administration had to build consensus and change its internal requirement with respect to the regime norms. It had to justify the deal to its critics particularly the non-proliferation community who was mostly against the deal for being in contradiction of the regime norms and would weaken them. The United States was arguing with opponents of the deal, at both the domestic and the international level that this agreement would put restrictions on the Indian nuclear program and would not boost it. India, on the other hand, was assuaging the domestic concerns that the deal would not restrain its nuclear program in any

way. This domestic opposition made it difficult for India to accede to more stringent non- proliferation demands. This chapter explains the origin, contents, controversy, and the U.S. domestic legislation for the Indo-U.S. nuclear deal. It is divided into four sections. The first section briefly analyses the origins of the Indo-U.S. deal and the contours of the deal. How did the idea of the agreement develop in the Bush Administration? What factors played an important role in the conclusion of the deal? The second section looks at how U.S. domestic law was amended in favor of India, and the conditions imposed by the Hyde Act. The third section describes the controversy it generated. What were the arguments offered in support of the deal and what were the reservations of the opponents of the deal? The fourth section offers a conclusion.

Origins of the Indo-U.S. Nuclear Deal The Bush Administration officials recognized the strategic importance of India even before coming to office. During the run-up to the 2000 presidential elections, Condoleezza Rice, who later became President George W. Bush’s National Security Advisor (NSA) and Secretary of State, wrote in Foreign Affairs that It [the United States] should pay closer attention to India’s role in the regional balance. There is a strong tendency conceptually to connect India with Pakistan and to think only of Kashmir or the nuclear competition between the two states. But India is an element in China's calculation, and it should be in America's, too. India is not a great power yet, but it has the potential to emerge as one.315

She also emphasized the role of Japan, South Korea and Taiwan in China’s containment but in India’s case she saw the potential to emerge as a great power. But, she argued, the Indian nuclear program marginalized its role in the US plan to contain China. The Bush sought to dehyphenate India and Pakistan and build a strategic partnership with New Delhi. Indian Prime Minister Atal Bihari Vajpayee’s visit to the United States in November 2001 helped to promote the term “natural ally” and there was renewed appreciation of Indian democracy in the United States. In a statement, Vajpayee also mentioned the possibility of cooperation in civilian nuclear

315 Condoleezza Rice, “Promoting the National Interest”, Foreign Affairs, January/February 2000. 99

energy between the two countries.316 In January 2003, the Chairman of the U.S. Nuclear Regulatory Commission, Richard Meserve, met with the AEC Chairman, Anil Kakodkar, to discuss the possibility of bilateral cooperation. “The White House approved the visit to India after a bitter interagency struggle in which NPT “strict constructionists” tried to block the trip. A compromise was finally reached permitting Meserve to have a “dialogue” but not to arrange actual transfers of nuclear safety technology.”317 The Bush Administration discarded the Clinton Administration’s approach and adopted a flexible strategy to bring India closer to the non-proliferation regime without its being a signatory to the NPT. The first breakthrough in the relationship was on January 12, 2004, when both governments announced the Next Steps in Strategic Partnership (NSSP), an important initiative that allowed India’s access to once-restricted high technology and removed Indian entities from a sanctions list.318 This step was important in improving India-U.S. relations, but the nuclear issue was still a hurdle in “radically transforming” those relations.319 The last major push to grant India a civilian nuclear deal was the visit by Indian Foreign Secretary Shyam Saran to Washington in November 2004. Condoleezza Rice, in transition from NSA to Secretary of State,320 met Saran to inquire about the contours of the strategic partnership from the Indian perspective. He informed Rice that from the Indian point of view civilian nuclear cooperation would provide a strong footing in building the partnership.321 Rice concluded that

316 Raja Mohan, Impossible Allies: Nuclear India, United States and the Global Order, (New Delhi: India Research Press, 2006). P. 22. 317 Selig S. Harrison, “End the Nuclear Double Standard for India”, Los Angeles Times, December 9, 2002. 318 Alan Kronstadt, “India-U.S. Relations”, CRS Issue Brief for Congress, April 6, 2006. 319 Ashley J. Tellis, India as New Global Power: An action agenda for the United States, (Washington, D.C.: Carnegie Endowment for International Peace, 2005). P. 13. 320 The State Department leadership under Secretary of State Colin Powell only endorsed a limited approach to civilian cooperation, and it would not unravel the NPT regime for India. Secretary Powell opted for incremental “glide path” that would attempt to increase cooperation through a set of reciprocal, interlocking measures without fundamentally altering U.S. nonproliferation laws. Condoleezza Rice, on the other hand, opted for a radical approach of lifting sanctions against India at once. 321 Comments made by Shyam Saran at a Panel “July 18, 2005: Looking Backward, Looking Forward” organized by Carnegie Endowment for International Peace, July 13, 2015. Available at http://carnegieendowment.org/2015/07/13/july-18-2005-looking-backward-looking- forward/idhf?mkt_tok=eyJpIjoiTldGak1EVmtZVGRsTVRVMCIsInQiOiJJYlN3UkY4MWowc1Vxb2tm WUVXNUhuSmlxd1lPRlVsR0dZRHlydnNVV01nQVBJajRlTFllQTFRSGpHYXFab1pETnVQRjQ3eG 100

progress towards an across the board strategic partnership would require decisively resolving the issue of India’s relationship to the non-proliferation regime.322 Zelikow argues that the U.S. had a discussion about a possible nuclear deal in the State Department before the Rice visit to New Delhi. He stated: My judgment was that the only (way) to address this problem decisively was to cut the Gordian knot.... So I came to the conclusion that we ought to try to just view this in a bold stroke that the only way to handle the problem was by trying to grandfather India into the non-proliferation system which meant accepting that they are a nuclear weapon state and trying to normalize their status.323

During her visit to New Delhi in March 2005, Secretary of State Rice indirectly noted to Indian officials the possibility of civilian nuclear cooperation to mitigate New Delhi’s reaction to the United States decision to sell F-16s to Pakistan.324 Zelikow remarked, “I do not think they [the Indian government] first understood the gravity of what we were proposing, when it fully dawned upon them ... their reaction was pleased astonishment.”325 Soon after Rice’s Indian visit, her counselor, Philip Zelikow, drafted a memo in consultation with Ashley Tellis, senior advisor to the Undersecretary of State for Political Affairs and one of the deal’s leading architects, to propose civilian nuclear cooperation.326 Zellikow notes, The memo has not been made public but it’s a very important document. You’ll see actually the memo lays out the whole idea in detail. It lays out the geopolitical rationale for it (the nuclear deal) in detail. And actually it forecasts the role of India in the 21st century and then basically makes a strategic argument about, now is kind of a key moment of flux, how do

xrTCtPZUpBclRsMWFFY2d0TElOKzZ4MHN5TlB0TU4zZ3l6RT0ifQ%3D%3D (Accessed May 29, 17) 322 Interview with Philip Zelikow on July 10, 2015. 323 Ibid. 324 Dinshaw Mistry, “Diplomacy, Domestic Politics and the U.S.-India Nuclear Agreement”, Asian Survey, Vol. 46, No. 5, 2006. P. 682. 325 Interview with Philip Zelikow on July 10, 2015. 326 - Comments made by Philip Zelikow at a Panel “July 18, 2005: Looking Backward, Looking Forward” organized by Carnegie Endowment for International Peace, July 13, 2015. Available at http://carnegieendowment.org/2015/07/13/july-18-2005-looking-backward-looking- forward/idhf?mkt_tok=eyJpIjoiTldGak1EVmtZVGRsTVRVMCIsInQiOiJJYlN3UkY4MWowc1Vxb2tm WUVXNUhuSmlxd1lPRlVsR0dZRHlydnNVV01nQVBJajRlTFllQTFRSGpHYXFab1pETnVQRjQ3eG xrTCtPZUpBclRsMWFFY2d0TElOKzZ4MHN5TlB0TU4zZ3l6RT0ifQ%3D%3D (Accessed May 29, 17) 101

we want to position ourselves in relation to this moment? It even analogized the strategic decisions we made about building up Western Europe in the early nineteen fiftes, building up Japan in early nineteen fiftes.... not in the security sense, but in the political economic sense as building them up as healthy centers of democratic power. That though they would disagree with us on many things as they got stronger, fundamentally their values and approach to the world were compatible with ours.327

Tellis also wrote a policy agenda to spell out the prospects of high-level dialogues on nuclear energy cooperation, strategic and economic engagement.328 When Secretary Rice presented that memo to President George W. Bush, who was also determined to engage India on new terms, he approved this proposal immediately. The personal element was an important one, without which this would not have been possible. It is said that President Bush had “very good business relations with Indian Americans in Texas as Governor and he thought these people (Indians) are great to do business with.”329 But though the personal factor was important, it was embedded in a strategic context. The thaw in Indo-U.S. relations led to the unprecedented nuclear deal when Indian Prime Minister Manmohan Singh and U.S. President George W. Bush signed a joint statement on July 18, 2005. This joint statement was the framework of the Indo-U.S. nuclear deal, under which India agreed to undertake several obligations to strengthen its commitment to the nuclear non- proliferation regime and, in exchange, the United States agreed to civil nuclear cooperation.330

Contours of the Indo-U.S. Nuclear Deal According to the July 18, 2005 joint statement, India agreed to adopt the following non- proliferation measures: • Separating its civilian and military nuclear facilities in a phased manner; • Placing civil nuclear facilities under IAEA safeguards;

327 Interview with Philip Zelikow on July 10, 2015. 328 Ashley J. Tellis, “India as New Global Power: An action agenda for the United States”, (Washington, D.C.: Carnegie Endowment for International Peace, 2005). 329 Interview with Daniel Markey on June 17, 2015. 330 Raja Mohan, “Singh, Bush, press civilian nuclear button”, The Indian Express, July 19, 2005. 102

• Signing and adhering to the IAEA’s Additional Protocol; • Continuing its unilateral moratorium on nuclear testing • Working with the United States for the conclusion of the Fissile Material Cut-off Treaty (FMCT); • Refraining from the transfer of enrichment and reprocessing technology to states that do not have them and supporting international efforts to limit their spread; • Introducing comprehensive export control legislation to secure nuclear material; and • Adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines.

In exchange, the United States acknowledged India’s status as a “responsible state with advanced nuclear technology” and reiterated that “India should acquire the same benefits and advantages as other such states”. President Bush announced that the U.S. would undertake the following steps:

• Full civil nuclear energy cooperation with India; • Seek agreement from the Congress to adjust U.S. laws and policies as required for this; • Work with friends and allies to adjust the international regime to enable civil nuclear cooperation with India; • Encourage allies to supply fuel to Tarapur expeditiously; and • Consult with partners for India’s inclusion in the Generation IV international Forum331 (GIF).332

331 The Generation IV International Forum (GIF), established in May 2001, is an international forum to develop advanced nuclear energy systems. It aims to improve the performance of reactors and the fuel cycle to enhance the benefits of nuclear energy by employing advanced technologies. It has thirteen members. 332 Joint Statement between George W. Bush and Prime Minister Manmohan Singh, White House Press Release. July 18, 2005. Washington D.C., available at http://georgewbush-whitehouse.archives.gov/news/releases/2005/07/20050718-6.html (Accessed May 29, 17) 103

India agreed to separate its military and civilian nuclear facilities, placing the latter under IAEA safeguards; this required an India-specific safeguards agreement with the IAEA. This provision is against the full-scope safeguards norm but is consistent with the item-specific safeguards norm which was applicable before the NSG and the NPT adopted comprehensive safeguards in early 1990’s. This is also consistent with the NWSs’ practice of separating the military and civilian nuclear facilities and accepting voluntary safeguards on the latter. India also agreed to sign the IAEA Additional Protocol, which is consistent with the United States’ effort to make this measure univeral. India committed to refrain from transferring ENR technology to states that do not have them. This commitment is consistent with the ENR technlogy ban norm, but there is a difference of opinion whether India should be getting this technology. India’s interpretation of the “full civil nuclear cooperation” includes the transfer of such technology while the U.S. interpretation does not allow New Delhi to access this technology. For its part, the United States had to change its domestic law to accommodate a civilian nuclear cooperation agreement with India. This touched on the AEA, which governs U.S. nuclear cooperation with other countries, and its Section 123, which required full-scope safeguards. On December 18, 2006, President Bush signed the Hyde Act into law, to provide a waiver for India from the relevant provisions of the AEA.

The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act Many in the U.S. Congress looked at the deal negatively. Congressional representatives argued that the U.S. could not afford to play favorites and break the rules of the non-proliferation regime to favor one country at the risk of undermining critical international treaties regarding nuclear weapons. Their main focus was the impact that the deal would have on other states that might be thinking of pursuing nuclear weapons. India was also criticized for its refusal to curtail the development of its nuclear weapons and delivery systems. While many of these oppositional voices saw India as a major global actor in the coming years, there were concerns over whether India could be trusted on such critical issues as U.S.-China relations or Iran's nuclear weapons program.

104

Due to U.S. domestic laws and India’s status as a non-NPT state, the Congress found it difficult to lend its support to the Bush Administration’s decision to provide India with civilian nuclear reactors. The debate in the U.S. Congress revolved around the question of whether this agreement would undermine or strengthen the non-proliferation regime. Many Congressmen questioned whether U.S. support for a permanent Indian seat in the UN Security Council might have been a more appropriate gesture than weakening the regime. Nicholas Burns, Undersecretary of State and a key negotiator of the deal, told the Senate Foreign Relations Committee, “India has made this (nuclear cooperation) the central issue in the new partnership developing between our countries.”333 In the hearing before the House Committee on International Relations on September 8, 2005, most members of Congress argued that the agreement would weaken the nonproliferation regime.334 Only a few argued that the agreement would not only bring India closer to the non-proliferation regime but would also enhance U.S. security interests.335 It was clear at the outset that garnering support from Congress for the nuclear pact was going to be an uphill task for the Bush Administration. The nuclear deal was resolutely opposed by experts including Robert J. Einhorn (Senior Adviser, Center for Strategic and International Studies),336 Gary Milhollin (Director, Wisconsin Project on Nuclear Arms Control and Professor Emeritus, University of Wisconsin Law School)337 and Robert L. Gallucci (Dean of the Edmund A. Walsh School of Foreign Service at

333 House Committee on International Relations, Hearing on “The U.S. and India: An Emerging Entente?”, September 8, 2005. Available at www.internationalrelations.house.gov/ (Accessed May 29, 17) 334 The Committee on International Relations, the United States House of Representatives, the United States Congress, The U.S. and India: An Emerging Entente?, Hearing, Serial No 109-117, One Hundred Ninth Congress, First Session, September 8, 2005, US Government Printing Office, Washington: 2005. Available at http://www.gpoaccess.gov/congress/index.html (Accessed May 29, 17) 335 Ibid. 336 "Statement by Robert J. Einhorn Senior Adviser, Center for Strategic and International Studies before the Senate Foreign Relations Committee-the U.S.-India Civil Nuclear Deal", April 26, 2006. http://www.foreign.senate.gov/imo/media/doc/EinhornTestimony060426.pdf P. 6. (Accessed May 29, 17)

337 "Testimony of Gary Milhollin Director, Wisconsin Project on Nuclear Arms Control and Professor Emeritus, University of Wisconsin Law School before the Committee on Foreign Relations United States Senate". (April 26, 2006). http://www.foreign.senate.gov/imo/media/doc/MilhollinTestimony060426.pdf . P. 2. (Accessed May 29, 17) 105

Georgetown University).338 The core argument of this group was that the July 2005 joint statement (and the March 2006 separation plan) was a dangerous dilution of NPT norms. It was also argued that the hastily conceived initiative was offered by the Bush administration to India without thorough consultations with Congress, and that the substantial number of nuclear reactors on the military side of India’s separation plan (including fast breeder reactors) would allow it to produce more fissile material, leading to a possible South Asian arms race. They urged Congress to balance a lop-sided deal by adding conditions that would claw back some of the Administration’s concessions, thereby ensuring the integrity of the non-proliferation regime. Michael Krepon, an American South Asian nuclear affairs expert and co-founder of the Stimson Center, also raised concerns that the multi-layered fuel-supply assurances given by the Bush Administration in the separation plan would lower the threshold for India to conduct a nuclear test and ride out the resulting sanctions by relying on the accumulated fuel inventory.339 The Bush Administration based the initiation of legislation in the U.S. Congress on the evidence that the Indian government had started to separate its civilian and military nuclear facilities in a transparent manner as part of its commitments.340 It gave assurances to the Congress that the agreement did not assist, encourage, or induce India’s nuclear weapons program in violation of Article I of the NPT. While critics suggested that this assurance would have been adequate if the United States had persuaded India to halt producing fissile material for nuclear weapons, they argued that otherwise it would likely spill over to India’s nuclear weapons program by freeing up India’s domestic uranium for its nuclear weapons program.341 As well, in negotiations with India, U.S. officials wanted the fast breeder reactor program, which could produce plutonium for nuclear weapons, to be kept under safeguards. For Indian officials,

338 "Testimony of Robert L. Gallucci Dean of the Edmund A. Walsh School of Foreign Service Georgetown University before the Senate Foreign Relations Committee-the Proposed Us - India Nuclear Deal." (April 26 2006 ). http://www.foreign.senate.gov/imo/media/doc/GullucciTestimony060426.pdf (Accessed May 29, 17) 339 Michael Krepon, "Betting the Ranch on the Us-India Nuclear Deal " (June 05, 2005). Available at http://www.stimson.org/essays/betting-the-ranch-on-the- us-india-nuclear-deal/ (Accessed May 29, 17) 340 Nicholas Burns, “Hearing on U.S.-India Civil Nuclear Cooperation Initiative,” U.S. Senate, November 02, 2005 available at http://www.state.gov/p/us/rm/2005/55969.htm (Accessed May 29, 17) 341 Henry Sokolski, “Fissile isn’t Facile”, Wall Street Journal, February 21, 2006. 106

however, the fast breeder reactor program, as part of India’s three-stage nuclear cycle plan,342 was important to keep outside of safeguards for reasons of both the “minimum credible deterrent” and energy security.343 India’s fast breeder reactor program remained outside of IAEA safeguards, which is a non-proliferation concern because of their production of weapons-grade plutonium, but it separated its military and civilian nuclear facilities and placed 14 out of 22 reactors under IAEA safeguards. The United States could not extract other major non-proliferation commitments from India during the 123 agreement negotiations. India did not halt production of fissile material but only promised to work actively with the United States for the early conclusion of the FMCT. It did not sign the CTBT, but promised to continue its unilateral moratorium on nuclear testing. It was criticized that the NWSs have abjured any further nuclear tests (without hedging), and are no longer producing plutonium for weapons. India, on its part, is still in the mode of building a “credible minimum deterrent”, which suggests an arms race with Pakistan and perhaps a simultaneous effort to reach some kind of parity with China. The Bush Administration adopted several approaches to persuade Congress on the nuclear agreement. Senior administration officials (Secretary Rice, Undersecretaries Burns and Joseph, National Security Advisor Hadley) engaged Congress, sought to influence key senators and representatives from parties and made a strategic case in favor of this deal. Secretary Rice, in her testimonies before the Senate Committee and the House Committee, explained the American rationale for offering India the nuclear deal by highlighting India’s democratic credentials and indicated that it would be a key actor in the emerging Asian balance of power. She also acknowledged that the three-decade-old U.S. non-proliferation policies had failed to deter India from testing and were not successful in getting it to give up nuclear weapons then argued that her

342 India’s three-stage nuclear fuel cycle vision was first set out in the 1950’s by the father of the country’s nuclear program, Homi Bhabha. He acknowledged India’s meager resources of uranium (estimated at 0.8% of world reserves) and conceived a nuclear strategy that would work around the country’s vast resources of thorium (estimated at 32% of world reserves). The first stage would use natural uranium in PHWRs (pressurized heavy water reactors) to make plutonium; the second stage would use that plutonium in fast reactors to breed U-233 in a thorium-232 blanket around the core; and the third stage would use U-233 and thorium in fast reactors to produce more uranium. India is working on the second stage of the nuclear fuel cycle and considers the three-stage program to be an integral part of its overall nuclear power program. 343 “Anil Kakodkar, Chairman of the Atomic Energy Commission”, Indian Express, February 08, 2006. 107

new approach, a grand nuclear bargain with India would enhance international security by cementing the U.S.-India strategic partnership, provide India with a nuclear alternative to meet its energy needs thereby reducing its dependence on Iran, improve climate security by reducing India’s greenhouse gas emissions, strengthen the international non-proliferation system by bringing a significant proportion of Indian reactors under IAEA safeguards and benefit the U.S. economy by adding at least 3000-5000 direct jobs as well as 10,000-15,000 indirect ones.344 While Republicans looked favorably upon the strategic argument for the nuclear agreement, Democrats found the environmental argument appealing. Nicholas Burns admits “there was a significant opposition in the beginning but then we had briefings for two and half years. At the end they became convinced that we were taking a cautious, pragmatic approach.”345 Anish Goel, a former U.S. State Department policy planning official, argues, “The strategy was the same as with the international community that there are number of reasons we wanted to do this: strategic relationship with India, strengthening the non-proliferation regime, environmental reasons, lots of export for American companies. The fourth point was very important to the Congress.”346 Prominent former Secretaries of Defence or State (William Perry, William Cohen, and Henry Kissinger) and experts with non-proliferation credentials (Ashton Carter, John Ritch, and, most significantly, IAEA Director Mohammad ElBaradei) supported the nuclear agreement either in press or in congressional testimony.347 Rice’s arguments were reinforced by supporters of the deal including Ashley Tellis (Senior Research Associate at the Carnegie Endowment for International Peace),348 Stephen Cohen (Senior Fellow at Brookings),349 Richard A. Falkenrath

344 The U.S.-India Civilian Nuclear Cooperation Agreement Secretary Condoleezza Rice Opening Remarks before the Senate Foreign Relations Committee Washington, D.C. ", April 5, 2006. http://2001- 2009.state.gov/secretary/rm/2006/64136.htm (Accessed May 29, 17) 345 Interview with Nicholas Burns on June 22, 2015. 346 Interview with Anish Goel on June 30, 2015. 347 Dinshaw Mistry, The US-India Nuclear Agreement: Diplomacy and Domestic Politics, (Cambridge: Cambridge University Press, 2014). pp 113-15. 348 "Prepared Testimony by Ashley J. Tellis Senior Associate Carnegie Endowment for International Peace to the Senate Foreign Relations Committee. U.S.-India Atomic Energy Cooperation: Strategic and Nonproliferation Implications", April 26, 2006. http://www.foreign.senate.gov/imo/media/doc/TellisTestimony060426.pdf pp. 3-7. (Accessed May 29, 17) 108

(Stephen and Barbara Friedman Fellow at Brookings),350 and Ronald F. Lehman II (Director, Center for Global Security Research, Lawrence Livermore Laboratory).351 There was also a role for lobbyists in persuading Congress. It is hard to say exactly how much of an effect the Indian lobby had on the outcome of the Hyde Act, but it is clear that, despite much initial skepticism, the Act moved forward with far wider support on Capitol Hill than many had anticipated. In this context The Washington Post columnist, Mira Kamdar, may be right when she wrote in mid-2007, “forget the Israel lobby: The Hill’s next big player is made in India.”352 Dinshaw Mistry argues, “The administration had the primary role in negotiating legislation with Congress and the India lobby reinforced the administration’s efforts to persuade Congress to advance the nuclear agreement.”353 Anish Goel recalls, “We also relied on a great deal on Indian American community. I think it was the strength of the advocacy by the Indian American community that this has passed through Congress.”354 In July 2006, the House passed H.R. 5682 to provide the necessary waiver to the President. The Senate approved its version of H.R. 5682, substituting the text of the amended S. 3709 in November 2006, and in December 2006, the U.S. Congress passed the Hyde Act (Public Law 109 401), which allowed the President to exercise his waiver authority. In the House version of the bill, some representatives proposed amendments requiring India to: halt production of fissile material for nuclear weapons; not use domestic uranium for its weapons program after July 2005; and join the NPT. However, they failed to obtain these changes. Likewise, Senators proposed amendments requiring the U.S. to stop nuclear exports unless India ceased the production of fissile materials for weapons; continued to support

349 "Remarks of Dr. Stephen P. Cohen at the Senate Foreign Relations Committee Panel Discussion on the U.S.-India Nuclear Cooperative Initiative ". (April 26, 2006). http://www.foreign.senate.gov/imo/media/doc/CohenTestimony060426.pdf .P 1.(Accessed May 29, 17) 350 Richard A. Falkenrath, " U.S.-India Global Partnership and the U.S.-Indian Civilian Nuclear Cooperation Initiative", May 11, 2006. Available at http://www.brookings.edu/research/testimony/2006/05/11india-falkenrath . P. 2, 5, 6. (Accessed May 29, 17) 351 Ibid. 352 Mira Kamdar, “forget the Israel lobby: The Hill’s next big player is made in India”, The Washington Post, September 30, 2007. 353 Dinshaw Mistry, “The India Lobby and the Nuclear Agreement with India”, Political Science Quarterly, Vol. 128, No. 4, 2013-14. pp. 742-43. 354 Interview with Anish Goel on June 30, 2015. 109

implementation of UNSCR 1172;355 committed India to a legally-binding nuclear test moratorium; to oblige India to verifiably reducing nuclear weapons and disarmament; and to determine that nuclear exports would not result in increased production of fissile material for weapons and in replicating of U.S. technology.356 These proposed amendments were characterized as “killer amendments” and were not incorporated in the Hyde Act due to India’s refusal to accept more conditions than it had already agreed to in July 2005 in the face of domestic opposition. Anish Goel argues,

I think for the Administration what it came down to the end was continue to educate Congress what was a realistic possibility and what wasn’t. Some of the amendments that various congressmen and senators proposed were obviously poisoned pills designed to kill the deal. In that case the argument was sort of easier like this is an amendment that is designed to kill the deal, there is no merit to it.357

He further claims, “I think no one wanted to take the responsibility for having sunk the deal. Everyone was for getting as much as concessions for strengthening the regime. No one was arguing against that.”358 However, the Hyde Act imposed seven conditions that would have to be met before the waiver could be given:

1- Credible and transparent separation of civilian and military facilities by India; 2- Approval of an IAEA-India Safeguards Agreement by the IAEA Board of Governors; 3- Substantial progress towards concluding an Additional Protocol with the IAEA; 4- India’s active support for the conclusion of a FMCT;

355 United Nations Security Council Resolution 1172 was adopted in June 06, 1998 in response to the Indian and Pakistani nuclear tests. It called on both countries to refrain from further testing and reaffirmed U.S. support for all the steps endorsed by the UNSCR, such as limits on the Indian and Pakistani nuclear programs, a ban on fissile material production for weapons use, and deployments, and not to sell nuclear technology to India and Pakistan. 356 Sharon Squassoni, and Jill Marie Parillo, “U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation”, CRS Report for Congress, November 22, 2006. pp. 3-8. 357 Interview with Anish Goel on June 30, 2015. 358 Ibid. 110

5- India’s support for international efforts to prevent the spread of sensitive nuclear technology; 6- India’s adherence to the multilateral control regimes (like NSG and MTCR); and 7- A consensus decision by the NSG to exempt India from its guidelines.359

The Hyde Act imposed no more commitments than India already had accepted in July 2005. The first three conditions are related to India’s separation of civilian and military facilities plan, placing the former under IAEA safeguards and signing the Additional Protocol.360 The Hyde Act required of India “the application of IAEA safeguards in perpetuity in accordance with IAEA standards, principles and practices.” It also mentions safeguards on materials and programs, “including materials used in or produced through use of civil nuclear facilities.”361 The last condition of the Hyde Act concerns the consensus decision by the NSG for a waiver with respect to its guidelines in nuclear exports. The NSG is essential for effective implementation of export controls, a significant U.S. policy objective. In the Hyde Act, there are repeated references to the NSG and the NPT as assurances of a U.S. strong commitment to non- proliferation. The House-passed H.R. 5682 [section 4 (b) (7)] specified an NSG consensus decision, and the Senate-passed H.R. 5682 [section 105 (9)] required an NSG consensus decision that was limited to India, prohibiting such exemption for other non-NPT states (Pakistan and Israel).362 The House International Relations Committee Chairman, Henry Hyde, emphasized the importance of the NSG by noting that “many of us are strong supporters of the NSG and would not want to see it weakened or destroyed”.363 He also asked the Administration to comply with the NSG Guidelines and not implement the Indo-U.S. Nuclear Deal “in violation of NSG

359 Sharon Squassoni, “U.S. Nuclear Cooperation with India: Issues for Congress”, CRS Report for Congress, December 22, 2006. P. 3. 360 The Additional Protocol is a legal document granting the IAEA complementary inspection authority to that provided in underlying NPT INFCIRC/153 safeguards agreements. A principal aim is to enable the IAEA inspectorate to provide assurance about both declared and possible undeclared activities. Under the Protocol, the IAEA is granted expanded rights of access to information and sites. 361 Ibid. P. 5. 362 Sharon Squassoni, Jill Marie Parillo, “U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation”, CRS Report for Congress, November 22, 2006. P. 13. 363 House International Relations Committee U.S.-India Hearing, September 8, 2005. 111

guidelines” in case the Administration could not achieve a consensus decision for India.364 Ambassador Joseph assured the Committee that the Administration would not attempt to change the consensus provision or full-scope safeguards condition and that “we intend to take no action that would undercut the effectiveness of the NSG.”365 Anish Goel claims that the Administration had this understanding that “we are not going to do this unilaterally. We are not just going to start trade with India outside of the NSG guidelines. We were very much clear that this has to be exception granted by the international community.”366 India has a history of developing nuclear weapons by diverting fuel from its nuclear power plant constructed in agreement with Canada for civil purposes. India’s potential to capitalize on this technique is therefore undoubted. Although certain mechanisms, via the separation plan and the IAEA safeguards, have been proposed to check any such development, there is still a significant chance that India will divert spent fuel in small quantities.367 These fears are potent and have been acknowledged in the Hyde Act. It sets a condition for the President to report on certain critical factors. It states that a report on the following points needs to be submitted:

An Analysis of whether United States civil nuclear cooperation with India is in any way assisting India’s nuclear weapons program, including through 1) the use of any United States equipment, technology, or nuclear material by India in an unsafeguarded nuclear facility or nuclear weapons related complex; 2) the replication and subsequent use of any United States technology by India in an unsafeguarded nuclear facility or unsafeguarded nuclear weapons related complex, or for any activity related to the research, development, testing, or manufacture of nuclear explosive devices; and 3) the provision of nuclear fuel in such a manner

364 Ibid. 365 Ibid. 366 Interview with Anish Goel on June 30, 2015. 367 The Indian-IAEA safeguard agreement allows safeguarded material to be used in normally unsafeguarded civilian facilities and in specified circumstances to produce unsafeguarded plutonium and allows unsafeguarded material to be used in safeguarded facilities. Such flexibility is particularly problematic given that, unlike the NWS, India continues to produce fissile material for weapons. See John Carlson, “Nonproliferation Benefits of India Remain Elusive”, Arms Control Today, Vol. 45, 2015. 112

as to facilitate the increased production by India of highly enriched uranium or plutonium in unsafeguarded nuclear facilities.368

Contradictions between the 123 Agreement and the Hyde Act There are some inconsistencies between the 123 agreement and the Hyde Act in the areas of nuclear tests, fuel assurances, and fuel reprocessing. India’s right to conduct nuclear tests was one thing the Indian negotiators fought for. Although India pledged in July 2005 to continue a nuclear testing moratorium, New Delhi opposed any explicit provision in the 123 agreement terminating cooperation if it conducts a nuclear test in the future. The Hyde Act, however, requires that the waiver authorities would terminate if New Delhi tests a nuclear explosive device “for any reasons, including such instances in which India describes its actions as being ‘for peaceful purposes’.”369 One former Capitol Hill official confided that Hyde made sure that termination of the deal in case of India’s nuclear test was included in the Hyde Act due to his personal interest in nuclear non-proliferation affairs.370 Nicholas Burns remarks, “The Congress tried to fill in where the Administration failed” in term of extracting non-proliferation commitments from India.371 The 123 agreement does not prevent India from further testing; however, the U.S. has the right to demand return of nuclear reactors, fuel and technology supplied if India were to test or if the agreement is terminated for any other reason. In this case, where the supply of nuclear fuel is disconnected, the agreement has provisions to ensure the continuity of nuclear fuel supply. These include Article 5.6 where the United States has pledged to create “necessary conditions for India to have assured and full access to fuel for its reactors”, and that “the United states will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors,” and that “if despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom

368 See Text of “Henry Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006” p. 12 Sec. 104. 369 Ibid. P. 34. 370 Anonymous Interview. 371 Interview with Nicholas Burns on June 22, 2015. 113

to pursue such measures as would restore fuel supply to India.”372 There is ambiguity regarding the fuel supply assurances and nuclear testing. So far as India’s right of test is concerned, Article 14 in the Agreement states

The parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about a changed security environment or as a response to similar actions by other states which could impact national security.373

There is also the issue of reprocessing, where objections have been raised about India facing a situation where it cannot reprocess spent imported fuel. Article 6, paragraph 3 of the Agreement provides consent to India “to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement.” and “to bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility.”374 In essence, India can reprocess spent imported fuel; however, it will have to build a new reprocessing facility and reprocess this spent fuel from reactors that may be located in different parts of the country only within this facility.375 In case of dispute between the parties it is not clear whether U.S. domestic law (Hyde Act) or bilateral agreement (123 Agreement) would apply. The following table highlights the contradictions between the 123 agreement and the Hyde Act.

372 “U.S. and India Release Text of 123 Agreement”, U.S. Department of State, Available at http://www.state.gov/r/pa/prs/ps/2007/aug/90050.htm. (Accessed May 29, 17) 373 Ibid. 374 Ibid 375 Muchkund Dubey, ‘Demystifying the Indo-U.S. Civilian Nuclear Deal’, Mainstream, Vol. XLV, No. 39, 18 September 2007. Available at http://www.mainstreamweekly.net/article319.html (Accessed May 29, 17) 114

Contradictions between Hyde Act and 123 Agreement Nuclear Tests Spent Fuel Right of Return Guaranteed Fuel Supply Hyde Act/The The U.S. must The AEA The AEA U.S. should not Atomic Energy halt all U.S. prohibits any requires return facilitate or Act nuclear export nation from of any nuclear encourage U.S. Law if India resumes reprocessing materials and nuclear export nuclear testing nuclear equipment to India by any (Sec. 129 of materials transferred in other state if AEA, Sec obtained from case of nuclear such exports 104of Hyde the U.S. test, are halted (Sec. Act) without the termination or 102 (13)) prior consent of IAEA the U.S. (sec. safeguards 123a(7)) violation (Sec. 123.a.(4)) 123 Agreement The agreement Agreement The agreement In the event of Indo-U.S. allows grants consent does not a fuel Bilateral Deal termination for in principle; specify what disruption, any reason, India agreed to circumstances convene with after one year’s establish a new allow the U.S. India a group of notice. national right of return supplier reprocessing but this right countries to facility under can only be restore fuel IAEA and the exercised supply to India parties will during one year (Article 5.6) agree in the interval before future on termination arrangements would go into and procedures effect (Article for reprocessing 14.4) U.S. spent fuel there. (Article 6, iii) Sources: U.S. Government Printing Office, “The Text of Hyde Act”, 2006. India, Ministry of External Affairs, “Text of the Indo-U.S. Nuclear Agreement”, 2007.

India severely criticized the clauses of the Hyde Act: terminating the nuclear cooperation in the event of nuclear testing, no fuel supply assurances and ENR technology restrictions. Indian officials stated that these clauses violate the spirit of the July 2005 and March 2006 agreements. The Indian interpretation of the U.S. commitment of “full” civil nuclear energy cooperation with

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India, under the July 2005 framework includes the transfer of ENR technology.376 The U.S. claimed to the contrary that “as a matter of policy, the United States does not transfer dual-use items for use in sensitive nuclear facilities” and “will not assist India in the design, construction, or operation of sensitive nuclear technologies through the transfer of dual-use items, whether under the [123] Agreement or outside the Agreement.”377

A Controversial Deal The Indo-U.S. nuclear deal gave rise to divergent opinions from different experts. Some argued that it would undermine the nonproliferation regime by treating India “exceptionally” and would set a precedent for other states to follow. Others hailed it as a realistic bold move strengthening the non-proliferation regime. The Bush Administration and the Indian government strongly supported the deal while the non-proliferation community (with a few exceptions) went against it. Indian political opposition parties severely criticized the deal on the grounds that it would put limits on India’s independent foreign policy and its nuclear weapons program. This restricted India’s bargaining position in the later negotiations. The United States also worked very hard to overcome the opposition in both domestic as well as international forums. Global reaction to the deal was mixed: major supplier countries supported the deal while others, concerned with non-proliferation norms and geopolitical implications, opposed the deal. In the following section the arguments against or in favor of the deal are described from the global, U.S. domestic and non-proliferation experts, and Indian domestic perspectives.

Arguments against the deal Opponents of the deal argued that it would weaken the non-proliferation regime by treating India exceptionally for strategic and economic reasons. The arguments against the deal revolve around four concerns: 1) it would undermine the NPT bargain, 2) it would set a precedent for other states to follow, particularly the other non-NPT states, 3) it would help India to increase its nuclear stockpiles by allowing New Delhi's access to the international uranium

376 The Hindu, “Safeguards, End to U.S. Restrictions Must be Interlocking Actions”, Editorial, July 27, 2006. 377 “Letter to House Foreign Relations Chairman Henry Hyde from Secretary of State Condoleeza Rice”, November 30, 2006. 116

market, freeing its domestic uranium production exclusively for the nuclear weapons program, and 4) it would accelerate the nuclear arms race in South Asia.

(a) Global Reaction: Critics of the deal argued that it would weaken the NPT, the central and near-universal multilateral treaty in the non-proliferation regime. The NPT is a bargain between NWSs and NNWSs in which NWSs agreed to share nuclear technology for peaceful purposes and gradually disarm their nuclear arsenals while NNWSs agreed not to develop nuclear weapons and to accept IAEA safeguards. India is now enjoying the benefits of nuclear energy along with its nuclear weapons program, which reduces the incentives of other states, including current NNWSs in the NPT, to belong to the treaty.378 The 189 NPT member states have remained true to the original bargain and have forsworn nuclear weapons in return for access to peaceful nuclear technology under full-scope IAEA safeguards. Many of these states have made this choice despite strong pressure to pursue the nuclear weapons path. They might make different choices in the future if non-NPT states are allowed to have nuclear trade along with their nuclear weapons programs.379 The deal has also weakened the possibility of universalizing the treaty. This deal would undermine the attractiveness of the NPT and would convince the NNWS states that if they violate the non-proliferation rules by developing nuclear weapons, their nuclear program could be accepted eventually. Aspects of these arguments were seen in the NPT Review Conference of 2010, NPT states criticized the India waiver on the grounds that India, a non-NPT state, was getting the benefits of nuclear energy that are reserved for NPT states and that this would weaken the NPT. NPT states also described the India waiver as the end of NPT universality efforts, which call on India, Pakistan and Israel join the treaty as NNWSs. In 2009, a working paper submitted by Iran to the Third Session of the Preparatory Committee (PrepCom) of the 2010 Review Conference

378 Benjamin Wastler, “Having its Yellow Cake and Eating it too: How the NSG Waiver for India Threatens to Undermine the Nuclear Nonproliferation Regime”, Boston College International and Comparative Law Review, Vol. 33, No. 1, 2010. P. 202. 379 Daniel Horner, “China, Pakistan set Reactor Deal”, Arms Control Today, Vol. 40, No. 6, 2010. 117

called the deal a contravention of “the obligation to promote the universality of the Treaty”.380 China commented that the “universality and integrity of the international nonproliferation regime should be further enhanced. Any practice of selectivity should be discarded”.381 Indonesia called the NSG decision “an incentive for that country to remain outside the regime.”382 The Non- Aligned States called on all NPT members “not to undertake any actions that could negatively affect prospects for the universality of the treaty.”383 Brazil criticised the “selective” U.S. policy towards India and argued that it is “sending a wrong signal to the rest of the world”, as it shows “[t]here are plenty of incentives to be outside of the regime.”384 Pakistan’s response to the deal has been particularly strong, due to its history of conflict with India. It declared that the deal would disturb strategic stability in South Asia, and on that basis blocked the start of negotiations on the FMCT in the CD.385 Pakistan has warned that the deal would “destabilize the security environment in South Asia” and “Pakistan will be forced to take measures to ensure the credibility of its deterrence.”386 Islamabad accelerated its efforts to take measures, both internally and externally, to catch up India’s nuclear capacity. Internally,

380 PrepCom for the 2010 NPT Review Conference, “Non-Proliferation: Working Paper Submitted by the Islamic Republic of Iran,” NPT/CONF.2010/PC.III/WP.6, April 13, 2009 available at http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/301/41/PDF/N0930141.pdf?OpenElement (Accessed May 29, 17) 381 Mr Cheng, the head of Chinese delegation, statement to the Third Session of the Preparatory Committee of the 2010 Review Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear weapons, May 4, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/04Ma y2009/04May2009AMSpeaker-7-China.pdf (Accessed May 29, 17) 382 Mr Natalegawa, permanent representative of Indonesia, statement to the Third Session of the Preparatory Committee of the 2010 Review Conference of the States Parties to the Treaty on the Non- Proliferation of Nuclear weapons, May 5, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/05Ma y2009/05May2009AMSpeaker-3-Indonesia.pdf (Accessed May 29, 17) 383 PrepCom for the 2010 NPT Review Conference, “Substantive recommendations: working paper submitted by Group of Non-Aligned States,” NPT/CONF.2010/PC.III/WP.30, May 6, 2009 available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/328/80/PDF/N0932880.pdf?OpenElement (Accessed May 29, 17) 384 Togzhan Kassenova, Brazil’s Nuclear Kaleidoscope: An Evolving Identity, (Washington D.C.: Carnegie Endowment for International Peace, 2014). pp. 58-9. 385 “Statement by Ambassador Zamir Akran, Pakistan’s Permanent Representative to the UN, Adoption of CD’s Programme of Work”, May 29, 2009, http://www.reachingcriticalwill.org/political/cd/speeches09/2session/29may_pakistan.html. (Accessed May 29, 17) 386 “Pakistan warns against India nuclear support”, Dawn, February 25, 2011. 118

Pakistan is increasing the production of enriched uranium and plutonium for weapons. The New York Times wrote in 2011 that the rapid growth of Pakistan’s nuclear stockpiles placed it in fifth position in nuclear arms possession, according to an intelligence report.387 Externally, Pakistan has demanded an India-style nuclear deal, but the United States declined by citing India as a special case. However, there are concerns in Washington about Pakistan’s fast-growing nuclear program and development and deployment of tactical nuclear weapons. On the official visit of Pakistan’s Prime Minister, Nawaz Sharif, to the U.S. in October 2015, there were reports in the media that the United States was exploring a nuclear deal with Pakistan in order to constrain its growing nuclear weapons program.388 That program is believed to be the fastest-growing on earth. Pakistan, on the other hand, ruled out any possibility of a deal which places conditions on its nuclear weapons program.389 Pakistan is looking for an India-style nuclear deal, a deal which offered New Delhi access to the international market for its civilian nuclear program without putting significant constraints on its nuclear weapons program.

