HKS890

Case Number 2023.0

Nuclear Power & the Language of Diplomacy:

Negotiating a Game-Changing Nuclear Trade Agreement with India

On March 16, 2005, just a few weeks after she was named US Secretary of State, Condoleezza Rice made a
dramatic proposal during a private conversation with Indian Prime Minister Manmohan Singh in New Delhi. The
United States, she said, was prepared to reverse 30 years of US foreign policy by negotiating a bilateral civil nuclear
trade pact with India.

This was an astonishing development. The United States government had long argued that no civil nuclear
1
trade should take place outside the safeguards of the 1968 international Nuclear Non−Proliferation Treaty (NPT) .
2
Under the NPT's central bargain, countries that had already developed nuclear weapons agreed to trade peaceful
nuclear technology with non−nuclear−weapon states—provided those states agreed not to develop nuclear weap−
3
ons and submitted their nuclear facilities to international inspection and other safeguards. By 2005, most coun−
tries—the five official nuclear−weapon states and 183 non−nuclear−weapon states—had signed the treaty. India,
4
however, was not among them.

India had consistently argued that the only fair and peaceful end to nuclear weapons proliferation was univer−
sal disarmament. It rejected the NPT, arguing that the treaty created a permanent ”nuclear apartheid” of nuclear
weapon haves and have−nots. In 1974, India conducted a controversial nuclear test and—viewing this as a disa−
vowal of the world's non−proliferation regime—the United States and other nations effectively shut India out of
international civil nuclear trade. In response, India redoubled efforts to establish its own nuclear research program
for weapons and power; in 1998, it announced it had successfully tested new nuclear weapons, sparking another
round of international alarm. After that, India placed a voluntary (though reversible) moratorium on further tests,
declared a ”no first use” policy, and opted not to share its nuclear−weapon technology with other countries. In−

1
The treaty language was finalized and opened for signature in 1968; it took effect in 1970.
2
The United States, Russia, China, United Kingdom, and France. These same countries were also the permanent members of
the United Nations Security Council—the so−called P−5.
3
Under the treaty, nuclear−weapon states were also supposed to work toward disarmament, but this part of the agreement
was vague and had never gotten very far.
4
In 2005, three countries had never signed the treaty: India, Pakistan, and Israel. All three were thought to have nuclear weap−
ons. North Korea joined in 1985, but—controversially—withdrew in 2003 and announced that it had acquired a nuclear weap−
on in 2005. Iran, Iraq and Libya were parties to the treaty but in each case, the IAEA determined that they had violated their
IAEA safeguards agreements.

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 india's civil nuclear power program had remained stunted, however. Most nuclear power plants required large
quantities of uranium fuel—and India had only a small indigenous supply.

Given this contentious history, Rice's proposition was guaranteed to set off a firestorm of reaction in the Unit−
ed States, India, and abroad. Some would welcome the Bush Administration proposal as an exciting breakthrough.
In India, advocates for the agreement would see commercial nuclear trade with the United States as the best
means for India to remove a primary key impediment to economic development—inadequate energy—without
increased reliance on fossil fuels. In the United States, supporters would regard India as a trustworthy nuclear
trade partner, and would favor the deal as an important step in forging a stronger Indo−US alliance—thought to be
important, especially, as a counterweight to a rising China.

But for an array of reasons, critics in both countries would view the idea as a cataclysmic misstep. In India, de−
tractors would argue that the pact imperiled the country's nuclear establishment, its long−cherished autonomy,
and its policy of ”non−alignment” with any global superpower; some would even claim that it turned India into a
client state of the United States. The Bush Administration anticipated even greater criticism within the United
States and internationally, where critics—regarding India as a principal violator of the global non−proliferation sys−
tem—would oppose the move on grounds that it dealt a damaging blow to the hard−won NPT, which most
interna− tional leaders agreed, despite its imperfections, had been an effective bulwark against the spread of
nuclear weapons. In the mid−1960s, experts had predicted that 30 to 35 countries would possess nuclear weapons
by the turn of the century. By 2005, only four—India, Pakistan, Israel, and North Korea—were thought to have
acquired nuclear weapons beyond the original five—the United States, Russia, France, the United Kingdom, and
China.

