INDO-US NUCLEAR DEAL: MAJOR LEGAL ISSUES Dissertation Submitted to Jawaharlal Nehru University in Partial Fulfillment of the Requirements for Award of the Degree of MASTER OF PHILOSOPHY Mohit Kumar Gupta Centre for International Legal Studies School of International Studies JAWAHARLAL NEHRU UNIVERSITY New Delhi-110067 2007 CENTRE FOR INTERNATIONAL LEGAL STUDIES SCHOOL OF INTERNATIONAL STUDIES JAWAHARLAL NEHRU UNIVERSITY NEW DELHI - 110067 July 27, 2007 DECLARATION I declare that the dissertation entitled INDO-US NUCLEAR DEAL: MAJOR LEGAL ISSUES submitted by me in partial fulfillment of the requirements for the award of the degree of MASTER OF PHILOSOPHY of Jawaharlal Nehru University is my own work. The dissertation has not been submitted for any other degree of this University or any other university. Mohit Kumar Gupta CERTIFICATE We recommend that this dissertation be placed before the examiners for evaluation. Prof. B. S. Chimni Dr. V. G. Hegde Chairperson, CILS Supervisor TABLE OF CONTENTS PAGES Acknowledgement i-ii Abbreviation iii-iv Glossary v-vi CHAPTER I INTRODUCTION 1-12 A. Background of the Study B. Review of Literature C. Objective of the Study D. Research Methodology E. Chapterization CHAPTER II INDO-U.S. NUCLEAR COOPERATION: AN 13-40 OVERVIEW A. Nuclear Energy Cooperation: The U.S. Position B. India and Nonproliferation C. India’s Indigenous Programme D. Indo-US Nuclear Cooperation Agreement, 1963 E. Salient Features of the 1963 Agreement F. Conclusion CHAPTER III NUCLEAR DEAL: THE INTERNATIONAL 41-72 LEGAL ISSUES A. Introduction B. Joint Statement and International law C. Nuclear Deal: A Critical Assessment C.I. Right to Reprocessing C.II. If India Detonates a Nuclear Weapon C.III. Right to Return D. Hyde Act and the Nuclear Deal: E. International Atomic Energy Agency E.I. Status of IAEA E.II IAEA and the Nuclear Deal F. The Nuclear Supplier Group: F.1. Aims of NSG: F.II. Nuclear Deal and the NSG: G. Nonproliferation Regime and the Nuclear Deal H. Conclusion CHAPTER IV IMPLEMENTATION OF THE DEAL: 73-82 DOMESTIC LEGAL ISSUES A. Introduction B. U.S. Domestic Procedure C. Indian Domestic Procedure: D. Comparison between India and the U.S. E. Conclusion CHAPTER V CONCLUSION 83-88 ANNEXURES I Government of India and the Government of the 89-95 United States of America on the Civil Uses of Atomic Energy 1963 II Indo-French Agreement of 1982 96 III Indo–US Joint Statement of July 18, 2005 97-100 IV US-India Joint Statement of March 2, 2006 101-105 V Implementation of the India-United States Joint 106-111 Statement of July 18, 2005: India’s Separation Plan VI United States-India Peaceful Atomic Energy 112-126 Cooperation Act, 2006. REFERENCES 127-132 Acknowledgement 1. It is a matter of immense happiness to acknowledge the gratitude one owes to all those friends and well wishers who have contributed to my understanding and knowledge of the subject. First and foremost, I must pay my sincere gratitude to my Guru Prof. Yogesh T yagi who suggested the principal theme of the study and has been a source of inspiration and a pillar of strength in my struggles for survival at JNU. He deserves my salute for enabling me to tide over the traumatic aftermaths of extreme prejudice, so blatantly displayed by some influential people, which even affected my health and ability to complete the programme in time. I owe a great deal of debt to my guide and supervisor Dr. V.G. Hegde who patiently went through the successive drafts of the chapters and suggested many valuable points to consider and incorporate. I am beholden to him for his valuable time, many comments on the themes of the topic and cheerful disposition when dealing with a difficult student like me! Emeritus Prof. RP Anand’s words of wisdom at the Centre seminars have always been insightful and I am thankful to him for his encouragement on the subject of my study. Prof. B.S. Chimni’s discerning observations have in many ways encouraged the curiosity of students like me. It was truly an honour to read under him in the M. Phil Programme, without him, I would not have known the importance of Article 55 and 56 of the U.N. Charter. Distinguished intellectuals Emeritus Prof.R. Raja Raman, Prof. Bharat Karnard, NCRWC Member Prof. Subhash C Kashyap, Prof. Brahma Chellaney, Dr.Rajeev Dhawan have patiently listened to my questions and graciously shared their views on the subject. I am deeply grateful to them all for their time and guidance. Dr. Rajiv Nayan of IDSA and Dr. A.S. Reddy of MEA New Delhi have been very helpful in clarifying my several doubts. Prof. Pradipta K. Chaudhury, chairperson of CESP in School of Social Sciences has always encouraged me to realize my potential through his positive outlook on life and education. Friends have always been my strength in diverse ways; they have greatly contributed to the enrichment of my campus life. I must especially mention Megha and Fazil whose time and energy I have