(b) US Non-Proliferation Community: Nicholas Burns admits that it was very controversial deal from the non-proliferation perspective. He states, “I spent lots of my time, when I was undersecretary from 2005 to 2008, trying to convince think tanks in Washington that we are going in the right direction.”390 Daryl Kimball, Executive Director of the Arms Control Association, called the deal a "nonproliferation disaster". He argued that the deal had made a "country-specific exemption from core non-proliferation standards that the United States has spent decades to establish."391 Robert Gallucci, Former Assistant Secretary of State for Political- Military Affairs and chief negotiator to North Korea (1992-1994), laments, “the US worked hard to get the full scope safeguards implementation at the international level. It put a fair amount of

387 David E. Sanger, & Eric Schmitt, “Pakistani Nuclear Arms Pose Challenge to U.S. Policy”, The New York Times, January 31, 2011. 388 David Ignatius, “The US Can’t Afford to Forget Afghanistan and Pakistan”, The Washington Post, October 6, 2015. 389 Anwar Iqbal, “Pakistan has built low-yield nuclear weapons to counter Indian aggression”, Dawn, October 20, 2015. 390 Interview with Nicholas Burns on June 22, 2015. 391 Daryl Kimball, Witness for “Legislative Options for Congress Regarding the Proposal for Full U.S.- Indian Nuclear Cooperation”, U. S. Senate Foreign Relations Committee, Washington, D.C., May 11, 2006. 119

diplomatic efforts into persuading the suppliers group to adopt that provision and they did and now the US is changing it for geostrategic and economic reasons.”392 He openly asserts that the deal has to do with the U.S. regional security concerns and that it is devoid of any sensitivity involved in the context of “global security concern over non-proliferation”.393 Many observers have noted that there are no measures in this global partnership to restrain India’s nuclear weapons program. Robert Einhorn, President of the Centre for Strategic and International Studies, argued that most of the steps India pledged are “simply reaffirmation of existing positions.”394 India was already observing the unilateral moratorium on nuclear testing: proponents of the deal argue that this agreement would bind India to honor that pledge while opponents note that the deal failed to bind India legally to sign the CTBT. India has supported FMCT negotiations for years, but the deal failed to commit it to halt the production of fissile material. Regarding enforcing effective export controls, India is already committed by UNSCR 1540 passed in April 2004 to adopt and enforce effective laws prohibiting the proliferation of nuclear weapons. George Perkovich, Director of the Nuclear Policy Program at the Carnegie Endowment for International Peace, claims, “Brazil was getting prepared to sign the IAEA Additional Protocol, but, after the India-US nuclear, the Lula government refused to sign it, arguing that India is being rewarded for testing nuclear weapons and the US is demanding more from us who have renounced the nuclear option.”395 South Korea negotiated with the United States to renew its nuclear cooperation pact that was to expire in March 2014. South Korea wanted technology for enrichment and for reprocessing spent fuel included in the renewal agreement, but the United States resisted due to its likely implications for the non-proliferation efforts because it would lower the bar for future negotiations with North Korea, and it could create a precedent that other states may seek to follow. George Perkovich asserts that it was hard for the South Korean negotiators to

392 Interview with Robert Gallucci on June 12, 2015. 393 Testimony Robert Gallucci (Dean of the Edmord A. Walsh School of Foreign Service, Georgetown University) Before the Senate Foreign Relations Committee, April 26, 2006. 394 Robert Einhorn, Witness for “The U.S.-India Nuclear Deal”, U. S. House International Relations Committee, Washington, D.C., October 26, 2005. 395 Interview with George Perkovich on June 11, 2015. 120

comprehend that the United States gave reprocessing right to India, which is not an ally, but resisted giving that right to Seoul, which had been an ally for more than six decades.396 The deal was criticized, as setting a precedent for states to follow. China’s decision to sell two nuclear reactors to Pakistan was cited as evidence. George Perkovich claims that the deal has opened the way for China to build more power plants in Pakistan in violation of NSG guidelines. “This was their response to the deal.”397 He claims, “The negative implications for the nuclear non-proliferation order are larger than the benefits.”398 China justified the agreement by noting a “grandfather” provision, but the U.S. argued that in 2004 when China joined the NSG no such commitment was reported.399 After the India waiver, the NSG did not condemn the Chinese deal with Pakistan Robert Gallucci criticized the deal on the grounds that it will make it harder to deal with the North Korean nuclear program. Now Pyongyang would like to have preferential treatment. They would like to gain acceptance of their nuclear weapon program, as the U.S. has accepted India’s.400 North Korea has adopted a law at the domestic level to declare itself as a nuclear state.401 George Perkovich recalls his discussion with a North Korean official in which the latter was demanding “we want what India got.” When Perkovich reminded him that North Korea was not India, he insisted, “Its not about North Korea or India. It is about America. You (US) make the rules in the NSG and then decide to change them for your friend India and now change for your friend North Korea.”402 Ambassador Richard Boucher argues, “The main concern was to think that Iran and North Korea somehow will think that someday they will be forgiven or Pakistan would expect a similar deal. We remained very clear that is not going to happen.” This deal is only for India.403 George Perkovich asserts that according to the William Burns, former U.S. deputy secretary of State and Carnegie Endowment for International Peace’s president, who

396 Ibid. 397 Interview with George Perkovich on June 11, 2015. 398 Interview with George Perkovich on June 11, 2015. 399 Daniel Horner, “China, Pakistan Set Reactor Deal”, Arms Control Today, Vol. 40, No. 6, 2010. 400 Interview with Robert Gallucci over phone on June 12, 2015. 401 K. J. Kwon, “North Korea proclaims itself a nuclear state in new constitution”, CNN, May 31, 2012. 402 Interview with George Perkovich on June 11, 2015. 403 Interview with Ambassador Richard Boucher on August 26, 2015.

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was involved in the Iran nuclear negotiations, Iran brought up India in the beginning of the negotiations.404 Robert Einhorn does not think that the India-U.S. nuclear deal had an impact on the Iran nuclear negotiations. He argues, “I was the member of negotiating team (with Iran) for five years and India never came up.”405 There are concerns about the implications of this deal for India’s nuclear weapons program. This deal may allow India to ramp up its production, as the supply of nuclear fuel to India would free up India’s existing capacity to produce plutonium and highly enriched uranium for its nuclear weapons stockpile. Given that India will continue to make nuclear weapons, but absent an amendment to the NPT, would have to join the treaty as a NNWS, the question arises as to whether U.S. assistance might in any way is violation of the NPT Article I and may “assist, encourage, or induce any non-nuclear weapon state to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.”406 Condoleezza Rice defended the Indian separation plan and argued that the safeguards in perpetuity on civilian facilities would prevent spillover to India’s nuclear weapons program.407 Vikram Singh, the former Deputy Assistant Secretary of Defense for South and Southeast Asia at the Pentagon, argues, “The Pentagon overall supported the deal but was concerned that it would enable additional resources to go into a nuclear weapons program. The Pentagon was certainly concerned because they see anything that enables a country to increase its nuclear arsenal as problematic and destabilizing. But there wasn’t a feeling that India is going to be a reckless power.”408 In September 2015, the Pakistani newspaper Dawn reported, “India has enough fissile material, both reactor- and weapon-grade plutonium, for more than 2,000 warheads.”409 This estimate is based on a study by Mansoor Ahmed, a Pakistani nuclear analyst. He estimated that at

404 Interview with George Perkovich on June 11, 2015. 405 Interview with Robert Einhorn on June 22, 2015. 406 Robert Einhorn, “Limiting the Damage”, The National Interest, Vol. 82, Winter 2005/2006. pp. 112- 17. 407 Questions for the Record Submitted to Secretary of State Condoleezza Rice by Senator Richard Lugar (#2) Senate Foreign Relations Committee, April 5, 2006. 408 Interview with Vikram Singh on July 15, 2015. 409 Baqir Sajjad Syed, “Broadest deterrence capability to be kept”, Dawn, September 10, 2015. 122

the end of 2013, India’s fissile material stockpile included 800 to 1,000 kilograms of weapons- grade plutonium, 2 metric tons of highly enriched uranium (HEU), and 15 metric tons of reactor- grade plutonium. Assuming that 4 kilograms of weapons-grade plutonium, 50 kilograms of HEU, or 8 kilograms of reactor-grade plutonium would be necessary to make one nuclear warhead of each type, Ahmed estimated that India could produce 250 warheads from weapons- grade plutonium, 40 from HEU (gun-type implosion devices, not thermonuclear weapons), and 1,875 from reactor-grade plutonium − for a total arsenal of 2,165 nuclear weapons.410 In contrast, a report released by the Institute for Science and International Security (ISIS) in November 2015 concluded that India’s stockpile of fissile material was only sufficient to make approximately 100 nuclear weapons. According to its estimates, India likely possessed about 550 kilograms of weapons-grade plutonium, 100 to 200 kilograms of HEU intended for use in thermonuclear weapons, and 2.9 metric tons of separated reactor-grade plutonium. The study assessed that this fissile material was sufficient to produce about 75 to 125 nuclear warheads, with 100 nuclear weapons as the median estimate. ISIS arrived at this number mainly through an appraisal of India’s weapons-grade plutonium stockpile; the authors assume that India would not use reactor-grade plutonium in nuclear warheads, because of the risks and complications involved, and that HEU would only be used to produce a handful of thermonuclear weapons at most. ISIS also considered that some plutonium is in weapons production pipelines or held in reserve, meaning that only about 70 percent of India’s stockpile is available to be made into weapons. Consequently, assuming that it would take 3 to 5 kilograms of weapons-grade plutonium for each warhead, ISIS calculations yielded an arsenal that could range from 75 to 125 nuclear weapons.411 The biggest difference between these two estimates comes from their assessments of, and assumptions about, reactor-grade plutonium. The ISIS study discounts the possibility that India would use reactor-grade plutonium in its nuclear weapons. India’s reactor-grade plutonium

410 Mansoor Ahmed, “Trends in Technological Maturation and Strategic Modernization: The Next Decade”, in Feroz Hassan Khan, Ryan Jacobs and Emily Burke, (ed.) Nuclear Learning in South Asia: The Next Decade, (Naval Postgraduate School, June 2014). 411 David Albright and Serena Kelleher-Vergantini, “India’s Stocks of Civil and Military Plutonium and Highly Enriched Uranium, End 2014”, Institute for Science and International Security, November 2, 2015. 123

stockpile is most likely intended as fuel for the country’s Prototype Fast Breeder Reactor − not for nuclear weapons, as Ahmed assumes − but that the reactor’s start date has been pushed back several times. This is likely due to difficulty that India has reportedly experienced in separating sufficient plutonium to fuel the reactor. Considering this historically low rate of separation and the problems it has caused for India’s fast breeder reactor program, it seems difficult to imagine that the country’s reprocessing plants will support a future sprint to rapidly separate its remaining stockpile of reactor-grade plutonium from the spent fuel and turn that fissile material into an exponentially larger nuclear arsenal. If one discounts reactor-grade plutonium entirely, the estimate quickly begins to drop to something much more along the lines of the ISIS estimate of roughly 100 nuclear warheads. In the U.S.-India nuclear deal clearly Washington seems to be appeasing New Delhi by giving in almost everything New Delhi asked for. One senior U.S. negotiator conceded, “The Indians were incredibly greedy that day. They were getting 99 percent of what they asked for and still they pushed for 100.”412 Michael Krepon called it a “sweetheart deal for India.”413 This appeasement is evidence of the intent to contain China. A key architect of Bush’s India policy and US ambassador to India, Robert Blackwill, noted, “President George W. Bush based his transformation of US-India relations on the core strategic principle of democratic India as a key factor balancing the rise of Chinese power.” Blackwill added, without this China factor at the fore “the Bush Administration would not have negotiated the civil nuclear agreement and the Congress would not have approved it.”414 George Perkovich argued that India’s global emergence and economic growth is remarkable, but criticized the U.S. strategic policy of balancing China’s power in Asia as India might not be willing to play a role that is in the American interest.415 The Chinese newspaper, People’s Daily, also quoted an Indian scholar as saying “India’s DNA doesn’t allow itself to become an ally subordinate to the U.S., just like

412 Glenn Kessler, “India Nuclear Deal May Face Hard Sell”, The Washington Post, April 3, 2006. 413 “Markey Raises Alarm Over Pakistani Reactor”, Global Security Newswire, October 24, 2008. 414Robert Blackwill, “The Future of the US-India Relations, Address to the Confederation of Indian Industry”, New Delhi, May 5, 2009. Available at http://www.rand.org/blog/2009/05/the-future-of-us- india-relations.html (Accessed May 29, 17) 415 George Perkovich, “Faulty Promises: The U.S.-India Nuclear Deal”, Policy Outlook, No. 21, 2005. 124

Japan or Britain.”416 Ashley Tellis, on the other hand, argues, “The US doesn’t want India to play any particular role. The purpose of pursuing the deal was to strengthen India’s capacity and its power (to create a balance in Asia). There was full understanding the role India wants to play India will choose the role. The U.S. doesn’t have any expectations India playing any particular role.”417 Similarly, Nicholas Burn argues, “We never expected that India United States would agree on every nature issue, but I think in the last ten years the two countries are much stronger and military partners than they were ten years ago.” He further claims, “We have much deeper relations with India, so nuclear agreement is one of the foundation stone for this bigger and more positive relationship between Delhi and Washington.”418 (c) India’s Domestic Opposition: The Indo-U.S. nuclear deal also faced stiff opposition from political parties in India. The opposition Hindu nationalist Bhartiya Janata Party (BJP) criticized the deal, though ironically it was the BJP that had laid the foundations for a strategic partnership with the United States. The BJP argued that the government had surrendered its right to determine its nuclear deterrent in the future based on its own threat perception and this agreement would not only put restrictions on the nuclear research program but also on a sovereign decision to conduct further nuclear tests. It claimed that America's recognition of India as a "responsible state with advanced nuclear technology" which should "acquire the same benefits as other such states" falls short of admitting it into the nuclear club. The Hyde Act was also severely criticized for the provisions for termination of the agreement on Indian nuclear testing and preventing the transfer of ENR technology. It was argued that India obtained too little for the deal while giving up too much.419 The Left Front (led by the Communist Part of India), which was then part of the ruling coalition in India, criticized the government for not consulting them before the agreement. They also lambasted the government for surrendering India’s sovereignty, and its independent foreign policy, and giving up on its long-held policy of nuclear disarmament.

416 “Prospects of Indian-US Nuclear Cooperation Misty”, People’s Daily, August 14, 2007. Available at http://english.people.com.cn/90001/90780/91343/6239410.html (Accessed May 29, 17) 417 Interview with Ashley Tellis on July 21, 2015. 418 Interview with Nicholas Burns on June 22, 2015. 419 “Pokhran’s PM slams the deal: not on”, Indian Express, July 21, 2005. 125

Even as this debate was going on in India, New Delhi's decision to vote in favor of a U.S.-sponsored motion in the IAEA critical of Iran sent the Left parties into a fury. They came out strongly against the Indian government for not supporting a fellow member of the Non- Aligned Movement against what they viewed as America's hegemonic ambitions and bullying tactics.420 U.S. Ambassador to India David Mulford went public with his warning that if India did not vote to send the Iran issue to the UN Security Council the effect to the deal would be “devastating”, since the Congress would “simply stop considering the matter” and the “initiative will die”. The open warning from the U.S. further muddied the waters for the Indian government. In the end India did vote in support of the U.S.- and EU-sponsored resolution at the meeting of the IAEA Board of Governors and reasoned that this was done mindful of India’s own security interests, since a nuclear Iran in a highly unstable Middle East was not in India’s interest.421

Arguments in favor of the deal Proponents of the deal argued that for more than three decades the U.S. had alienated India and instituted export controls to deny India access to advanced technology. The intention was to halt the advancement of India’s nuclear program. This strategy failed to contain India’s technological growth. India, excluded from the nuclear non-proliferation regime, only developed and advanced its nuclear weapons program. This was a blow to the strategy of alienation. Despite decades of technological embargoes, India developed nuclear weapons − aggravating the challenge for the nuclear non-proliferation regime. India’s status, as a nuclear outlier, being an important country, was not beneficial for the regime, and bringing India into the nuclear non- proliferation regime was crucial. Nicholas Burn argues that the NPT is stronger with India in the regime but outside the NPT, than being essentially outside both.422

(a) Global Reaction: IAEA Director-General Mohammed ElBaradei has strongly endorsed the deal, calling it a pragmatic way to bring India into the non-proliferation community. Robert Joseph recalls that when the deal was announced “I was in Vienna with Mohamed

420 “Nuclear issues cannot be seen in isolation”, The Hindu, August 01, 2005. 421 “Security concerns behind stance on Iran”, The Hindu, February 18, 2006. 422 Interview with Nicholas Burns on June 22, 2015. 126

ElBaradi briefing the IAEA on this because IAEA has a very important to play not only specially related to the implementation of this agreement but also as a real factor in the context of nonproliferation regime. Mohammed ElBaradei was thrilled with this arrangement. That was very positive. He came out immediately and publicly in favor of this.”423 ElBaradei claimed that this agreement would not only help satisfying India’s growing needs but “would also bring India closer to being an important partner in the nonproliferation regime.”424 He views the U.S.-India deal as “neutral” because “it does not confer any ‘status’, legal or otherwise, on India as a possessor of nuclear weapons.”425 Nicholas Burns clarified: “By taking this decision, we are not recognizing India as a nuclear weapons state.”426 Similarly Philip Zelikow argues that the July 2005 joint statement began the process of legitimizing India’s nuclear arsenal and normalizing its nuclear status by creating an entirely new arbitrary category: a “state with advanced nuclear technology” that fudged the stark difference between the NWS and NNWS categories.427 France, Russia, and the United Kingdom, motivated by mercantile interests, strongly supported the deal. The end of the ban on nuclear trade would open the Indian market for them. They wanted their share in the nuclear trade along with the United States.

(b) The Bush Administration: Ashley Tellis suggested that bringing India into the non- proliferation regime through a bilateral agreement would not only strengthen the U.S. efforts to prevent the spread of nuclear weapons but was also in the interest of American national security. He noted that “the Administration’s policy of developing a new global partnership with India represents a considered effort at ‘shaping’ the emerging Asian environment to suit American interests in the twenty-first century.”428 Ambassador Richard Boucher argued that “It [the deal] was part of the Bush Administration’s policy to looking for ways to improve relations with

423 Interview with Robert Joseph on June 30, 2015. 424 Elizabeth Bumiller and Somini Sengupta, “Bush and Singh reach nuclear deal”, New York Times, March 03, 2006. 425 Mohamed ElBaradei, “Rethinking Nuclear Safeguards,” Washington Post, June 14, 2006. 426 Nicholas Burns, Briefing on the Signing of the Global Partnership Agreement Between the United States and India US State Department, 19 July 2005. Available from http://www.state.gov/p/us/rm/2005/49831.htm. (Accessed May 29, 17) 427 Interview with Philip Zelikow on July 10, 2015. 428 Ashley Tellis, India as a New Global Power: An Action Agenda for the U.S., (Washington: Carnegie Endowment for International Peace, 2005). 127

India” to counter China’s rising power.429 Robert Joseph, Undersecretary for Arms Control and International Security (2005-2007), argues, “I wouldn’t oversell it in terms of nonproliferation. First and foremost it was a strategic deal. India is not just an emerging regional power, but also a global power. I wouldn’t look at this (the deal) as nonproliferation initiative. This was a strategic initiative, it was much broader than nonproliferation.”430 In terms of non-proliferation concerns Ashley Tellis highlighted the fact that indigenous Indian uranium reserves already support the largest possible nuclear arsenal, as there is a current shortage of natural uranium reserves due to failure of the Indian government to expand commercial mining and India has stated that it does not seek to maximize its nuclear arsenal. He also pointed out that the agreement would not contribute towards New Delhi’s strategic capabilities in any way.431 However, due to India’s secrecy regarding its nuclear weapons program, such conclusions are speculative. In view of India’s refusal to accede to the NPT, the Bush Administration in a strategic move enrolled India in a specific nuclear cooperation arrangement to foster its adherence to what were argued to be equally significant non-NPT conditions in the nuclear non-proliferation regime, hoping thereby to prevent further damage to that regime. By remaining outside the NPT for three decades, India evaded adoption of comprehensive IAEA nuclear safeguards, which India regarded as discriminatory. India accepted only facility-specific safeguards on six of its nuclear reactors obtained through international cooperation.432 In the late 1990s, India refused to sign the IAEA Additional Protocol, regarding it as an extension of the discriminatory NPT system.433 Thus, except for the safeguards on the six nuclear reactors, India’s nuclear program was shielded from IAEA inspectors and from the international community. The July 2005

429 Interview with Ambassador Richard Boucher on August 26, 2015. 430 Interview with Robert Joseph on June 30, 2015. 431 Ashley Tellis, Atoms for War? US-Indian Civilian Nuclear Cooperation and India’s Nuclear Arsenals, (Washington: Carnegie Endowment for International Peace, 2006). 432 Dinshaw Mistry, “Diplomacy, Domestic Politics, and the U.S.-India Nuclear Agreement”, Asian Survey, Vol. 46, No. 5, 2006. P. 685. These included, two Russian supplied reactors at Tarapur, two Canadian supplied reactors, and two Russian built LWRs under construction. 433 Rajiv Nayan, “The Global Nuclear Non-Proliferation Paradigm and India,” Strategic Analysis, Vol. 35, No. 4, 2011. P. 560. 128

agreement overcame this deficit, enjoining India to accept IAEA safeguards on its civilian nuclear facilities and to sign the Additional Protocol. India placed 14 out of 22 reactors under IAEA safeguards and signed a safeguards agreement for these with the IAEA on August 1, 2008. U.S. Undersecretary Nicholas Burns highlighted the Indian acceptance of IAEA safeguards on its civilian program as a gain for the nonproliferation regime. He stated For the first time in three decades, India will submit its entire civil nuclear program to international inspection by permanently placing 14 of its 22 nuclear power plants and all of its future civil reactors under the safeguards of the International Atomic Energy Agency (IAEA). Within a generation nearly 90 percent of India’s reactors will likely be covered by the agreement. Without the arrangement, India’s nuclear power program would have remained a black box. With it, India will be brought into the international nuclear nonproliferation mainstream.434

Secretary of State Condoleezza Rice also on the same lines suggested the halfway solution as a best option. She noted that “we are clearly better off having India most of the way in rather than all the way out.”435 The supporters of the deal called the separation of Indian “safeguarded” and “unsafeguarded” facilities and acceptance of the IAEA a non-proliferation “plus”. Condoleezza Rice remarked, “Under this initiative, 65% of India’s thermal reactors will be brought under safeguards, a figure that the Indian government has said could rise as high as 90% as India procures more civil reactors in the next 15 years.”436 India agreed to place all future nuclear reactors, whether breeder or thermal, under IAEA safeguards. These safeguards are permanent, that is, once a facility is placed under safeguards, it cannot be withdrawn. She further noted, “The real choice is this: do we want a state that intends to expand significantly its civil nuclear power production in the years ahead to remain outside the international non-proliferation

434 William Burns, Witness for “Agreement for Peaceful Nuclear Cooperation with India”, U.S. Senate Foreign Relations Committee, Washington, D.C., September 18, 2008. 435 Condoleezza Rice, India Civilian Nuclear Cooperation Agreement Opening Remarks Before the U. S. Senate Foreign Relations Committee, Washington, D.C. April 05, 2006. 436 Statement of Secretary of State, Condoleezza Rice, US-India Global Partnership, Hearing before the committee on International Relations, House of Representatives, 109th Congress, Second Session, April 5, 2006. Available at http://commdocs.house.gov/committees/intlrel/hfa26905.000/hfa26905_0f.htm (Accessed May 29, 17) 129

regime? Or do we instead want it to adopt global non-proliferation practices while increasing our insight into its civil nuclear program.”437 The deal has brought India closer to the nuclear non-proliferation regime by enhanced its stake in the regime. Anish Goel claims that India was already observing the non-proliferation conditions under the deal “but under no obligations so they could have stopped doing that and through the nuclear deal now they are obligated. They know now that if they violated these guidelines that (the deal) can be taken away. So it gives them a stake in doing so.”438 Philip Zelikow argues that India’s attitude as a “resentful outsider” was not beneficial to the non- proliferation system, and drawing India into the nuclear non-proliferation regime was considered to be crucial.439 The deal, it is argued, will help India meet its energy needs in an environmentally- friendly way. India’s electricity system is heavily dependent on coal-fired plants, which constitutes 70% of its capacity. The coal-fired generation is one of the major contributors to the greenhouse gases that present a major threat to the environment. India is the fifth largest consumer of energy in the world but nuclear energy constitutes only three percent of its total energy output. India’s nuclear energy consumption will continue to rise as its economy is growing at approximately 8 percent each year.440 India’s increasing reliance on nuclear energy would have positive environmental implications. In general, every 10,000 MW of nuclear energy capacity translates into a carbon dioxide reduction of 75 million tons. Thus, if India increased its nuclear capacity by 20,000 MW (which it sought to do by 2020), then these new nuclear plants, if they were to substitute for coal- fired plants, would lessen India’s annual carbon dioxide emissions by 150 million tons. If India increased its nuclear capacity by 40,000 MW (which it planned to do by 2030-40), then the carbon dioxide savings would be 300 million tons. These reductions would be modest when

437 Ibid. 438 Interview with Anish Goel on June 30, 2015. 439 Interview with Philip Zelikow on July 10, 2015. 440 Carin Zissis, “India’s Nuclear Crunch”, Council on Foreign Relations, October 23, 2007. 130

compared with India’s total annual carbon dioxide emissions, which were 1,680 million tons in 2010, and were projected to be 1,900 million tons in 2020 and 3,000 million tons in 2030.441 India’s economic growth was creating a “voracious appetite for electricity.”442 India would become the world’s third largest economy in some decades, if it continues its current eight to nine per cent annual GDP growth rate. It is expected that the demand for electricity will rise at about 10 percent a year. This has highlighted India’s need for generating more electricity and the current reliance on fossil fuel has negative environmental impact. Through this deal India can meet its energy requirements with nuclear energy, which is environmental friendly, clean, reliable and safe. This would also give the United States access to the booming market in India by constructing nuclear reactors which would provide jobs for Americans.443 This deal would not only allow India to meet its energy requirements through a clean source of nuclear energy but energy cooperation with India would also allow investment from America: American industry estimates that this investment “may add 3,000-5,000 new direct jobs and about 10,000-15,000 indirect jobs in the United States.”444

(c) Indian and U.S. Strategists: Richard Rossow, former deputy director of the U.S.-India Business Council (USIBC) claims, “We wanted big, strong India for balancing and stability in Asia. This was not about nuclear trade but we wanted India to be on our side and this was a huge step to do that. We did it not for India today but for India 50 years from now and this was the step in right direction.”445 Lisa Curtis, the former U.S. official on South Asia, argues that nuclear issue has always been as sticking point between India and the US. From the Indian point of view it did not make sense that India was not part of the nuclear non-proliferation regime merely because it developed nuclear weapons after the regime was put into place whereas China was part of the regime because its nuclear weapons program was begin earlier. “The nuclear deal has rectified a situation that has been an irritant in the relationship for a long time. This deal is good

441 Dinshaw Mistry, The US-India Nuclear Agreement: Diplomacy and Domestic Politics, (Cambridge: Cambridge University Press, 2014). P. 251. 442 David J. Victor, “Nuclear Power for India is Good for Us All,” The New York Times, March 16, 2006. 443 Ibid. 444 Condoleezza Rice, India Civilian Nuclear Cooperation Agreement Opening Remarks before the U. S. Senate Foreign Relations Committee, Washington, D.C. April 05, 2006. 445 Interview with Richard Rossow on July 10, 2015. 131

in a long run for the nonproliferation system. It brings India under the tent. It brings India in line with nuclear order.”446 R. Rajaraman, an Indian nuclear analyst, argued that in principle it is true that the deal opens up domestic uranium exclusively for nuclear weapons program, but there is no need to have a large number of nuclear weapons. “India doesn’t want to have 2000 weapons, even craziest hawks in India don’t want that much.”447 He further claims, “Indian nuclear weapons are plutonium based and we have enough plutonium to make thousands of weapons.” In the deal “everything is safeguarded by IAEA, there is no room for monkey business. You can’t transfer into weapons program anyway. It is all about civilian nuclear cooperation.”448 As a nuclear outlier and member of the nonaligned movement, India viewed the multilateral export control regimes as technological apartheid. For the last several decades India has refused to adhere to the regulations of these multinational groups. Through several laws passed since 1962, India instituted a “unilateral set of controls” to regulate its nuclear exports.449 But, in the contemporary nuclear era, there were growing concerns that these were not broad and stringent enough to prevent leakage of sensitive nuclear materials and technologies. In this context, Randall Woods points out, “While India’s export-control system is fairly well developed by international standards, a case in 2003 in which a private engineering company exported some dual-use items and precursors to Iraq via shell companies in Jordan and Dubai showed that the legal framework and enforcement system contain some serious gaps.”450 This reflects an urgency to synchronize India’s nuclear export regulations with current international standards to prevent unintentional proliferation of its nuclear materials and know-how. The U.S.-India nuclear pact, including measures to synchronize India’s export controls, is a significant achievement for the nuclear nonproliferation regime. Ashely Tellis claims that, “Prior to this deal India was under no obligation to maintain the regime’s constraint. India is now voluntarily taking those constraints

446 Interview with Lisa Curtis on June 15, 2015. 447 Interview with R. Rajaraman on May 11, 2015. 448 Ibid. 449 Richard Bruneau, “Engaging a Nuclear India: Punishment, Reward and the Politics of Non- proliferation”, Journal of Public and International Affairs, Vol. 17, 2006. P. 33. 450 Randall S. Wood, “Non-proliferation Strategies for India and Pakistan in the Aftermath of the May 1998 Tests”, December 2004. P. 18. Available at http://therandymon.com/papers/nonproliferation.pdf (Accessed May 29, 17) 132

upon itself” and New Delhi would never have adopted the harmonization of control list “if it was not the deal.”451 Similarly, Alyssa Ayres claims that the deal has brought India closer to the regime. “India is now an important part of what the United States does globally in nonproliferation. India has changed its export control laws, it harmonized with the MTCR, NSG, nearly done with the Australia Group. India is an important partner in the nuclear security summit.”452 Stephen P. Cohen, an American South Asian expert, argues, “India is partially in the (nuclear) tent. Half loaf is better than no loaf.” He further claims, “Getting India to subscribe some nonproliferation rules is important. It (the Deal) has placed limits on India’s nuclear program.”453 R. Rajaraman claims, “the deal discourages India from conducting nuclear tests. It is not written in the 123 agreement but it is understood that if it (India) conducts a test all bets are off.”454 A. Gopalakrishnan affirms, “No future Indian government will dare to test a nuclear weapon in the face of this potential loss of investment, whatever the deteriorated and outdated status of our nuclear deterrent.”455 Similarly, Nicholas Burns states, “India reserve its right to test and we reserve our right to respond.”456 Teresita Schaffer also claims, “India know that they stand to lose a lot if they walk away from that (nonproliferation obligations). It created a stake for India. India’s stake in the system is worth the cost having made the system appear to be slightly less binding.”457

Theoretical Implications This study builds on Wiener’s argument; this chapter explains the United States’ declaratory and behavioral stance regarding the deal as discursive interventions aimed at producing shifts in meaning of the norms regulating the non-proliferation regime. How norms are to be applied to specific situations is a political issue and therefore associated with contestation and controversy. It seems that the meaning of norms is elusive, shifting and

451 Interview with Ashley Tellis on July 21, 2015. 452 Interview with Alyssa Ayres on July 9, 2015. 453 Interview with Stephen P. Cohen on May 12, 2015. 454 Interview with R. Rajaraman on May 11, 2015. 455 A. Gopalakrishnan, “Assured Fuel Supply is a Mirage,” Deccan Chronicle, August 5, 2007. 456 Interview with Nicholas Burns on June 22, 2015. 457 Interview with Teresita Schaffer on July 2, 2015. 133

contested when it comes to their application in specific situations. The interpretation of meaning is determined by context rather than by universal principles. India’s rise provided a context in which the Bush Administration was motivated to lift nuclear sanctions against India. Consequently, Washington invested huge political and diplomatic efforts to build consensus in Congress and at international level. The Indo-U.S. Nuclear Deal is a paradigm shift in U.S. foreign policy and marked a new era between the two countries. Strategic and economic interests led the United States to adopt a flexible policy to boost India’s military and economic power against China, and to open the Indian nuclear energy market for American companies, creating jobs and profit. Nicholas Burn called this deal a “strategic deal”.458 Vikram Singh argues, “The Bush Administration knew that the deal will damage the regime, but at the end it was worth a shot” for strategic reasons.459 For India, this deal ended New Delhi’s isolation by lifting three decades old sanctions and now it can import much needed technology and fuel for its energy program. India saw good relations with the United States as insurance, should China turn aggressive, while cultivating good relations with China as long as Beijing behave peacefully. As India grows in power and importance, the impact of India’s dissatisfaction with the NPT and the non-proliferation regime in general may also have grown in importance. It is an open question whether the regime would be able to handle opposition from a dissatisfied India that is more active and powerful. The deal may contribute to saving the regime from this serious challenge. As India grows in power it was inevitable to come up with some formula to lift sanctions against New Delhi. Many in the Bush Administration were in favor of step-by-step approach and condition each step with India’s non-proliferation commitments. Condoleezza Rice preferred a radical approach by lifting all sanctions at once. Richard Rossow argues, “It was very puzzling to me how quickly you can go from one extreme [putting sanctions after 1998 test] to other extreme [lifting sanctions in 2005] in such a short period of time.”460

458 Interview with Nicholas Burns on June 22, 2015. 459 Interview with Vikram Singh on July 15, 2015. 460 Interview with Richard Rossow on July 10, 2015.

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The United States made the case that India will not join the NPT as a NNWS and the deal has confronted the fact that India has a nuclear weapon program and cannot be coerced to forgo its nuclear option. The deal devised a flexible mechanism for addressing this reality. The Bush Administration made India accede to non-NPT regulations and institutions of the non- proliferation regime, in a strategic bid to engage it within the global nuclear governance. In exchange for advanced nuclear technology, the 2005 U.S.-India nuclear pact made it mandatory for India to align export controls with MTCR and NSG guidelines, to segregate its civilian and military facilities, and to place IAEA safeguards on its civilian facilities. In addition, India accepted a unilateral moratorium on further nuclear testing and signed an Additional Protocol with the International Atomic Energy Agency. Rather than simply ignoring its non-proliferation obligations, the Bush Administration went to great lengths to justify its conduct within existing norms, attempting to make their conduct appear to comply with existing normative structure. When a norm is heavily- institutionalized then changing policy is harder than maintaining the status quo – and the greater the proposed change the greater inertia’s sway. The Bush Administration had to build consensus both at th domestic and the international level. It made a case in Congress that the nuclear deal offered major strategic, energy, and environmental benefits; its non-proliferation drawbacks (of undermining the full-scope safeguards rule) were offset by non-proliferation benefits (of India’s separating its civilian and military facilities and placing the civilian facilities under safeguards); and that the strategic benefits would be lost and India-US relations would suffer if Congress rejected the agreement. Philip Zelikow argued, “The Bush Administration decided to strike a deal with India first and then fight a political battle in Congress.”461 India’s democratic system and rising economy created a soft image. The U.S. Congress did not oppose the deal and was convinced of the Bush Administration’s justification but wanted to include more stringent non- proliferation conditions due to its concerns for the regime. This deal could not extract more non-proliferation conditions like signing of the CTBT and cessation of the production of fissile material due to India’s domestic opposition, but has

461 Interview with Philip Zelikow on July 10, 2015. 135

brought India closer to the regime by increasing its stake in nuclear governance. The deal, imperfect in its design, has taken a step beyond the existing mechanism of India being a target, to the solution of the regime’s problems.

Conclusion The zeal with which the deal has been driven forward in India and the United States has met a matched response of opposition, criticism, and suspicion. The deal generated a controversy with diverse opinions not only within India and the United States. The non-proliferation community in general also argued against the deal. The supporters called the deal a net gain for the non-proliferation regime by pointing to India’s commitments to the regime as a result of it, while the opponents pointed to the flaws in the deal which they argue would undermine the regime. The problems highlighted by the opponents of the deal explain why the U.S. presented the deal as India-specific and discouraging other states from following this precedent. Vikram Singh argues, “I remember one of the argument made in the Bush Administration was how to make exceptional case for India.” India has proven itself over the last 30 years a responsible nuclear power since the peaceful explosion in 1974. There was no derogatory information about India on proliferation or lack of security. “It was the rationale that the Bush Administration could use to make the case that India is a special case. They established an Indian exception.”462 Ashley Tellis contends, “One of the issue that we have to deal with in 2005 was whether we provide this exceptionalism to all three parties that is India Pakistan and Israel or only to India alone and the decision for various reasons was made only offer to India alone.”463 Similarly, Ambassador Richard Boucher argues, “There was a concern [in the Bush Administration] that it [the deal] might open doors for other states to develop nuclear weapons and get them accepted later or set a precedent… this is the reason we made it very clear that this deal is only for India.”464 Anish Goel recalls, “There was a concern in the beginning that China

462 Interview with Vikram Singh on July 15, 2015. 463 Interview with Ashley Tellis on July 21, 2015. 464 Interview with Ambassador Richard Boucher on August 26, 2015. 136

would push Pakistan for the same deal. This is part of what drove the decision to make the case for Indian exceptionalism. It eliminated the possibility of such deal for Pakistan.”465

465 Interview with Anish Goel on June 30, 2015. 137

Chapter Six: The India-IAEA Safeguard Agreement and Additional Protocol

IAEA safeguards are central norm of the nuclear non-proliferation regime and have played a central role in making sure that nuclear material and activities are not being diverted for weapons purposes. India was exempted from the full-scope safeguard norm due to its nuclear weapons program and was required to separate its civilian and military nuclear facilities and accept IAEA safeguards on the former. This is consistent with the NPT NWS’ practice of separating the military and civilian facilities and accepting voluntary safeguards on the latter. India’s acceptance of the item-specific safeguard is also coherent with the pre-1995 NPT scenario. The Henry J. Hyde Act defines the terms and conditions of U.S. nuclear trade with India. It requires, among other steps, that “India has provided the United States and the IAEA with a credible plan to separate civil and military nuclear facilities, materials, and programs, and has filed a declaration regarding its civil facilities in perpetuity in accordance with IAEA safeguards, principles, and practices, including IAEA BoG Document GOV/1621.” India separated its civil and military nuclear facilities and agreed to place two-thirds of its power reactors in the civilian list but, due to its domestic bureaucratic opposition, decided to keep its fast breeder reactors (FBR) program outside the IAEA safeguards. The FBR would not only help India to produce more reactor grade plutonium for electricity production but also produce more weapons grade plutonium for making nuclear weapons. The United States eventually agreed to India’s position of not accepting IAEA safeguards on its FBR program. India agreed to place its civilian nuclear facilities under permanent IAEA safeguards, but link this perpetuity with uninterrupted fuel supply and the right to take corrective measures if fuel supplies were disrupted. India’s Additional Protocol (AP) is less onerous than the APs of the five NWSs and NNWSs and is mainly restricted to India’s export activities. However, this is an important symbolic step in strengthening the efforts to make this measure universal. This chapter evaluates the content, contestation and implications of the India-IAEA safeguard agreement and the Additional Protocol agreement for the IAEA safeguard norms. It is divided into six sections. The first section assesses the separation program and how the domestic politics influenced the separation plan and the decision of accepting safeguards over civilian facilities. The second section analyses the India-IAEA safeguard agreement and the concerns

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raised by the IAEA Board member states and the non-proliferation community. The third section analysis the implications for the full-scope safeguard norm by assessing the policies of the non- NPT states and reactions of the NPT NNWSs. The fourth section evaluates the value of the AP both in the Indian nuclear program and at the international level. The fifth section explains the Indian bilateral agreement with nuclear suppliers and how India is weakening the information sharing provisions in these bilateral agreements. The sixth section offers a conclusion.

