Center for International Policy

How to Regulate Nuclear Weapons: The U.S. Deal With India Could Be a Good Starting Point
By Selig S. Harrison
April 23, 2006

Why should India, with a spotless nonproliferation record, be denied access to U.S. civilian nuclear technology for electricity, while China -- which helped Pakistan and Iran in their efforts to acquire nuclear weapons -- can have it?

The inequitable structure of the nuclear Non-Proliferation Treaty (NPT) has resulted in built-in discrimination in favor of China and against India that has made it necessary and justifiable for the administration to conclude its civilian nuclear cooperation agreement with New Delhi.

The treaty is based on a legalistic fiction that underpins this discrimination. When it was concluded in 1968, only the five states that had already tested nuclear weapons were permitted to sign as "nuclear weapons states." China, which had tested in 1964, got in just under the wire. India tested in 1974, six years too late.

As Robert Kagan has argued [op-ed, March 12], the NPT "erected a gargantuan double standard," which he went on to call "a particularly mindless kind of double standard, since membership in the nuclear 'club' was not based on justice or morality or strategic judgment or politics but simply on circumstance: Whoever had figured out how to build nuclear weapons by 1968 was in."

Article Six of the NPT envisaged an eventual end to this double standard: The United States, the Soviet Union, Britain, France and China pledged to phase out their nuclear weapons. But they have since largely ignored this commitment. Indeed, the nuclear "haves" reinforced the double standard by refusing to accept the same permanent safeguards on their civilian nuclear reactors required of non-nuclear signatories by the International Atomic Energy Agency. Without these "in-perpetuity" safeguards, all five, including Beijing, can shift fissile material from civilian to military use whenever they choose.

By contrast, India has accepted a rigid separation of civilian and military facilities under its pending nuclear cooperation agreement with the United States by agreeing to IAEA safeguards "in perpetuity." This was a major diplomatic achievement by U.S. negotiators; in fact, the Manmohan Singh government in New Delhi is being bitterly attacked for accepting a "second class" status that does not apply to China.

The Bush administration's agreement with India does not conflict with the NPT. But a 1978 U.S. law went beyond the treaty and does bar civilian nuclear technology sales to non-signatories. It is this legislation that the administration is now seeking to amend.

The 1978 law is a relic of earlier decades, when the United States was trying to stop New Delhi from acquiring nuclear weapons. Congress saw denial of civilian technology as one aspect of a campaign to pressure India into signing the NPT and forswearing nuclear weapons. But India felt that it was entitled to keep the nuclear option open, given Chinese and Chinese-assisted Pakistani nuclear capabilities, unless the United States and the other four original nuclear powers started to honor Article Six.

It is often forgotten that India made an extraordinary offer on June 9, 1988, to forgo nuclear weapons in exchange for a long-term commitment by the existing nuclear powers to move toward nuclear arms reductions. The late prime minister Rajiv Gandhi called on the United Nations to negotiate a new treaty, replacing the NPT, that would commit the nuclear "haves" to carry out Article Six by phasing out their nuclear arsenals over a 22-year period ending in 2010. Effective immediately upon conclusion of this "new NPT," India and the other non-nuclear states would be committed under inspection "not to cross the nuclear threshold." When the United States rejected this offer, the advocates of nuclear weapons in New Delhi steadily gained ground, and in 1998 India formally demonstrated its ability to deploy nuclear weapons.

So why not invite New Delhi to sign the NPT as a "nuclear weapons state," thus opening the way for civilian nuclear cooperation under the 1978 law? The administration decided against this option for two principal reasons. First, Indian accession to the NPT could not legally go into effect until the next NPT Review Conference in 2010. Second, it could invite requests for admission to the nuclear club by Pakistan and North Korea, which would pose more complex problems than admitting India. New Delhi has scrupulously observed the prohibition on transferring nuclear technology in Article One of the NPT. By contrast, Islamabad's former nuclear czar, A.Q. Khan, ran a global nuclear Wal-Mart, and Pyongyang has proliferated missiles capable of delivering nuclear weapons.

What the U.S. administration seeks for India is a "halfway house" that would give it implicit recognition as a nuclear power by formally separating its civilian and military nuclear facilities.

In retrospect, it is clear that the United States made a colossal blunder by rejecting India's 1988 offer to stop its nuclear weapons development. The Indian proposal for gradual nuclear disarmament was pragmatic. Indeed, it could provide a basis even now for a new approach to carrying out Article Six. Such a new approach is desirable not only for its own sake, to defuse the danger of nuclear war, but also as an essential prerequisite for a more effective nonproliferation regime. To be sure, regional security concerns are the primary reason countries seek the nuclear weapons option. But the inequity of the global power structure, in which nuclear weapons are necessary for great power status, can be used by national leaders to justify their posture to international and domestic public opinion, as the case of Iran has demonstrated.

Picking up where it left off in 1988, India should reaffirm its readiness to cap and wind down its modest nuclear arsenal during the final stage of a process of nuclear arms reductions that would start with U.S. and Russian cuts and would then move on to embrace Britain, France, China, India, Pakistan and Israel. The Bush administration is, of course, heading in the other direction by seeking to upgrade U.S. nuclear weapons. But India should join with Japan, the only victim of nuclear attack, and with Russia, which cannot afford its nuclear arsenal, to promote a reappraisal of U.S. policy.

Many U.S. critics of the agreement with New Delhi fear that the administration's failure to get India to cap its nuclear arsenal may lead to Sino-Indian and Indian-Pakistani nuclear arms races. India could deflect this criticism with a nuclear disarmament initiative in which it would no longer be a non-nuclear power on the sidelines, as in 1988, but a de facto nuclear power now recognized as such by the United States. The keystone of this initiative should be the inclusion of all three de facto nuclear powers -- India, Pakistan and Israel -- along with the five de jure nuclear powers, in a collective approach to progressive nuclear arms reductions. North Korea should also be included when and if it is found to possess nuclear weapons.

Israel would be uncomfortable with such an invitation, because it does not acknowledge its nuclear weapons capabilities, but forcing it to do so would be desirable. A resolution of the nuclear crisis with Iran presupposes regional security trade-offs in which a freeze of Israel's Dimona reactor could be one element of a settlement that also includes changes in U.S. military deployments perceived as threatening by Iran, in exchange for a fully verifiable Iranian commitment ruling out weapons-grade uranium enrichment.

Having implicitly recognized India as a nuclear weapons state, the administration should now give Pakistan and Israel the same recognition by working with all three to map a scenario for progressive global nuclear arms reductions. Only with such an all-embracing approach will the de jure nuclear powers feel that it is safe to wind down their arsenals, and only when the prospect of meaningful nuclear disarmament becomes credible will would-be nuclear powers reassess their ambitions.

The writer, a former South Asia bureau chief of The Post, is the author of "India: The Most Dangerous Decades" and "Japan's Nuclear Future." He is director of the Asia Program at the Center for International Policy and a senior scholar of the Woodrow Wilson International Center for Scholars.