had the audacity to exploit for my own purposes! Bhim, Chetanji, Anu, Alexander, Alok, Anwarji, Udayji, Kundan, Kishan, Elsa, Irfan, Ashish, Elai, Mathew, Vivek, Terry, Wang, Amit, Rakesh, Ticy, Shannu, Nag, Narayan and Swarnalatha, have extended their helping hands in diverse ways and I am thankful to them all. The librarians of IDSA, JNU, USI, ISIL, CPR, American Centre and the British Council deserve a special word of thanks. Above all, I must express my profound sense of gratitude for my parents who have been with me through thick and thin. How will I redeem my indebtedness to them?! My grandpa, Doctor Uncle and brothers Sumit, Amit and Gopal have been exceptionally interested in my progress and I am thankful to them all for their love and affection. Last, but not the least, I wish to thank my Sensei in the progressive realization of Kosen-rufu which kept me happy all these days. - Mohit Kumar Gupta ABBREVIATIONS AEA: Atomic Energy Act AEC: Atomic Energy Commission BARC: Bhabha Atomic Research Centre CIRUS: Canada India Research United States CISR: Council for Scientific and Industrial Research CRS: Congressional Research Service CTBT: Comprehensive Nuclear Test Ban Treaty DAE: Department of Atomic Energy ECOSOC: Economic and Social Council ENDC: Eighteen Nation Disarmament Commission EURATOM: European Atomic Energy Community FBR: Fast Breeder Reactor FCUN: First Committee of the United Nations FMCT: Fissile Material Cut-off Treaty GATT: General Agreement on Tariffs and Trade GSLV: Geo-stationary Satellite Launch Vehicle IADA: International Atomic Development Authority IAEA: International Atomic Energy Agency INFCIRC: Information Circular INSS: Institute of National Security Studies ITER: International Thermonuclear Experimental Reactor MTCR: Missile Technology Control Regime NCRWC: National Commission to Review the Working of the Constitution NPCIL: Nuclear Power Corporation of India NPT: Nuclear Non-Proliferation Treaty NSG: Nuclear Suppliers’ Group NWS: Nuclear Weapon State NNWS: Non Nuclear Weapon State PHWR: Pressurized Heavy Water Reactor PNE: Peaceful Nuclear Experiment PREFRE: Power Reactor Fuel Reprocessing PTBT: Partial Test Ban Treaty SIPRI: Stockholm International Peace Research Institute TIFR: Tata Institute of Fundamental Research UNGA: United Nations General Assembly UNDC: United Nations Disarmament Commission UNSC: United Nations Security Council VCLT: Vienna Convention on the Law of Treaties WTO: World Trade Organization GLOSSARY Atom: An atom is a particle of matter that uniquely defines a chemical element. An atom consists of a central nucleus that is usually surrounded by one or more electrons. Each electron is negatively charged. The nucleus is positively charged, and contains relatively heavy particles known as protons and neutrons Atomic energy: The energy liberated by a nuclear reaction, (fission or fusion) or by radioactive decay. Breeder reactor: A nuclear reactor which produces more fissile atoms than it burns BWR: Boiling water reactor, in which water is used as coolant and moderator and allowed to boil in the core. Coolant: A liquid or gas which is circulated through or about the core of a reactor to maintain a low temperature and prevent the fuel from overheating. If the coolant is very hot it can be used to give power. Common coolants are water, carbon dioxide, liquid sodium and sodium potassium alloy. Critical: The term used to describe the condition in which a chain reaction is being maintained at a constant rate which is self sustaining. Fast Breeder Reactor: A reactor that operates with fast neutrons and produces more fissionable material than it consumes. Fissile: Capable of undergoing fission; sometimes used to mean capable of fissioning when hit by a slow neutron. For example U-233, U-235, Pu-239 and Pu-241 are fissile. Fission: A nuclear reaction in which a heavy atomic nucleus like uranium splits into two proximately equal parts, at the same time emitting neutrons and releasing very large amounts of nuclear energy. Fission can be spontaneous or it may be caused by the impact of neutrons, an energetic charged particle or photon. Fusion: A nuclear reaction between light atomic nuclei as a result of which a heavier nucleus is formed and large quantity of nuclear energy is released. Heavy water: Deuterium oxide. Water in which the hydrogen is replaced by deuterium. It is used as both a moderator and a coolant. Isotope: Atoms of the same element that is having the same atomic number but different mass number. Moderator: A substance used in nuclear reactors to reduce the speed of fast moving neutrons produced by nuclear fission. The slow neutrons are particularly effective in causing fission. MWe: Megawatts (electrical) i.e., 1000 kilowatts of electric energy. Nuclear Explosion: The rapid fissioning of a large amount of fissionable material Radiation: A term which embraces all the ways in which energy is given off by an atom.