The Separation Plan Indian opposition leaders and a few scientists raised concerns about the feasibility of the separation plan. Vajpayee criticized the July 18 2005 joint statement’s requirement that India separate its nuclear infrastructure and worried that separating the civilian facilities from the military ones would be technically difficult, expensive, and constrain India’s ability to determine the size of its nuclear deterrent as well as the pace at which it could be achieved. Dr. A. N. Prasad, former director of BARC (Bhabha Atomic Research Centre) and Dr. P. K. Iyengar, former Chairman of the AEC warned that separation was not feasible and economical due to the inter-linked nature of the program and the use of certain facilities for both civilian and military purposes.466 The Prime Minister, Manmohan Singh, was confident that the separation of India’s extensive nuclear infrastructure was possible and could be carried out in a manner that would not prejudice the nuclear weapons program: The separation of civilian nuclear facilities and military facilities, I have been told by our nuclear establishment, can be done. I have not studied the details, but competent observers have told me that the Father of India's Nuclear Programme, Dr. Raja Ramanna, himself had proposed, long ago, that such a division should be made.467

Indian analysts also interpreted the language of the July 2005 joint statement to mean the application of voluntary-offer safeguards on civil nuclear facilities. The debate in India occurred

466 Siddhart Varadarajan, "Nuclear Cooperation with U.S.: Experts Urge Caution " The Hindu, July 18, 2005. 467 PM’s Reply to the Rajya Sabha Debate on His Us Visit", August 4, 2005. http://pmindia.nic.in/speech/content.asp?id=161 (Accessed May 29, 17) 139

at a time when there was no clarity regarding the type of IAEA safeguards (voluntary-offer or permanent) that would satisfy the US. The text of the joint statement specified that India’s responsibilities consisted of identifying and separating civilian and military nuclear facilities and programs in a phased manner and filing a declaration regarding its civilian facilities with the IAEA; taking a decision to place its civilian nuclear facilities voluntarily under IAEA safeguards; and signing and adhering to an Additional Protocol with respect to civilian nuclear facilities. Anil Kakodkar, chairman of the AEC and Secretary of the Department of Atomic Energy (DAE), emphasized, “Nuclear weapon states do place their civilian facilities under the voluntary safeguards arrangement of the IAEA. We will do the same.”468 “They didn’t want permanent safeguards, they wanted voluntary safeguards like P5 have. That’s what negotiations are all about.”469 Voluntary-offer safeguards (similar to the ones adopted by the five formal nuclear weapons states) would enable India to transfer nuclear materials and facilities from the civilian to the military categories (and vice versa), citing national security considerations. Permanent safeguards (similar to the ones adopted by non-nuclear weapon states and in imported reactors in India), would deprive India of the ability to re-designate civilian facilities as military (although military facilities could still be re-designated as civilian) or move nuclear materials from the military to the civilian categories. In other words, if India categorized a facility as civilian and placed it under permanent IAEA safeguards, it would lose the ability to use that facility for military purposes or to retain the option to be able to do so in the future. American demands for India to offer its civilian nuclear facilities for permanent IAEA safeguards like the non-nuclear weapon states, instead of voluntary offer safeguards used by the P-5 were seen in India as a significant departure from the basic terms of the July 18 2005 joint statement. Opposition intensified after Bush Administration officials testified before Congress that the Indian separation plan must be credible and defensible from a non-proliferation standpoint, and that efforts to build support for India would depend on the number of facilities

468 T. S. Subramanian, "Identifying a Civilian Nuclear Facility Is India's Decision" The Hindu, August 12, 2005. 469 Interview with Anish Goel on June 30, 2015.

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that it would place under safeguards and the speed at which it declared them.470 The testimonies were viewed as a departure from the principle of reciprocity, enshrined in the joint statement, that promised to treat India on par with the P5. The opposition in the Indian parliament began complaining that the U.S. was now telling India the number and type of facilities that it should place under safeguards.471 The opposition coincided with the Left’s toughening stance over India’s vote to censure Iran at the IAEA. India agreed to permanent safeguards, but linked it with fuel supplies. India made this linkage for two reasons. First, it could not accept safeguards on its reactors if fuel supplies to these reactors were interrupted. Second, it sought to prevent a repeat of the Tarapur experience and to ensure that future operations of its reactors would not be disrupted by fuel supply suspensions. While U.S. officials were unwilling to concede ground on fuel supplies, President Bush accepted New Delhi’s position to break the stalemate. Under a compromise, Washington offered fuel supply assurances for India’s safeguarded reactors through three mechanisms: a bilateral section 123 agreement; a three-party agreement between the IAEA, India, and the U.S.; and via a group of friendly supplier countries such as Russia, France, and the UK, who would supply fuel to India in case of any dispute in the other two mechanisms. If none of these mechanisms worked, the IAEA-India safeguards agreement also provided for “corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.”472 This casts doubt on the perpetual application of the IAEA safeguards and seems to suggest that India may unilaterally withdraw some facilities from its application or that it may terminate the Agreement. Washington also sought to limit the transfer of personnel between India’s civilian and military programs. New Delhi argued that this was not practical and could not be monitored in a

470 House International Relations Committee. The U.S. And India: An Emerging Entente? R. Nicholas Burns, Under Secretary for Political Affairs, Robert G. Joseph, under Secretary for Arms Control and International Security, September 8, 2005. P. 4. 471 In early September 2005, the US provided Indian government with a non-paper outlining a possible separation plan. In that plan US nonproliferation officials categorized almost all of India’s reactors (providing power to electricity grid) and related facilities as civilian. New Delhi rejected it on the grounds that, as per the July 2005 Joint Statement, India, rather than the US, would determine the separation plan. See Dinshaw Mistry, The US-India Nuclear Agreement: Diplomacy and Domestic Politics, (Cambridge: Cambridge University Press, 2014). P. 67. 472 See the text of the Indian Separation Plan, March 2, 2006. 141

way acceptable to its scientists, and Washington then acquiesced to New Delhi’s position because of time pressure to finalize the separation plan before the Bush visit to India in March 2006. Regarding the separation plan, Anil Kakodkar made it clear that “the determination of what is going to be identified as a civilian nuclear facility is going to be an Indian decision…That determination will certainly take into account all our national needs in terms of security, development, and R&D.”473 At the same time, "a facility will be excluded from the civilian list if it is located in a larger hub of strategic significance, notwithstanding the fact that it may not be normally engaged in activities of strategic significance."474 The United States wanted India to place its fast breeder reactors (FBR) program under the IAEA safeguards. The FBR’s constitute the crucial second stage of India’s three-stage nuclear program and are perceived as the enabling technology that could help the country transition from its limited uranium reserves to its vast thorium resources. The first stage involves the use of natural uranium as fuel in small to medium Pressurized Heavy Water Reactors (PHWRs). The irradiated spent fuel is reprocessed to extract plutonium, which is then used to “provide startup cores of fast breeder reactors (FBRs)” that are expected to be the mainstay of the nuclear program and provide a quarter of all electricity by 2050. These cores would be surrounded by “blankets” of either depleted or natural uranium, to produce more plutonium to fuel more breeders. Eventually, thorium would be substituted for uranium in the blankets to produce fissile uranium-233, the startup fuel for the third stage consisting of breeder reactors using uranium-233 in their cores and thorium in their blankets.475 The breeders (especially the larger PFBR) can use the reactor grade plutonium separated from PHWR spent fuel in their cores to produce more reactor grade plutonium for more breeders. However, they can also simultaneously convert the depleted or natural uranium used in the blankets to produce substantial amounts of weapons grade plutonium that contains

473 T. S. Subramanian, "Identifying a Civilian Nuclear Facility Is India's Decision" The Hindu, August 12, 2005. 474 Siddharth Varadarajan, “Nuclear separation plan seeks fine balance”, Reality, one bite at a time, March 8, 2006. http://svaradarajan.blogspot.ca/2006/03/nuclear-separation-plan-seeks-fine.html (Accessed May 29, 17) 475 M. V. Ramana, "India and Fast Breeder Reactors." Science and Global Security, Vol. 17, 2009, P. 55. 142

approximately 93% Pu-239 and less than 7% Pu-240. It is believed that India used weapons grade plutonium in the 1974 and 1998 nuclear tests. To summarize, the PFBR would not only help India to produce more reactor grade plutonium for electricity production but also produce more weapons grade plutonium for making nuclear weapons.476 Anil Kakodkar was determined that his organization would not agree to fast breeder reactors being declared as a civilian facility and placed under safeguards. He articulated his position in an interview with The Hindu on August 12, 2005.477 He advanced two rationales to justify his support for the FBRs’ unsafeguarded status. The first rationale (“only that which is clearly of no national security significance, only that part will be civilian”) seemed to indicate that he considered the breeders to be related to the strategic program (and having some national security significance). The second rationale (“we are not going to put any developmental programme under safeguards”) indicated a desire to retain complete R&D autonomy to pursue the breeder program without any outside interference. Dr. M.V. Ramana took note of both rationales in Kakodkar’s statement but gave precedence to the one about national security. He warned that the real reason behind Kakodkar’s call for the FBR to be placed outside safeguards indicated the DAE’s desire to either use it to produce fissile materials or at least retain it as an option to do so in the future.478 However, according salience to the research autonomy rationale raises three key questions. First, most countries around the world that had safeguarded breeders programs more advanced than the DAE have abandoned them.479 Kakodkar’s categorical call for the FBR to be retained on the unsafeguarded military side of the separation plan out of concerns stemming from the need to protect proprietary technology is interesting, as he had no problems placing all future civilian second-stage breeders under safeguards on the civilian side to comply with U.S. non-

476 Zia Mian, A. H. Nayyar, R. Rajaraman, and M. V. Ramana. "Fissile Materials in South Asia and the Implications of the U.S.-India Nuclear Deal", Science and Global Security, Vol. 14, 2006. P. 133. 477 T. S. Subramanian, "Identifying a Civilian Nuclear Facility Is India's Decision", The Hindu, August 12, 2005. http://www.hindu.com/2005/08/12/stories/2005081204521100.htm) (Accessed May 29, 17) 478 M. V. Ramana, “India and Fast Breeder Reactors”, Science and Global Security, Vol. 17, 2009. P. 62. 479 Interview with Henry Sokolski June 10, 2015. 143

proliferation specifications.480 Assuming that the PFBR, a prototype, was not likely to be very different technically from the civilian breeders succeeding it, a question arises as to how retaining the PFBR outside safeguards would protect the DAE’s proprietary concerns while placing all future civilian breeders under safeguards would not jeopardize them. The MEA (Ministry of External Affairs)’s position on the principle underlying the separation of India’s nuclear infrastructure became clear on October 24 2005. Foreign Secretary Shyam Saran gave a major policy speech on non-proliferation at IDSA (Institute for Defence Studies and Analyses) in order to placate the Left by situating India’s vote against Iran within a broader Indian worldview on non-proliferation. He commented briefly on civil-military separation: The objective of the agreement is to advance India’s energy security through full civilian nuclear energy cooperation. It is legitimate for our partners to expect that such cooperation will not provide any advantage to our strategic programme and hence the need to separate it from our civilian nuclear sector. But it makes no sense for India to deliberately keep some of its civilian facilities out of its declaration for safeguards purposes, if it is really interested in obtaining international cooperation on as wide a scale as possible. This would be quite illogical.481

The most important reason for the MEA’s more flexible approach to the separation plan was its eagerness to secure the broader strategic benefits that would accrue to India following the consummation of the nuclear deal. The MEA was more inclined to believe that coming up with a separation plan more sensitive to American expectations (that India place the maximum possible number of civilian facilities, including the FBR, under safeguards) would be crucial to its successful acceptance by the U.S. and serve as a key step forward in unlocking for India the multiple strategic benefits. Designing a separation plan with more civilian facilities, including the PBFR, under safeguards and a smaller military component than the DAE’s maximalist unsafeguarded breeder plan seemed a reasonable price to pay in exchange for the nuclear and

480 India agreed to place all its future civilian breeder reactors under safeguards, though the decision to categorize these as civilian remained New Delhi’s alone. “Press Briefing by Under Secretary of State for Political Affairs, Nicholas Burns,” March 2, 2006, New Delhi, India. 481 Shyam Saran, "Nuclear Non-Proliferation and International Security", Strategic Analysis, Vol. 29, No. 3, 2005.

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strategic benefits from the US. The final Indian plan (the DAE’s unsafeguarded breeder plan or a variant of it) was circulated amongst key American senators and representatives. Predictably, the response was that it was neither credible nor defensible.482 The American objective was two-fold: deny India the ability to use the FBR to produce fissile material for nuclear weapons by demanding its placement under permanent IAEA safeguards and drag multiple first-stage PHWR’s feeding the FBR that would otherwise end up on the unsafeguarded military side to the civilian side. Washington also pointed out that if India kept the breeder outside safeguards, then its nuclear scientists would find it difficult to participate in the Global Nuclear Energy Partnership program.483 Kakodkar continued to insist, “Both from the point of view of maintaining long-term energy security and for maintaining the ‘minimum credible deterrent’, the Fast Breeder Programmme just cannot be put on the civilian list.”484 Dr. G. Balachandran, an expert on technology controls, tried to debunk Kakodkar’s arguments by saying

It is not clear how listing the FBR (fast breeder reactor) will have a bearing on “maintaining long-term energy security”. IAEA safeguards have no bearing on the direction or progress of any peaceful nuclear programme that a country may choose to follow. It is high time Kakodkar is asked to specify precisely the manner in which listing FBR as a civilian programme will compromise India’s “long-term energy security. Therefore, the political establishment must require the DAE to explain why it feels that the FBR is essential for providing fissile material for India’s minimum deterrence and how this cannot be met by keeping four or more pressurised heavy water reactors out of the civilian list instead of the FBR.485

K. Subrahmanyam, the doyen of the Indian strategic community also attacked the DAE for its “breeder isolationism.” He questioned the DAE’s national security rationale and its research autonomy rationale advanced by Kakodkar as justifications for the PFBR’s retention on the

482 Siddharth Varadarajan, "Make the Indo-U.S. Nuclear Deal More Transparent", The Hindu, January 19, 2006. 483 The US Embassy, New Delhi, cable, February 24, 2006. 484 “The Fast Breeder Programme Just Cannot Be Put on the Civilian List", Indian Express, Feb 08, 2006. http://fissilematerials.org/library/kak06.pdf (Accessed May 29, 17) 485 "On the Fast Breeder Programme, Begin a Civil Debate", Indian Express, February 10, 2006. 145

military side of the separation plan. One of the bogeys raised by those who want to mire India in the status quo of technology thraldom and prevent the Indo-US agreement on exceptionalisation from the NPT to go through is that this is an attempt to cap our credible minimum nuclear deterrent. This is not a valid argument since the agreement under discussion with the US will leave out of safeguards not only Dhruva (100 MW) and CIRUS (40 MW) plutonium production reactors but also a few more 200 MW pressurised heavy water reactors in the military sector...... Now in the agreement to be negotiated, some civil nuclear reactors will be left out of the safeguards and can be used exclusively for military production. Each one of them is of 200 MW, twice the capacity of Dhruva. Therefore, if there is a decision to accelerate the reaching of the minimum credible deterrent, the proposed agreement facilitates it...... When under the proposed agreement four times the capacity of Dhruva will be available or weapons production with at least two civil reactors categorised military, if we choose to, it is ridiculous to talk of attempts at capping of our arsenal...... India may succeed with its fast breeder and thorium-energy economy. That cannot be stopped by breeders coming under safeguards, though it may get slightly slowed down. On the other hand, if Indian breeder isolationism fails, India will be pushed back on nuclear energy development by several decades. We have paid very heavy costs for our over-confidence on India’s R&D (research and development). That mistake should not be allowed to be repeated. What is called for today is a politico-strategic judgement with professional risk evaluation on Indian nuclear breeders’ future development under safeguards, free of safeguards and phased-in safeguards. Logically, our agreement with the US should provide for phased-in safeguards.486

The DAE focused a lot of attention on keeping the fast breeder program outside of safeguards in order to optimize its ability to make fissile material for the nuclear arsenal within various constraints, especially the shortage of domestic low-cost uranium. Kakodkar had cleverly gone public a few days before the Prime Minister was to address the Indian Parliament and lay out the final contours of the separation plan (including the status of the breeders) ahead of President Bush’s visit to India in March 2006. Kakodkar’s statement made it very difficult for the Prime Minister to implement the safeguarded breeder plan as that would now be portrayed by

486 K. Subrahmanyam, "N-Capping Fears Unreal-India Has to Have New Technology", The Tribune, January 24, 2006.

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the latter’s opponents as a capitulation to American pressure. Dismissing Kakodkar for insubordination was also out of the question, as that would expose the MEA and the Prime Minister to the barbs of critics for bending over backwards to appease the US. The Prime Minister finally capitulated and categorically stated that the fast breeders were still in the R&D stage and would not go under safeguards in his speech to the Indian Parliament on February 27, 2006. He acknowledged, “we cannot accept safeguards on our indigenous Fast Breeder Programme. Our scientists are confident that this technology will mature and that the programme will stabilize and become more robust through the creation of additional capability.”487 Ambassador Richard Boucher argued, “Designating the facilities [breeder program under IAEA safeguards] was one of the difficult parts of the negotiations.” He recalled that while negotiating with the Indian team in Delhi “Shivshankar Menon [Indian Foreign Secretary] and M. K. Narayanan [National Security Advisor] every now and then would get up and walk down to the hall. There was a room full of nuclear scientists in the other end of the hallway. They had to go and talk to them about specifics.” The Indian nuclear scientists wanted to have their say over what kind of facilities are covered under the agreement.488 The Bush Administration’s determination to secure a strategic partnership with India led to some bold American political concessions in the separation plan negotiations in late February- early March 2006 when it accepted India’s offer to leave the breeders outside safeguards,489 but “all future breeder reactors will be subject to IAEA safeguards.”490 It recognized that Prime Minister Singh had limited negotiating room on the fast breeders due to sustained pressure exerted by Kakodkar to keep the breeders outside safeguards on the military side of the separation plan. An agreement was clinched a couple of hours before President’s Bush’s first press conference on his maiden visit to India. India managed to keep a significant number of nuclear facilities outside safeguards to

487 "PM's Statement in Parliament on Civil Nuclear Energy Cooperation with United States", February 27, 2006. http://pmindia.nic.in/pmsinparliament.php?nodeid=28 ) (Accessed May 29, 17) 488 Interview with Ambassador Richrad Boucher on August 26, 2015. 489 Elisabeth Bumiller and Somini Sengupta, "Bush and India Reach Pact That Allows Nuclear Sales", The New York Times, March 3, 2006. http://www.nytimes.com/2006/03/03/international/asia/03prexy.html?pagewanted=print&_r=0 ) (Accessed May 29, 17) 490 Interview with Nicholas Burns on June 22, 2015. 147

service its strategic program. It was successful in retaining eight power reactors (Kaiga Atomic Power Station (KAPS) 1, 2, 3, 4; Madras Atomic Power Station (MAPS) 1, 2 and Tarapur Atomic Power Station (TAPS) 3, 4) outside safeguards.491 The reactors could produce up to 1250 kg of reactor-grade plutonium annually.492 They could also output about 280 kg of weapons grade plutonium annually (assuming a 60 % plant load factor), enough to make 40 bombs.493 India chose to permanently shut down its CIRUS research reactor (the reactor was supplied by Canada and it provided the weapons grade plutonium for India’s 1974 “peaceful nuclear explosion” and 1998 Pokharan II tests).494 The 40 MW CIRUS reactor began operations in 1964. It may have produced weapons grade plutonium for three bombs each year.495 In January 2006, U.S. and Indian negotiators considered three options for the CIRUS reactor. First, New Delhi could keep this reactor outside safeguards if Canada agreed to this position. Second, India could place the CIRUS reactor under safeguards, but would keep outside safeguards the weapons-grade plutonium previously produced by CIRUS. Third, Washington proposed that New Delhi could make a positive non-proliferation gesture by shutting down CIRUS and, in return, India would retain the plutonium produced by CIRUS. India agreed to this proposition. The reason advanced by New Delhi for CIRUS’s shut down was that such a decision would help avoid IAEA inspections into the Bhabha Atomic Research Center (BARC) complex where the reactor was located, “a nuclear facility of high national security importance.”496 The remaining Dhruva research reactor would continue to operate outside safeguards and produce 20-25 kg of weapons grade plutonium per year.497 Enrichment facilities, spent fuel reprocessing facilities (except for the existing safeguards on the Power Reactor Fuel

491 Sharon Squassoni, "India's Nuclear Separation Plan: Issues and Views." Congressional Research Service, December 22, 2006. P. 17. 492 Zia Mian, A. H. Nayyar, R. Rajaraman, and M. V. Ramana. "Fissile Materials in South Asia and the Implications of the U.S.-India Nuclear Deal", Science and Global Security, Vol. 14, 2006. P. 134. 493 P. R. Chari, "Parsing the Separation Plan: The Indo-Us Subsidiary Deal", Institute of Peace and Conflict Studies, March, 2006. P. 2. 494 Ibid. P. 1. 495 Ibid. P. 3. 496 "Indo-Us Nuclear Deal: Separation Plan", Times of India, March 7, 2006. http://articles.timesofindia.indiatimes.com/2006-03-07/india/27788621_1_separation-plan-thermal- power- reactors) (Accessed May 29, 17) 497 Zia Mian, A. H. Nayyar, R. Rajaraman, and M. V. Ramana, "Fissile Materials in South Asia and the Implications of the U.S.-India Nuclear Deal", Science and Global Security, Vol. 14, 2006. P. 124. 148

Reprocessing (PREFRE) plant), three heavy water plants and various military-related installations such as the Prototype Naval Reactor (nuclear submarine propulsion program) were retained outside safeguards. The separation plan also allowed India to retain its considerable previously produced reactor-grade plutonium stockpile (approximately 11.5 tons) outside safeguards. Finally, even the multi-phase approach adopted for safeguarding the 8 additional power reactors as civilian (in addition to the preexisting 6 for a total of 14 out of 22) from 2006- 2014 would add an additional 4 tons of unsafeguarded plutonium to India’s stockpile due to the time lag in applying safeguards to all 8 reactors.498 India’s separation plan did not produce the implied two categories of facilities: civilian and military facilities. The separation plan only provides for some of India’s nuclear power reactors, associated fuel fabrication, and spent fuel storage to be placed under continuous safeguards. It did not extend safeguards to a number of the nuclear facilities that serve civilian functions, and consequently these facilities may also be used in India’s military program. The Plan has produced three streams: “civilian safeguarded”, “civilian unsafeguarded”, and “military.” (See Annex) India operates a number of facilities, including eight of its pressurized heavy water power reactors (PHWRs), that serve a civilian or commercial function and that are not listed in India’s safeguards agreement (the “civilian unsafeguarded” stream). This category includes three heavy water production plants that India expressly designated for civilian use as part of the Separation Plan but that are not subject to safeguards. India’s FBR and thorium fuel cycle programs fall into the category of civilian unsafeguarded (as opposed to military), although both are capable of producing unsafeguarded weapons-usable material. The relationships and overlap between the three streams are not transparent. Some civilian facilities, even when operating under certain provisions of India’s safeguards agreement with the IAEA, may contribute to India’s stockpile of unsafeguarded weapons-usable nuclear material. Much of this complexity arises from the unique character of India’s safeguards agreement with the IAEA and the additional protocol to this agreement.

498 Ibid. 149

The India-IAEA Safeguard Agreement In March 2006, India and the United States agreed on a separation plan and India placed 14 out of 22 reactors under IAEA safeguards permanently.499 Nuclear Weapons States (NWSs) − the United States, The U.K., France, Russia, and China − have only voluntarily, revocable agreements while the India-IAEA Safeguards Agreement is perpetual and legally irrevocable. Unlike the NWSs, India has no right to take any facility out of IAEA inspection by changing it from “civilian” to “military”. It means that once India has declared any facilities civilian, its classification will remain the same. The IAEA Board of Governors approved by consensus a nuclear Safeguards Agreement with India on August 1, 2008, calling for application of IAEA safeguards to Indian civilian nuclear facilities. New Delhi sought India-specific safeguards that would include key items from its separation plan: fuel supply assurances and the right to take corrective measures if fuel supplies were disrupted. These links were mentioned in the preamble but not in the main text of the pact. This arrangement was acceptable to the IAEA because the preambular language is not legally binding on its verification activities. The pact extensively mentioned fuel supply assurances in its preamble. It stated that, for India to accept the safeguards, “An essential basis is the conclusion of international cooperation arrangements [with other supplier countries] creating the necessary conditions for India to obtain… reliable, uninterrupted and continuous access to fuel supplies … as well as support for an India effort to develop a strategic reserve of nuclear fuel.”500 By mentioning “international cooperation arrangements”, the safeguards pact accepted the IAEA’s position that fuel supply assurances should be covered in arrangements between the seller and the buyer of fuel rather than through the IAEA. In addition, drawing language from India’s separation plan and from the Section 123 Agreement, it stated that “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors.”501

499 “Implementation of the India-United States Joint Statement of July 18, 2005: India’s Separation Plan” available at http://www.dae.gov.in/press/sepplan.pdf (Accessed May 29, 17) 500 Ibid. 501 Ibid. 150

The Politics of IAEA Approval The IAEA Secretariat sent the India safeguards pact to its board on July 9 2008, and the board approved it on August 1. Institutional rules, political power considerations, and diplomatic initiatives influenced the IAEA’s approval of the pact. In terms of its rules, the IAEA board generally took decisions by consensus. It means the IAEA pact should have relatively high non-proliferation provisions due to the consensus rule. However, political power considerations and diplomatic initiatives played important roles in getting the approval despite concerns of some member states. In terms of political power, by mid-2008, over half of the 35 board members supported the U.S.-India nuclear deal and therefore accepted the safeguards pact negotiated by the IAEA. This was because the most powerful states – four out of five NPT NWSs as well as major European states – had lobbied other countries since 2005.502 Still, about one-fourth of the IAEA board had reservations about India’s corrective measures and safeguards in perpetuity. The strongest critic, Austria, sought to express these in a statement co-sponsored with other concerned states (Sweden, Finland, Germany, Japan, Ireland, Denmark, New Zealand, and Spain), but these states eventually made individual statements.503 The Austrian statement was then co-sponsored by non-members of the Board, namely, Costa Rica, the Netherlands, and Norway. It noted that the India safeguards pact was different from a standard INFCIRC-66 agreement and that its corrective measures and other provisions raised doubts about whether safeguards would apply in perpetuity. Others countries with similar and additional reservations included Board members Ireland, Pakistan, and Switzerland, and non-members Egypt, Iran, Malaysia, and New Zealand. Three diplomatic initiatives helped in the approval of the pact. First, the U.S. and India undertook diplomatic efforts aimed at IAEA Board members. On July 10, 2008, U.S. Ambassador to the IAEA Gregory Schulte met the representatives of supportive countries such as Australia, Canada, France, Italy, Russia, South Africa, and the UK to discuss better public

502 Mark Hibbs, “US Steps up Bilateral Diplomacy to Get India Safeguards Approval”, Nucleonics Week, July 10, 2008. 503 See the US Embassy, Vienna, cable, July 31, 2008. 151

diplomacy to assuage the concerns of these states.504 On July 11, the chair of the IAEA board, Chilean Ambassador Milenko Skoknic, informed Ambassador Schulte that other countries had informed him of the same concerns and has also sought a list of Indian facilities that would be safeguarded. The U.S., India and supportive countries realized that they would have to undertake a better public diplomacy on the issues of India’s corrective measures and safeguards in perpetuity. Subsequently, on July 18, India briefed IAEA board members to address these concerns. New Delhi stated that: its safeguards pact was similar to an INFCIRC-66 agreement; its conditions for termination were the same as those in an INFCIRC-66 agreement; and India’s corrective measures would depend on the specific situation and would involve consultations with supplier countries and with the IAEA.505 The IAEA Secretariat held a separate briefing on July 25 making similar points. Further, the IAEA circulated a list of facilities that India had agreed to safeguard in its separation plan. Second, in mid-July, the chair of the IAEA board held bilateral consultations with all 35 board members. He sought to determine their position on the safeguards pact and to discuss any alternative options for approval. Third, the IAEA director general, Mohamed ElBaradei, had endorsed the nuclear agreement with India several times since 2005, and this endorsement had credibility with IAEA Board members. ElBaradei again made a statement at the commencement of the August 1, 2008 Board meeting. He affirmed that: India’s safeguards pact was “an INFCIRC-66-type safeguards agreement”; “the agreement is of indefinite duration. There are no conditions for the discontinuation of safeguards other than those provided by the [India] safeguards agreement itself.”506 This addressed concerns about the issues of corrective measures and permanent safeguards. The director general further intervened during the board meeting. He repeated the

504 See the US Embassy, Vienna, cable, July 14, 2008. 505 Mark Hibbs and Daniel Horner, “Pakistan, Other States Not Satisfied after Indian Briefing on IAEA Pact”, Nucleonics Week, July 24, 2008. 506 This addressed concerns about the issues of corrective measures and permanent safeguards. See the IAEA press release, “Introductory Statement to the Board of Governors by IAEA Director General Dr. Mohamed El Baradei”, August 1, 2008. 152

above points and added that the IAEA could not ignore a country that had one-sixth of the world’s population. The concerned states eventually accepted the India-IAEA agreement and did not block the IAEA from approving by consensus the India safeguards pact due to the power politics considerations and diplomatic initiatives by the U.S., India, the IAEA board chair and the IAEA director general.

Indian Separation Plan Major parts of India’s civilian program remained outside of IAEA safeguards and the relationship among civilian safeguarded, civilian unsafeguarded and military facilities is opaque, especially in view of the provisions of the India-IAEA safeguards agreement. As a general rule, the agreement requires the application of safeguards to nuclear material, including subsequent generations of material, produced, processed or used in a listed facility or by the use of safeguarded material (article 11(c)). However, there are some exceptions to this rule that introduce the potential for safeguarded nuclear activities to contribute to India’s military program. The safeguards agreement allows India to store, use, or process nuclear material subject to safeguards at a facility that is not under continuous safeguards, provided that India opens the facility to safeguards temporarily while the safeguarded material is present (article 11(f)). India’s safeguards agreement would allow India to load safeguarded plutonium into the core of the PFBR alongside unsafeguarded uranium in the core and blankets. If a core consisting of entirely safeguarded plutonium would constitute 11% of the total fissionable material in the reactor then once irradiation in the reactor is complete and the spent fuel is unloaded, only 11% of the produced plutonium (corresponding to the 11% of the total fissionable material initially under safeguards) must remain under safeguards. India may claim an exemption from safeguards for the other 89% of the plutonium (i.e., all of the weapons-grade plutonium in the blankets and part of the reactor-grade plutonium in the core).507 A similar situation could arise if India chose to load the core of the PFBR with unsafeguarded uranium and plutonium, while making the blankets out of a mixture of

507 Kalman A. Robertson and John Carlson, “The Three Overlapping Streams of India’s Nuclear Programs”, Belfer Center for Science and International Affairs, April 2016. P. 7. 153

safeguarded and unsafeguarded uranium (as long as the safeguarded uranium makes up less than 30% of the total fissionable material at loading). After unloading the spent fuel, India could claim an exemption from safeguards for up to 70% of the plutonium in this fuel. To make up this 70%, the agreement appears to allow India to claim exemption for all of the weapons-grade plutonium in the blankets and part of the reactor-grade plutonium in the core. If India’s nuclear weapons program ever faces a temporary shortage of unsafeguarded uranium from indigenous sources, it may be able to use this method to continue generating unsafeguarded weapons-grade plutonium. 508 In addition, the agreement contains provisions for the substitution of unsafeguarded material for safeguarded material (articles 27, 30(d)). For uranium, the IAEA takes into consideration isotopic quality, so safeguarded HEU cannot be removed from safeguards by replacing it with LEU. However, for plutonium, it is not clear whether the IAEA takes into consideration the isotopic composition. In other words, it may be possible for India to remove weapons-grade plutonium from safeguards and use it in nuclear weapons, provided that it places an equivalent amount of reactor-grade plutonium under safeguards. In principle, this could allow India’s safeguarded program to contribute to nuclear weapons. Additionally, most of India’s current stockpile of reactor-grade plutonium from power reactors is not subject to safeguards and may be made available to India’s nuclear weapons program. Kalman A. Robertson and John Carlson, in a report published by the Belfer Center for Science and International Affairs, argued that “Pakistan has reason to be concerned that India could use its unsafeguarded PHWRs to produce more nuclear weapons in the future.”509 Lisa Curtis argues that India has not dramatically increased its nuclear program. “It might has potential for more weapons but has not increased the weapons program. If they have the capability to do so, doesn’t necessarily mean they will do so.” She suggests that the United States should keep giving incentives to the Indian leadership that “it is not wise to develop more nuclear weapons as it would be provocative.”510 Toby Dalton believes that India exercises minimum strategic deterrence in political terms, not in military terms with China and to some

508 Ibid. P. 9. 509 Ibid. P. 8. 510 Interview with Lisa Curtis on June 15, 2015. 154

level with Pakistan. New Delhi is unlikely to increase its weapons program at a faster pace. He claims, “I don’t think that the India-US nuclear deal changed the belief or the trajectory of India’s weapons program in that sense.”511 Daniel Markey does not consider India’s nuclear program “a threat to the world” and argues that nuclear weapons tend to be viewed in India more as political symbol than as usable weapons, and they occupy a less salient place in India’s national security strategy than is the case for many other nuclear weapons states. Given that, it seems unlikely that India’s leaders would violate the trust of the international community by diverting nuclear material from the civilian to its military program.512

Implications for the Full-Scope Safeguards Norm India’s traditional opposition to the NPT did not affect its nuclear commerce. New Delhi continued to apply the item-specific safeguards system (INFCIRC/66), as the NPT does not prohibit nuclear commerce with non-NPT states. This changed when the NSG modified its rule to require FSS as a requirement for nuclear commerce and the NPT endorsed this rule in the 1990’s. Mark Hibbs argues, “I think the fundamental problem or one issue that stands in way is simply the understanding that arose over the period of time that NPT membership was the sine qua non pro for getting nuclear trade. That wasn’t always the case, but that understanding developed over time.513 By remaining outside the NPT, for 30 years, India evaded adoption of comprehensive IAEA nuclear safeguards – which India regarded as discriminatory. India accepted only facility- specific safeguards on six of its nuclear reactors obtained through international cooperation.514 In the late 1990s, India refused to sign the IAEA Additional Protocol, regarding it as an extension of the discriminatory NPT system.515 Thus, except for the safeguards on the six nuclear reactors,

511 Interview with Toby Dalton on June 16, 2015. 512 Interview with Daniel Markey on June 17, 2015. 513 Interview with Mark Hibbs on July 1, 2015. 514 Dinshaw Mistry, “Diplomacy, Domestic Politics, and the U.S.-India Nuclear Agreement”, Asian Survey, Vol. 46, No. 5, 2006. P. 685. These included, two Russian supplied reactors at Tarapur, two Canadian supplied reactors, and two Russian built LWRs under construction. 515 Rajiv Nayan, “The Global Nuclear Non-Proliferation Paradigm and India”, Strategic Analysis, Vol. 35, No. 4, 2011. P. 560 155

India’s nuclear program was shielded from IAEA inspectors and from the international community. The July 2005 agreement overcame this deficit, enjoining India to accept IAEA safeguards on its civilian nuclear facilities and sign the Additional Protocol. The Henry Hyde Act, Section 104 (b) (3), before implementation of the agreement, necessitated a presidential determination regarding the substantial progress of India and the IAEA on the Additional Protocol in accordance with the principles and policies of IAEA specific to India’s civil nuclear program.516 Subsequently, in accordance with its July 2005 commitment as well as the Henry Hyde Act, India separated its nuclear facilities into civilian and strategic units. In August 2008, India signed an agreement with the IAEA and, with approval of the IAEA’s Board of Governors, India accepted safeguards on its civilian facilities. The India-IAEA Agreement is an “umbrella agreement” that would serve as a model for India’s future nuclear agreements with other countries.517 In May 2009, India also signed the Additional Protocol with the IAEA. In March 2006, India and the United States agreed on a separation plan and India placed 14 out of 22 reactors under IAEA safeguards permanently.518 Nuclear Weapons States (NWSs) – the United States, The U.K., France, Russia, and China – have only voluntarily, revocable agreements while the India-IAEA Safeguards Agreement is perpetual and legally irrevocable. Unlike the NWSs, India has no right to take any facility out of IAEA inspection by changing it from “civilian” to “military”. It means that once India has declared any facilities civilian, its classification will remain the same. In fulfillment of its commitment, India declared the list of its civilian nuclear facilities. The majority of India’s nuclear reactors, 14 out of 22, including both existing and future nuclear power reactors, will be placed under safeguards by 2014. Condoleezza Rice remarked, “Under this initiative, 65% of India’s thermal reactors will be brought under safeguards, a figure that the Indian government has said could rise as high as 90% as India procures more civil reactors in the

516 Paul K. Kerr, “U.S. Nuclear Cooperation with India: Issue for Congress”, CRS Report for Congress, 7- 5700, RL-33016, (Washington D.C.: Congressional Research Service, December 15, 2011). P. 15. 517 Rajiv Nayan, “The Global Nuclear Non-Proliferation Paradigm and India”, Strategic Analysis, Vol. 35, No. 4, 2011. P. 560. 518 “Implementation of the India-United States Joint Statement of July 18, 2005: India’s Separation Plan” available at http://www.dae.gov.in/press/sepplan.pdf (Accessed May 29, 17) 156

next 15 years.”519 India agreed to place all future nuclear reactors, whether breeder or thermal, under IAEA safeguards. These safeguards are permanent, that is, once a facility is placed under safeguards, it cannot be withdrawn. The issue of permanent safeguards was linked to an unrestricted lifetime supply of nuclear fuel and India conceded to safeguards in perpetuity. India also identified eight nuclear reactors as strategic and thereby, outside the nuclear safeguards. Critics argue that India’s acceptance of safeguards is merely symbolic, as India has not accepted full-scope safeguards like the NNWS. Furthermore, India was able to choose which facilities to declare as civilian and place under IAEA safeguards. Instead of focusing on what is absent in the U.S.-India nuclear deal, it is important to recognize the non-proliferation commitments obtained from India. First, for three decades there was considerable ambiguity regarding India’s nuclear program, including the civilian program. For the first time India has accepted international inspections of its civilian nuclear programme; this in itself is a significant achievement for the nuclear regime. Second, India has accepted safeguards in perpetuity: that is, even if the nuclear agreement with the U.S. falls apart, India cannot withdraw its facilities from IAEA safeguards.520 Third, there are concerns that India has kept eight reactors, mainly its breeder reactors, outside of safeguards. These breeder reactors could be a source for plutonium production.521 Compared to the earlier situation where there was no distinction between India’s civilian and military facilities, and India could have used all the nuclear reactors for strategic purposes, post-deal India has only eight strategic reactors. Condoleezza Rice observed, “Imagine the alternative: Without this initiative, 81% of India’s current power reactors – and its future power and breeder reactors – would continue to remain outside of IAEA safeguards. The Indian nuclear power program would remain opaque, a nuclear black box.”522 In 2010, under U.S.

519 Remarks of Secretary of State Condoleezza Rice, “U.S.-India Atomic Energy Cooperation: The Indian Separation Plan and the Administration’s Legislative Proposal”, Senate Foreign Relations Committee, April 5, 2006. Available at http://www.foreign.senate.gov/hearings/hearing/?id=d2fe308b-f34d-83ee- 1e10-83b3d9e70f8e (Accessed May 29, 17)

520 Ibid. 521 Dinshaw Mistry, “Diplomacy, Domestic Politics, and the U.S.-India Nuclear Agreement”, Asian Survey, Vol. 46, No. 5, 2006. P. 687. 522 Remarks of Secretary of State Condoleezza Rice, “U.S.-India Atomic Energy Cooperation: The Indian Separation Plan and the Administration’s Legislative Proposal”, Senate Foreign Relations Committee, 157

influence, India shut down the controversial CIRUS reactor. In this context, Brahma Chellaney remarks, this “will deprive the nuclear military program of almost one-third of its current supply of weapons-grade plutonium.”523 Since the IAEA approved the model for the AP in 1997, it has been proposed to make it a requirement for nuclear trade. The implementation of the AP by NWSs and by India is an important symbolic step in the efforts to make this measure universal. Without the condition of the AP, the IAEA cannot be as effective in combating clandestine nuclear activities. The Indian AP is a positive development even if it is less intrusive than those for the NWSs. The then IAEA director-general ElBaradei welcomed India’s intention to identify and place all its civilian nuclear facilities under IAEA safeguards and sign and adhere to an Additional Protocol with respect to civilian nuclear facilities. He considered it as “a step forward toward universalization of the international safeguards regime.”524 Before the India-U.S. nuclear, scholars talked about engagement with India, along with Israel and Pakistan, in the broader non-proliferation regime.525 IAEA former chief Mohamed ElBaradei, in an interview in 2003, remarked about India, Israel, and Pakistan vis-à-vis the NPT as follows: I think the NPT can survive – has survived – without them. But I think ultimately that the non-proliferation regime will not survive without them. The NPT is a part of the regime, and if we talk about the regime – global, universal, enduring – then it will not survive without the three. Until we manage to bring them into the regime, I think we need to continue to start a dialogue with them. I, for one, believe that rather than just trying to continue treating them as pariahs, we need to try and see how we can engage them as partners in an arms control process, maybe not necessarily under or within the framework of the NPT but within the

April 5, 2006. Available at http://www.foreign.senate.gov/hearings/hearing/?id=d2fe308b-f34d-83ee- 1e10-83b3d9e70f8e (Accessed May 29, 17) 523 Brahma Chellaney, “India’s U.S.-Influenced Decision to Shut Down Cirus Research Reactor”, Covert, June 22, 2006. 524 Remarks of Mohammed El-Baradei, IAEA Director General Welcomes U.S. and India Nuclear Deal, IAEA Press Release, Press Office, Division of Public Information, International Atomic Energy Agency, March 2, 2006. 525 Marvin Miller, Lawrence Scheinman, “Israel, India, and Pakistan: Engaging the Non-NPT States in the Non-Proliferation Regime”, Arms Control Today, Vol. 33, No. 10, December 2003. 158

framework of a larger arms control process.526

What are the implications of the India-U.S. nuclear deal for the other non-NPT states? What is the possibility for other non-NPT states to receive a similar deal? The following paragraphs will discuss the possibility of such deal for Pakistan, Israel and North Korea.

Pakistan The Indo-U.S. nuclear deal came as a blow to Pakistan because it recognized the nuclear status of India, while continuing to exclude Pakistan from the nuclear club. Pakistan’s response to the deal has been particularly strong, due to its history of conflict with India. Islamabad believes that India’s access to international market for nuclear fuel could free up its limited domestic fissile material production capacity for nuclear weapon program. It has declared that the deal has disturbed strategic stability in South Asia, and on that basis blocked the start of negotiations on the FMCT (Fissile Material Cut-off Treaty) in the Conference on Disarmament (CD).527 It accelerated its efforts to take measures, both internally and externally, to catch up India’s nuclear capacity. Internally, Pakistan is increasing the production of enriched uranium and plutonium for weapons. The New York Times wrote that rapid increase of Pakistan’s nuclear stockpiles placed fifth in nuclear arms possession, according to an intelligence report.528 A U.S. State Department official admits, “Strategic stability’s implication [of the deal] in the region [South Asia] is problematic.”529 Leonard S. Spector thinks, “One pretty clear-cut negative impact (of the deal) is that it has exacerbated India-Pakistan nuclear tensions” and has adversely affected the prospects for “restraint from Pakistan.”530 Similarly, Sharon Squassoni

526 An interview with Mohamed ElBaradei, “Curbing Nuclear Proliferation”, Arms Control Today, November 2003. 527 “Statement by Ambassador Zamir Akran, Pakistan’s Permanent Representative to the UN, Adoption of CD’s Programme of Work”, May 29, 2009, http://www.reachingcriticalwill.org/political/cd/speeches09/2session/29may_pakistan.html. (Accessed May 29, 17) 528 David E. Sanger, & Eric Schmitt, “Pakistani Nuclear Arms Pose Challenge to U.S. Policy”, The New York Times, January 31, 2011. 529 Interview with US State Department Official. 530 Interview with Robert Einhorn on June 22, 2015. 159

considers Pakistan’s decision to increase fissile material production a “negative impact” of the deal.531 It is also believed that the deal is not the only reason for Pakistan’s nuclear behavior. Islamabad has a strategic culture that holds an unalterable view of India as a hostile enemy, a view driven by an ideological consideration, not by security.532 Nicholas Burns claims, “I don’t believe that US-India civil nuclear deal has led to the build up [of nuclear weapons] by Pakistan. I think that is because of more internal make up of Pakistani government, because of poor state of India-Pakistan relations in general.”533 Robert Einhorn argues, “The deal is not the principle reason that Pakistan is expanding its nuclear program and pursuing tactical weapons so forth. Clearly Pakistan has other reason to pursue those policies,” but the deal feeds Pakistani narrative that it is being treated unfairly vis-à-vis India.534 Toby Dalton claims, “Certainly the India deal has an impact in Pakistan”, but argues

I think in that context giving greater preference to India, Pakistan raises concerns that this would potentially drive Pakistan in a direction that would be unproductive and I think that’s the case. Pakistan has taken this direction not only for India-US nuclear deal but host of other reasons: having to deal with security perceptions, bureaucratic interests and probably some element of technology, determinism and so forth. I think it’s too simplistic to say that because of India deal Pakistan is developing tactical nuclear weapons but you can clearly see that the process of engaging with India has had the result of reinforcing the negative trends in Pakistan. India has had a fairly stable vision of capability for the objectives that need to meet with limited nuclear arsenals. Those create pressure in Pakistan that can feed the sense of arms race or technology competition. But I think the impetus is not coming from India and since its not coming from India, you can’t say that it is because of the India-US nuclear deal.535

531 Interview with Sharon Squassoni on June 26, 2015. 532 C. Christine Fair, Fighting to the End: The Pakistan Army’s Way of War (Karachi: Oxford University Press, 2014). pp. 4-7. 533 Interview with Nicholas Burns on June 22, 2015. 534 Interview with Robert Einhorn on June 22, 2015. 535 Interview with Toby Dalton on June 16, 2015. 160

Externally, Pakistan has demanded a similar exemption from the NSG guidelines, but it has received a noncommittal response from the United States.536 Ambassador Richard Boucher claims, “Pakistan immediately [after the deal] started asking for a similar deal and our answer was that we are sorry you [Pakistan] need to build-up you track record of responsible international behavior… Exactly what a track record was and what period of time required to have that record frankly we never specify because we just said it’s not going to happen [a nuclear deal with Pakistan].”537 Pakistan signed a nuclear agreement with China, in which China had built two 300 mw reactors at Chasma in Punjab followed by two 320 mw units at the same place. It is currently building two 1100 mw reactors in Karachi at a cost of $6.5 billion. India and the US have expressed concerns over it and argued that the reactors were being built without the sanction of the NSG.538 After the India waiver, the NSG did not condemn the Chinese deal with Pakistan. Sharon Squassoni criticizes that China knew that “no one is going to protest in the NSG precisely because the way the exception for India was handled. It was the power play by the United States and that allows the Chinese to get way with it.”539 Teresita Schaffer considers it a “big mistake” that “the US didn’t resist nearly as hard as one might have expected.”540 Daniel Markey recalls that there were concerns that “China will accelerate nuclear cooperation with Pakistan and this will ultimately hurt the nonproliferation regime.”541 The Bush Administration presented the deal mainly as an energy agreement and downplayed the strategic dimension. Ashley Tellis confides, We always were concerned about that (China’s reaction to the deal) but we were very careful how we package the deal. We wanted to make sure that strategic dimensions were not over emphasized because we didn’t want to alienate China more than it would be. We positioned it very much as an energy deal. I think it made the difference in (getting) China on board.542

536 Daryl Kimball, “Pakistan Presses Case for U.S. Nuclear Deal”, Arms Control Today, Vol. 40, No. 4, 2010. 537 Interview with Ambassador Richard Boucher on August 26, 2015. 538 Daniel Horner, “China, Pakistan Set Reactor Deal”, Arms Control Today, Vol. 40, No. 6, 2010. 539 Interview with Sharon Squassoni on June 26, 2015. 540 Interview with Teresita Schaffer on July 2, 2015. 541 Interview with Daniel Markey on June 17, 2015. 542 Interview with Ashley Tellis on July 21, 2015. 161

Ambassador Richard Boucher claims,

China has made various statements and attempts to sort of say we can build more power reactors in Pakistan because the existing reactors are grandfathered and that includes reactors that were intended to be built. That was one of the concerns and we did have some conversation with the Chinese about not building more reactors in Pakistan. China’s response was that we have the right to do this, but don’t worry we are going to act more responsibly than you did [with India].543

The deal has helped to reduce the strategic gap between China and India. For China, India’s growing nuclear deterrent is not a threat for now as Beijing’s overall nuclear forces remain greater than New Delhi’s. What worries China is the growing India-U.S. convergence in dealing with China.544 Beijing has stepped up courting New Delhi in an attempt to counter Washington’s growing influence in South Asia. China is also ready to take advantage of India’s NSG exemption by benefiting from the Indian nuclear market. In November 2006, President Hu Jintao visited both India to sign a multitude of agreements and offered India a civil nuclear agreement. During the state visit of Chinese President Xi Jinping to India in September 17-19, 2014, India and China agreed to begin the process of discussion on civil nuclear energy Both countries decided to “carry out bilateral cooperation in civil nuclear energy in line with their respective international commitments, including working level consultations between the Department of Atomic Energy of India and the China Atomic Energy Authority.”545 Nuclear commerce with India would be significant for China. India’s civil nuclear energy market offers billions of dollars in investment opportunities. China’s reputation as a low-cost nuclear reactor manufacturer and willingness for greater technology transfer would give Beijing an upper hand over other contenders. “Though unlikely, if Beijing successfully negotiates cooperation with India in the sector, it will have opened China’s path to a share of the over $150 billion in expected Indian nuclear projects over the next several decades.”546

543 Interview with Ambassador Richard Boucher on August 26, 2015. 544 Interview with Daniel Markey on June 17, 2015. 545 Ministry of External affairs, Government of India “Joint Statement between the Republic of China on Building a Closer Developmental Partnership”, Government of India, September 19, 2014. 546 Cheng Li and James Tyson, “China and India: Asia’s Budding Partnership or Growing Rivalry?” The National Interest, September 28, 2014. 162

Stephen P. Cohen547 and Mark Fitzpatrick,548 pointing to an intensified nuclear competition between India and Pakistan as a grave danger, suggested that Pakistan should be offered a similar deal that the United States concluded with India, with the caveat that Islamabad must meet more stringent non-proliferation conditions. It is important to note that, despite India’s arguably good non-proliferation record, stable democracy, and fast growing economy, it was not easy for the United States to conclude the deal. At the domestic level, the deal faced resistance in the U.S. The U.S. Congress, under pressure from the Bush Administration, approved the deal, but placed several conditions on it, including India’s support in opposing Iran’s nuclear program, termination of the agreement if India resumed nuclear tests, and a pledge that the deal would not be offered to the other two non-NPT states – Pakistan and Israel – in order to limit the repercussions for the nuclear non-proliferation regime. Aside from the anticipated strategic benefits, the U.S. Congress was also persuaded by the argument that opening India’s nuclear market would create job opportunities for Americans in providing nuclear goods and services. Apart from strategic factors, economic motivations were also significant in offering India the nuclear deal. Recognizing India’s emerging economy, Russia, France, Germany, Britain, and Italy were keen to lift sanctions against India to access New Delhi’s lucrative nuclear market. These countries proposed the idea to the United States in the 1990s, but the Clinton Administration didn’t want to compromise its non-proliferation agenda and rejected the idea. The neo-conservative Bush Administration was more open to action. The major supplier countries supported the Indian waiver at the NSG along with the U.S. and India. Even countries like Canada and Australia, with strong non-proliferation policies, supported the waiver, keen to get their share of the Indian nuclear market. There are no such economic incentives in the case of Pakistan, which continues to rely heavily on “commercial loans, concessionary donor loans and aid.”549 Islamabad’s poor economic performance, widespread corruption, and weak political institutions hardly make it a promising market for nuclear commerce.

547 Stephen P. Cohen, Shooting for a Century: The India-Pakistan Conundrum, (Washington D.C.: Brooking Institutions Press, 2013). 548 Mark Fitzpatrick, Overcoming Pakistan’s Nuclear Dangers, Volume 443 Adelphi Series, International Institute of Strategic Studies, 2014. 549 Dawn, “Pakistan’s Economy Facing Revenue Generation Crisis”, August 26, 2015. 163

At the international level, it was an “uphill task” for the Bush administration to get a consensus decision in the NSG for an Indian exemption from NSG guidelines.550 The United States had to change the waiver draft three times in order to meet the concerns of the NSG member states. Despite the fact that most of the major supplier countries, among them the U.K., Russia, France, Germany, Canada and Australia, were in favor of the waiver, it was not easy to overcome the resistance of the other member countries, such as Austria, New Zealand, Ireland, Sweden, Norway, the Netherlands, and Sweden, all staunch proponents of the nuclear non- proliferation regime. Finally, the United States had to warn those countries that blocking the waiver would have consequences for their bilateral relations with Washington. In the case of Pakistan, it would be a hard pill to swallow at the NSG and it is difficult to imagine any lifting of international nuclear sanctions without Islamabad taking on strong non-proliferation commitments and demonstrating responsible nuclear behavior. The chances of Pakistan securing a nuclear deal with the United States in the foreseeable future seem remote. Islamabad has a long way to go to improve its image in the international community, to end its nuclear isolation, and to normalize its nuclear status. An over-reliance on nuclear weapons is counterproductive for Islamabad. Repeatedly blocking consensus to start negotiations on the FMCT, developing and deploying tactical nuclear weapons, and increasing production of weapons-grade fissile material are not steps that serve its interests. Instead, they add to its image as an irresponsible nuclear state. With the A. Q. Khan baggage, poor economic conditions, a fragile democracy, and allegations of links with terrorist organizations, it is highly unlikely for Pakistan to secure a nuclear deal.

Israel Israel is not campaigning hard for the nuclear deal due to its unique position on its nuclear weapons: it neither confirms nor denies possessing nuclear weapons. Arab countries have been pushing hard in the NPT review conferences to get Israel to sign the Middle East Nuclear-Weapon-Free-Zone as a NNWS. Due to the volatile situation in the region to offer Israel a nuclear deal would be most unwise. Michael Krepon claims, “Israel is out of the equation for

550 Interview with Nicholas Burns on June 22, 2015. 164

now.”551 Similarly, Daniel Markey argues that there is no possibility of a U.S.-Israel deal because “Israel doesn’t want to recognize its weapons program.”552

North Korea The United States is unlikely to offer North Korea a civil nuclear deal. North Korea, which left the NPT in 2002 and tested a nuclear device in 2006, may be ready to trade its nuclear weapon program for economic assistance and normalization with the United States and the rest of the world. China, a long-time ally, categorically opposes the nuclearization of North Korea. The six-party negotiations – between North Korea, South Korea, China, Russia, Japan, and the United States – have declared their intention to make the Korean Peninsula a nuclear-weapon- free zone. Although it is an outlier, unlike India, Pakistan and Israel, North Korea was a NPT signatory and in a category of its own. The objective of the United States is to bring it back in the treaty.553

Reactions of other States In the NPT Review Conference of 2010, NPT NNWSs criticized the India waiver on the grounds that India, a non-NPT state, was getting the benefits of nuclear energy that are reserved for NPT states and that this would weaken the NPT. NPT states also described the India waiver as the end of NPT universality efforts, which calls India, Pakistan and Israel join the treaty as NNWSs. In 2009, a working paper submitted by the Iran to the Third Session of the Preparatory Committee (PrepCom) of the 2010 Review Conference called the deal a contravention of “the obligation to promote the universality of the Treaty.”554 China commented that the “universality and integrity of the international non-proliferation should be further enhanced. Any practice of

551 Interview with Michael Krepon on June 18, 2015. 552 Interview with Daniel Markey on June 17, 2015. 553 Denny Roy, “Don’t Count on a North Korean Nuclear Deal” The National Interest, April 25, 2016. 554 PrepCom for the 2010 NPT Review Conference, “Non-Proliferation: Working Paper Submitted by the Islamic Republic of Iran,” NPT/CONF.2010/PC.III/WP.6, April 13, 2009 available at http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/301/41/PDF/N0930141.pdf?OpenElement (Accessed May 29, 17) 165

selectivity should be discarded.”555 Indonesia called the NSG decision “an incentive for that country to remain outside the regime.”556 The Non-Aligned States called on all NPT members “not to undertake any actions that could negatively affect prospects for the universality of the treaty”.557 The United States reiterated its commitment to “Universal adherence to the NPT itself – including by India, Israel, Pakistan and North Korea”.558 The United Nations Security Council, in September 2009, also adopted 1887 Resolution which “calls upon all states that are not Parties to the NPT to accede to the Treaty as non-nuclear-weapon States so as to achieve its universality at an early date, and pending their accession to the Treaty, to adhere to its terms”.559 Japan560 and

555 Mr Cheng, the head of Chinese delegation, statement to the Third Session of the Preparatory Committee of the 2010 Review Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear weapons, May 4, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/04Ma y2009/04May2009AMSpeaker-7-China.pdf (Accessed May 29, 17) 556 Mr Natalegawa, permanent representative of Indonesia, statement to the Third Session of the Preparatory Committee of the 2010 Review Conference of the States Parties to the Treaty on the Non- Proliferation of Nuclear weapons, May 5, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/05Ma y2009/05May2009AMSpeaker-3-Indonesia.pdf (Accessed May 29, 17) 557 PrepCom for the 2010 NPT Review Conference, “Substantive recommendations: working paper submitted by Group of Non-Aligned States,” NPT/CONF.2010/PC.III/WP.30, May 6, 2009 available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/328/80/PDF/N0932880.pdf?OpenElement 558 Statement by Rose Gottemoeller, Assistant Secretary, Bureau of Verification, Compliance and Implementation, to the Third Session of the Preparatory Committee of the 2010 Review Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear weapons, May 5, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/05Ma y2009/05May2009AMSpeaker-4-USA.pdf (Accessed May 29, 17) 559 United Nations Security Resolution 1887, Adopted by the Security Council at its 6191st meeting, September 24, 2009 available at http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/523/74/PDF/N0952374.pdf?OpenElement (Accessed May 29, 17) 560 - “Statement by M. E. Mr. Masahiko”, May 4, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/04Ma y2009/04May2009PMSpeaker-4-Japan.pdf (Accessed May 29, 17) 166

Australia561 also called for the universality of the treaty. Interestingly, in November 2009, the U.S.-EU Summit also called on the three non-signatory members to join the NPT as NNWSs.562 The Indian government was puzzled about the call for NPT universality after the India- US nuclear deal. The Indian permanent representative’s letter to the President of the Security Council repeated India’s stance on the NPT in these words: India’s position on the Nuclear Non-Proliferation Treaty (NPT) is well- known. We cannot accept any obligations arising from treaties that India has not signed or ratified. This position is consistent with the fundamental principles of international law and the Law of Treaties. India cannot accept calls for universalization of the NPT. As India’s Prime Minister stated in Parliament on 29 July, 2009, there is no question of India joining the NPT as a non-nuclear weapon state. Nuclear weapons are an integral part of India’s national security and will remain so, pending non-discriminatory and global nuclear disarmament.563

India changed its strategy to a degree, however, and Indian Prime Minister Manmohan Singh announced that it was willing to join NPT as a NWS.564 This is interesting, in that India has long denounced the treaty as “discriminatory” and now wants to be the part of this “discrimination”, which shows the acceptance of the regime by India. In the May 2010 NPT Review Conference, state parties also complained about the exceptional treatment given to India and called it “discriminatory”. India has also been critical about the NSG as a “discriminatory” organization and now India’s bid for NSG membership is a departure from the Indian moral stance.

561 “Statement by Mr. John Sullivan”, May 4, 2009. Available at http://www.un.org/disarmament/WMD/Nuclear/NPT2010Prepcom/PrepCom2009/statements/2009/04Ma y2009/04May2009AMSpeaker-10-Australia.pdf (Accessed May 29, 17) 562 EU-US Summit, Washington, November 3, 2009 available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/er/110929.pdf (Accessed May 29, 17) 563 Government of India, Ministry of External Affairs, Letter from Permanent Representative of India to the United Nations addressed to the President of the Security Council outlining India’s approach and perspectives regarding the Security Council’s Summit Meeting on Nuclear Non- Proliferation and Nuclear Disarmament, September 24, 2009 available at http://meaindia.nic.in/mystart.php?id=530115187 (Accessed May 29, 17) 564 Sumit Ganguly, “Singh’s Shrewd Move: India’s Shift on Nuclear Policy”, Newsweek, December 4, 2009. 167

It is interesting that the NPT NNWSs showed less opposition to the deal than one might have expected. Few countries objected to the U.S. engaging in nuclear cooperation with India but many developing countries supported the deal and argued that peaceful nuclear technology should be allowed to go to developing countries because the majority considers the regime discriminatory, in which western countries dominate nuclear technology. Robert Lehman argues that the deal has fed the narrative of the NNWSs that the regime is discriminatory and the NAM countries are not “criticizing India they instead are criticizing nuclear weapons states because they have been trying ways to engage India.”565 Toby Dalton claims that states like South Africa, Brazil, Indonesia, Egypt are not “complaining about peaceful nuclear uses they are complaining about much more on lack of progress in disarmament.”566 Robert Einhorn argues that many developing countries are in favor of transfer of nuclear technology but they did not object such a transfer to a non-NPT state because “many developing countries had good relations with India. They didn’t want to offend India by opposing the civil nuclear deal.”567 The other rising powers like Brazil and South Africa also did not oppose the deal due to good relations with India. Greg Jones admits, “There is not much reaction as I would have expected.”568 Ambassador Richard Boucher claims that it is unlikely that other rising powers or NNWS are going to develop nuclear weapons because of the India-U.S. nuclear deal because “the nonproliferation regime would put sanctions on them.”569

Anish Goel claims

Internally there were certainly concerns long before we wrote this [the deal] out. How these states are going to react. There were only handful of them like Brazil, South Africa, Turkey that have the capability to have at one point may be produce nuclear weapons but decided the other route and that’s why we undertook a very comprehensive outreach, when the deal was announced, to talk to all these countries what it means. On the whole, asides from non-NPT states, we didn’t receive a lot of negative criticism from these countries. I think they realize that it was an

565 Interview with Robert Lehman on June 17, 2015. 566 Interview with Toby Dalton on June 16, 2015. 567 Interview with Robert Einhorn on June 22, 2015. 568 Interview with Greg Jones on June 17, 2015. 569 Interview with Ambassador Richard Boucher on August 26, 2015. 168

acceptance of reality that this is the only way to bring India into the nonproliferation regime. I didn’t get the sense from what I have read or heard that any of them regretted their decision of having given up a nuclear weapon program when the NPT first came into force because I don’t think any of them envied India’s position having isolated for 35 years and having developed a nuclear power program completely on its own because it was isolated from the international community. My belief is that these countries felt that they benefited much more by the path they took than they would have had they chosen other path.570

Robert Joseph recalls that the U.S. held consultations with other important NNWSs. He claims, “I didn’t encounter any opposition to this agreement and the only complaints, quite frankly, that I heard were from Pakistan. With Pakistan saying that we would like to have the same arrangement” and our response was that “its not going to happen at least not now” due the A. Q. Khan network.571 Nicholas Burns argues, “We turned down any request that we engage civil nuclear negotiations with Pakistan because of the A Q Khan factor and in fact that Pakistan is a proliferator itself.”572 In 2005 there was concern that this deal would set a precedent for a U.S.-Pakistan or a U.S.-Israeli nuclear agreement. Robert Einhorn argues that in the last ten years “there hasn’t been any consideration of a US-Pakistan agreement or a US-Israel agreement. Even though that was a concern, it hasn’t been materialized.” Pakistan has been persistent in wanting the same kind of nuclear cooperation deal with the United States that India received, but “the US has not been responsive.” He claims that someday it might be possible but the U.S. position has been that Pakistan has to demonstrate responsible nuclear behavior and “blocking the negotiations of fissile material cut-off treaty wasn’t considered a responsible behavior.”573 Pakistan’s support of terrorist organizations for its strategic interest vis-à-vis India and Afghanistan is another concern. Lisa Curtis argues, “Pakistan has to give confidence to the international community that Pakistani territory is under its control and there is no chance of terrorism before this privilege is extended to Pakistan.”574 Christine Fair argues that Pakistan is also strategically important for the

570 Interview with Anish Goel on June 30, 2015. 571 Interview with Robert Joseph on June 30, 2015. 572 Interview with Nicholas Burns on June 22, 2015. 573 Interview with Robert Einhorn on June 22, 2015. 574 Interview with Lisa Curtis on June 15, 2015. 169

U.S., as its support is key to stability in Afghanistan. However, unlike India, Pakistan does not share common strategic interests with Washington; rather, both sides often have contradictory policy objectives vis-à-vis Kabul. “Pakistan’s support for terrorist organizations as a strategic tool” diminishes the chances of such a deal.575 Toby Dalton claims that the NNWSs did not leave the NPT due to the deal because “there are multiple bargains in the NPT other than a trade-off between peaceful nuclear energy and weapons program. States and their neighbors agree not to pursue nuclear weapons and so they should have equal security.”576 Greg Jones argues, “The deal didn’t damage things as much as I saw but it certainly didn’t help the things either.”577 Ashley Tellis claims, “I don’t think there have been implications of the kind that people feared. People were thinking that this deal would somehow undermine the regime in its fundamental form and that it would lead to a breakup at the parties. I think all those fears have been proved baseless.”578 Similarly, Mark Hibbs claims, “India deal has not really had any serious practical implications for the regime.”579

Vikram Sigh argues,

The fundamental question at time was the death of the NPT. For the nonproliferation community it was seen as profound threat to crack one thing that is keeping us safe from unbridled proliferation and the idea that states that either violate or choose to remain outside the NPT are not going to be accepted as nuclear powers. I don’t think it proved to be in any way destructive to the nonproliferation regime, which is another interesting fact. So the worst fear didn’t come true. It wasn’t a cascade for other countries seeking or getting exceptions. There wasn’t a ripple effect to countries defecting from the regime.580

The India-U.S. nuclear deal has limited impact on the full-scope safeguards norm. The United States had consultations with important NNWSs to build consensus before taking this

575 Interview with Christine Fair on March 18, 2016. 576 Interview with Toby Dalton on June 16, 2015. 577 Interview with Greg Jones on June 17, 2015. 578 Interview with Ashley Tellis on July 21, 2015. 579 Interview with Mark Hibbs on July 1, 2015. 580 Interview with Vikram Singh on July 15, 2015. 170

initiative. These developing countries also have good relations with India and did not protest as hard as the non-proliferation community was expecting. The NPT NNWSs are not withdrawing from the treaty due to this deal, but it has fed their narrative that the regime is discriminatory and this deal is another example of discrimination.

The Additional Protocol The condition of the AP shows that the United States attaches great importance to strengthening IAEA safeguards, as the Protocol expands the obligations of signatory states to provide complete information about their nuclear activities and allows the IAEA inspectors greater physical access to nuclear locations. The IAEA approved an AP for India’s safeguards agreement on March 3, 2009. The Indian AP is different from the Model Protocol in various aspects. It does not include the short notice inspections, environmental sampling, and verification of nuclear imports which are parts of the APs of NNWSs.581 For states with comprehensive safeguards agreements, the additional protocol negotiated with the IAEA creates additional reporting obligations and extends the IAEA’s right of access to related research activities, or plants where it manufactures equipment for its nuclear-related sites. However, India negotiated a much more limited additional protocol: the reporting and access provisions of India’s additional protocol are selectively restricted to India’s export activities. Consequently, India’s safeguards agreement and its additional protocol do not have any practical application to its uranium and thorium mines, heavy water production facilities and nuclear fuel-cycle facilities. The India AP is also less onerous than the APs of the five NWSs. The APs of these states are limited to information regarding nuclear exports, free communications, and multiple visas for IAEA inspectors but contain the reporting obligation about physical locations. The Indian AP only requires additional information regarding nuclear exports, free communications, and multiple visas for IAEA inspectors. India is likely to emerge as an exporter of nuclear material and technology and the AP obliges India to provide information about its nuclear exports. The deal has had a positive impact on the AP norm because it demonstrates that the United States values this norm and is committed to make this measure universal.

581 Peter Crail, “IAEA Approves India Additional Protocol”, Arms Control Today, Vol. 41, No. 4, 2009. 171

Bilateral Agreements and Tracking Provisions A number of major suppliers – Australian, Canada, Japan, the United States, and the European Union – apply accounting and tracking requirements for the supply of nuclear material so that material and items subject to the agreement can be identified for purposes of peaceful uses assurances. India has refused to allow suppliers to track nuclear material, maintaining that IAEA safeguards are sufficient. The IAEA, however, does not distinguish between materials of different origin. Without tracking, material covered by particular agreements cannot be readily identified, making it impossible to know if bilateral conditions are being met. A U.S. State Department official argues that the United States had difficulty regarding tracking due to the Indian government’s concerns about providing us accounting sheets. He claims: We had that problem with India for a number of years. We were stuck about 3-4 years on that. Eventually, we came around to a better understanding with the Indians: They provide some information to the IAEA and the IAEA would provide that information to us. We get the level of information that we need in order to meet the requirements. It’s a little indirect.582

In the non-proliferation interest, uranium exporters’ nuclear cooperation agreements are designed to ensure that exported uranium is not enriched to weapons-grade without consent, is not re-transferred to third parties without consent, and is not reprocessed to separate plutonium without consent. India has weakened the information-sharing provisions in such arrangements negotiated with Canada and Australia and insisted that IAEA safeguards are sufficient for such assurances.583 IAEA safeguards, which may apply to foreign-sourced uranium in India’s civil nuclear program, do not consider the origin of the uranium subject to safeguards. That is important because some producers whose uranium market shares are on the rise, such as Kazakhstan and some African states, do not scrupulously track the uranium they export. Their uranium safeguards policies put commercial pressure on other supplier states to follow suit in

582 Interview with US State Department Official. 583 Daniel Flitton, “Nuclear deal with India compromised by ‘vague’ details of keeping track of uranium”, The Sydney Morning Herald, October 5, 2014. 172

India.584 This would compromise nuclear cooperation standards for short-term political and commercial gains. Far from assisting India’s integration into the global nuclear community, such compromises will make integration longer and more fraught. Lifting the restrictions on India was intended to bring it into the non-proliferation mainstream. Instead of embracing international nuclear norms, India has shown limited interest in meeting these norms and is instead determined to go its own way. Mark Hibbs criticized India’s approach in resisting the nuclear non-proliferation norms. He claims that India wanted to be treated exceptionally at every level and is resisting making strong non-proliferation commitments in its bilateral agreements. He urges that New Delhi must understand that it has to pay heed to the will of international community, otherwise “this attitude will make India’s admission in the multilateral control regimes difficult.585

Theoretical Implications International norms are contested at the domestic level and internal variables – bureaucratic factors, legislative politics, and mobilization by supporters and opponents – influence that contestation and shape each state’s “win-set”, which is the set of international arrangements that could win domestic approval. The U.S. Congress, influenced by nonproliferation groups, made it clear that it would not accept an Indian separation plan with relatively low non-proliferation provisions. Accordingly, U.S. negotiators worked hard to increase the non-proliferation credentials of the plan and they regularly informed their Indian counterparts about this congressional concern. In India, however, bureaucratic resistance from the nuclear establishment caused it to keep key reactors outside safeguards. In its December 2005 draft plan, New Delhi offered to place just 10 reactors under safeguards, but Washington rejected this position and wanted 16-18 power reactors on the civilian list. New Delhi then offered to safeguard 12 and, by late February, 14 of its power reactors, a number previously considered by the BJP government.586 Washington then accepted this position that placed two-

584 Mark Hibbs, “Tracking India’s Imported Uranium”, The Diplomat, February 6, 2015. 585 Interview with Mark Hibbs on July 1, 2015. 586 “UPA Talked to Me on N-Deal”, The Indian Express, November 5, 2007. 173

thirds of India’s existing reactors under permanent safeguards. Dinshaw Mistry comments, “India’s nuclear separation plan struck a balance between Washington’s position, which was influenced by U.S. domestic lobbies, that India place most of its nuclear facilities under safeguards, and India’s position, influenced by its nuclear scientists, of keeping key facilities away from international inspections.”587 Institutional design plays an important role in norm contestation. The IAEA voting rule requires two-thirds majority for a decision approval. This rule provided some flexibility for the U.S., India, supportive countries and the director general to convince most of the board members. At the end the concerned states did not have majority vote and decided not to block the IAEA from approving by consensus the India safeguards pact. It was relatively easier for the supportive countries to make a greater normative fit to convince the concerned states. Indian acceptance of the IAEA safeguards was argued as a non-proliferation plus as compared to exempting India from the full-scope safeguards at the NSG (discussed in the next chapter). Apart from the normative fit argument, power politics was also a consideration because the concerned countries did not want to block the decision at the expense of their relations with the U.S. and India. The United Sates and other major supportive countries were able to fix the meaning of this norm by presenting this deal as India-specific and this deal is unlikely to set a precedent. The deal is unlikely to have a negative impact for the IAEA full-scope safeguard norm due to variety of reasons: The United States presented the deal as India-specific; the level of resistance to the deal, despite arguably India’s strong non-proliferation credentials, stable democracy and rising economy, rules out the similar deal for other non-NPT states and there was a minimal opposition from NNWSs at the NPT review conferences due to their good relations with India and the United States.

Conclusion New Delhi agreed to item-specific safeguards with some India-specific modifications. India agreed to the IAEA permanent safeguards, but linked these with fuel supplies. At every

587 Dinshaw Mistry, “Diplomacy, Domestic Politics, and the U.S.-India Nuclear Agreement”, Asian Survey, Vol. 46, No. 5, 2006. P. 685. 174

stage India resisted being treated as a NNWS and negotiated India-specific clauses. New Delhi also refused uranium tracking clauses in bilateral agreements with major suppliers like Canada and Australia which are applicable to NNWSs. India wishes to be treated more like the NWSs and opposed NNWS standards in each agreement. Although India’s permanent safeguards agreement has India-specific clauses it is still considered as a non-proliferation gain. The NPT text does not prohibit the sale of nuclear reactors and nuclear material to a country which was not party to the NPT. The only condition was that the imported materials would be subjected to IAEA safeguards (INFCIRC/66). The condition of full-scope safeguard was endorsed in the 1995 NPT extension and review conference after revelations of the Iraqi nuclear weapons programme in 1992. India’s acceptance of item-specific safeguards is aligned with the NPT text. It is a positive step which will strengthen nuclear non-proliferation efforts and is consistent with the non-proliferation objectives of the treaty. The implementation of the AP by NWSs and by India is an important symbolic step in the efforts to make this measure universal. Without the condition of the AP, the IAEA cannot be as effective in combating clandestine nuclear activities. Since the IAEA approved the model for the AP in 1997, it has been proposed to make it a requirement for nuclear trade. The Indian AP is a positive development even if it is less intrusive than those for the NWSs. Some non-proliferation scholars have raised concerns that New Delhi can use the India- specific clauses in its IAEA agreement to increase its nuclear program. This scenario is highly unlikely. India values its international reputation surrounding nuclear weapons – it has reaped dividends from being perceived internationally as a responsible nuclear power. India’s leaders seem unlikely to risk this carefully maintained image by engaging in a rapid nuclear weapons build-up that might alarm the international community, particularly when substantially greater numbers of warheads are not viewed in India as strategically necessary or even beneficial. In light of these attitudes, it seems doubtful that New Delhi would feel the need to manufacture large numbers of weapons manipulating India-specific clauses. Some IAEA board members raised concerns about the linkage of India’s permanent safeguards with fuel supplies and “corrective measures”, but did not block the IAEA from approving by consensus the India safeguards pact. They took this approach because they did not have a majority vote; their ties with the U.S. and India would be set back if they pressed for a

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vote; and they had another, better, opportunity to address non-proliferation concerns by raising these at the NSG.

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Chapter Seven: The NSG India-specific Waiver

On September 6, 2008, the NSG agreed on an India-specific exemption to its nuclear export guidelines after complex negotiations. The exception, initiated by the Bush Administration and strongly backed by France, Russia, and the UK, was a remarkable development in the non-proliferation regime, reversing the NSG policy requiring full-scope safeguards as a condition of export which was adopted in 1992. India is now the only country with nuclear weapons which is allowed to engage in nuclear trade with the rest of the world, enjoying the benefits of nuclear trade reserved for NPT states without being required to sign the treaty. Many countries, such as New Zealand, Austria, Switzerland, the Netherlands and Norway, criticized the exemption as lacking any conditions and proposed amendments to its various drafts in view of their non-proliferation concerns. Their proposed amendments included clauses concerning a ban on the transfer of enrichment and reprocessing technologies (ENR) to India, termination of the waiver if India detonated a nuclear weapon, and a “review” mechanism to assess India’s compliance with non-proliferation commitments. India’s insistence on a “clean and unconditional” waiver made negotiations complicated, and the United States had to redraft the proposal draft three times in order to meet the some of the objections and reservations. The U.S. officials made it clear that several European countries wanted to include conditions and restrictions in the proposal, but that the U.S. fully respected and supported India’s demand for an unconditional exemption from the NSG’s restrictive export guidelines. India insisted on a “clean and unconditional waiver” due to tough opposition at the domestic level. India made it clear, that according to its reading of commitments in the 2005 agreement, the United States was responsible for delivering a “clean and unconditional exemption” from the export guidelines of the NSG. India is now lobbying to get NSG membership, which requires NPT membership as one eligibility criterion. If successful, it means that India would get an exemption from this NSG entry criterion. The waiver negotiation history shows that India will again face stiff resistance and demands for greater non-proliferation conditions, but one can also assume that India will work hard to avoid any such conditions due to opposition at the domestic level. Like the waiver, India and the United States will have to invest significant diplomatic energy to get the required consensus for NSG membership. India is already abiding by the NSG Guidelines without being a

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member, and the gain of Indian adherence to the guidelines can be kept without adding India to the NSG and compromising the eligibility criterion. This chapter contains the analytical narrative of the negotiations for the waiver and for the membership bid. It is divided into three sections. The first section analyses the four drafts of the waiver. It emphasizes the non-proliferation demands that India faced during the waiver negotiations and how changes occurred in the draft. The second section highlights India’s bid for a NSG membership and focuses on the likely path for India’s membership. What do the waiver negotiations tell us in this regard and what factors can play an important role? The third section offers a conclusion.

The NSG India-specific Waiver

Historical Support for India With India’s economic rise in the late 1990’s there was support among a few NSG members to revise the guidelines in order to have nuclear energy trade with India. In 1998, Russia supplied two reactors to India in violation of NSG guidelines.588 This issue was raised again in 2001 when Russia supplied low-enriched uranium fuel to India’s nuclear power station at Tarapur.589 The NSG meeting in December 2001 expressed strong concerns and regarded it as “inconsistent with Russia’s commitment.”590 Russia justified the supply on the grounds of the safety exemption, which allows supply “only in exceptional cases when they are deemed essential for the safe operation of existing facilities.” The NSG interpretation of this clause is to transfer controlled items “only when deemed to be essential in order to prevent or correct a radiological hazard posing a significant danger to public health and safety and which cannot realistically met with any other means.”591 According to this interpretation Russian supplies could not be justified under the safety exemption clause because there was no “radiological

588 Mark Hibbs, “Russia-India: West May Pressure IMF on Russian reactor Sale”, Global Beat Nuclear Watch, June 26, 1998. 589 Mark Hibbs, “NSG Objects Again After Russia Says LEU Exports to India Proceeding”, Nuclear Fuel, February 5, 2001. 590 Philip T. Reeker, “Russian Shipment of Low Enrichment Fuel to India.” US Department of State, February 16, 2001. 591 Carlton E. Thorne, “A Guide to Nuclear Export Controls”, Proliferation Data Services, 2001. pp. 1-3. 178

hazard”. When the NSG rejected the Russian argument, Russian Minister for Atomic Energy Eugeny Adamov threatened a Russian withdrawal from the NSG if its nuclear trade was hindered.592 France and Russia wanted a review of NSG guidelines, which prohibit nuclear cooperation with any country that has not accepted full-scope safeguards, to increase nuclear energy cooperation with India. Russia wanted the NSG members to “take into account the new realities” and argued that the NSG guidelines should not be an “obstacle” in civilian nuclear cooperation with India.593 For the NSG India-specific waiver, Washington drew upon these supportive countries to convince other NSG members. It looked to the UK and France to make the case to EU countries, South Africa and Brazil to persuade the non-aligned countries, and Russia to persuade China and other countries. The U.S. treated them as partners in this initiative. However, despite the support of these countries it was not easy for Washington to convince other members.

(a) First Draft (March 2006)

The initial proposed draft was circulated by the United States in early March 2006 for potential discussion during a Consultative Group meeting on March 22-23 in Vienna.594 This body meets in between the group's annual plenary meetings and takes up issues related to the guidelines. In a general discussion of the U.S.-India nuclear cooperation deal, France, Russia, and the United Kingdom spoke in support of the proposal while several countries raised questions in view of their non-proliferation concerns.595 The non-proliferation community criticized the draft’s particularly vague and weak language in paragraph four, in which individual members would decide whether India was

592 Vladimir Radyuhin, “India, Russia Nuclear Cooperation will Continue”, The Hindu, December 17, 2000. 593 "India: France, Russia Want Cooperation in 'Peaceful Uses' of Nuclear Energy," World News Connection, June 1, 2003. 594 The Consultative Group is the NSG’s “standing intersessional working body.” See http://www.nuclearsuppliersgroup.org/activities.htm. (Accessed May 29, 17) 595 Daryl Kimbal, "U.S. Proposal for Changes to Nuclear Suppliers Group Guidelines Circulated March 2006", Arms Control Association, March 27, 2006. 179

meeting its non-proliferation commitments instead of having a broad-based appraisal.596 India, on the other hand, was not happy with the prescriptive clause in paragraph five which reiterated language from paragraph 4(d) of the NSG guidelines. That language stated that NSG members would “continue to strive for the earliest possible implementation” of full-scope safeguards. This was tantamount to implying that the NSG expected India to accede to the Treaty on the NPT as an NNWS, something the Indian government had always resisted. The United States wanted to keep this full-scope safeguards language in the draft as it attaches a great importance to this nearly universal norm. The American insistence on retaining prescriptive language about India’s eventual acceptance of full-scope safeguards, and Indian resistance, emerged as a stumbling block. In India, the Left Front, whose support was crucial for the ruling United Progressive Alliance (UPA) majority in the Indian parliament, withdrew that support over the nuclear deal. On July 22, 2008 the UPA faced a confidence vote on the nuclear deal in parliament and won 275-256.597 The ten BJP members abstained from the vote in order to record a 19-vote victory. The BJP accused the government of offering them huge amounts of money in exchange for abstaining from the confidence vote.598 The Hindu quoted an Indian official as saying, “If anything, the fierce debate and the trust vote that the Manmohan Singh government has just won demonstrate that the Prime Minister has absolutely no wiggle room, if the NSG imposes conditions, India will reserve the right to walk away.”599 The draft language was moved back and forth at multiple levels between the two countries and eventually both countries agreed on a second draft that was “clean and unconditional” in that it did not contain any conditions other than those described in the 2005 agreement. The U.S. presented this draft at the 21-22 August 2008 NSG Plenary meeting for discussion and approval.

596 Copy of the draft is available at http://www.armscontrol.org/projects/india/20060327_DraftNSGProposal (Accessed May 29, 17) 597 “Indian Government Survives Vote”, BBC News, July 22, 2008. 598 Somini Sengupta, “Indian Government Survives Confidence Vote”, The New York Times, July 23, 2008. 599 Siddharth Varadarajan, “India Bracing itself for American Draft”, The Hindu, July 26, 2008. 180

(b) Second Draft (August 13, 2008) The second draft did not contain any additional restrictions on India and it certainly can be described as “clean and unconditional”. There were no extraneous demands that India needed to meet in order to get an exemption from the NSG guidelines.600 The NSG waiver was still conditional on India abiding by its commitments, but not in a way that called for immediate termination. However, the termination of the waiver was linked with consultation in case India violated its nonproliferation commitments – which requires a consensus decision. The revised draft no longer contains the paragraph calling on NSG members to strive for the earliest possible implementation of full-scope IAEA safeguards. This draft explicitly allows the transfer of dual use items, regulated by Part 2 of NSG guidelines, to India. In the 21-22 August NSG meeting, the draft moved by the U.S. was rejected by most members due to a lack of conditions. Media reports quoted unnamed diplomats commenting on the draft. One diplomat said about the proposed draft that “there are no conditions. Obviously what is missing is that (the waiver) is void if there is another atomic test.” Another said

I think a majority of countries feel that the current draft is very weak and there is no conditionality at all – I don’t really think that the U.S. expect that they are able to pass this draft.601

It was also reported that NSG members were divided into three groups according to their national policies towards the waiver. The first group of countries, which strongly supported the exemption, consisted of France, Russia, and the United Kingdom. The second group was “like- minded” countries like Austria, New Zealand, the Netherlands, Norway, Ireland, Sweden, and Switzerland, which wanted to include some conditions in the draft. The third group of countries, which came out in favor of the exemption but were not enthusiastic, included Germany, Japan, Canada, and Australia.602 The first group of countries, motivated by commercial interests, strongly supported the waiver. The end of the ban on nuclear trade would open the Indian market for big vendors like

600 The copy of the draft is available at http://www.armscontrol.org/node/3274 (Accessed May 29, 17) 601 Boris Groendahl, “U.S. Proposes India Nuclear Waiver approval in Doubt”, Reuters, August 14, 2008. 602 Siddharth Varadarajan, “NSG critics focus on non-proliferation benchmarks”, The Hindu, August 22, 2008. 181

Russia, France, and the U.K., which wanted their share in the nuclear trade along with the United States. The third group supported the waiver in large part to prevent India from refusing to favour their firms in getting Indian nuclear contracts. The second group of countries, small states with a strong nuclear non-proliferation stance, opposed the waiver as it stood and proposed conditions that would, they believed, make it a net gain for the non-proliferation regime. Austria led the opposition, refusing to accept the proposal on non-proliferation grounds and made it clear that it could not alienate its Green Party by changing its non-proliferation policy near its parliamentary elections. On August 21, 2008 Ulrike Lunachek, a prominent Green Party Leader, protested outside the NSG meeting and criticized the government for not taking a tough stance against the exemption.603 Interestingly, the austriantimes quoted an unnamed nuclear expert on 11 August 2008 as saying, “Austria will continue to grumble till the eleventh hour but is not likely to dissent on the day, Austria will never block the NSG alone, Austria is close to the U.S. these days.”604 Three countries – New Zealand, Austria, and Switzerland – raised questions during a special briefing by India on the sidelines of the NSG meeting as to why the exemption should be made when India had not signed the NPT and the CTBT.605 Ireland, which played an initiating role in the development of the NPT and was the first country to sign the treaty, had a strong and deep commitment to the treaty, and was the obvious critic of the waiver. The Irish spokeswoman said in a press conference, Consistently over the past three years since the Indo-U.S. deal was first mooted Ireland has been to the fore in raising questions and expressing serious concerns particularly about its effects on the international nonproliferation regime.606 A Swiss foreign ministry spokesman also said “An exemption for India would have severe consequences for the nonproliferation system.”607

603 Siddharth Varadarajan, “Finding a Fix to the NSG’s Code of Omerta”, The Hindu, August 23, 2008. 604 John Morris, “Austria to keep quiet over Indian nuclear ambitions”, austriantimes (Austria), August 11, 2008. 605 Siddharth Varadarajan, “Tighten Draft Waiver for India”, The Hindu, August 16, 2008. 606 Mary Fitzgerald, “Ireland Cautious on Nuclear Trade Deal for India”, The Irish Times, August 22, 2008. 607 Mark Heinrich, “Nuclear Suppliers meet on U.S.-India Trade Deal”, Reuters, August 21, 2008. 182

NSG member states, especially the “like-minded states”, proposed amendments on each paragraph of the draft. These suggestions mostly revolved around fears that India was getting the waiver on the basis of “voluntary” non-proliferation commitments, and the NSG would not be able to do anything if it reneged on its commitments. About the proposed amendments, a European diplomat said “I think the whole thing will be reformulated, but in a positive way.”608 The proposed amendments included the following ideas: First, eventual accession to full-scope safeguards was one of the ideas that were debated in the NSG meeting. Reports quoted an unnamed diplomat as saying

There was a reference in the earlier U.S. draft to the desirability of India eventually accepting the NPT and its safeguards that was more positive than what we have now. So, I think America will have to come back to us with a new draft before any decision is possible.609

Some member states insisted on a clause that would restate the desire of the Group for universal membership in the NPT. The reports quoted diplomats who could not understand the Indian objection to such a clause, which would only repeat the belief of the group in encouraging all countries to accede to the NPT. One diplomat said, “India is not a member of the NSG so any such statement of principle by us would clearly not be binding on them,” but at the same time the diplomat acknowledged that the group was “aware of the sensitivity the issue had already raised in India following an earlier American attempt to incorporate this notion in the draft waiver.” One of the NSG officials also added, “I think this is one issue the NSG is likely to back away from if the U.S. comes back in September and says India will simply not agree to this.”610 Second, on India’s nuclear testing moratorium, most of the member states emphasized a legally-binding testing moratorium. Although India committed itself to continue its unilateral moratorium on nuclear testing, it was suggested to provide some legally-binding assurances such as signing the CTBT (Comprehensive Test Ban Treaty). A diplomat is quoted as saying, “when every single member country of the NSG has signed the CTBT, why should India get a free

608 Siddharth Varadarajan, “India says NSG clearance is U.S. responsibility”, The Hindu, August 23, 2008. 609 Ibid. 610 Siddhart Varadarajan, "Conditions mooted for Indian Nuclear Waiver", The Hindu, August 23, 2008. 183

pass.”611 Another diplomat also said, “Nobody seriously expected India to sign the CTBT as a precondition for the waiver. What needs to be looked at is how to deal with the new situation which would be created were India to test again.”612 Some countries suggested conditioning the waiver on India’s signing the CTBT and others recommended that there should be some mechanism to deal with the situation if India tested a nuclear weapon and was not willing to sign the treaty. Some members called for automatic termination of the waiver in case of an Indian test, while others wanted to leave this to the individual member countries. It is important to note here that only U.S. domestic laws provide for immediate termination of the nuclear trade in case of a nuclear test. Third, due to uncertainty about India’s compliance with non-proliferation commitments, it was also suggested to incorporate a “review” provision in the proposed waiver draft. A report quoted one diplomat as saying “Some countries are suggesting having some kind of monitoring mechanism to assess the extent to which India is abiding by its nonproliferation commitments.” He also added that some countries suggested that individual members make their own national assessments, rather than having the group to assess India’s compliance.613 Fourth, the question of enrichment and reprocessing (ENR) technology was also a contentious one. Some member states wanted to include a provision denying the transfer of ENR technology.614 The final draft of the waiver did not deny the transfer of ENR technology. In 2011 the NSG agreed on new guidelines which require NPT membership, India vehemently criticized the decision that this is against the “clean waiver”. The NSG has made it clear that the waiver exempted India from the requirement of FSS safeguards but not NSG policies on ENR transfer.615

611 Praful Bidwai, “Nuclear Deal headed for fiasco”, Inter Press Services (IPS), August 28, 2008. 612 Ibid. 613 Ibid. 614 The NSG has been debating tightening its guidelines in order to prevent the transfer of ENR technologies but failed to reach consensus. In 2011, the NSG has instituted a rule that would deny enrichment and reprocessing technologies to states if they have not signed the NPT. 615 “The NSG in a time of change: An interview with NSG Chairman Piet de Klerk”, Arms Control Today, October 2011. 184

In this meeting, the “like-minded” countries also issued a joint statement. It said that they were “strong supporters and defenders of the Nuclear Non-Proliferation Treaty (NPT), one of the most universal Treaties in the world today, and the most successful arms-control instrument the world has known” and that their amendments were “based on concepts already enshrined in UN Security Council Resolutions, in domestic legislation of NSG Participating Governments and in bilateral nuclear supply agreements which NSG Participating Governments have concluded over the years.”616 In this statement, one UN Security Council Resolution alluded to is UNSCR 1172, which calls on India and Pakistan to give up their nuclear weapons programs.617 The reference to the domestic legislation of the NSG Participating Governments pointed to the Hyde Act which compels the U.S. government to terminate the nuclear trade immediately in the case of a nuclear test, a matter that was left unaddressed in the U.S.-India bilateral agreement.

(c) Third Draft (September 3, 2008) The United States and India agreed on an amended draft on August 29, 2008, after hectic negotiations.618 When the draft was presented in the NSG Plenary meeting on 4 September, media reports indicated that the “like-minded” countries were not satisfied with the changes: a great diplomatic effort was still required to get the outcome desired for the U.S. and India. One diplomat said It is clear that the package which is before us (NSG) still needs some work to achieve the outcome which can be the net gain to the quality of international security architecture. A number of measures have to be added to the current package before it can be considered to be a net gain for the world.

At this point, the “like-minded” states did not insist on the inclusion of a prescriptive clause regarding the eventual accession of India to the NPT, but they still wanted to include the explicit clauses on nuclear tests and a “review” mechanism.

616 Siddharth Varadarajan, “NSG Statement by the ‘Gang of Six’”, The Hindu, August 26, 2008. 617 UN Security Council Resolution 1172, India/Pakistan, June 6, 1998. Available at http://www.un.org/Docs/scres/1998/scres98.htm (Accessed May 29, 17) 618 Copy of the draft is available at http://www.armscontrol.org/node/3331 (Accessed May 29, 17) 185

On nuclear testing, Ireland, Austria, and New Zealand insisted on including automatic termination of the waiver in the event of India’s violation of any of its non-proliferation commitments. France and Russia resisted due to their fears that it would jeopardize their investment in the Indian market. Automatic termination of the waiver remained a stumbling block, but one diplomat was quoted as saying it “has been our absolute bottom line from the beginning and there is no question of it being dropped.” Another diplomat added, “The problem here is that the NSG works only on the basis of consensus. So if India did another test the follow- up meeting could be reduced to a talk shop by any member like America.” 619 Supporters of the waiver pressed for it in its presented form, but a diplomat commented, “the main battle has to be waged by your (India’s) principal partner, the U.S.”620 There was also a growing realization that it was no longer possible to extract more non-proliferation commitments from India. A diplomat from a former Soviet Bloc state said “Everyone knows what India cannot accept so it is pointless to try and reach a consensus that India cannot support.” “It certainly seems like nobody really wants to be seen as blocking the consensus this time,” another added. 621 A compromise formula was also suggested, in which the concerns of the “like-minded” states would be reflected in a chairman’s statement, but the “like-minded” states were not pleased with this formula. A diplomat told the media, “There was a version of a chairman’s statement that was circulating when it was pulled at the request of the Government of India. But from our point of view, this is not a runner. We want an unambiguous, clear waiver in one text.”622 The first sign of improvement in this stalemate was the release of a formal statement (on the suggestion of Germany) by Indian External Affairs Minister Pranab Mukherjee reiterating India’s non-proliferation commitments, including the unilateral moratorium on nuclear testing, not engaging in an arms race, no-first-use of nuclear weapons, and not being a source of

619 Mark Heinrich, “Nuclear Nations approve disputed India trade waiver”, Reuters, September 6, 2008. 620 Siddharth Varadarajan, “NSG meets again amidst rumblings of uncertainty”, The Hindu, September 4, 2008. 621 Ibid. 622 Ibid. 186

proliferation of sensitive technologies.623 The release of a formal statement was a positive step, but the “like-minded” states remained unimpressed. One diplomat from the “like-minded” states told the media, “We welcome it but it is not enough to resolve the outstanding difficulties with the main text [of the waiver]. Voluntary declarations do not have the same value as agreed NSG text.”624 The “like-minded” states continued to focus on the automatic termination, and India resisted this killer amendment, arguing that it had no option but to walk away if this clause was incorporated in the draft. This was the time “when the Norwegians, Dutch and others suggested making a reference to the Indian statement in the chapeau of paragraph 3.”625 Eventually India agreed to the suggestion and the reference of the statement was incorporated in the revised draft.

(d) Final Draft (September 6, 2008) As the “like-minded” states insisted on strong conditions linking the waiver and the Indian non-proliferation commitments, the U.S. and India had to introduce further changes in the draft. The final draft contained the minor changes but still lacked substantial changes.626 The changes from First to Final Draft indicate that the United States was trying to accommodate the non-proliferation concerns but still not cross Indian red-lines. The first paragraph shifted the focus to the energy needs of India, integrity of the non-proliferation regime, safeguards, and export controls as the objective of the waiver. In the second paragraph, India’s non-proliferation commitments were described and these replaced the “perpetuity” of safeguards with the reference to GOV/1621 and sharpened the language a bit more regarding India’s non-proliferation commitments. The third paragraph made a direct link between the waiver and India’s commitments and also brought in the reference to India’s formal statement on 5 September 2008. In case of an Indian violation, such as a nuclear test, the member states would meet to decide on the termination of the waiver but it would require a consensus. The fourth

623 Statement by External Affairs Minister of India Shri Pranab Mukherjee on the Civil Nuclear Initiative. Available at http://www.mea.gov.in/mystart.php?id=290014162 (Accessed May 29, 17) 624 Siddharth Varadarajan, “Last-ditch talks on to avert NSG dead-end”, The Hindu, September 05, 2008. 625 Siddharth Varadarajan, “Thirty words that saved the day”, The Hindu, September 09, 2008. 626 Copy of the draft is available at http://www.armscontrol.org/node/3345 (Accessed May 29, 17) 187

paragraph requested the NSG chair to consult India regarding NSG Guidelines implementation by India. The final draft can be seen as the desired “clean and unconditional” waiver as it does not place any conditions on India. India’s inflexibility regarding any conditions and its threat to withdraw from the agreement kept the negotiations on a hard track. The “like-minded” states reluctantly approved the draft, and the NSG unanimously approved the India-specific exemption. This waiver lifted the rule of full-scope safeguards for India after 16 years. Proponents called it a net gain for the non-proliferation regime while opponents described it as a “nonproliferation disaster.”627 Reports quoted one diplomat as saying, “For the first time in my experience of international diplomatic negotiations, a consensus decision was followed by complete silence in the room. No clapping, nothing. It showed a lot of us felt pressured to some extent into a decision by the Americans and few were totally satisfied.”628 “NPT RIP (Rest In Peace)”, another diplomat added. 629 The outcome is surprising, as the “like-minded” states wanted to link the waiver to strong non-proliferation conditions and the Mukherjee statement offered nothing new, only a reiteration of the voluntary commitments that had already been stated in the draft. Three factors played a pivotal role in this regard. First, media reports quoted several diplomats and U.S. officials who stated that the “like- minded” states eventually agreed to the waiver after two informal assurances. These were that no member state had a policy to transfer sensitive nuclear technology to India and that the member states would have nuclear trade with India after taking into account its compliance with its non- proliferation commitments. The Washington Post quoted a senior U.S. official as saying, “In the discussion about how to handle enrichment and reprocessing, it was made clear that nobody had any plans to transfer such technologies to India in the foreseeable future.”630 These two assurances were meant to address the concerns of the member states regarding the “ban on

627 Daryl Kimball, “Text, Analysis, and Response to NSG Statement on Civil Nuclear Cooperation with India”, Arms Control Association, September 06, 2008. available at http://www.armscontrol.org/node/3345 (Accessed May 29, 17) 628 J. Sri Raman, “How India’s Nuclear ‘Waiver’ was Won”, Truthout, September 09, 2008. 629 Mark Heinrich, “Nuclear Nations approve disputed India trade waiver”, Reuters, September 06, 2008. 630 Glenn Kessler, “World Nuclear Trade Group Agrees to Restrict”, The Washington Post, September 12, 2008. 188

sensitive technology” and the “review” mechanism to assess India’s compliance with its non- proliferation commitments in an informal way. Second, The Hindu wrote about a conversation with a diplomat in these words, “The diplomat added that his government and many others, had reiterated these assurances in their national statements before adoption of the waiver decision. Though there was no separate chairman’s statement elaborating these assurances, the diplomat said the national statements now formed part of the NSG’s internal records and could always be referred to in the future.”631 Austria, New Zealand, Ireland, Norway, Switzerland, Japan, Germany, and China made their national statements and expressed their concerns and expectations regarding the draft. A common perception was to terminate trade if India resumes nuclear testing.632 Why did states such as China and Brazil not oppose the waiver? China did not oppose the waiver despite the fact that Washington’s strengthened relations with India are seen as part of a grand strategy to contain China. It was in this context that the Chinese Ambassador to India, Sun Yuxi, warned, “we have nothing against India’s growing ties with the U.S., but Indo-US ties should not be directed against a third country.”633 Ashley Tellis argues, “there was a fear that China would oppose India in the NSG on the ground that this was a bad precedent to set for the nonproliferation regime.”634 Michael Krepon reasons, “The important states here were the P5 and four of the P5 were strongly in favor [of the waiver], mostly on self interested grounds. One of the P5 was not in favor but did not wish to be the sole blocker – China.”635 Beijing was aware that its objection to the waiver would jeopardize its relations with the United States and India. China still needed Washington and New Delhi’s cooperation in other international forums to facilitate its own economic growth. Brazil, a major developing country, views the global nuclear order as unfair and frequently uses the example of the India-U.S. nuclear deal as the example of what is wrong with

631 Siddharth Varadarajan, “NSG Waiver Enables Member States to Provide India Full Civil Nuclear Cooperation”, The Hindu, September 7, 2008. 632 Daryl Kimball, “Text, Analysis, and Response to NSG Statement on Civil Nuclear Cooperation with India”, Arms Control Association, September 6, 2008. 633 Scott Baldauf, “First the US, Now China Tries to Woo India”, The Christian Science Monitor, April 8, 2005. 634 Interview with Ashley Tellis on July 21, 2015. 635 Interview with Michael Krepon on June 18, 2015. 189

the nuclear order. Critically Brazil supported the NSG waiver and did not criticize India, a fellow developing country for having unobstructed access to nuclear technology and perceives that India was triumphant over technology denial in the nuclear regime. India is also a potential market and Brazil wants to play a prominent role in global nuclear commerce.636 Togzhan Kassenova argues, There is a tension in the Brazil policy towards India: On one hand, there is a strong emphasis on norms and how the US-India deal would undermine those norms in the field of nonproliferation and disarmament. On the other hand, the regional and national interests of Brazil dictate a softer approach towards India because India and Brazil are very close partners within BRIC. This is an interesting case of how national interests of countries collide with normative approaches.637

Intense American diplomacy, along with efforts by France, Russia, and Britain also played an important role in reaching the consensus. The Bush Administration was keen to get approval as it had only weeks to get the Congressional approval of the U.S.-India agreement before the U.S. November election in order to get the credit for this initiative. Nucleonics Week quoted a diplomat from a uranium exporting country as saying, “in the end, most of the true nuclear suppliers in NSG are going to support the exemption request with few changes.” It was also added that France and Britain urged the “EU as a whole to support the US initiative on India.”638 Nicholas Burns argues, “The Indians were able to convince the NSG that they are a responsible nuclear state. They have not proliferated to third country and certainly there was no behavior that was similar to A. Q. khan network Pakistan. India presented itself as a reliable country.”639Reports quoted many diplomats as saying, “intense U.S. pressure for the waiver involved oversight phone calls to Presidents and Prime Ministers of holdout countries.”640 The

636 Togzhan Kassenova, “Brazil’s Nuclear Kaleidoscope: An Evolving Identity”, Carnegie Endowment for international peace, 2014, p. 58. 637 Interview with Togzhan Kassenova on July 2, 2015. 638 Mark Hibbs, “US pressing for NSG exemption for India by end of this week”, Nucleonics Week, Vol. 49, No. 34, August 21, 2008. 639 Interview with Nicholas Burns on June 22, 2015. 640 Mark Heinrich, “Nuclear Nations approve disputed India trade waiver”, Reuters, September 6, 2008. 190

U.S. administration officials are quoted as saying, “Rice made at-least two dozen calls to lean on allies to allow for the India-Specific waiver.”641

Anish Goel recalls the strategy of the U.S. negotiations:

There was a lot of opposition in the beginning. One of our chief negotiators Richard Stratford was brilliant. He was working on the nonproliferation issues since the NPT was signed. He has been negotiating bilateral agreements for 25 years. He was able to point out that the waiver is not inconsistent with the NPT as states have been selling nuclear material to India before the NPT and NSG adopted full- scope safeguards. This argument helped in getting lot of these countries to turn around. Out of 44 countries when we started we had may be five on our side. He got at least 25 more to our side, just from regular briefings. In the end, there were about ten countries that were still very abstinent: we call them nonproliferation ayatollahs. We swayed them on the strength of our bilateral relationship with each country. The very high level of US government got involved and made clear to these other countries that if you do not support this agreement it will have ramifications for our bilateral relationship. Some call it bullying or arms twisting. Whatever you call it, it took place at a very high level that finally get the rest of the countries on board. They wanted to stand up for the nonproliferation ideals but they weren’t willing to risk their relations with the United States.642

Mark Hibbs criticized that the United States put pressure on other countries to change the NSG way of operation in favor of the strategic political decision. “Clearly the NSG has a mission and purpose, and its purpose is not to be an instrument of US strategic policy. It is there to serve as a export control mechanism and that impediment for any consideration of strategic goals of individual members.” When it was all over there was certain amount of frustration and resentment among a number of countries.643 Similarly, Sharon Squassoni points out, “There were a lot of countries that didn’t appreciate being strong-armed into a decision that they would not normally have taken.”644

641 Somini Sengupta and Mark Mazzetti, “Nuclear Suppliers Group ends ban on trade”, The New York Time, September 7, 2008. 642 Interview with Anish Goel on June 30, 2015. 643 Interview with Mark Hibbs on July 1, 2015. 644 Interview with Sharon Squassoni on June 26, 2015. 191

While the India-specific waiver was successful, it had some immediate consequences as a precedent for other states to follow. For example, after the India-U.S. nuclear deal, China signed a nuclear agreement with Pakistan in which China committed to provide two nuclear reactors to Pakistan at Chashma. The United States announced that this deal was a violation of NSG guidelines. China justified the agreement by noting a "grandfather" provision in its initial reactor supply agreement with Pakistan, but the U.S. argued that in 2004, when China joined the NSG, no such commitment was reported.645 After the India waiver, the NSG did not condemn the Chinese deal with Pakistan. The lack of generality in the India NSG waiver has encouraged China and Pakistan to seek a deal outside the NSG, but this approach has limitations and cannot be sought on a regular basis.

India’s bid for NSG membership India is likely to be an exporter of nuclear technologies such as reactors, including fast breeder and thorium-based reactors, and it is in the interest of the NSG to have all possible nuclear exporter countries in the group. Dr. S. Banerjee, chairman of the Indian Atomic Energy Commission, in his remakes at the 54th session of the General Conference of the IAEA mentioned that the Nuclear Power Corporation of India Limited (NPCIL) is ready to export 220MWe and 540MWe capacity PHWRs.646 U.S. President Obama announced his support for India's membership in the NSG during his official visit to India in November 2010.647 On November 8, 2010, in the India-U.S. joint statement, the United Stated supported India’s full membership in the four multilateral export control regimes (Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group, and Wassenaar Arrangement) in a phased manner. India, on its part, committed to harmonize its export controls with those of the four multilateral export control regimes.648 India has updated its atomic transfer control list to the

645 Daniel Hornes, “Prospects of Nuclear Deal with Israel Dismissed”, Arms Control Today, Vol. 40, September, 2010. 646 Statement by S. Banerji at the 54th General Conference, Vienna, September 22, 2010. Available at www.dae.gov.in/ (Accessed May 29, 17) 647 "US to support India's full membership in NSG", The Times of India, November 6, 2010. 648 India-US Joint Statement on November 8, 2010 available at http://www.whitehouse.gov/the-press-office/2010/11/08/joint-statement-president-obama-and-prime- minister-singh-india (Accessed May 29, 17) 192

standards of the NSG export control regimes649 and argues that in the November Joint Statement there was no non-proliferation condition and for the NSG membership India already fulfills the criteria. Nirupama Rao, Indian Ambassador to the United States, also expressed the same views about India’s eligibility and termed the membership as “a matter of time.”650 It is important to note that the NSG waiver already commits India to harmonize its export controls to the NSG guidelines.651 India joined the MTCR on June 27, 2016 and is now focusing on a NSG membership. France,652 Germany,653 Russia,654 Australia,655 and the United Kingdom656 have also announced support for India's NSG membership. For India’s membership, the NSG again has to exempt India from its NPT condition. In 2011, the U.S. drafted the “food for thought” paper for possible discussion and offered two options for bringing India into the group. The first was to revise the admission criteria in a way “that would accurately describe India’s situation.” The second was to recognize that “factors to be considered” are not “mandatory” and a state can be admitted without meeting all the factors by a consensus decision.657 The United States is in the favor of this second option.658 This U.S. strategy helps preserve, implicitly, the sui generis status

649 “India Tightens Atomic Transfer Controls”, Global Security Newswire, March 14, 2013. 650 Nirupama Rao, Indian Ambassador to the United States, comments at 2013 Carnegie International Nuclear Policy Conference. April 8-9, 2013 available at http://carnegieendowment.org/2013/04/09/is- there-emerging-power-agenda/fx28 (Accessed May 29, 17) 651 Robert Einhorn, President of the Centre for Strategic and International Studies, argued that most of the steps India pledged in the India-US nuclear agreement are “simply reaffirmation of existing positions.” India was already observing the unilateral moratorium on nuclear testing: proponents of the deal argue that this agreement would bind India to honor that pledge while opponents note that the deal failed to bind India legally to sign the CTBT. India has supported FMCT negotiations for years, but the deal failed to commit it to halt the production of fissile material. Regarding enforcing effective export controls, India is already committed by UNSCR 1540 passed in April 2004 to adopt and enforce effective laws prohibiting the proliferation of nuclear weapons. Please see Statement by Robert J. Einhorn, Centre for Strategic and International Studies, “The U.S.-India Nuclear Deal: The Impact on Nonproliferation” October 26, 2005. 652 "Sarkozy backs India for UNSC, NSG", The Economic Times, December 4, 2010 653 "Germany backs India for NSG membership", The Economic Times, December 7, 2010 654 "Russia backs India for NSG", Hindustan Times, December 21, 2010. 655 “Australia Commits NSG Support”, Indo-Asian News Service, May 3, 2012. 656 Fredrik Dahl, “Britain Lobbies for Nuclear Export Group to Admit India”, Reuters, June 14, 2013. 657 Nuclear Suppliers Group Point of Contact Note, United States Communication—“Food for Thought” Paper on Indian NSG Membership, May 23, 2011, https://www.armscontrol.org/system/files/nsg1130.pdf (Accessed May 29, 17) 658 Daniel Hornes, “NSG Revises Rules on Sensitive Exports”, Arms Control Today, July/August 2011. 193

for India, given the consensus requirement. Current “factors to be considered” are that a new Participating Government should: • “be able to supply items covered by the Annexes to Parts 1 and 2 of the Guidelines; • adhere to and act in accordance with the Guidelines; • have in force a legally-based domestic export control system which gives effect to the commitment to act in accordance with the Guidelines; • be a party to the NPT, the Treaties of Pelindaba, Rarotonga, Tlatelolco or Bangkok or an equivalent international nuclear non-proliferation agreement, and in full compliance with the obligations of such agreement(s), and, as appropriate, have in force a full-scope safeguards agreement with the IAEA; • be supportive of international efforts towards non-proliferation of weapons of mass destruction and of their delivery vehicles.”659

India meets all these factors except the NPT condition. NSG participants’ decisions over four decades to expand participation from seven to 48 states reflected in all cases two important aspirations that followed from the group’s export control and non-proliferation missions. The first is the goal to get all supplier states to adhere to the guidelines. The second is to reinforce good non-proliferation behavior, including in new participants. These rationales are consistent with five “factors” for membership that are listed in INFCIRC/539, an NSG document that explains how the group works. They are also consistent with the statement in INFCIRC/539 that “the NSG remains open to admitting further supplier countries in order to strengthen international nonproliferation efforts.” In the case of India, the first of the two rationales powerfully applies. India is a state with nuclear arms and an important, ambitious, and indigenous civilian nuclear energy program. India produces and processes nuclear materials, it makes virtually every listed item needed for equipping nuclear reactors, and it is beginning to enter the global market as a supplier of these goods. Nearly all NSG members clearly see the value of including India in the group in light of these facts.

659 Nuclear Suppliers Group, “On what basis are participation decisions taken?”, http://www.nuclearsuppliersgroup.org/en/participants1. (Accessed May 29, 17) 194

The second rationale – encouraging and reinforcing good non-proliferation behavior – is more problematic. Participants have questioned whether India is “like-minded” concerning the NSG’s mission to apply nuclear export controls in the interest of non-proliferation. There has been no clear answer, in part because for decades India viewed multilateral nuclear export controls as a neo-colonialist stick to beat developing countries with. The NSG also needs to consider what admitting India would mean for the NSG’s own guidelines and procedures. Participants warn that so far questions related to India’s possession of nuclear arms have not been answered. These include whether India would continue to be barred from access to enrichment and reprocessing technology because it is not an NPT party. The NSG annual meetings in 2012 and 2013 discussed the Indian membership issue but consensus could not develop due to the opposition from the like-minded countries. In a 2013 meeting, Britain circulated a paper and lobbied for India’s membership and argued that India is eligible due to its large size civilian nuclear industry and its commitments to non-proliferation. Due to these reasons, “the NSG is best served by the inclusion and membership of India”, the paper argued.660 China, however, opposed India’s membership and called for “equitable policies toward all countries in the region” referring to its ally Pakistan which is also outside the NPT. Ireland, the Netherland, and Switzerland raised concerns over this issue. Japan was also not favorable to the idea.661 One diplomat voiced uncertainty and said, “There are several countries in each camp. I am not sure how it can be moved forward.”662 Another diplomat argued that his country wants “a serious discussion” about its implications for the implementation of NSG guidelines. He was optimistic about finding a formula that is not “damaging to the NPT”, for example, signing the CTBT. That would be an “extremely high-value symbolic step” that does not have an immediate impact on India, as the treaty will not enter into force unless seven other

660 Fredrik Dahl, “Britain Lobbies for Nuclear Export to Admit India”, Reuters, June 14, 2013. 661 “Debate persists over Indian entry to nuclear export group”, Nuclear Threat Initiative, March 21, 2013 662 Fredrik Dahl, “Nuclear States Divided on India Joining Export Control Group”, Reuters, March 20, 2013. 195

countries ratify it.663 Another diplomat also commented in an optimistic way that “a number of countries have continued doubts” but no one ruled out the possibility of India’s membership.664 India formally applied for membership of the NSG in May 2016 after having ascertained that its application had a good chance of being approved by consensus. Pakistan also applied for NSG membership soon after India’s application was tendered, but discussion of the two applications was not put on the agenda of the plenary meeting in Seoul on June 23-24, 2016. In its joint statement, the NSG members recorded “their firm support for the full, complete and effective implementation of the NPT as the cornerstone of the international non-proliferation regime.”665 Indian analysts and policymakers quickly identified several political reasons why they believe the country was denied entry. These included Chinese opposition to India’s rise as a regional and global power and US inability and/or unwillingness to convince holdout NSG members. The first claim is that China opposes India’s rising global status and is its most significant challenger in the NSG. Immediately following the June NSG meeting, a spokesperson for the Indian Ministry of External Affairs singled out “one country” – read China – to explain why India was not admitted.666 To some Indian analysts, Beijing used the meeting as an opportunity to block India’s global rise. Others contextualized China’s actions within the broader U.S.-China rivalry. Unsurprisingly, Chinese analysts and state-run media disputed these interpretations, claiming that China was “wrongly blamed.”667 According to the Chinese Foreign Ministry, Beijing, along with roughly 10 other states, encouraged the NSG “to discuss the issue of non- NPT states” entry in an innovative format in a bid to uphold the NPT as the bedrock of the

663 Daniel Hornes, “NSG Revises List, Continues India Debate”, Arms Control Today, July/August 2013. 664 Fredrik Dahl, “Nuclear States Divided on India’s Joining Export Control Group” Reuters, March 21, 2013. 665 “Public Statement: Plenary Meeting of the Nuclear Suppliers Group”, Seoul, Republic of Korea, June 23-24, 2016. Available at http://www.nsg-online.org/images/2016_Public_Statement_Final.pdf (Accessed May 29, 17) 666 “Early decision on India’s entry remains in larger global interest: MEA Vikas Swarip”, The Hindu, June 24, 2016. 667 Liu Chang, “Commentary: India should join China in rising above differences, forging closer partnership”, Xinhua, August 12, 2016. 196

international nonproliferation regime.”668 Along with China, a number of other NSG members opposed India’s application. Among these states were Austria, Brazil, Ireland, New Zealand, Switzerland, Turkey, and South Africa. It is true that China led the opposition, including by coupling India’s application with that of Pakistan. The Indian and Chinese governments have also engaged directly. Still, a fixation on Chinese qualms obscures the deeper issues at stake. Many other NSG members – including European states otherwise friendly to Indian interests – did not back India’s application because of substantive policy concerns such as India’s decision not to adhere to the NPT and CTBT, its continued production of fissile material, and its insistence on a blurry line separating civilian and military nuclear reactors. The second claim made by Indian analysts and policymakers is that the United States was unable and/or unwilling to lobby for Indian membership in the NSG. For some in India, the episode demonstrated that, despite its declared support for India’s membership, the Obama Administration either chose not to, or could not, “deliver what we want.”669 Indian critics citing American ambivalence may have a point. Secretary of State John Kerry divulged that he “worked hard personally” and that President Obama called various leaders.670 Michael Krepon reasons, “United States is supportive but you have to do more than supportive. You have to twist arms, you have to exert lot of efforts. Which the Obama Administration is not willing to do.”671 Another reason that U.S. efforts did not prove as effective as those used by the Bush Administration which delivered the 2008 NSG waiver is that giving India full membership is trickier than carving out for India an exception to the NSG’s trade rules. Especially because the NSG right from its inception aimed to inhibit its members from assisting India in making nuclear weapons, the NSG’s members had to more deeply consider what Indian membership implied for the group’s rules and procedures, as well as for its identity. Full membership would

668 Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference on June 24, 2016. Available at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1375206.shtml (Accessed May 29, 17) 669 “NSG: Where India erred on its bid for Nuclear Suppliers Group membership”, The Financial Express, June 29, 2016. 670 Indrani Bagchil, “We will talk to China at G20 summit, want to make India NSG member by year end: John Kerry”, The Times of India, September 2, 2016. 671 Interview with Michael Krepon on June 18, 2015. 197

permit India to shape the rules that govern global nuclear trade. Most representations of the Seoul session in Indian media have not acknowledged the legitimate policy concerns raised by current NSG members. One Indian commentator did acknowledge that some NSG members remain concerned about the unique rules governing India’s civilian and military reactors: “All material supplied to [India’s] civilian stream can be easily diverted to military [uses] within the unsafeguarded civilian reactor complexes,” said one diplomat in Vienna.672 Another diplomat commented I know your Government (India) does not take the nuclear zero (commitment of the nuclear non-proliferation treaty) seriously, but we do. And we will not allow any deal that allows you to produce weaponisable material, especially plutonium. We looked away in 2008, we will not look away this time. You must understand we are your friends and want you to have full membership, we support you fully in this, but we have conditions that must be met, just as you promised us in 2008, and we are yet to see you live up to your commitments.673

In short, if India wants its NSG membership, it will have to make some very hard choices – including completely separating its military and civilian programmes with the prohibitive costs involved, and/or putting all its civilian unsafeguarded reactors under full scope IAEA safeguards, as well as ensuring that personnel and technology will not cross over. India’s membership debate also highlights the NSG’s relationship with non-NPT states. Some countries are of the view that developing a criteria-based approach comprising tough non- proliferation conditions will allow non-NPT states to be included in the NSG. Others argue that this would weaken the NPT, which is the primary bargain and the most important multilateral treaty in the non-proliferation regime. Ambassador Rafael Grossi of Argentina, the outgoing NSG chairperson (2014-16) who is appointed to assist the new Chairperson with the “continued discussion” on India after the Seoul Plenary meeting, highlighted this concern that “one has to accept that if we take a non-NPT country (India), others (other non-NPT states) will claim that

672 Abhijit Iyer-Mitra, “Small Countries, Big NSG Price”, The Pioneer, July 5, 2016. 673 Ibid. 198

right.”674 One diplomat stated, “there are differences of opinion on allowing non-NPT members into the NSG.” In December 2016 the NSG had an informal meeting to discuss membership criteria for India and other non-NPT states. On December 6, Ambassador Rafael Mariano Grossi circulated a “revised version of a draft ‘Exchange of Notes’ for Non-NPT applicants,” after consultations with the group members.675 Grossi’s draft note sought to

• “Implement and have brought into force a clear and strict separation of current and future civilian nuclear facilities from non-civilian nuclear facilities. • Have provided and maintain a declaration to the IAEA that identifies all current and future civilian nuclear facilities. • Have in force a safeguards agreement with the IAEA covering all declared civilian facilities, and all future civilian facilities. • Have in force with the IAEA an Additional Protocol covering the identified civilian nuclear facilities, which together with a safeguards agreement, allows the IAEA to detect the diversion of safeguarded nuclear material and to ensure that safeguarded nuclear material is used exclusively for peaceful purposes. • A commitment not to use any item transferred either directly or indirectly from a NSG Participating Government or any item derived from transferred items in unsafeguarded facilities or activities. • A commitment not to conduct any nuclear explosive test. • A clear description of intentions plans, and policies in support of the Comprehensive Test Ban Treaty upon becoming a Participating Government. • A commitment to support and strengthen the multilateral non-proliferation and disarmament regime by working towards the total elimination of nuclear weapons and enhancing the peaceful uses of nuclear energy.

674 Suhasini Haidar, “Members' concerns delayed India's NSG chances: Rafael Grossi”, The Hindu, June 27, 2016. 675 Jonathan Tirone, “Nine Factors that will Decide India’s NSG Dream in Vienna”, The Economic Times, December 20, 2016. 199

• An understanding that due to the unique nature of the non-NPT Party applications, applicant would join a consensus of all other Participating Governments on the merits of any non-NPT application.”676

On this last point, Grossi’s note would apply to an Indian attempt, for political reasons, to block a Pakistani application. It would require Pakistan to meet the same criteria for membership, but to engage in civil nuclear trade with NSG states, Pakistan would have to win a separate NSG exemption from the full-scope safeguards requirement. The resistance in the NSG indicates that India’s sui generis status will hold and it is unlikely that criteria-based system will evolve to make other non-NPT states eligible for NSG membership. India could theoretically claim that it has already undertaken all of the steps necessary for membership, which could then lead to a decision on membership for India, while leaving Pakistan in a different status. Pakistan has warned that India’s NSG membership would “destabilize the security environment in South Asia” and “Pakistan will be forced to take measures to ensure the credibility of its deterrence”.677 The Grossi’s note would not require India to take any additional non-proliferation commitments beyond the steps to which it consented in the India-specific exemption in September 2008. It is not surprising that like-minded countries have raised objections to the proposed criteria for lack of additional non-proliferation commitments like signing the CTBT. Due to the lack of consensus the matter is now postponed till the next NSG plenary meeting.678 Toby Dalton, Mark Hibbs, and George Perkovich have argued that instead of having an India-specific waiver and membership, the NSG could be strengthened by a criteria-based approach to non-NPT states, as this would improve nuclear safety and security, and export controls. The NSG focuses on trade controls and therefore should bring into its fold all states that can export nuclear technology.679 Mark Hibbs claims that the criteria-based approach “will look

676 Daryl G. Kimball, “NSG Membership Proposal Would Undermine Nonproliferation”, Arms Control Now, December 21, 2016. 677 “Pakistan warns against India nuclear support”, Dawn, February 25, 2011. 678 Zamir Akram, “NSG Deadlock”, The Express Tribune, December 30, 2016. 679 Toby Dalton, Mark Hibbs, and George Perkovich, “A Criteria-Based Approach to Nuclear Cooperation with Pakistan”, Policy Outlook, June 22, 2011. 200

at the elements that the NPT membership implies” and perhaps try to find things that the non- NPT states can bring to bear and demonstrate that “they are firmly committed to the non- proliferation principles that they have effective non-proliferation system in the country, without being in the NPT.”680 George Perkovich argues that establishing a rule-based system is in the interest of the United States as it would assuage the complaints of other countries for being treated unfairly.681 The criteria-based approach is unlikely to increase Pakistan’s nuclear weapons production through diverting its domestic uranium exclusively for its nuclear weapons as argued in the case of India. Due to Pakistan’s poor economic conditions, it is unlikely that a sustainable and profitable nuclear market will develop. “No major reactor vendor will accept the political and financial risk of a reactor construction project in Pakistan, particularly amid persistent domestic terrorism.”682 Moreover, it is also not in a position to purchase any reactor due to heavy financial debts. A potential benefit for offering a nuclear deal to Pakistan would be to assuage its feeling that it is being treated unfairly. Pakistan’s desire for international legitimacy for its nuclear program is, therefore, motivated by status factors. It is more interested in being entitled to similar nuclear status comparable to India’s than any potential economic benefits.683 Robert Einhorn believes that it makes sense for the NSG to adopt a criteria-based approach for the non-NPT countries. India, Pakistan and Israel should be eligible and should be admitted if they meet the criteria. It means that India would be joining first and Pakistan would have to prove that it has overcome the A. Q. Khan legacy. He thinks, “Making Pakistan theoretically eligible for membership ironically could help India because it would eliminate China’s objection. Making Pakistan eligible would ensure early admission by India.” This would also likely to strengthen the strategic stability in South Asia. 684 Lisa Curtis believes, “Pakistan outside of the system makes it more difficult to make the world safer from nuclear weapons. Bringing India and Pakistan in the NSG would serve our security interests by preventing arms

680 Interview with Mark Hibbs on July 1, 2015. 681 Interview with George Perkovich June 11, 2015. 682 Toby Dalton, Mark Hibbs, and George Perkovich, “A Criteria-Based Approach to Nuclear Cooperation with Pakistan”, Policy Outlook, June 22, 2011. P. 3. 683 Ibid. P. 6. 684 Interview with Robert Einhorn on June 22, 2015. 201

race between these two countries.”685 Toby Dalton, however, contends that NSG membership for India and Pakistan would not bring stability in South Asia. “Unless and until Pakistan decides that it doesn’t want an arms race with India and that it can practice minimum deterrence and be secured then whether Pakistan is the member of the NSG or not has no bearing on stability.”686 Another non-NPT state, Israel, has also been demanding an India-style nuclear deal, but the U.S. has been “unambiguous” in rejecting it. The U.S. officials argued that India’s case was unique and that Israel and Pakistan do not “qualify for similar treatment.”687 Legitimizing the Israeli nuclear weapons program under a criteria-based approach would create more problems in the volatile region of Middle East than solving the Pakistan problem for South Asia. A U.S. State Department official argues, “Israel’s qualification would have implications for the Middle East.”688 Sharon Squassoni warns that this could lead Arab countries to withdraw from the NPT because “they have pushed for many years for Israel to join the NPT as a NNWS.”689 Mark Hibbs, on the other hand, contends that it is unlikely that “membership in the NSG is going to be tipping scale for NPT membership for Middle Eastern countries” because for Saudi Arabia Iran’s nuclear program is a bigger threat than Israel’s nuclear weapons.690 Robert Einhorn argues, “It would not have repercussions in the Middle East if Israel assures that it would not use membership in the NSG to impede (sensitive) technology to the Middle East. It could be resolved by admitting some Middle Eastern countries that has nuclear fuel cycle like Iran.”691 Ashley Tellis argues, “I think the criteria-based approach is not the one that the United States favors. The view within US government is that we’ll do exactly [for Indian membership] we did it last time. We’ll go to the NSG and make the case that India is been deserving of this treatment, that the NSG has already made an exception that permits India to engage in a nuclear

685 Interview with Lisa Curtis on June 15, 2015. 686 Interview with Toby Dalton on June 16, 2015. 687 Daniel Hornes, “Prospects of Nuclear Deal with Israel Dismissed”, Arms Control Today, Vol. 40, September, 2010. Available at https://www.armscontrol.org/act/2010_09/Israel (Accessed May 29, 17) 688 Interview with US State Department Official. 689 Interview with Sharon Squassoni on June 26, 2015. 690 Interview with Mark Hibbs on July 1, 2015. 691 Interview with Robert Einhorn on June 22, 2015. 202

trade and therefore, bringing India into the NSG membership is the logical step.”692 A U.S. State Department official argues, “Pakistan has a concern that if India joins first then India will not let Pakistan to get in. That’s a legitimate concern. But India is at front and we won’t change our support to India’s membership because of Pakistan’s concern.”693 Vikram Singh argues, “It should be a case-by-case approach, rather than developing common criteria because states outside the NPT are different.”694 Ambassador Boucher argues that there was concern that Pakistan and Israel would demand similar NSG waivers and membership. He claims, “we made it very clear that India for both from its responsible nuclear behavior and from its strategic importance was an exception and the NSG is not about opening the floodgate to these states.”695 It is unlikely that China would be able to make an exception for Pakistan. “No other country wants an exception either for Israel or North Korea, which are also outside the NPT. Indian waiver or membership is not going to set a precedent.”696 Henry Sokolski believes that criteria- based approach would further damage the NPT and NSG.”697 The NSG waiver negotiations show that the NSG made the waiver India-specific, which reduces the possibility of the waiver leading to a criteria-based approach to further waivers, while the Hyde Act specifically limits the United States in this regard. The initial discussions on the membership also signals for an India-specific pattern. Looking at the NSG waiver negotiations, we can better assess the hurdles that India has to face for its membership. The negotiation of the waiver shows that, despite India's strong non- proliferation record and stable democracy, it was not easy for the United States to get the exemption: it had to revise the draft three times to address the concerns of some NSG member states, and mount significant diplomatic efforts at the end. It is expected that India’s admission would meet tough resistance and like-minded countries would again demand greater non- proliferation conditions. These conditions, like signing the CTBT, curtailing the production of fissile material, and restraining its nuclear weapons program through IAEA safeguards on

692 Interview with Ashley Tellis on July 21, 2015. 693 Interview with US State Department Official. 694 Interview with Vikram Singh on July 15, 2015. 695 Interview with Ambassador Richard Boucher on August 26, 2015. 696 Anonymous Interview. 697 Interview with Henry Sokolski on June 10, 2015.

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additional nuclear facilities698 or freezing further development of long-range ballistic missiles that could carry nuclear weapons,699 are likely to be pressed. India is likely to face strong demands for a legally binding nuclear test moratorium. Like- minded states in the membership discussion stressed the need for signing CTBT to demonstrate India’s commitment to the non-proliferation regime. It is important to note that India fought hard to keep its nuclear testing option open both in the India-U.S. Nuclear Agreement and the NSG waiver negotiations and only committed to continue its moratorium on nuclear testing. This shows that India would resist this condition in the membership negotiations too, and like the Parnab Mukerjee statement in the waiver or informal assurances, India and the United States have to work around this demand. It is also expected that the like-minded states will demand a unilateral moratorium on the production of fissile material. The United States, Russia, France, Britain, and China have already stopped producing fissile material for weapons use. The India-U.S. nuclear agreement and the NSG waiver failed to commit India to stop the production of fissile material for weapon use. The Indian strategic community opposed any condition including signing the CTBT and FMCT support at the cost of NSG membership.700 India’s strategic community also argued that apart from “symbolic value”, India is not gaining anything or losing anything from NSG membership. The NSG waiver gave a major boost to the Indian civilian industry and to accept conditions for the membership would compromise its deterrence ability, which India should not accept.701 It would constrain its nuclear weapon program and sovereign right to determine its security policy. Others argue that a NSG membership is important for a number of reasons. One, the waiver given to India could, theoretically speaking, be reversed by a subsequent decision of the NSG in a changed geopolitical scenario. If India is a member, the consensus rule will ensure that such a possibility, however remote, is obviated. Membership will formalise the waiver. Two, the

698 Pierre Goldschmidt and Toby Dalton, “Conditions on Indian NSG membership”, Proliferation Analysis, June 14, 2011. 699 Daryl Kimball, “New Nuclear Suppliers Rules a Net Plus”, Arms Control Today, July/August 2011. 700 Bharat Karnad, “India’s Nuclear Amateurism”, The New Indian Express, June 28, 2013, http://www.newindianexpress.com/columns/Indias-nuclear-amateurism/2013/06/28/article1655987.ece. (Accessed May 29, 17) 701 Gopalan Balachandran, “India and the NSG: Approaches to Indian Membership”, Institute for Defence Studies and Analysis (IDSA), May 23, 2013. 204

NSG’s Guidelines are constantly evolving and are amended from time to time. There is a provision for India to be consulted when such amendments are being made but the country will have no role in the amendment process as a non-member. In fact several amendments have been made to the Guidelines since 2008 and India, in seeking membership, will need to conform to all these changes even though it has not been a party in the amendment process. Membership will ensure that India is a full participant in all future amendment processes and is able to safeguard its interests more effectively. Three, despite the waiver India is a grey zone in the international nuclear non-proliferation regime. It is no longer an outlier but neither is it fully inside the tent. 702 Given India’s domestic situation, it can be argued that India will resist additional conditions and India and the U.S. again will have to mount significant diplomatic efforts to assuage the concerns of the like-minded states. The Bush Administration wanted to conclude the India-U.S. agreement in its tenure and therefore dealt with the NSG waiver as an urgent matter and invested enormous diplomatic energy in securing it. The U.S. support for India’s NSG membership will be less vigorous than its support for the waiver. India has to share more of the diplomatic burden to present its case. India is again pressing its case vigorously, dispatching high-level diplomatic officials to the capitals of the NSG member states to convey its position and limitations.703 It is also holding side-meetings during the NSG meetings to address the non- proliferation concerns of the member states.704 It has to mobilize support expressed by key member states to convince the other member states, particularly like-minded states, who oppose India’s membership. As Ashley Tellis argues, “At the end of the day these decisions (NSG membership for India) are made partly through diplomacy and most importantly through politics.”705 India is unlikely accept additional non-proliferation conditions and both sides again have to come to a formula that works around these non-proliferation demands. Once the like-minded states are on board, it would be unlikely that states such as China will block the consensus.

702 Shyam Saran, “India May Have to Wait for a Possible Opening in the Future”, Indian Foreign Affairs Journal, Vol. 11, No. 3, 2016. P. 193. 703 “India to Lobby for Joining Nuclear Suppliers Group", Global Security Newswire, January 31, 2011. 704 “India to Argue for Entry into Atomic Export Group”, Nuclear Threat Initiative, February 29, 2012. 705 Interview with Ashley Tellis on July 21, 2015.

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“There are good reasons for having it (India) in the club” however getting there would be a “slow process”, a western diplomat said.706 To move forward, Indian officials cannot focus primarily on politics by only engaging with China or by simply pressing the Trump Administration to play a bigger role. Instead, officials should critically review existing policies and practices to identify areas where there is potential for revision – focusing on substantive policy concerns rather than on politics.

Implications for the Enrichment and Reprocessing (ENR) Technology Ban Norm The NSG waiver for India allows the transfer of ENR technology and, despite informal assurances during the waiver negotiations, India got a commitment from France707 and Russia708 to provide ENR equipment. Ireland, in its national statement on September 6, 2008, asserted its understanding that no NSG member states “currently intends to transfer to India any facilities, equipment, materials or technology related to the enrichment of uranium, or the reprocessing of spent fuel.”709 India also has received consent from the United States to reprocess U.S. spent fuel. Before India, EURATOM and Japan enjoy this “blanket consent”, which created problematic precedents that countries such as South Korea are now seeking.710 The United States continued its efforts to get consensus in the NSG and compromised its original proposal, and in the November 2010 meeting the NSG was able to produce a draft proposal, called a “clean text”, which has general consensus. Based on the French proposal, the text has objective and subjective criteria and also a compromise formula of the “black box” proposal. The subjective criteria called on supplier states to be vigilant and take regional security into account. The objective criteria included NPT membership, comprehensive IAEA safeguards, and full compliance with them, the Additional Protocol, and effective exports controls as

706 “India’s NSG Entry Unlikely Soon” The Financial Express, June 21, 2013. 707 Siddharth Varadarajan, “India Lobbying Hard with Nuclear Partners on ENR Issue ”, The Hindu, June 21, 2010. 708 - “Russia to Share enrichment and reprocessing technology with India”, DNA, June 08, 2010. 709 Paul K. Kerr, “U.S. Nuclear Cooperation with India: Issues for Congress”, CRS Report for Congress, Congressional Research Service, Washington D.C., September 30, 2010. 710 Jessica C. Varnum, “U.S. Nuclear Cooperation as Nonproliferation: Reforms, or the Devil You Know?”, NTI (Nuclear Threat Initiative), November 27, 2012. 206

required by United Nations Security Council Resolution 1540.711 The condition of NPT membership would, of course, make India ineligible to import ENR technology. However, India made it clear that this restriction would be seen as a violation of its “clean exemption”. Prime Minister Manmohan Singh in his address to Parliament said

It is our expectation that any future decisions of the Nuclear Suppliers Group relating to the transfer of enrichment and reprocessing items and technology would take into account the special status accorded to India by the NSG. The NSG has given us this clean exemption knowing well that India is not a signatory to the NPT. Prohibition by the NSG of such transfers would require a consensus among all the 46 countries. That does not exist at present. The exemption given to India by the NSG provides for consultations and we will hence remain engaged with that body so that any decisions take into account the special status accorded to India by the global nuclear community.712

The clean text appeared to be close to agreement after two stumbling blocks were cleared away. First, Canada opposed the “black box” criterion as it wanted to develop its own enrichment facility and the “black box” proposal would hinder it in this regard. In the clean text the “black box” would be applicable only to current enrichment technologies, and if member states develop technology on their own, the NSG would consider proposals in this regard.713 The language of the proposal was crafted keeping in view Canada’s interest in laser enrichment technology, and it would allow Canada to access this technology.714 Second, Brazil objected to the Additional Protocol condition because its implementation would hinder its nuclear submarine program.715 The clean text waived the condition of the Additional Protocol if a state is member

711 UNSCR 1540, adopted in April 2004, called on member states to develop and enforce appropriate legal and regulatory measures to prevent the proliferation of WMD to non-state actors. 712 Prime Minister Manmohan Singh’s statement in the Lok Sabha on July 29, 2009. Available at http://www.indiaembassy.org/newsite/press_release /2009/July/14.asp. (Accessed May 29, 17) 713 Miles A. Pomper, “Nuclear Suppliers Make Progress on New Rules”, Arms Control Today, Vol. 40, No. 12, 2010. 714 Miles A. Pomper, “US International Nuclear Energy Policy: Change and Continuity”, Nuclear Energy Futures Paper No. 10, The Centre for International Governance Innovation, January 2010. 715 Mark Hibbs, “Concerns about Additional Protocol Block NSG Consensus on Trade Rules”, Nuclear Fuel, January 26, 2009. 207

of regional non-proliferation safeguards arrangement such as the bilateral safeguards agreement between Brazil and Argentina.716 In July 2011, seven years after George W. Bush triggered the debate on tougher rules for the trade in ENR technologies, the NSG finally did agree on a new set of guidelines. The agreement was in line with the EU goal of having a subjective list of criteria. Thus, NSG participants agreed that they should “authorise the transfer of enrichment and reprocessing facilities, and equipment and technology therefor” only if the recipient

• Is an NPT state party member,

• Is in compliance with its safeguards obligations,

• Adheres to NSG guidelines

• Implements UNSC Resolution 1540,

• Provides assurances on peaceful use of the supplied technology,

• Has effective safeguards,

• Assures the non-transfer “in perpetuity”, and 717 • Provides adequate safety and security measures.

Indian officials argued that the new ENR guidelines “dilute the ... exemption that was given in 2008”718 because they make NPT membership a condition of supply. The United States made a reassuring official statement in which it promised to continue with the “clean” exemptions notwithstanding the amendment of the guidelines in the 2011 plenary meeting. Later, France and Russia also made similar reassuring statements.719 At the domestic level the United States has a policy of restraint in terms of transfer of sensitive nuclear technology, and its nuclear agreement with the UAE, in which the UAE agreed

716 Miles A. Pomper, “Nuclear Suppliers Make Progress on New Rules”, Arms Control Today, Vol. 40, No. 12, 2010. 717 IAEA: “Communication Received from the Permanent Mission of the Netherlands regarding Certain Member States' Guidelines for the Export of Nuclear Material, Equipment and Technology: INFCIRC/254/Rev.10/Part 1.”, Vienna, International Atomic Energy Agency, (26 July 2011), pp. 1-2; see also Hibbs, Mark: “New Global Rules for Sensitive Nuclear Trade”, Nuclear Energy Brief, July 28, 2011. 718 Varadarajan, Siddharth: “NSG ends India's 'clean' waiver”, Reality, one bite at a time, 25 June, 2011. 719 Dikshit, Sandeep: “In post-NSG statement, France ducks ENR ban on India”, The Hindu, July 2, 2012. 208

to forgo domestic enrichment, was considered a non-proliferation standard.720 But the U.S. efforts are undermined by states such as France and Russia, which do not put any limitations on such technology. This has placed American firms at a disadvantage. The United States negotiated nuclear agreements with Saudi Arabia, Vietnam, and Jordan in which the UAE non-proliferation standard is not being followed, so these countries could get sensitive technology. The U.S. Congress criticized this approach and is likely to amend the Atomic Energy Act of 1954 to include strong non-proliferation commitments.721 The NSG waiver for India has encouraged other countries to seek sensitive nuclear technology; agreement with Vietnam, Jordan, and Saudi Arabia without provisions to discourage this would set back this effort further. The July 2005 agreement ambiguously pledges “full nuclear cooperation” with New Delhi. This created expectations in India that the agreement includes enrichment and reprocessing technologies. But, this is not the case. Michael Krepon provides evidence that ENR technologies are not part of the deal. Robert Joseph, undersecretary of state, in response to the Senate Foreign Relations Committee in November 2005, stated: “We do not intend to provide enrichment and reprocessing technology to India.”722 The Henry Hyde Act, Article 103 (5), delineates the U.S. policy on ENR technologies: “given the special sensitivity of equipment and technologies related to the enrichment of uranium, the reprocessing of spent nuclear fuel, and the production of heavy water, [we need to] work with the members of the NSG, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India.”723 Similarly, at the April 5, 2006, Congressional hearings, Condoleezza Rice affirmed that “the proposed [123] agreement for peaceful nuclear cooperation will not provide for exports

720 Christopher M. Blanchard, and Paul K. Kerr, “The United Arab Emirates Nuclear Program and Proposed U.S. Nuclear Cooperation”, CRS Report for Congress, (Washington D.C.: Congressional Research Service, December 23, 2009). 721 Elaine M. Grossman, “U.S. Nonproliferation Legislation Could Gain Steam in GOP-led House”, Global Security Newswire, November 3, 2010. 722 As quoted in Michael Krepon, “Another Contentious Nuclear Issue”, The Hindu, July 12, 2011. 723 As cited, R. Ramachandran, “On Slippery Ground”, Frontline, Vol. 28, No.16, July 30-August 12, 2011. 209

of SNT [sensitive nuclear technologies]; the agreement would have to be amended (and the amendment submitted to Congress for review) to allow for such exports.”724 Thus, Washington has elicited a commitment from India to not sell ENR technologies to countries that do not already possess them; at the same time, it has refused to sell ENR technologies to India. This is a significant step toward strengthening the nuclear non- proliferation regime and would limit the expansion of India’s civilian as well as its nuclear weapons program. R. Ramachandran, lamenting the impact of the deal on India, comments: Having made a huge mistake of entering into the India-U.S. nuclear deal, it would be prudent now to focus on scaling up indigenous reprocessing capacity as a priority. The new facility opened early this year at Tarapur is also of only 100 tonne capacity. What we need are plants with capacities of several hundred tonnes. Given that the gestation period of these new plants is six to seven years, there is adequate time for expanding reprocessing capacity. The flip side, of course, is that these new plants will have to be brought under IAEA safeguards.725

It is expected that in India’s bid for a NSG membership, New Delhi will press on exemption on the NSG guidelines for the ENR transfer. Should India join the NSG, it must decide whether the NSG should continue to deny ENR technology to India. If the answer is yes, how will it do that with India in the room? The NSG waiver negotiations reveal that the India- specific waiver was given on the informal understanding that member states will not export these technologies to New Delhi. It is unlikely that India will get the exception for the ENR transfer. Viewed in this context, the U.S.-India nuclear pact is quite significant. First, cognizant of India’s ENR capabilities and possession of related technologies, Washington elicited a critical non-proliferation commitment from India. In the nuclear pact, New Delhi has agreed to not transfer sensitive technologies, particularly enrichment and reprocessing technologies, to nations that do not possess them; in addition, India has committed to support international efforts to curb the spread of such technologies. Levi and Ferguson remark, this “reinforces an important but largely moribund Bush Administration initiative aimed at closing a loophole in the NPT that

724 US-India Peaceful Atomic Energy Cooperation and US Additional Protocol Implementation Act, Report of the Committee on Foreign Relations, Senate, 109-208, 109th Congress, Second session, July 20, 2006. 725 R. Ramachandran, “On Slippery Ground”, Frontline, Vol. 28, No.16, July 30-August 12, 2011. 210

allows states to acquire bomb-making technologies under civilian guise.”726 Second, Washington allows India to reprocess the by-products of U.S.-provided nuclear reactors that constitute “safeguarded nuclear materials” only in a new facility especially built for reprocessing and placed under IAEA safeguards.727 The insistence on new facilities is to ensure full compliance with the IAEA safeguards as designs of older facilities may sometimes not allow full application of advanced nuclear safeguards. Third, and most significantly, the U.S. has not offered to sell enrichment and reprocessing technologies to India. In view of India’s limited domestic uranium supplies and extensive thorium supplies, Homi Bhaba, the father of the Indian nuclear program, had envisioned a three-stage, closed fuel-cycle, civilian nuclear strategy for India. In the first phase, the aim was to build a few uranium reactors; then, in the second stage, fast breeder reactors would be built that would use plutonium from the spent fuel of the uranium reactors; finally, in the third stage, thorium based reactors would be built to utilize the spent fuel from the fast breeder reactors. Thus, in every stage, reprocessing of the spent fuel is essential for the Indian program. With the expansion of the Indian program, India would need a large-scale reprocessing technology. It is estimated that “India will need to put up eight to ten times the present reprocessing capacity in the coming years to handle the spent fuel from the increasing number of reactors.”728 South Korea insisted on enrichment technology in its negotiations with the United States to renew the pact that was set to expire in March 2014. The civil nuclear pact, signed in 1974, sets the legal guidelines and rules for exports of U.S. nuclear material and technology to South Korea. In renewing the agreement, South Korea wants technology for enrichment and reprocessing spent fuel, which is currently prohibited. The U.S. is reluctant out of concern over a possible negative impact to its non-proliferation campaign and efforts to denuclearize North Korea, as well as the huge costs required to monitor the South’s nuclear activities. The

726 Levi and Ferguson, “US-India Nuclear Cooperation,”15; Also see, Rajiv Nayan, “Global Export Controls System,” 449. In this context, India passed a notification to implement the UNSCR I737, of December 2006, which imposes sanctions on Iran and restricts sale of enrichment and reprocessing technologies to India. 727 Article 6 (iii), US and India Release Text of 123 Agreement, Office of the Spokesman, US Department of State, August 3, 2007. 728 R. Ramachandran, “On Slippery Ground”, Frontline, Vol. 28, No.16, July 30-August 12, 2011. 211

negotiations stalled and both countries decided to extend the current agreement for a further two years until March 2016.729 After years of intense negotiations, the United States and South Korea signed a nuclear cooperation agreement in June 16, 2015. The compromise in the new agreement was to grant advance consent for storage, transfer, and return of U.S.-origin material, probably to encourage Korea to send its spent nuclear fuel abroad for reprocessing. But the agreement specifically created “pathways” to a future decision on advance consent for both enrichment and reprocessing. One pathway is the Joint Fuel Cycle Study underway since 2011. It will report its findings on the technical, economic, and non-proliferation feasibility of fuel cycle options to a new High-Level Bilateral Commission. The High-Level Bilateral Commission, to be co-chaired by the vice minister of foreign affairs in South Korea and the deputy secretary of energy in the United States, is a second pathway that ensures high-level attention to these issues for the foreseeable future.730 South Korea will likely press for a new decision on advance consent in the next 5 to 10 years. South Korea complains that the United States gave advance consent to reprocess U.S. origin spent fuel to India and resisted that consent for South Korea. Toby Dalton argues, “If I was a South Korean negotiator I would have said we have been your ally for last almost 70 years you have done it with India not for us.”731 Robert Lehman claims that South Koreans would think, “they somehow have second-class status to India.”732

Robert Einhorn, however, argues

I was the chief negotiator with South Korea. South Koreans wanted the US to grant advance consent for them to reprocess US origin spent fuel. The first argument was that the US has given advance consent to Japan and we especially don’t understand that US gave advance consent to India. There was an objection there and they used as an argument for the US to give advance consent to South Korea. It was a good debating point but the US resisted that and concluded an agreement with South Korea

729 Yi Kil-So’ng and Cho Chae-hu’i, “Nuclear Energy Agreement”, Chosun Ilbo Online, July 27, 2012. 730 “U.S.-Republic of Korea (R.O.K.) Agreement for Peaceful Nuclear Cooperation”, US Department of State, June 16, 2015. Available at http://www.state.gov/t/isn/rls/fs/2015/243872.htm (Accessed May 29, 17) 731 Interview with Toby Dalton on June 16, 2015. 732 Interview with Robert Lehman on June 17, 2015. 212

that did not provide advance consent. At the end of the day the South Koreans were prepared to accept the deal that did not give them advance consent the way US has given advance consent to India. So it came up in the discussions but it didn’t have a dramatic impact o the outcome.”733

The India-U.S. nuclear deal has a positive impact of the ban of ENR technology norm. India resisted to the explicit ban of transfer of ENR technology in the NSG waiver and is likely to resist that in the NSG membership, but there was an informal understanding during the waiver negotiations that no supplier country would transfer this sensitive technology to India. The United States has also made it clear that the transfer of sensitive nuclear technology is not part of the deal. India agreed not to transfer its ENR technology to any state and that is a positive non- proliferation commitment. The United States resisted ENR technology to South Korea, but granted India advance consent to reprocess U.S. origin spent fuel and allowed Iran limited enrichment capability.734 Sharon Squassoni argues, “If you are a world power and you have a lot to offer then there are many similarities between Iran and India, then you will eventually be welcomed back.”735

Implications for the CTBT and FMCT Norms Negotiations on a Comprehensive Ban on Nuclear Testing (CTBT) began in 1958. While these negotiations did not result in a treaty, because of disagreement over the extent of intrusiveness of the inspections, the US, USSR, and UK unilaterally declared a moratorium on testing. While the USSR resumed testing in 1961, followed quickly by the U.S., states agreed to limit testing to underground, which resulted in the Limited Test-Ban Treaty (LTBT) of 1963.736 A fissile material cut-off treaty was similarly unsuccessful, with the realization that the increasing construction of nuclear power plants in the nuclear-weapon states would make verification of a cut-off extremely difficult.737

733 Interview with Robert Einhorn on June 22, 2015. 734 “Iran Nuclear Deal: Key Details” BBC News, January 16, 2016. 735 Interview with Sharon Squassoni on June 26, 2015. 736 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water (PTBT) 1963, available at http://disarmament.un.org/TreatyStatus.nsf/44e6eeabc9436b78852568770078d9c0/35ea6a019d9e058a 852568770079dd94?OpenDocument (Accessed May 29, 17) 737 Nuclear Non-Proliferation Treaty Briefing Book, part I - 5. 213

The CTBT Norm In the NSG waiver, India committed to continue its unilateral moratorium on nuclear testing, but it resisted the inclusion of any clause that would terminate the waiver automatically if it opted for a nuclear test. The waiver required member states to meet and decide the penalty if India tests, which requires consensus and it is up to the individual member states to cease nuclear trade with India. However, there is a general understanding in the NSG that India would lose special status if it opts for nuclear testing. The waiver has engaged India more closely to prevent it from resuming the testing option, thus, marking positive implications for the CTBT Norms. However, critics argue that the conditions governing fuel supply to India would make its position much stronger to withstand sanctions as a consequence of testing. The waiver is silent on the stockpiling provisions while the Indo-U.S. nuclear deal and the Hyde Act have different rather opposing provisions regarding fuel supply and nuclear testing. Section 104 of the Hyde Act requires that the United States must halt all nuclear exports if India opts for nuclear testing while in the deal there is no mention of nuclear testing but the agreement allows termination after one year’s notice. Regarding fuel supply, the Hyde Act requires that if the United States halts its nuclear exports, it should

1) not encourage nuclear exports to India by any other states [section 123 (13)]; 2) get the NSG to stop nuclear export [section 103 (a) (6)], and 3) limit India’s strategic reserve to “reasonable reactor operation requirements.”738

Article 5 (6) of the deal, on the other hand, provides four fuel guarantees to India which are:

1) fuel supply assurances in the agreement; 2) help to negotiate safeguards agreement with IAEA; 3) support to develop a strategic nuclear fuel reserve to “guard against any disruption of supply over the lifetime of India’s reactors.” 4) in case of fuel disruption, India and the United States would convene a group of friendly states to restore fuel supply.739

738 Text of Hyde Act is available at http://chellaney.net/2007/10/05/official-text-of-the-hyde-act/ (Accessed May 29, 17) 214

After six years of wrangling and intense negotiations, India and Japan signed a landmark civil nuclear agreement in Tokyo on November 12, 2016. One sticking point was the Japanese government wanting the accord to clearly state that cooperation would be suspended if India conducted a nuclear test. India opposed this on the grounds of wanting to maintain a deterrent against China and Pakistan. The Japanese government eventually agreed to accept a separate official document, called “Views and Understanding”, stating that cooperation can be suspended if India changes its September 2008 declaration to NSG, which talked of a unilateral moratorium on nuclear tests. The Note is legally binding as Section II on page 2 of says “It is understood the above constitutes an accurate reflection of the views of the two sides.”740 This interpretation is contested by Japan and India. Tokyo has taken the position that an Indian action in violation of the 5 September 2008 statement would constitute a departure and call for Japan’s suspension of the nuclear material subject to the Agreement in accordance with Article 14. But India perceives that the terms of the note are not binding. It is reported widely that India considers the additional note as recording the views and special sensibilities of Japan and that India has not made any more “additional commitments” than what it has stated in similar agreements with the U.S. and other countries.741 The India-Japan deal marks a major departure from the hard-fought template of the 123 agreement signed with the U.S., with negotiators going over several drafts to avoid linkages of deal termination with the nuclear moratorium. In the past, India had rejected direct references to nuclear tests as a trigger for cancelling the deal from the U.S.,742 Canada,743 and Australia,744

739 - Text of the Indo-U.S. nuclear deal is available at http://responsiblenucleartrade.com/keydocuments/india_123_agreement_text.pdf (Accessed May 29, 17) 740 “Note on Views and Understanding”, November 11, 2016. Available at http://www.mofa.go.jp/mofaj/files/000202921.pdf (Accessed May 29, 17) 741 K. V. Kesavan, “India-Japan Civil Nuclear Agreement: Differing Perceptions”, Observer Research Foundation, November 18, 2016. 742 Text of the Indo-U.S. nuclear deal is available at http://responsiblenucleartrade.com/keydocuments/india_123_agreement_text.pdf (Accessed May 29, 17) 743 Text of the India-Canada nuclear deal is available at http://www.dae.nic.in/writereaddata/ncpw/IGA_canada_2010_1.pdf (Accessed May 29, 17) 744 Text of the India-Australia nuclear deal is available at http://www.dae.nic.in/writereaddata/ncpw/IGA_australia_2014_2.pdf (Accessed May 29, 17) 215

amongst a dozen countries India has signed nuclear agreements with. New Delhi also fought hard to resist legally-binding nuclear moratorium in the 2008 NSG waiver. Tokyo is a major player in the nuclear energy market and Japanese technology is used in nuclear reactors built by U.S. and French manufacturers: they cannot be exported without a Japan-India treaty. For this reason, the United States and France demanded that Japan conclude a deal with India.745 In signing the civil nuclear agreement with India, Japan made a major exception for a non-signatory to the NPT, but India, too, may have given exceptional commitments with respect to its nuclear sovereignty and its right to conduct nuclear tests in order to conclude the agreement with Japan. Japanese Prime Minister Shinzo Abe went further by saying that Japan’s cooperation with India was “on the premise that India maintains its commitment to the unilateral and voluntary moratorium on nuclear test,” and urged India to sign the NPT and CTBT, that India has resisted for decades.746 Abe’s government is under criticism for “undermining the nuclear regime” by signing this deal with India.747 It is argued that the nuclear pact with India is part of the Abe Administration’s broad strategy of beefing up both economic and security relations with India as a counterweight to China’s expanding clout in Asia. Japanese businesses involved in nuclear power, meanwhile, see promising markets overseas for export of their technology and equipment since the Fukushima disaster made it difficult for utilities to build new nuclear plants in Japan and the restart of idled plants remains slow. These strategic and business considerations were prioritized as Tokyo pushed for the nuclear deal, which also authorizes India to reprocess spent nuclear fuel to extract plutonium. It is expected that India will be pressed for a legally-binding nuclear moratorium in its bid for a NSG membership. New Delhi is likely to resist that demand and will work around its September 5 statement. The commitment to refrain from nuclear testing will prevent India from

745 The Asahi Shimbun, “EDITORIAL: Deal with India undermines nuclear nonproliferation”, November 9, 2016. 746 Devirupa Mitra, “After Fighting US and NSG on Linkage, India Agrees to Tie Japan Nuclear Deal to N-Test Moratorium”, The Wire, November 12, 2016. 747 “Concerns over nuclear tests linger in agreement with India”, The Yomiuri Shimbun, November 12, 2016. 216

developing state of the art nuclear weapons. Dinshaw Mistry regards it as a “significant concession [made by India] because most of India’s nuclear weapons are believed to be first- generation fission weapons, and India’s 1998 thermonuclear test was at best a partial success.”748 The Indian government claimed that the yield of the bomb was 45 Kilotons, while westerns observers stated that the yield did not exceed 20 Kilotons. There is a difference of opinion among the Indian nuclear scientists about the hydrogen bomb data. Some are of the view that the yield of the thermonuclear bomb was less than expected and India needs more tests.749 Some nuclear scientists supported the official position on the thermonuclear yield. M. R. Srinivasan, a former Indian Atomic Energy Commission Chief, said, “I hold the view the 1998 tests were correct and now we have enough information to design a minimum credible deterrence”.750 Several scholars believe that India needs further testing to develop thermonuclear weapons, or else its nuclear capabilities will be outdated. Bharat Karnad opines, “This deal amounts to death by stagnation for the Indian nuclear weapons program.” He emphasized that for India to be treated as “a country of consequence,” it is important to have a thermonuclear deterrent – “the prime currency of power in the new millennium.”751 Thus, India’s renunciation of nuclear testing is perilous. Unlike the U.S., New Delhi has neither the data nor the technology to conduct the simulated nuclear tests required to develop a thermonuclear deterrent. The U.S. has test data from about 1,054 nuclear tests along with “a computing ability of 100 teraflops and a gigantic ICF facility to obtain miniature thermonuclear explosions.”752 Arun Shourie, after thorough analysis of the terms of the U.S.-India agreement and related U.S. legislation, concluded that, Washington desired that “India [be] drained of its strategic nuclear programme, and thus [become] a dependent India.”753 He warned that the U.S. planned ultimately to “rollback and eventually eliminate the nuclear weapons capability of India.”754 Indian National Security Advisor, M. K. Narayanan, reponded to this debate and said, “As of now, we are

748 Mistry, “Diplomacy, Domestic Politics,” 683. 749 “No CTBT, India needs more nuclear tests: Pokhran II coordinator”, The Times of India, August 27, 2009. 750 Ibid. 751 Bharat Karnad, “Nuclear Test is a Must”, The Asian Age, February 22, 2008. 752 Ibid. 753 Arun Shourie, ‘‘’Parity’, Did You Say?” The Indian Express, August 24, 2006. 754 ArunShourie, “This is About Energy, Did You Say?” The Indian Express, August 23, 2006. 217

steadfast in our commitment to the moratorium. At least there is no debate in the internal circles about this.” On the CTBT he said, “I think we need to now have a full-fledged discussion on the CTBT. We’ll cross that hurdle when we come to it.”755 India’s opposition parties severely criticized the Indo-U.S. nuclear deal on the grounds that it would restrict India’s nuclear independence. After the approval of the NSG waiver for India, Yashwant Sinha, a prominent member of the BJP and former Minister for External Affairs, remarked that “India has walked into the nonproliferation trap set by the U.S., we have given up our right to test nuclear weapons forever.”756 However, Brajesh Mishra, another BJP member and former National Security Advisor, supported the waiver and said that the waiver made “no prohibition” on India regarding nuclear test.757 Abdul Kalam, a former Indian President and scientist, also supported the waiver and remarked that India can break its “voluntary moratorium” on future nuclear tests in the “supreme national interest and nobody can stop it.”758 George Perkovich, director of the Carnegie Endowment for International Peace, pointed out, “Indian decision makers would be squeezed between political pressures to join the treaty if the U.S. and China have ratified it, and military-technical pressures to hold off signature.”759 If Washington ratifies the treaty and Beijing follows suit, even then it is unlikely that India would sign the treaty immediately due to internal divisions. At the domestic level, the ratification of the CTBT will be a fierce battle to fight for the Indian government. India has three possible options with the treaty: First, it may sign and ratify after Washington’s and Beijing’s ratifications. The NSG waiver for India has increased India’s stakes in the non-proliferation regime, which in turn might restrict India from having more nuclear tests. That would be a positive development in the non- proliferation regime, but overcoming domestic opposition would be a difficult task for the Indian government: some sections of Indian society do not believe that India can have confidence on its

755 Siddharth Varadarajan, “NSA: India doesn’t need another nuclear test”, The Hindu, August 30, 2009. 756 “India nuclear deal rift ends”, Gulf Daily News, September 07, 2008. 757 “Advantage India, Says Brajesh Mishra”, The Hindu, September 7, 2008. 758 “N-deal, NSG waiver good for country” Hindustan Times, September 7, 2008. 759 George Perkovich, “The U.S.-India Nuclear Deal”, International Commission on Nuclear Non- proliferation and Disarmament (ICNN), available at http://www.icnnd.org/Documents/US_India_Nuclear_Deal.pdf (Accessed May 29, 17) 218

“minimum nuclear deterrence” without further tests, but positive regional developments and international constraints can play an important role. Second, India may opt for nuclear testing before signing the treaty. India’s nuclear doctrine, written in 1999 and revised in 2003, adopted a “minimum nuclear deterrence” to “ensure survival against a first strike” and maintain “adequate retaliatory capabilities for a punishing strike, which would be unacceptable to the aggressor.”760 The Indian government has not explained how much nuclear force is sufficient for this “minimum nuclear deterrence”. This debate may end up in favor of nuclear testing if the credibility of the Indian deterrent is undermined by new developments. In this scenario, India now would be in better position to face the consequences. After the NSG waiver, India is importing nuclear fuel and an imported fuel stockpile would lower the cost of nuclear testing,761 but losing special status is something that it would never want to do. With the commercial interests of the major powers, the NSG would not be able to reach a consensus for possible penalties against India in case of nuclear testing,762 but individual member states would be free to cease nuclear trade with India. Third, India may refuse to sign the treaty but continue its unilateral moratorium on nuclear testing and ask the United States to amend Article XIV of the CTBT, governing its coming into force.763 This scenario seems to be unlikely: opposition, from both the U.S. Congress and the non-proliferation community to the exceptional status given to India in the Indo-U.S. nuclear deal suggests that an amendment in the rules for India is less likely to repeat itsef. In exchange for receiving nuclear technology, India has committed to maintain a moratorium on nuclear testing. The Henry Hyde Act clearly specifies that the nuclear cooperation deal with India will be terminated in the event of a nuclear test conducted by

760 “Draft Report of National Security Advisory Board on Indian Nuclear Doctrine”, Embassy of India: Washington, D.C., August 17, 1999. 761 George Perkovich, “The U.S.-India Nuclear Deal”, International Commission on Nuclear Non- proliferation and Disarmament (ICNN), available at http://www.icnnd.org/Documents/US_India_Nuclear_Deal.pdf (Accessed May 29, 17) 762 -Ibid. 763 Amandeep Gill, “Possible Indian reaction to U.S. ratification of the CTBT”, Bulletin of the Atomic Scientists, May 5, 2009. 219

India.764 The India-Japan deal also explicitly calls for the termination of the agreement in case of changes in the unilateral moratorium. The NSG is likely to withdraw its waiver, leading to a “cut off nuclear supplies.”765 The possibility that any further nuclear testing could lead to termination of the nuclear deal with the U.S. and Japan will act as a strong deterrent for India.766 Although, India was reluctant to sign the CTBT, this adherence to the moratorium on nuclear testing will strengthen the nuclear non-proliferation regime and will cap India’s nuclear capabilities. The agreement reinforces Indian strategic restraint. The agreement implicitly requires a continued moratorium on nuclear testing (because it waives the termination of supply provision only for tests prior to July 2005).

A FMCT Norm The India-U.S. nuclear deal allowed India to import uranium for its civilian program, creating a perceived possibility for it to use its limited uranium reserves only for its nuclear program. This was a major non-proliferation concern with the nuclear agreement. In general, India could use four sources of plutonium for its military program. First, the Cirus reactor, operational since 1960 and shut down in 2010, produced plutonium sufficient for about two nuclear weapons every year; and the Dhruva reactor, operational since 1986, produced plutonium sufficient for about five nuclear weapons each year. By 2010, these plants have had produced weapons-grade plutonium sufficient for 100-125 nuclear weapons. Second, India could also use reactor-grade plutonium from its heavy water reactors, most of which had operated outside safeguards in the 1990s and 2000s. These reactors had produced about 10 tons of plutonium by 2010 and that would suffice for hundreds of nuclear weapons, with two limitations. One limitation is that reactor-grade plutonium is not well-suited for nuclear weapons. Another is that India’s reactor-grade plutonium stockpile is most likely intended as fuel for the country’s Prototype Fast Breeder Reactor – not for nuclear weapons.

764 A. Gopalakrishnan, “Assured Fuel Supply is a Mirage”, Deccan Chronicle, August 5, 2007; P. K. Iyengar, “123 Agreement is a Gilded Cage,” The Asian Age, August 16, 2007. 765 Paul K. Kerr, U.S. Nuclear Cooperation with India: Issue for Congress, CRS Report for Congress, 7- 5700, RL-33016, (Washington D.C.: Congressional Research Service, December 15, 2011). P. 14. 766 A. Vinod Kumar, “A Doctrine at Work: Obama’s Evolving Nuclear Policy and What it Bodes for India”, Strategic Analysis, Vol. 35, No. 2, 2011. P. 217. 220

Third, India could produce weapons-grade plutonium from its heavy water reactors by operating them in a low burn-up mode. A 220 MW reactor operated in this mode could produce 150-200 kg of weapons-grade plutonium each year, but would require a considerable 190 tons of uranium, in contrast to just 30 tons when operating in a normal mode. Fourth, India could obtain weapons-grade plutonium from its breeder reactor. It could produce about 130 kg of plutonium annually, which would be sufficient for 25 nuclear weapons annually. But, as noted earlier, New Delhi may require this plutonium to fuel additional breeder reactors, and it may not then use much of the breeder-derived plutonium for nuclear weapons.767 Even if India wanted to considerably enlarge its stock of weapons-grade plutonium, its ability to do so using foreign-supplied uranium would be limited. First, while foreign-supplied uranium could free up India’s domestic uranium for the Dhruva reactor, this reactor only produces plutonium sufficient for five nuclear weapons per year. India has sufficient domestic uranium for the Dhruva and breeder reactors. The Dhruva consumes about 21 tonnes annually, and the blankets of the breeder require only depleted uranium, of which there is plenty available from spent fuel. Even with India’s current low rate of uranium mining, it produces about 300 tonnes of natural uranium.768 Second, while foreign-supplied uranium could free up India’s domestic uranium for its heavy water reactors operated in a low burn-up mode, this would require a large-amount of uranium (190 tons in contrast to 30 tons in a normal mode) and would be detected. Since this would raise international concerns, India would likely to refrain from this option. Third, India could build an entirely new research reactors, fuelled by domestic uranium, for a military program; as of 2015, however, it had not built any such reactor.769 Thus, theoretically foreign- supplied uranium could free up domestic uranium for India’s military reactors, but this concern has not materialized.

767 Dinshaw Mistry, The US-India Nuclear Agreement: Diplomacy and Domestic Politics, (Cambridge: Cambridge University Press, 2014). pp. 251-52. 768 R. Rajaraman, “Implications of the Indo-US Nuclear Deal for India’s Energy and Military Programmes”, in P. R. Chari, (ed.), Indo-US Nuclear Deal: Seeking Synergy in Bilateralism, (New Delhi: Routledge, 2009). P. 140. 769 Dinshaw Mistry, The US-India Nuclear Agreement: Diplomacy and Domestic Politics, (Cambridge: Cambridge University Press, 2014). pp. 253. 221

The U.S. Congress, in the Hyde Act, wanted to include a condition of India’s cessation of fissile material production, but regional and strategic affairs experts argued that New Delhi itself was clear about its fissile material limits. Regional experts such as Francine Frankel and Ashley Tellis opposed any fissile material freeze because it would trigger substantial opposition in India and derail the nuclear agreement. Senior U.S. officials then overruled the non-proliferation position of asking New Delhi to place almost all of its reactors under safeguards. Undersecretary Burns took the view that this position was misplaced, as the related idea that India would greatly expand its nuclear stockpile if it retained many reactors outside safeguards, was unlikely.770 Washington thus accepted that about one-third of India’s power reactors, as well as its breeder reactor, would remain outside safeguards. Ambassador Richard Boucher argues, “We had this concern that India might increase its weapons program. We had a variety of different discussions, mostly in private with [Indian] experts and leaders to insist that you [India] got to slow down your [nuclear] program and shouldn’t build so much nuclear weapons.”771 He also claims, “I haven’t seen anything in public that indicates that there is any change in India’s nuclear program.”772 A U.S. State Department official, in compliance with the Hyde Act’s condition of reporting to the US Congress annually, confides, “We piece together this report every year and we are pretty confident that the deal does not contribute to the India’s nuclear weapons program.”773 Ashley Tellis does not agree that this deal would boost India’s nuclear program because, he argues, “India’s nuclear weapons program is still very small. That does not depend on cooperation from abroad. Whether we had a deal or not India’s nuclear weapons program is essentially something will continue on its own terms.”774 Lisa Curtis argues that it was not possible to get India to stop the production of fissile material because “India still based its decision looking at Pakistan.”775

Anish Goel argues,

770 Glenn Kessler, The Confidante: Condoleezza Rice and the Creation of the Bush Legacy, (New York: St. Martin’s Press, 2007). PP. 62-63. 771 Interview with Ambassador Richrad Boucher on August 26, 2015. 772 Interview with Ambassador Richard Boucher on August 26, 2015. 773 Interview with US State Department Official. 774 Interview with Ashley Tellis on July 21, 2015. 775 Interview with Lisa Curtis on June 15, 2015. 222

We didn’t get India to agree to a unilateral moratorium on fissile material production. We didn’t get everything we wanted. We understood that it would be very difficult to get India to agree to unilateral fissile material cut-off without Pakistan also agreeing to it. If you just look at from India’s security stand point I don’t think there is any way that they could agree to that while Pakistan was not having same restriction.776

In 2006, the Bush Administration proposed an FMCT draft that emphasized national technical means of verification, instead of multilateral verification mechanism, for the purpose of ensuring compliance to the treaty while India reiterated its stance on an FMCT with a verification clause. India insisted that a verification mechanism should be included. Jayant Prasad, permanent representative of India to the CD, stated

[W]e believe that a FMCT should incorporate a verification mechanism in order to provide the assurance that all states party to it are complying with their obligations under the Treaty. Full compliance by all states with their obligations under international instruments to which they are party is critical to the achievement of the goals envisaged in these instruments. When a state consents to adhere to an instrument, it wants to be assured that other state parties to that instrument are also complying with their obligations. Verification, which serves the dual purpose of detection and deterrence, provides that assurance.777

Indian Prime Minister Manmohan Singh, also in response to India’s commitment towards the conclusion of FMCT, stated

We are only committed to negotiate a Fissile Material Cut-off Treaty in the Conference on Disarmament in Geneva, a commitment which was given by the previous government. India is willing to join only a non- discriminatory, multilaterally negotiated and internationally verifiable FMCT, as and when it is concluded in the Conference on Disarmament, again provided our security interests are fully addressed.778

776 Interview with Anish Goel on June 30, 2015. 777 Jayant Prasad, ‘Statement Made by the Permanent Representative to the Conference on Disarmament’, May 17, 2006. Available at http://www.un.int/india/2006/ind1223.pdf (Accessed May 29, 17) 778 Prime Minister Manmohan Singh Statement in Rajya Sabha on the India-US Nuclear Agreement, August 17, 2006. 223

The Obama Administration reversed the U.S. position on verification. President Obama, on April 5, 2009, proposed to negotiate “a new treaty that verifiably ends the production of fissile material intended for use in state nuclear weapons.”779 The Obama Administration changed American position and agreed on a multilateral verification mechanism, which brought India’s position in line with American position. On May 29, 2009, the CD decided to establish an FMCT negotiating committee.780 However, Pakistan repeatedly blocked consensus to start negotiations on the treaty due to its security concerns, despite pressure from major powers.781 It fears that India would be able to increase its fissile material stockpiles as a result of the NSG waiver. The Pakistan National Command Authority (NCA), which is responsible for nuclear weapons, stated that Pakistan’s position would be based on its “national security interests and the objective of strategic stability in South Asia.”782 Zamir Akram, Permanent representative of Pakistan to the CD, also highlighted that “ensuring our security is the supreme national interest of Pakistan” and “the FMCT that has been proposed will only ban future production of fissile material”: as a result the existing asymmetry in fissile material stockpiles between India and Pakistan could be increased.783 However, according to an alternative perspective, early conclusion of an FMCT is the interest of Pakistan as it would freeze the increasing asymmetry and Pakistan has enough nuclear weapons for its deterrence against India.784 Although Pakistan is the most insistent in wanting stocks to be addressed in an FMCT, it is not alone. Along with the Group of 21, countries such as Brazil, Japan, New Zealand, Egypt, Indonesia, Iran and Sri Lanka have raised this issue so that an FMCT can serve both non-

779 “Obama Prague Speech on Nuclear Weapons”, April 5, 2009. Available at http://www.huffingtonpost.com/2009/04/05/obama-prague-speech-on-nu_n_183219.html (Accessed May 29, 17) 780 Conference on Disarmament, May 29, 2009. Available at http://www.unog.ch/80256EDD006B8954/(httpAssets)/E8846993B5213D59C12575DF0029EE11/$file/ CD+1864+English.pdf (Accessed May 29, 17) 781 “Pakistan feels heat from nuclear powers over talks block”, Agence France-Presse, August 21, 2009. 782 “Press Release by Inter-Services Public Relations, No. 318/2007,” August 1, 2007. 783 “Statement by Zamir Akran, Permanent Representative of Pakistan at the Conference on Disarmament”, Geneva, February 18, 2010. Available at www.reachingcriticalwill.org/political/cd/2010/statements/part1/18Feb_Pakistan.pdf (Accessed May 29, 17) 784 Huma Yusuf, “Undefined Nuclear Goals”, Dawn, March 15, 2011. 224

proliferation and disarmament. China also did not endorse the CD plan of work. Some states may simply be remaining silent about their opposition to the treaty and taking advantage of Pakistan’s refusal to permit talks on an FMCT. Israeli Prime Minister Benjamin Netanyahu told President Bill Clinton in 1999, “We will never sign the treaty, and do not delude yourselves – no pressure will help. We will not sign the treaty because we will not commit suicide.”785 The negotiation for an FMCT is a complicated process due to divergent of opinions and therefore, India’s support for negotiation is less significant. Nicholas Burns argues, “We did want to bring India into the fissile technology control regime and other international treaties that govern the fissile material and that’s where these negotiations now needs to go. India needs to be further embedded in international agreement that govern the use of this material.”786 The India-U.S. nuclear deal has a positive impact for the CTBT and FMCT norms. The deal has brought India closer to the regime. India has resisted signing the CTBT and a unilateral moratorium of fissile material production but New Delhi’s stakes in the regime, large number of civilian nuclear agreements with nuclear suppliers, fear of losing business and hard earned nuclear status are sufficient reasons to deter India from conducting nuclear tests and producing fissile material on a large basis.

Theoretical Implications In norm contestation the institutional context matters; specifically, the degree to which the normative status quo is entrenched or institutionalized matters profoundly because the defenders enjoy special strategic and tactical advantages when defending entrenched norms. The consensus rule of the NSG provides many opportunities to the member states to block a decision. Powerful states are in position to offer positive and negative incentives to achieve consensus but that requires huge political and diplomatic investment.

785 Avner Cohen and Marvin Miller, “Israel,” in Banning the Production of Fissile Materials for Nuclear Weapons: Country Perspectives on the Challenges to a Fissile Material (Cutoff) Treaty, International Panel on Fissile Materials, September 2008, www.fissilematerials.org/ipfm/site_down/gfmr08cv.pdf. (Accessed May 29, 17) 786 Interview with Nicholas Burns on June 22, 2015. 225

Challengers frame a new norm or change in an established norm to connect it to a preexisting widely accepted norm. Normative change occurs as a result of discursive interventions uttered by both defenders and challengers. Both sides typically coalition-build with a wide range of like-minded actors and engage in contestation. Norm challengers must make two strategic moves to succeed: they must first establish that there is a normative problem which warrants the launching of justificatory attacks on the underlying morality of the status quo; then they must offer a viable solution. This provides defenders a strategic blocking opportunity. They can simply defend the entrenched status quo norm by refuting challengers’ claims that it produces morally problematic outcomes. The path dependence literature has long recognized how “self-reinforcing sequences” and “institutional reproduction effects” provide inertial advantages to status quo norms, practices or institutions, meaning of promoters of change typically face high evidentiary and psychological hurdles.787 The United States had to invest huge diplomatic efforts to achieve consensus even though no member state in the NSG opposed India’s waiver, but only wanted to extract more non- proliferation conditions. It is important to examine the context in which norm contestation in a discrete cycle of a particular issue-area is taking place. If there is a heavily entrenched status quo then this suggests defenders will enjoy a number of tactical and strategic advantages and that normative change is unlikely. The level of resistance at the NSG suggests that the India-specific waiver is unlikely to set a precedent. Sandholtz and Stiles argue that while the international system is obviously not exactly like a court room, international actors nevertheless argue and draw selectively and strategically on rules and norms that support their goals and further, that an actor acting in accord with a line of accepted normative structure can be more confident that its actions will be accepted as

787 James Mahoney, “Path Dependence in Historical Sociology”, Theory and Society, Vol. 29, No. 4, 2000. pp. 513-15. 226

legitimate by other actors.788 Powerful states have more resources and options to dominate these discursive interventions. Power and norms are mutually constitutive: at any particular moment in time, norms shape the system of power that exists in a particular context by holding in place the categories and identities upon which it rests. In other words, the distribution of power among states, the forms of power on which states can draw, and the types of state that may exercise power in a given situation, are constituted by norms and are, at a particular moment, fixed. Over time, however, norms evolve as this system of power privileges certain states, enabling them to construct and interpret norms. Thus, the power dynamics that characterize a particular context determine, at least partially, how and why certain actors are able to influence the processes of norm evolution. In other words, norms shape relations of power while relations of power shape who influences norms over time and in what way. Norms constitute power relations by holding in place meanings associated with concepts, which distribute power and privileges among states. Norms change over time and states influence their evolution according to their national interest, but to do so they have to draw on existing normative structure. The way states construct and interpret norms is shaped by the nature of existing prevailing broader normative structure.

Conclusion The Nuclear Suppliers Group exempted India from its nuclear export guidelines, which require full-scope safeguards, after complicated negotiations. The NSG waiver was essential for the completion of the Indo-U.S. Nuclear Agreement, announced in July 2005. The requirement of consensus for the NSG decision made it difficult for the U.S. and India to bring all the members on board − especially the “like-minded” states, which have strong non-proliferation commitments. The United States and India also had different strategies in the NSG meetings to achieve the waiver. The United States was expecting India to convince the member states while India considered it the U.S.’s responsibility to carry the burden of negotiations in the meeting as an

788 Wayne Sandholtz and Kendall W. Stiles, “Explaining International Norm Change”, in Wayne Sandholtz and Kendall W. Stiles, (ed.), International Norms and Cycles of Change, (Oxford: Oxford University Press, 2009). P. 13. 227

interpretation of the 2005 agreement. Although, India lobbied hard for the waiver by making its case to the member states through dispatching envoys in the respective capitals before the NSG meeting and also by holding sideline meetings, it expected the U.S. to make India’s case inside the meeting. It seems the United States, on the other hand, was not expecting the level of resistance which its drafts met and in the last meeting pursued the matter harder as it wanted the waiver before the U.S.-India deal could be approved by Congress before the Nov. 2008 election. This to some extent justified the Indian apprehensions that in the first meeting the U.S. did not make a strong effort. From the beginning NSG members had an understanding regarding the eventual approval of the waiver but some countries, such as the “like-minded countries”, wanted to push India further to get more non-proliferation commitments. India’s inflexibility due to political opposition at home did not allow it to give more concessions and it threatened to walk away in the face of more conditions. The changes from the first to the final draft indicate that the United States was trying to accommodate the non-proliferation concerns but still not cross Indian red-lines. The first paragraph shifted the focus on energy needs of India, integrity of the non-proliferation regime, safeguards and export controls as the objective of the waiver. In the second paragraph, India’s non-proliferation commitments were described and replaced the “perpetuity” of safeguards with the reference to GOV/1621 and sharpened the language a bit more regarding India’s non- proliferation commitments. The third paragraph made a direct link between the waiver and India’s commitments and also brought in the reference to India’s formal statement on September 5, 2008. It did not prohibit the transfer of ENR technology, but only asked for “restraint” as mentioned in the NSG Guidelines. In case of Indian violation, such as a nuclear test, the member states would meet to decide on the termination of the waiver but it would require a consensus. The fourth paragraph requested the NSG chair to consult India regarding NSG Guidelines implementation by India. The final paragraph is more or less the “clean and unconditional” waiver, as India insisted but the nature of the negotiations and the level of resistance suggested that it would not be possible for the other three non-NPT states to get the exemption from the NSG Guidelines

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like India. Pakistan’s non-proliferation record, regional instability in the case of Israel and IAEA violations by North Korea diminish the chances of such a waiver for them. If we look at the NSG waiver negotiations for India, it is quite obvious that the waiver was India-specific. The final text of the waiver excluded references to the NPT and to Non- Nuclear Weapon States. The NSG works on consensus and the Hyde Act not only imposed the condition of an Indian waiver from its guidelines but also required that this waiver be limited to only India. It means the Hyde Act obliges the United States to discourage any such waiver for other two non-NPT states, Pakistan and Israel. India’s NSG membership debate gave rise to divergent views. On the one hand, India is already adhering to the NSG guidelines as a nonmember state and admitting India would not strengthen international export controls. Admitting non-NPT states would not only complicate the decision-making process due to the consensus rule, it would also undermine the credibility of the Group.789 It would solidify the impression that India is now an accepted non-NPT state and it would eliminate any incentive for India’s compliance with non-proliferation norms.790 On the other hand, it would tie India closer to the regime and enhance the credibility of the Group by having a leading NAM (Non-Aligned Movement) country in it. It would encourage India to adopt tight export control laws by increasing its stake in the regime. It is highly unlikely that the Indian government will accept any major non-proliferation conditions. For the U.S. and India, it will not be easy to assuage the concerns of like-minded states. However, U.S. support will apparently be less vigorous and India has to invest more diplomatic efforts to square the circle. Like the waiver, any agreement on membership would likely be India-specific. India will eventually obtain membership in the NSG, but only after a long negotiation process. The deal failed to restrict the transfer of ENR technology. However, the Hyde Act does not allow the United States to transfer sensitive nuclear technology but the waiver allowed such transfers by other states. The NSG guidelines prohibit the supplier states to transfer such technology to a non-NPT state. Also, India’s commitment to refrain from the transfer of

789 Fred McGoldrick, “A Road Ahead for Export Controls: Challenges for the Nuclear Suppliers Group”, Arms Control Today, January/February 2011. 790 Daniel Painter, “The Nuclear Suppliers Group at the Crossroads”, The Diplomat, June 10, 2013. 229

enrichment and reprocessing technology to states that do not have them has a positive implication for the ENR technology ban norm. The deal has positive impact for the CTBT and FMCT norms. India fought hard to keep its nuclear testing option open, but committed to continue its moratorium on nuclear testing. Although there is pressure from a section of the Indian scientific community to have more nuclear tests, currently there is no political or strategic incentive for India to do so. Despite stockpile provisions in the Indo-U.S. nuclear deal and no automatic termination of the waiver, nuclear testing would be at the cost of a special status which India would not want to lose. The national statements of the NSG member states and the process of negotiation indicate that a resumption of nuclear testing would not be cost-free. The deal also failed to commit India to stop the production of fissile material for weapons use. A moratorium on fissile material production would have been a significant gain for the regime. There are concerns that nuclear fuel supply from outside as a result of the deal would allow India to divert its domestic resources to the weapons use. It is also important to note India’s three-phase nuclear energy plan, which points to the thorium-based fuel cycle, is an important part of its national policy; this requires reprocessed fuel and this also explains the India’s decision to keep its fast breeder reactor outside the IAEA safeguards. But India is unlikely to increase the production of its fissile material due to international concerns and fear of losing its hard earned nuclear status.

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Chapter VIII: Conclusion

The India-U.S. nuclear deal generated a controversy. Some argued in favor of the deal and described it as beneficial for the nuclear non-proliferation regime while others feared it would undermine the attractiveness of the NPT and the credibility of the NSG as an effective organization to prevent nuclear proliferation. The truth lies somewhere in the middle of these two opinions. The deal, on the one hand, brings India closer to the regime as India has accepted the IAEA safeguards, signed an Additional Protocol, and committed to adhere to the NSG guidelines. On the other hand, the deal failed to bind India legally to the testing moratorium, ban the export of ENR technologies, or constrain its nuclear weapons program. However, there is an informal understanding that the NSG members will not transfer ENR technology to India and New Delhi’s commitment not to transfer such technology has a positive implication. The deal has increased India’s stake in the regime and that would serve as a deterrent to prevent New Delhi from resuming nuclear testing and boosting its nuclear weapons program on a larger scale. Hence, the deal does not have negative implications for the fundamental nuclear non- proliferation and disarmament norms. The following section will examine the theoretical implications of this study.

Theoretical Implications International regimes are systems of norms and decision-making procedures which create “shared understandings” of “acceptable form of behavior” in a particular issue area. Norms are never completely cohesive and devoid of internal tensions, and therefore never have one common interpretation. They are always partial, often cross-cut by inconsistencies and contradiction, and almost always contested to some degree. States are commonly embedded in multiple norms. The tension between these norms produces a discursive space in which states can play one norm against another, draw on multiple norms to create new forms of interdiscursivity, and otherwise move between and across multiple discourses. This provides a substantial space within which states can act self-interestedly and work towards discursive change that privileges their interests and in this way the meanings of the norms are contested and challenged.

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Norm contestation is a process in which someone disagrees with or contests the meaning of a norm. These processes of contestation are in turn seen as the core drivers of social change and suggest that the meaning of norms is revised to adapt to new situations. This political practice both indicates and generates legitimacy. International relations operate under conditions of diversity, where “iterated social interaction is not necessarily conducive to the shared interpretation of norms.”791 Due to the diversity of individual background experiences which come into play in an inter-cultural encounter, the shared recognition of norms becomes less likely and, accordingly, clashes about norms are to be expected. Whether these clashes culminate in conflict or form the basis of finding shared organizing principles (such as mutual recognition) depends on how these encounters are conducted. Wiener argues that to explore the constructive potential of such encounters, we need more detailed knowledge about how normative structures of meaning-in-use792 emerge and how they change through everyday practice. Analysis of cultural practices is useful in uncovering the hidden meanings of norms which deviate from the texts of legal document. A Theory of Contestation emphasizes that there is a “legitimacy gap” between broader norms and specific implementation. Wiener suggests that this gap can be filled by the principle of contestedness, which warrants access to regular contestation (as opposed to ad-hoc contestation) for all involved stakeholders. Norms are legitimized via institutionalized procedures that ensure that all those who could potentially be affected by a norm can have their concerns heard and taken into account to fill the legitimacy gap. This theory ignores the fact that, despite regular access to contestation, power asymmetry matter, as powerful actors tend to dominate discursive interventions and have more options to shape social and political processes through which norms are interpreted. But while Weiner's analysis of contestation fully embraces the social essence of norms, it is less cognizant of the ways in which power impacts the meanings imparted to norms. In suggesting that norm contestation occurs between interpretations of equal standing, she

791 Jennifer Milliken, “The Study of Discourse in International Relations: A Critique of Research and Methods”, European Journal of International Relations, Vol. 5, No. 2, 1999. P. 232. 792 Antje Wiener, A Theory of Contestation, (Berlin: Springer, 2014). Chapter 3 and 5.

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underplays how the relative power of actors in the negotiation and implementation of a norm may privilege particular outcomes. Weiner pays insufficient attention to how particular interpretations of a norm become dominant even if not universally accepted. The contestation over the non-proliferation and disarmament norms demonstrates that state interests and norms affect each other. More powerful states were able to interpret norms according to their own state interests but their actions were not unilateral: rather they had to construct a mutual understanding with others through the normative structure. Powerful states had more leverage to develop that understanding, and provided more positive and negative incentives to other states to obtain their preferred interpretation. In this process, however, they had to accommodate the interests of other states and this in turn brought changes in the norms they were attempting to advance. Power affects the evolution of norms and norms affect the power structure. A realist constructivist approach in norm contestation theory provides a power sensitive approach in taking into account material factors, normative structure, domestic factors and elite perceptions of national interests. State interests are social construction that are open to redefinition. State elites define national interests through constructing mutual understandings at the domestic level. Domestic structure and culture influences the bargaining process and the way these perceived national interests can be achieved. The Bush Administration perceived India as a strategic partner and decided to lift nuclear sanctions against New Delhi to build that partnership on a solid basis. This was against the “shared understanding” of the U.S. domestic law and the regime. The Bush Administration had to make a normative fit and presented this deal as in compliance with the other accepted norms of the regime. That is why Washington highlighted the energy and environmental aspect of the deal and downplayed the strategic aspect. A realist constructivism approach in norm contestation theory suggests that norms provide legitimacy and it is important to seek legitimacy and moral justification in power politics. An ideological mask for strategic interests can serve the purpose of legitimacy and acceptability at the international level. In order to seek this legitimacy the Bush Administration had to modify its domestic law by convincing the U.S. Congress to approve the deal at domestic

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level and at international level it had to invest huge political and diplomatic efforts to get a consensus decision at the NSG. The norm contestation process is receptive to the influence of power due to the crucial role played by state practice in the development, maintenance and transformation of norm. Powerful states disproportionately influence norm interpretation, but there are also counter- balancing factors that impose restraints upon the unhindered exercise of power. The consequences of a normative deviation can be apprehended through carefully studying the discourses surrounding the deviation: the justification put forward by the norm deviating state, the type of arguments (legal, moral, political) used to defend the action, as well as the reactions of other states – outright condemnation, explicit support, or conspicuous reservations. Powerful states are able to popularize their norm interpretation on the level of discourses. They possess discursive power. Discourses provide them with a forum for shaping the values, perceptions, preferences, and consequently the behavior of other actors. It produces “domains of objects” and “rituals of truth” and contributes in the stabilization of existing structures of inequality. Powerful states exert influence on the incentive structure of weaker states. They can “buy” consent and therefore manipulate norm interpretation in their favor. Powerful states significantly shape the incentives and disincentives for other states to acquiesce to their norm interpretation and their resources endow them with plenty of bargaining chips which can be used to deter opposition, induce consent etc. Norms are not the opposite of power, but rather a vehicle through which this type of power is executed. While powerful states are privileged storytellers, their discursive power is by no means unlimited. They must construct an intersubjective consensus among their peers to achieve acceptance for their behavior. The efforts to create this intersubjective quality put certain constraints on their unlimited use of power. The United States was in a position to engage in extensive diplomacy to build consensus for the deal. The Bush Administration had extensive consultation with major countries to get support of the deal. At the NSG the United States was also in a position to shape the context in which like-minded states assessed that blocking the consensus at the cost of their relations with Washington is not in their interest.

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Powerful states could promote norms that serve their interests by managing relations between themselves, but also by exploiting their own unequal power over subordinate states within their sphere of influence and alliance systems. If major powers have a collective interest in promoting a norm then it is possible to change a heavy-institutionalized norm. Defenders of the entrenched normative status quo enjoy special strategic and tactical advantages. Institutional designs also empower states in different ways. The two-thirds majority voting system empowers major states while consensus voting favors smaller states. It was easier for the United States to get approval for the India-IAEA safeguards agreement due to the two-thirds majority rule than getting a consensus decision at the NSG. Due to this consensus rule the United States had to accommodate the concerns of the like-minded states, though these accommodations had little impact on the final draft. In the end, Washington threatened these states that their decision to blockade the consensus would negatively affect their relations with the United States. The level of resistance, despite India’s arguably good non-proliferation record, rules out the possibility for similar deals for other non-NPT states and this deal is likely to remain India-specific for a foreseeable future. States exercise power by “fixing” the inter-subjective meanings and articulating meaning in ways that legitimate their particular views, link actions and preferences of other states to the achievement of their interests, and make particular constructed structures socially acceptable. In holding the particular meanings associated with norms in place, discourse shapes the power relations that characterize normative setting at a particular moment in time and, in turn, influences what can be said and who can say it. There is a space for the use of power, albeit within a particular normative context. This space and the exercise of the power associated with positions within a normative context provide the potential for possible change in discourses over time. International regimes provide a forum where states seek legitimacy and in this way regimes are effective tools of state policy. Powerful states effectively use international regimes for their interests but regimes also constrain great power ambitions. In order to secure and sustain legitimacy regimes need to be seen to possess a degree of autonomy. For powerful states the trade off in multilateralism is to invest regimes with sufficient autonomy on the one hand, whilst also seeking to maintain a control on the other hand.

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International regimes play an important role in shaping and constraining state’s behavior but regimes are also the result of states’ political actions. Strategic actions take place in a material and normative structure. This material and ideational environment exerts constrain on states’ autonomy but also empower them to achieve their interests in a legitimate way. States perceptions about what is feasible, legitimate, possible and desirable are shaped both by the institutional environment in which they find themselves and existing policy paradigms and worldviews. It is through such cognitive filters that strategic conduct is conceptualized and ultimately assessed. Exercise of power is about shaping a context in which actors redefine their preferences and interests. International regimes provide a context in which powerful actors frame issues in a normative structure through persuasion and coercion. Realist constructivism provides a power- sensitive approach in the norm contestation theory in which powerful states are in better position to shape and reshape international norms through intersubjective standards of appropriate behavior. This approach is beneficial in norm contestation theory to assess normative change and stability by taking into account: domestic factors, the interplay of structure and agency, giving more space to agency and how agents can handle opportunities and constraints, and taking power as relative and relational. The United States framed the deal through an acceptable normative structure and reshaped the norms to bring India closer to the regime. Despite collective interest of all major powers in lifting nuclear sanctions against India, it was not easier for the United States to build that consensus and it had to invest considerable political and diplomatic efforts. Washington presented the changes as India-specific and similar waivers for other non-NPT states are unlikely. The following section summarizes the implications for the non-proliferation and disarmament norms.

Implications for the Non-Proliferation and Disarmament Norms It is clear that India cannot be coerced to join the NPT as a NNWS, and it is not possible to admit India as a NWS due to the complexity involved in amending the treaty. The deal has been defended as a bold step to move beyond the traditional approach by engaging India in the

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non-proliferation regime on realistic grounds. India has long denounced the regime as “discriminatory” and now by making non-proliferation commitments, it has not only accepted the regime but, also by participating in it, received some exemptions. A U.S. State Department official remarked, “the deal has brought India closer to the regime by increasing its stake in the regime.”793 With the rise of India, there was pressure in the nuclear order to accommodate India. Russia, France, UK and Germany wanted to lift sanctions and were proposing it to the United States. Washington recognized the strategic and economic importance of India but the non- proliferation regime was also an important policy objective. The Bush Administration preferred strategic and economic interests to non-proliferation regime and accommodated India in the regime due to its rising power. The Clinton Administration and Colin Powell under the Bush Administration preferred an incremental or step-by-step approach while Condoleezza Rice chose for a radical approach to lift sanctions against India at once. This change of power relations exerted pressure on the nuclear non-proliferation to change norms in order to bring India closer to the regime. The United States downplayed the strategic aspect of the deal and presented it as energy cooperation for rising Indian economy and to minimize the negative environmental effects of coal usage. It also argued that this deal was not going to damage the NPT because the treaty does not prohibit nuclear cooperation with non-NPT states and the full-scope safeguard norm is a later development. The United States had a consultation with major powers to develop a broad understanding about lifting nuclear sanction against India. Support of major suppliers states also helped to build a broad consensus. Washington highlighted India’s stable democracy and its “responsible nuclear behavior” to support an Indian exception. Both the U.S. Congress and the Bush Administration categorically made it clear that India is special case and this deal is only for India: other non-NPT states are not eligible for such special treatment. India had chosen to remain outside the non-proliferation regime, refusing to sign the NPT and terming it “discriminatory”. There is no prospect that India would join the NPT as a NNWS, while joining as a NWS is equally unlikely. The deal has been the first attempt to bringing India

793 Interview with US State Department Official. 237

closer to the regime while accepting the reality of its nuclear weapons program. Now India has not only accepted the regime, departing from its previous position, but also is willing to participate in it. India committed to separating its “safeguarded” and “unsafeguarded” nuclear facilities, signing an Additional Protocol, continuing its moratorium on nuclear testing, and supporting the negotiations of an FMCT, and adopting an effective domestic export control system in line with NSG guidelines. The Indian nuclear separation plan brought 65% of its nuclear facilities under IAEA safeguards. The signing of the Additional Protocol not only minimized the possibility of any transfer from “safeguarded” to “unsafeguarded” facilities but also had a positive impact on the efforts to make this measure universal and a part of the NSG guidelines. The opponents of the deal fear that giving India, a non-NPT state, all the benefits of the treaty that are reserved for the NNWSs of the treaty would weaken the NPT. The NPT itself did not initially prohibit nuclear trade with a non-NPT state; it was a later development that made full-scope safeguards a requirement for the nuclear trade. In 1992, the NSG adopted the condition of full-scope safeguards, and the NPT Extension and Review Conference in 1995 endorsed this condition. So, allowing India to have nuclear trade with the NSG member states is consistent with the original NPT text, which requires only facility-specific safeguards, to which India has agreed. This is a reversion to a pre-1992 situation when the NSG had no full-scope condition. The deal is India-specific, which excludes any possibility of Pakistan and Israel getting this exemption. The negotiation of the waiver shows that, despite India’s strong non-proliferation record and stable democracy, it was not easy for the United States to get the exemption: it had to revise the draft three times to address the concerns of some NSG member states, and mount a significant diplomatic efforts at the end. This demonstrated that similar waivers for the other two non-NPT states are unlikely. The NSG made the waiver India-specific, which reduces the possibility of the waiver leading to a criteria-based approach to further waivers, while the Hyde Act specifically limits the United States in this regard. The lack of generality in the waiver has encouraged China and Pakistan to seek a deal outside the NSG, but this approach has limitations and cannot be used on a regular basis. The concern, that the deal would encourage NSG members to seek similar waivers for other non-NPT states, which in turn would undermine the

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credibility of the group, is not well-founded. This India-specific deal is unlikely to have any practical implications for the full-scope safeguards norm. India has committed to adhere to the NSG guidelines, both current and future. It is an emerging nuclear exporter, and a bid for NSG membership is expected to be a next step for it. Indian membership, on the one hand, requires the group to loosen its NPT membership criterion, and would further complicate consensus-based decision-making in the NSG. On the other hand, it would bind India more closely to it, dampening non-NSG criticism of the group. A U.S. official argues, “If the regime blocks the other non-NPT states then it will limit the damage.” In the beginning France and Russia were trying to convince the Clinton Administration to make an exception. The Clinton Administration was the one that was holding on to the norms. “The Bush and Obama Administrations, which are asking the regime to admit India and the regime is upholding the norm on the other hand.” Making this transition of India and the regime long and complicated.794 Michael Krepon argues

I think I have been proven wrong because the Indian agreement has no official impact. I think it may be harder for other deals to follow. There are only Pakistan and Israel. Israel because of Middle East situation is so awful, there are strong compelling reasons not to give Israel a nuclear deal. Pakistan’s nuclear past is so checkered and it is competing even harder than India. Pakistan’s nuclear arsenal is growing at a fast rate than India and its stocks of fissile material for weapons purposes are growing faster than India. There are lots of reasons why the India deal may not be a precedent to set.795

Greg Jones admits, “It has weakened the regime, probably not as much as I would have thought initially. India has been allowed the benefits of peaceful nuclear energy. What are the incentives for other countries to play by the rule? But it didn’t turn out to be as bad as I have imagined.”796 Jones is referring to the implications for the full-scope safeguards norm. This study has shown that there are no practical implications for the full-scope safeguard norm because this deal is India-specific and there was little opposition from the NNWSs.

794 Anonymous Interview 795 Interview with Michael Krepon on June 18, 2015. 796 Interview with Greg Jones on June 17, 2015. 239

Robert Lehman claims, “This may not be an open-ended precedent.”797 Robert Einhorn summarizes the implications, “What were presumed to be the positive implications of the deal did not materialize to the extent that its proponents said they would materialize. On the other hand the negative consequences the critics charged did not materialize to the extent that critics predicted. In general the impact of the deal was less than many people assumed at the time. It hasn’t meant the end of the nonproliferation regime.”798 In the deal, India has committed to continue its unilateral moratorium on nuclear testing and support the negotiations on a FMCT. Despite the debate going on in India about further testing, the deal has increased its stake in the regime and the economic and political consequences of testing are far more than any pressure from a section of the scientific community. However, the deal could not extract the commitment to stop the production of fissile material for weapons use; otherwise it would have been a significant development to address the concerns that the deal would allow India to increase its nuclear weapons capabilities. The developments since the 2005 suggest that there is no significant increase in the Indian nuclear weapons program and New Delhi realizes that the decision to accelerate the nuclear program at a radical pace would damage its hard earned international status. The failure to restrict the transfer of ENR technology is another drawback, but there is informal understanding among the NSG members that such technology will not be transferred to India. New Delhi’s commitment not to transfer such technology to states that do not have them is a positive development. On balance, the India-U.S. nuclear deal has constructively and positively engaged India with the non-proliferation regime and despite some drawbacks the benefits seems likely to outweigh the costs. This evolution of the non-proliferation regime to accommodate India in turn would enhance its interest to strengthen that regime, and so marks a positive step.

797 Interview with Leonard S. Spector on June 23, 2015. 798 Interview with Robert Einhorn on June 22, 2015. 240

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265

Appendix A List of Interviewees

1- Nicholas Burns (Under Secretary of State for Political Affairs 2005-2008 in the Bush Administration) 2- Teresita Schaffer (Retired U.S. State Department Official) 3- Alyssa Ayres (Special Assistant to Under Secretary of State for Political Affairs 2007- 2008 in the Bush Administration) 4- Robert J. Einhorn (U.S. State Department Special Advisor for Non-Proliferation and Arms Control 2009-2013 in the Obama Administration) 5- Ashley J. Tellis (Senior Advisor at the U.S. Embassy in New Delhi 2001-2003) 6- Philip Zelikow (Counselor to Secretary of State 2005-2007 in the Bush Administration) 7- Robert Joseph (Undersecretary for Arms Control and International Security 2005-2007) 8- Richard Stratford (Director of the Office of Nuclear Energy Affairs in the Bureau of Nonproliferation, U. S. Department of State) 9- Michael Krepon (Director of the South Asia and Space Security Program, The Stimson Center) 10- Stephen P. Cohen (Senior Fellow Emeritus, The Brookings Institute) 11- Lisa Curtis (Member of the Professional Staff of the Senate Foreign Relations Committee 2003-2006) 12- George Perkovich (Vice President, Carnegie Endowment for International Peace) 13- Henry D. Sokolski (Executive Director, Nonproliferation Policy Education Center) 14- Daryl G. Kimball (Executive Director, Arms Control Association) 15- Daniel S. Markey (Member of Policy Palnning Staff, U.S. State Department 2003-2007) 16- Robert L.Gallucci (Assistant Secretary of State for Political-Military Affairs 1992-1996) 17- Sharon Squassoni (Senior Fellow, Center for Strategic and International Studies) 18- Greg Jones (Senior Defense Policy Analyst, Rand Corporation) 19- Richard Rossow (Deputy Director, U.S.-India Business Council 1998-2008) 20- Strobe Talbott (Deputy Secretary of State in the Clinton Administration 1994-2001) 21- Mark Hibbs (Senior Fellow, Carnegie Endowment for International Peace)

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22- Toby Dalton (Co-Director of Nuclear Policy Program, Carnegie Endowment for International Peace) 23- Ramamurti Rajaraman (Professor, Jawaharlal Nehru University) 24- Anish Goel (Senior Director for South Asia, United States National Security Council 2009-2011) 25- Leonard S. Spector (Deputy Director, James Martin Center for Nonproliferation Studies) 26- Robert Lehman (Chair of the U.S. Department of Defense Threat Reduction Advisory Committee) 27- Togzhan Kassenova (Fellow, Carnegie Endowment for International Peace) 28- Vikram Singh (Deputy Assistant Secretary of Defense for South and Southeast Asia, 2003-2007) 29- Christine Fair (Professor, Georgetown University) 30- Anonymous: US State Department Official 31- Anonymous 32- Anonymous

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Appendix B

Sample of Interview Questions

• Why did Bush Administration choose nuclear agreement, rather than trade or non-nuclear agreement, to build strategic partnership?

• What do you think about India’s strategy during the negotiations?

• What do think how India resisted the strong nonproliferation conditions?

• Were you confident to sell this deal (with low nonproliferation conditions) internationally?

• Were you expecting a strong reaction from NNWS at the NPT review conferences?

• What are the implications of the India-US nuclear deal for the nuclear nonproliferation regime?

• In your opinion has it strengthened the regime?

• In your opinion how have other states – both those outside the NPT and, in particular NNWSs within it – responded?

• How has the US-India deal resonated with existing or developing strains within the nonproliferation regime?

• What normative implications do you think the deal might have?

• What nonproliferation norms you do think this deal has strengthened or weakened and why and how?

• What nonproliferation implications did you initially fear from the deal?

• Were your initial concerns justified?

• Do you think other non-NPT states (Pakistan and Israel) can be brought closer to the regime by similar agreement?

• Do you think the favorable treatment that the United States and the NSG gave to India has reinforced Pakistan’s sense of isolation? If so what implications does this has for the nonproliferation regime? What measures the United States is taking to minimize this?

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• In your opinion other non-NPT states should be given NSG waiver on criteria based formula?

• In your opinion India should be included in the NSG? If so what are the implications for the regime and the NSG? Can something be learned about the way the waiver exemption was done, and then applied to the question of membership?

• What would be the consequences of India’s NSG membership in terms of access to sensitive technology?

• In your opinion this agreement has damaged the IAEA full-scope safeguard norm?

• Do you think this deal has affected the enrichment and reprocessing technology norm?

• Do you think this agreement has boosted India’s nuclear weapon program?

• Do you think India’s decision not to provide tracking information for imported material has implications for its nuclear program?

• Do you have further suggestions or comments that could benefit this research?

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Appendix C

Changes from First to Final Waiver Draft

First Draft of the Waiver

First Draft Paragraph At the [blank] Plenary meeting on [blank] the Participating Governments 1 of the Nuclear Suppliers Group agreed that they: a. Desire to contribute to an effective non-proliferation regime, and to the widest possible implementation of the objectives of the Treaty on the Non- proliferation of Nuclear Weapons; b. Seek to limit the further spread of nuclear weapons; c. Wish to pursue mechanisms to affect positively the conduct of those outside the Treaty; d. Seek to promote international cooperation in the research, development and safe use of nuclear energy for peaceful purposes, and e. Recognize the promise of nuclear power in India as a clean source of energy for sustained economic growth and prosperity. Paragraph In this respect, Participating Governments have taken note of steps that 2 India has taken as a contributing partner in the nonproliferation regime and they welcome India’s efforts with respect to the following commitments and actions: a. Having publicly designated peaceful civil nuclear facilities which will be submitted to IAEA safeguards in perpetuity; b. Having committed to continue its moratorium on nuclear testing, and to work with others towards achievement of a Fissile Material Cutoff Treaty; c. Having committed to accept an Additional Protocol covering designated civil nuclear facilities; d. Having committed to support international efforts to restrain he spread of sensitive nuclear technologies; e. Having adopted a national export control system capable of effectively controlling transfers of multilaterally controlled nuclear and nuclear related material, equipment, and technology; f. Having agreed to adhere formally to the Nuclear Suppliers Group Guidelines. Paragraph For these reasons, Participating Governments have therefore adopted the 3 following policy on civil nuclear cooperation by Participating Governments with the peaceful safeguarded Indian civil nuclear power program. Paragraph Notwithstanding paragraphs 4(a), 4(b), and 4(c), of INFCIRC/254/Part 1 as 4 revised, Participating Governments may transfer trigger list items and/or related technology to the safeguarded civil nuclear facilities in India (a State not party, and never having been a party, to the NPT) as long as the

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participating Government intending to make the transfer is satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other requirements of the NSG Guidelines. Paragrapgh Participating Governments, in accordance with Paragraph 4(d), will 5 continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a). Paragraph The NSG Point of Contact is requested to submit this Statement to the 6 IAEA DG with a request that he circulate it to all Member States.

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Changes from First to Second Draft

First Draft Second Draft Paragraph At the [blank] Plenary meeting on [blank] Same 1 the Participating Governments of the Nuclear Suppliers Group agreed that they: a. Desire to contribute to an effective non- Same proliferation regime, and to the widest possible implementation of the objectives of the Treaty on the Non-proliferation of Nuclear Weapons; b. Seek to limit the further spread of Same nuclear weapons; c. Wish to pursue mechanisms to affect Wish to pursue mechanisms to positively the conduct of those outside the affect positively the non- Treaty; proliferation commitments and actions of those outside the traditional nuclear non- proliferation regime; d. Seek to promote international Seek to promote fundamental cooperation in the research, development principles of safeguards and and safe use of nuclear energy for export control for nuclear peaceful purposes, and transfers for peaceful purposes; and e. Recognize the promise of nuclear Recognize the world’s need power in India as a clean source of energy for clean and reliable sources for sustained economic growth and of energy for sustained prosperity. economic growth and prosperity. Paragraph In this respect, Participating Governments In this respect, Participating 2 have taken note of steps that India has Governments have taken note taken as a contributing partner in the of steps that India has taken nonproliferation regime and they voluntarily as a contributing welcome India’s efforts with respect to partner in the nonproliferation the following commitments and actions: regime and they welcome India’s efforts with respect to the following commitments and actions: a. Having publicly designated peaceful Deciding to separate its civil nuclear facilities which will be civilian nuclear facilities in a submitted to IAEA safeguards in phased manner and file a perpetuity; declaration regarding its civilian nuclear facilities with the International Atomic Energy Agency;

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b. Conducting negotiations with the IAEA and obtaining approval of its Board of Governors regarding a safeguards Agreement for application of safeguards to civilian nuclear facilities that is in accordance with IAEA standards, principles an practices (including Board of Governors document GOV/1621); b. Having committed to continue its g. Continuing its unilateral moratorium on nuclear testing, and to moratorium on nuclear tests work with others towards achievement of and declaring its readiness to a Fissile Material Cutoff Treaty; work with others towards conclusion of a multilateral Fissile Material Cut-off Treaty. c. Having committed to accept an Committing to sign and Additional Protocol covering designated adhere to an Additional civil nuclear facilities; Protocol with respect to India's civil nuclear facilities; d. Having committed to support Refraining from transferring international efforts to restrain the spread enrichment and reprocessing of sensitive nuclear technologies; technology to states that do not already possess these; e. Having adopted a national export Same control system capable of effectively controlling transfers of multilaterally controlled nuclear and nuclear related material, equipment, and technology; f. Having agreed to adhere formally to the Harmonizing its export Nuclear Suppliers Group Guidelines. control lists with those of the Nuclear Suppliers Group and committing to adherence to NSG guidelines; and Paragraph For these reasons, Participating In view of the above, 3 Governments have therefore adopted the Participating Governments following policy on civil nuclear have therefore adopted the cooperation by Participating Governments following policy on civilian with the peaceful safeguarded Indian civil nuclear cooperation by nuclear power program. Participating Governments with the IAEA-safeguarded

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Indian civilian nuclear power program: Paragraph Notwithstanding paragraphs 4(a), 4(b), 3 (a). Notwithstanding 4 and 4(c), of INFCIRC/254/Part 1 as paragraphs 4(a), 4(b) and 4(c) revised, Participating Governments may of Infcirc/254 (Rev. 9) Part 1, transfer trigger list items and/or related Participating Governments technology to the safeguarded civil may transfer trigger list items nuclear facilities in India (a State not and/or related technology to party, and never having been a party, to India (a State not party, and the NPT) as long as the participating never having been a party, to Government intending to make the the NPT) for peaceful transfer is satisfied that India continues to purposes and for use in fully meet all of the aforementioned safeguarded civilian nuclear nonproliferation and safeguards facilities provided that the commitments, and all other requirements transfer satisfies all other of the NSG Guidelines. provisions of Part 1; 3 (b). Notwithstanding paragraph 4(b) of the Part 2 guidelines, Participating Governments may transfer nuclear-related dual use equipment, etc. for peaceful purposes for use in civilian nuclear facilities under IAEA safeguards, provided that the transfer satisfies all other provisions of Part 2; and 3 (c) Participating Governments shall maintain contact and consult through regular channels on matters connected with the implementation of the Guidelines, taking into account relevant international commitments and bilateral agreements with India. Paragraph In order to facilitate the 4 efforts of non-member adherents to Infcirc/254 Parts 1 and 2 to remain current in their implementation of the

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Guidelines, the NSG Chair is requested to review proposed amendments to the Guidelines with all non- member adherents on a non- discriminatory basis and solicit such comments on the amendments as a non- member adherent may wish to make. Participation of India in the decisions regarding proposed amendments will facilitate their implementation by India. Paragraph Participating Governments, in accordance Excluded 5 with Paragraph 4(d), will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a). Paragraph The NSG Point of Contact is requested to Paragraph 5. The NSG Point 6 submit this Statement to the IAEA DG of Contact is requested to with a request that he circulate it to all submit this statement to the Member States. IAEA DG with a request that he it be circulated it to all Member States.

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Changes in Third Draft

First Draft Second Draft Third Draft Paragraph At the [blank] Plenary Same At the [blank] Plenary 1 meeting on [blank] the meeting on [blank] the Participating Governments Participating of the Nuclear Suppliers Governments of the Group agreed that they: Nuclear Suppliers Group agreed decided that they: a. Desire to contribute to Same Desire to contribute to an an effective non- effectiveness and proliferation regime, and integrity of the global to the widest possible non-proliferation regime, implementation of the and to the widest possible objectives of the Treaty on implementation of the the Non-proliferation of provisions and objectives Nuclear Weapons; of the Treaty on the Non- Proliferation of Nuclear Weapons; b. Seek to limit the further Same Seek to limit avert the spread of nuclear weapons; further spread of nuclear weapons; c. Wish to pursue Wish to pursue Wish to pursue mechanisms to affect mechanisms to mechanisms to affect positively the conduct of affect positively positively the those outside the Treaty; the non- nonproliferation proliferation commitments and actions commitments of all states outside the and actions of traditional nuclear those outside the nonproliferation regimes; traditional and nuclear non- proliferation regime d. Seek to promote Seek to promote Same international cooperation fundamental in the research, principles of development and safe use safeguards and of nuclear energy for export control peaceful purposes for nuclear transfers for peaceful purposes e. Recognize the promise Recognize the Excluded of nuclear power in India world’s need for

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as a clean source of energy clean and for sustained economic reliable sources growth and prosperity of energy for sustained economic growth and prosperity Paragraph In this respect, In this respect, Participating 2 Participating Governments Participating Governments have taken have taken note of steps Governments note of steps that India that India has taken as a have taken note has voluntarily as a contributing partner in the of steps that contributing partner in the nonproliferation regime India has taken nonproliferation regime and they welcome India’s voluntarily as a and they welcome India’s efforts with respect to the contributing efforts taken with following commitments partner in the respect to the following and actions nonproliferation nonproliferation regime and they commitments and actions: welcome India’s efforts with respect to the following commitments and actions a. Having publicly Deciding to Deciding to separate its designated peaceful civil separate its civilian nuclear facilities nuclear facilities which civilian nuclear in a phased manner and to will be submitted to IAEA facilities in a file a declaration safeguards in perpetuity phased manner regarding its civilian and file a nuclear facilities with the declaration IAEA, in accordance regarding its with its Separation Plan civilian nuclear (circulated facilities with INFCIRC/731) the International Atomic Energy Agency b. Conducting b. Conducting negotiations negotiations with the with the IAEA IAEA and obtaining and obtaining approval of its by the approval of its Board of Governors on 1 Board of August 2008 for an Governors “Agreement between the

277

regarding a Government of India safeguards and the IAEA for the Agreement for application of application of Safeguards to Civilian safeguards to Nuclear Facilities,” in civilian nuclear accordance with IAEA facilities that is standards, principles an in accordance practices (including Board with IAEA of Governors document standards, GOV/1621); principles an practices (including Board of Governors document GOV/1621); b. Having committed to g. Continuing its g. Continuing its continue its moratorium on unilateral unilateral moratorium on nuclear testing, and to moratorium on nuclear testing, and work with others towards nuclear tests and declaring its readiness to achievement of a Fissile declaring its work with others towards Material Cutoff Treaty readiness to work the conclusion of a with others multilateral Fissile towards Material Cut-off Treaty. conclusion of a multilateral Fissile Material Cut-off Treaty c. Having committed to Committing to Same accept an Additional sign and adhere Protocol covering to an Additional designated civil nuclear Protocol with facilities respect to India's civil nuclear facilities; d. Having committed to Refraining from Refraining from support international transferring transferring of enrichment efforts to restrain the enrichment and and reprocessing spread of sensitive nuclear reprocessing technologies to states that technologies technology to do not have them and states that do supporting international not already efforts to limit their possess these; spread;

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e. Having adopted a Same Instituting a national national export control export control system system capable of capable of effectively effectively controlling controlling transfers of transfers of multilaterally multilaterally controlled controlled nuclear and nuclear and nuclear- nuclear related material, related material, equipment, and technology equipment and technology; f. Having agreed to adhere Harmonizing its Harmonizing its export formally to the Nuclear export control control lists and Suppliers Group lists with those guidelines with those of Guidelines of the Nuclear the Nuclear Suppliers Suppliers Group and committing to Group and adherence to Nuclear committing to Suppliers Guidelines; adherence to and NSG guidelines Paragraph For these reasons, In view of the Based on the 3 Participating Governments above, commitments and have therefore adopted the Participating actions mentioned following policy on civil Governments above, Participating nuclear cooperation by have therefore Governments have Participating Governments adopted the adopted the following with the peaceful following policy policy on civil nuclear safeguarded Indian civil on civilian cooperation by nuclear power program nuclear Participating cooperation by Governments with the Participating IAEA-safeguarded Indian Governments civil nuclear program: with the IAEA- safeguarded Indian civilian nuclear power program Paragraph Notwithstanding 3 (a). Notwithstanding 4 paragraphs 4(a), 4(b), and Notwithstanding paragraphs 4(a), 4(b) and 4(c), of INFCIRC/254/Part paragraphs 4(a), 4(c) of INFCIRC/254 1 as revised, Participating 4(b) and 4(c) of /Rev. 9/Part 1, Governments may transfer Infcirc/254 (Rev. Participating trigger list items and/or 9) Part 1, Governments may related technology to the Participating transfer trigger list items safeguarded civil nuclear Governments and/or related technology facilities in India (a State may transfer to India for peaceful not party, and never trigger list items purposes and for use in

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having been a party, to the and/or related IAEA safeguarded NPT) as long as the technology to civilian nuclear facilities, participating Government India (a State not provided that the transfer intending to make the party, and never satisfies transfer is satisfied that having been a INFCIRC/254/Part 1, as India continues to fully party, to the revised. meet all of the NPT) for aforementioned peaceful nonproliferation and purposes and safeguards commitments, for use in and all other requirements safeguarded of the NSG Guidelines.. civilian nuclear facilities provided that the transfer satisfies all other provisions of Part 1. 3 (b). Notwithstanding Notwithstanding paragraph 4 (a) and 4(b) paragraph 4(b) of of the Part 2 INFCIRC/254/Rev.7/Part guidelines, 2 guidelines, Participating Participating Governments may Governments transfer nuclear-related may transfer dual-use equipment, nuclear-related materials, software, and dual use related technology to equipment, etc. India etc. for peaceful for peaceful purposes and for use in purposes for use civilian nuclear facilities in civilian under IAEA safeguards, nuclear facilities provided that the transfer under IAEA satisfies all other safeguards, provisions of provided that INFCIRC/254/Part 2, as the transfer revised. satisfies all other provisions of Part 2. 3 (c). At each Plenary, Participating Governments shall notify each other of approved transfers to

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India of Annex A and B items listed in INFCIRC/254/Part 1, as revised. Participating Governments are also invited to exchange information, including about their own bilateral agreements with India. 3 (c) 3 (d) Participating Participating Governments shall will Governments maintain contact and shall maintain consult through regular contact and channels, including the consult through Consultative Group and regular Plenary, on matters channels on connected with the matters implementation of the connected with Guidelines this Statement the taking into account implementation relevant international of the commitments and or Guidelines, bilateral agreements with taking into India. With a view to account relevant intensification of international dialogue and commitments partnership with India, and bilateral the Chairman is agreements with requested to confer and India. consult with India to Keep the Plenary informed of these consultations. 3 (e) In the event that one or more Participating Governments consider that circumstances have arisen which require consultations, Participating Governments will act in accordance with Paragraph 16 of the Guidelines.

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Paragraph In order to In order to facilitate the 4 facilitate the efforts of non-member efforts of non- adherents India’s member adherence to adherents to INFCIRC/254 Parts 1 and Infcirc/254 2 and to remain current in Parts 1 and 2 to their its implementation remain current of the Guidelines, the in their NSG Chair is requested to implementation review proposed of the amendments to the Guidelines, the Guidelines with all non- NSG Chair is member adherents on a requested to non-discriminatory basis review proposed and solicit such comments amendments to on the amendments as a the Guidelines non-member adherent with all non- may wish to make. member Participation of India and adherents on a inform the Plenary of non- the outcome of the discriminatory dialogue with India. basis and solicit Participation of India in such comments the decisions regarding on the proposed amendments amendments as will facilitate their a non-member effective implementation adherent may by India. wish to make. Participation of India in the decisions regarding proposed amendments will facilitate their implementation by India. Paragrapgh Participating Excluded Excluded 5 Governments, in accordance with Paragraph 4(d), will continue to strive for the earliest possible implementation of the

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policy referred to in paragraph 4(a). Paragraph The NSG Point of Contact Paragraph 5. Same 6 is requested to submit this The NSG Point Statement to the IAEA DG of Contact is with a request that he requested to circulate it to all Member submit this States. statement to the IAEA DG with a request that it be circulated to all Member States.

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Changes from First to Final Draft First Draft Second Draft Third Draft Final Draft Paragraph At the [blank] Same At the [blank] Plenary Same 1 Plenary meeting meeting on [blank] the on [blank] the Participating Participating Governments of the Governments of Nuclear Suppliers Group the Nuclear agreed decided that they: Suppliers Group agreed that they: a. Desire to Same Desire to contribute to an Same contribute to an effectiveness and effective non- integrity of the global proliferation non-proliferation regime, regime, and to the and to the widest possible widest possible implementation of the implementation of provisions and objectives the objectives of of the Treaty on the Non- the Treaty on the Proliferation of Nuclear Non-proliferation Weapons; of Nuclear Weapons; b. Seek to limit the Same Seek to avert the further Same further spread of spread of nuclear nuclear weapons; weapons; c. Wish to pursue Wish to pursue Wish to pursue Wish to pursue mechanisms to mechanisms to mechanisms to affect mechanisms to affect affect positively affect positively positively the positively the the conduct of the non- nonproliferation nonproliferation those outside the proliferation commitments and actions commitments and actions Treaty; commitments of all states outside the of all states; outside the and actions of nuclear nonproliferation nuclear nonproliferation those outside regimes regimes the traditional nuclear non- proliferation regime; d. Seek to promote Seek to promote Same Same international fundamental cooperation in the principles of research, safeguards and development and export control safe use of nuclear for nuclear energy for transfers for peaceful purposes, peaceful

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and purposes; and e. Recognize the Recognize the Excluded Note the energy needs of promise of nuclear world’s need India. power in India as a for clean and clean source of reliable sources energy for of energy for sustained sustained economic growth economic and prosperity. growth and prosperity. Paragraph In this respect, In this respect, Participating Participating 2 Participating Participating Governments have taken Governments have taken Governments have Governments note of steps that India note of steps that India taken note of steps have taken note has voluntarily as a has voluntarily taken with that India has of steps that contributing partner in the respect to the following taken as a India has taken nonproliferation regime nonproliferation contributing voluntarily as a and they welcome India’s commitments and actions: partner in the contributing efforts taken with nonproliferation partner in the respect to the following regime and they nonproliferation nonproliferation welcome India’s regime and they commitments and actions: efforts with welcome India’s respect to the efforts with following respect to the commitments and following actions: commitments and actions: a. Having publicly Deciding to Deciding to separate its Same designated separate its civilian nuclear facilities peaceful civil civilian nuclear in a phased manner and nuclear facilities facilities in a file a declaration which will be phased manner regarding its civilian submitted to IAEA and file a nuclear facilities with the safeguards in declaration IAEA, in accordance perpetuity; regarding its with its Separation Plan civilian nuclear (circulated facilities with INFCIRC/731); the International Atomic Energy Agency; b. Conducting Conducting negotiations Concluding negotiations negotiations with the IAEA and with the IAEA and with the IAEA obtaining approval of its obtaining approval by and obtaining by Board of Governors on Board of Governors on 1

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approval of its 1 August 2008 for an August 2008 for an Board of “Agreement between the “Agreement between the Governors Government of India Government of India and regarding a and the IAEA for the the IAEA for the safeguards application of application of Safeguards Agreement for Safeguards to Civilian to Civilian Nuclear application of Nuclear Facilities,” in Facilities,” in accordance safeguards to accordance with IAEA with IAEA standards, civilian nuclear standards, principles an principles an practices facilities that is practices (including Board (including IAEA Board of in accordance of Governors document Governors document with IAEA GOV/1621); GOV/1621); standards, principles an practices (including Board of Governors document GOV/1621); b. Having g. Continuing g. Continuing its Same committed to its unilateral unilateral moratorium on continue its moratorium on nuclear testing, and moratorium on nuclear tests and declaring its readiness to nuclear testing, declaring its work with others towards and to work with readiness to the conclusion of a others towards work with others multilateral Fissile achievement of a towards Material Cut-off Treaty; Fissile Material conclusion of a Cutoff Treaty; multilateral Fissile Material Cut-off Treaty; c. Having Committing to Same Same committed to sign and accept an adhere to an Additional Additional Protocol covering Protocol with designated civil respect to nuclear facilities; India's civil nuclear facilities; d. Having Refraining Refraining from Same committed to from transferring of enrichment support transferring and reprocessing international enrichment technologies to states that

286

efforts to restrain and do not have them and the spread of reprocessing supporting international sensitive nuclear technology to efforts to limit their technologies; states that do spread; not already possess these;

e. Having adopted Same Instituting a national Same a national export export control system control system capable of effectively capable of controlling transfers of effectively multilaterally controlled controlling nuclear and nuclear transfers of related material, multilaterally equipment, and controlled nuclear technology; and nuclear related material, equipment, and technology; f. Having agreed Harmonizing Harmonizing its export Same to adhere formally its export control lists and to the Nuclear control lists guidelines with those of Suppliers Group with those of the Nuclear Suppliers Guidelines. the Nuclear Group and committing to Suppliers adherence to Nuclear Group and Suppliers Guidelines. committing to adherence to NSG guidelines.

Paragraph For these reasons, In view of the Based on the Based on the 3 Participating above, commitments and commitments and actions Governments have Participating actions mentioned mentioned above, as therefore adopted Governments above, Participating reiterated by India on the following have therefore Governments have September 5, 2008, and policy on civil adopted the adopted the following without prejudice to nuclear following policy policy on civil nuclear national positions cooperation by on civilian cooperation by thereon, Participating Participating nuclear Participating Governments have Governments with cooperation by Governments with the adopted and will

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the peaceful Participating IAEA-safeguarded Indian implement the following safeguarded Governments civil nuclear program: policy on civil nuclear Indian civil with the IAEA- cooperation by nuclear power safeguarded Participating program. Indian civilian Governments with the nuclear power IAEA-safeguarded Indian program: civil nuclear program:

Paragraph Notwithstanding 3 (a). Notwithstanding Notwithstanding 4 paragraphs 4(a), Notwithstanding paragraphs 4(a), 4(b) and paragraphs 4(a), 4(b) and 4(b), and 4(c), of paragraphs 4(a), 4(c) of INFCIRC/254 4(c) of INFCIRC/254 INFCIRC/254/Part 4(b) and 4(c) of /Rev. 9/Part 1, /Rev. 9/Part 1, 1 as revised, Infcirc/254 Participating Participating Participating (Rev. 9) Part 1, Governments may Governments may Governments may Participating transfer trigger list items transfer trigger list items transfer trigger list Governments and/or related technology and/or related technology items and/or may transfer to India for peaceful to India for peaceful related technology trigger list items purposes and for use in purposes and for use in to the safeguarded and/or related IAEA safeguarded IAEA safeguarded civil nuclear technology to civilian nuclear facilities, civilian nuclear facilities, facilities in India India (a State provided that the transfer provided that the transfer (a State not party, not party, and satisfies satisfies all other and never having never having INFCIRC/254/Part 1, as provisions of been a party, to been a party, to revised. INFCIRC/254/Part 1, as the NPT) as long the NPT) for revised, and provided as the participating peaceful that transfers of Government purposes and sensitive exports remain intending to make for use in subject to paragraphs 6 the transfer is safeguarded and 7 of the Guidelines. satisfied that India civilian nuclear continues to fully facilities meet all of the provided that aforementioned the transfer nonproliferation satisfies all and safeguards other commitments, and provisions of all other Part 1; requirements of the NSG Guidelines..

3 (b). Notwithstanding Notwithstanding Notwithstanding paragraph 4 (a) and 4(b) paragraph 4 (a) and 4(b) paragraph 4(b) of the of the

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of the Part 2 INFCIRC/254/Rev.7/Part INFCIRC/254/Rev.7/Part guidelines, 2 guidelines, Participating 2, Participating Participating Governments may Governments may Governments transfer nuclear-related transfer nuclear-related may transfer dual use equipment, dual-use equipment, nuclear-related material, software and material, software and dual use related technology to related technology to equipment, etc. India etc. for peaceful India for peaceful for peaceful purposes and for use in purposes and for use in purposes for use civilian nuclear facilities civilian nuclear facilities in civilian under IAEA safeguards, under IAEA safeguarded nuclear facilities provided that the transfer civil nuclear facilities, under IAEA satisfies all other provided that the transfer safeguards, provisions of satisfies all other provided that INFCIRC/254/Rev.7Part provisions of the transfer 2, as revised. INFCIRC/254/Part 2, as satisfies all revised. other provisions of Part 2; and 3 (c). At each Plenary, Same Participating Governments shall notify each other of approved transfers to India of Annex A and B items listed in INFCIRC/254/Part 1, as revised. Participating Governments are also invited to exchange information, including about their own bilateral agreements with India. 3 (c) 3 (d) Participating With a view to Participating Governments shall will intensification of dialogue Governments maintain contact and and partnership shall maintain consult through regular cooperation with India, contact and channels, including the the Chairman is requested consult through Consultative Group and to confer and consult with regular channels Plenary, on matters India to and keep the on matters connected with the Plenary informed of these connected with implementation of the consultations. the Guidelines this Statement implementation taking into account of the relevant international

289

Guidelines, commitments and or taking into bilateral agreements with account relevant India. With a view to international intensification of commitments dialogue and and bilateral partnership with India, agreements with the Chairman is India. requested to confer and consult with India to Keep the Plenary informed of these consultations. 3 (e) In the event that Participating one or more Governments will Participating maintain contact and Governments consider consult through regular that circumstances have channels, including the arisen which require Consultative Group and consultations, Plenary, on matters Participating connected with the Governments will act in implementation of this accordance with Statement taking into Paragraph 16 of the account relevant Guidelines. international commitments or bilateral agreements with India. In the event that one or more Participating Governments consider that circumstances have arisen which require consultations, Participating Governments will meet, and then act in accordance with Paragraph 16 of the Guidelines. Paragraph In order to In order to facilitate the In order to facilitate 4 facilitate the efforts of non-member India’s adherence to efforts of non- adherents India’s INFCIRC/254 Parts 1 and member adherence to 2 and to remain current in adherents to INFCIRC/254 Parts 1 and its implementation of the Infcirc/254 2 and to remain current in Guidelines, the NSG Parts 1 and 2 to their its implementation of Chair is requested to

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remain current the Guidelines, the NSG review proposed in their Chair is requested to amendments to the implementation review proposed Guidelines with consult of the amendments to the with India regarding Guidelines, the Guidelines with all non- changes to and inform NSG Chair is member adherents on a the Plenary of the requested to non-discriminatory basis outcome of the dialogue review proposed and solicit such comments with India in the decisions amendments to on the amendments as a regarding proposed the Guidelines non-member adherent amendments will facilitate with all non- may wish to make. their effective member Participation of India and implementation of the adherents on a inform the Plenary of Guidelines and inform non- the outcome of the the Plenary of the discriminatory dialogue with India. outcome of the dialogue basis and solicit Participation of India in with India. Consultations such comments the decisions regarding with India regarding on the proposed amendments proposed amendments amendments as will facilitate their will facilitate their a non-member effective implementation effective implementation adherent may by India. by India. wish to make. Participation of India in the decisions regarding proposed amendments will facilitate their implementation by India. Paragraph Participating Excluded Excluded Excluded 5 Governments, in accordance with Paragraph 4(d), will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a).

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Paragraph The NSG Point of The NSG Point Same Upon request by 5 Contact is of Contact is Participating requested to requested to Governments, the submit this submit this Chairman is requested to Statement to the statement to the submit this Statement to IAEA DG with a IAEA DG with the IAEA Director request that he a request that he General with a request circulate it to all it be circulated that it be circulated to all Member States. to all Member Member States. States.

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Appendix D

Indian Separation Plan

Civilian Nuclear Facilities under Continuous Safeguards

Type Facility, Location Purpose, Design Capacity Thorium and Uranium None – India’s Additional Mines Mills Protocol does not apply to mines and mills Enrichment None- India has not placed an enrichment facilities under safeguards Uranium Conversion and Nuclear fuel Complex, Conversion to UO2 Fuel Fabrication – Natural Hyderabad: Uranium Oxide (450t/yr) Uranium for PHWRs Plant (Block A) Nuclear fuel Complex, Fuel fabrication (335t/yr) Hyderabad: Ceramic Fuel Fabrication Plant (Pelletizing)(Block A) Nuclear fuel Complex, Fuel fabrication (300t/yr) Hyderabad: Ceramic Fuel Fabrication Plant (Assembly)(Block A) Nuclear fuel Complex, Zirconium alloy tubing and Hyderabad: Gadolinia production Facility

Uranium fuel fabrication— Nuclear Fuel Complex, Fuel fabrication using enriched uranium for light Hyderabad: Enriched imported LEU (24t/yr) water power reactors Uranium Oxide Plant and Enriched Fuel Fabrication Plant Heavy water production None – India’s additional protocol does not apply to its heavy water production Power reactors—PHWRs Rajasthan Atomic Power PHWR, 90MW, 187MW, Station (RAPS1-6), Kota 202MWx4 Kakrapar Atomic Power PHWR, 202MWx2 Station (KAPS1-2), Surat Narora Atomic Power PHWR, 202MWx2 Station (NAPS1-2), Narora Power reactors —LWRs Tarapur Atomic Power BWR, 150MWx2 (spent Station (TAPS1-2), Boisar fuel to Tarapur storage)

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Kudankulam Nuclear Power VVER-PWR, 917MWx2 Plant (KK1-2), Ku- dankulam Research reactors None—India has not placed any research reactors under safeguards Fuel storage Tarapur—Away from 275t spent fuel Reactor (AFR) Wet Spent Fuel Storage, Boisar Tarapur—NPP site, Dry 20t spent fuel Spent Fuel Storage, Boisar Other safeguarded spent About 1500t spent fuel fuel from PHWRs in storage Reprocessing and separated Option to construct plutonium safeguarded reprocessing plants for PHWR fuel under U.S.-India Nuclear Cooperation Agreement Approximately 0.4t of separated plutonium currently under safeguards, having been reprocessed at PREFRE-1, while the facility was under temporary safeguards Other research centres None—India’s additional protocol does not apply to sites where India conducts nuclear fuel cycle-related research and development

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Facilities that Are Used Primarily for Civilian Purposes and that Are Not Subject to Continuous Safeguards

T Type Facility, Location Purpose, Design Capacity Thorium and uranium See Table 3 on military mines and mills facilities below—in addition to being a source of nuclear material for India’s military program, domestic mines are an important source for several reactors Enrichment See Table 3 on military facilities—RMP has both military and civilian applications Uranium conversion and Some facilities in Nuclear For unsafeguarded PHWRs fuel fabrication Fuel Complex, Hyderabad Plan for second Nuclear Fuel Complex, Kota Trombay Fuel Fabrication Small-scale production for Fast Breeder Test Reactor Heavy water production— Hazira 80t/yr declared civilian as part of Thal-Vaishet 78t/yr Separation Plan Tuticorin 49t/yr Power reactors— PHWRs Tarapur Atomic Power PHWR, 490MWx2 Station (TAPS 3-4), Boisar Madras Atomic Power PHWR, 202MWx2 Station (MAPS 1-2), Madras Kaiga (KGS 1-4), Kaiga PHWR, 202MWx4 Power reactors —FBRs Prototype Fast Breeder FBR, 500MW Reactor, Kalpakkam Power reactors —other Advanced Heavy Water HWR, 300MW (not yet Reactor operational) Research reactors Fast Breeder Test Reactor, FBR, 40MWt Kalpakkam Purnima reactor, Trombay Small-scale U-233 LWR Kamini reactor, Kalpakkam U-233 fuelled LWR, 30kWt Apsara reactor, Mumbai LWR, 1MWt (undergo- ing conversion from HEU fuel to LEU) Compact High Temperature U-233 and Th fuel (under Reactor, Trombay construction)

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Fuel storage Rajasthan NPP site, Away 570t spent fuel from Reactor (AFR) Dry Spent Fuel Storage, Rajasthan Spent fuel storage for 2500–3600t spent fuel unsafeguarded PHWRs to be reprocessed Reprocessing and separated Kalpakkam Spent Fuel PUREX (used for both plutonium Reprocessing (KARP) military purposes and reuse in civilian reactors), 100t/yr spent fuel Tarapur Power Reactor Fuel PUREX (used to reprocess Reprocessing (PREFRE-1 spent fuel from PHWRs for and 2) Center reuse in civilian reactors; temporary safeguards apply on “campaign” basis), 100– 150t/yr spent fuel CORAL reprocessing plant, Pilot plant for repro- Kalpakkam cessing spent fuel from FBRs, 12 kg/yr Tarapur Advanced Fuel MOX fuel fabrication for Fabrication Facility various reactors

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Facilities that are Primarily Used for Military Purposes

Type Facility, Location Purpose, Design Capacity Thorium and uranium Jaduguda Mill 200t/yr mines and mills Turamdih Mill 190t/yr Tummalapalle Mill 220t/yr More mills to enter operation in the next few years Mines in Jharkland, Andhra Pradesh, Telengana, Karnataka, Meghalaya Enrichment Rare Materials Plant Gas centrifuge enrichment (RMP), Bhabha Atomic for naval reactor fuel, LEU Research Center, for Apsara reactor, possibly Mysore/Rattehalli also (Karnataka) for nuclear weapons, 15–25 tSWU/yr (capacity to produce 60–100 kg of weapons-grade uranium/yr from natural uranium feed) Apparent second RMP Larger than original RMP under construction at same site Special Material Gas centrifuge enrichment Enrichment Facility for civilian and military (SMEF), Khudapura purposes, larger than RMP (Karnataka) in initial stages of construction Uranium Enrichment Plant, Pilot-scale research on Trombay ultracentrifuges Laser enrichment research, various locations Uranium conversion and Uranium metals plant, Fuel fabrication for Cirus fuel fabrication— natural Trombay and Dhruva reactors uranium Heavy water production— Baroda 17t/yr not declared civilian as part Kota 85t/yr of “Separation Plan” Manuguru 185t/yr Talcher 62t/yr Research reactors Dhruva, Mumbai HWR, 100MWt (historically a major source of weapons-grade plutonium for nuclear

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weapons) Cirus, Mumbai HWR, 40MWt (historically a major source of weapons-grade plutonium, despite being supplied by Canada in the 1950s on condition that it only be used for peaceful purposes; shut down in 2010 as part of India’s Separation Plan) Naval reactors Advanced Technology 80–100MWt each Vessel naval prototype PWR (HEU fuel), Kalpakkam INS Arihant SSBN with PWR (HEU fuel) Two similar SSBNs under construction, two more planned Reprocessing Trombay plutonium 400–700 kg weapons-grade separation plant, Bhabha plutonium separated as of Atomic Research Center 2014

PUREX, approximately 50t spent fuel per year, including reprocessing weapons-grade plutonium from Dhruva, primarily for nuclear weapons

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