For his part, Indian Prime Minister Singh was excited by Rice's proposal, but well understood the difficulties of
crafting a pact acceptable both to the US Congress and the Indian political establishment. He and Rice therefore
agreed to pursue the idea tentatively at first, and outside the public eye. In April 2005, seasoned diplomats from
each country—US Undersecretary of State for Political Affairs Nicholas Burns and Indian Foreign Secretary Shyam
Saran—were dispatched to work quietly behind the scenes to see whether they could agree on a set of first−
principles. The product of their negotiation would not be a lengthy legal compact; that would come later. Their
goal was to lay the foundation with a brief statement, numbering perhaps 400 words. If they succeeded, the plan
would be unveiled during the much−anticipated July 18, 2005 White House state visit between President George
W. Bush and Prime Minister Singh. But because such an announcement held the potential to alter forever the
course of history for India, US−Indian relations, and global non−proliferation politics, the stakes were high.
Burns admitted that at the time, he privately viewed the negotiation as a long shot. After all, the effort was
unprece− dented. No groundwork had been laid. The issues were complex. The opponents were many. And
time was short.

US-India Relations, 1950-2000

If Rice's March 2005 proposal had come to Indian leaders as a surprise, it had not come entirely out of the
blue. Relations between the two countries, though still wobbly, had been on a decided upswing since the end of
the Cold War.

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 ”India and the US have always had a very positive relationship at a certain level because of the fact that both
were liberal democracies, there were a lot of people−to−people exchanges between the two countries—a lot of
Indian students coming and studying in American universities,” said Saran. ”But as far as the political relationship
5
was concerned, it was always complicated.” During the Cold War, the United States had viewed much of its for−
eign policy through the lens of its global power struggle with the Soviet Union. India, only recently liberated from
British rule and impatient at the domination of international politics by the United States and the Soviet Union,
was determined to remain ”non−aligned” with either of the world's superpowers. The rift between the US and
India widened when India forged a strong economic and military tie with the Soviet Union, and again when the
United States made an alliance with India's nemesis, Pakistan. Behind the scenes, there was intermittent coopera−
tion between the two countries, but the dominant themes were distrust and bitterness. In this context, discord
over nuclear policy played a central role.

In the 1950s and 1960s, the United States had actively promoted civil nuclear cooperation with India. US
companies built two nuclear power reactors in Tarapur, provided heavy water for a Canada−supplied research re−
actor, and allowed Indian scientists to study at US nuclear laboratories. But all that came to a screeching halt after
India conducted a controversial nuclear test explosion in 1974 with plutonium made in Canada's reactor, probably
using heavy water from the United States. Both the reactor and the heavy water had been traded to India on con−
ditions that they be used only for peaceful purposes. India insisted the test would, in fact, serve peaceful, not mili−
tary, applications, but met disbelieving anger and strong censure internationally. Whatever India's intentions, the
test did demonstrate how readily civil nuclear material and equipment could be diverted to military use.

To non−proliferation advocates across the world, the test also signaled that the NPT needed bolstering. Under
the treaty, non−nuclear−weapon states were required to accept oversight by the United Nations nuclear watchdog
group, the International Atomic Energy Agency (IAEA). The IAEA's ”full−scope safeguards” included submitting to
IAEA inspections and disclosing detailed records about the entry, exit, and disposition of nuclear materials in the
country. But of course countries that had not signed the NPT were not bound by it, and nuclear export countries
were not required to limit their sales of civil nuclear material, equipment, and know−how to NPT countries.

In response to India's 1974 test, the United States—by far the world's greatest exporter of civil nuclear tech−
nology—decided stiffer export controls were necessary. In 1978, the US Congress enacted the Nuclear Non−
Proliferation Act of 1978, which limited US nuclear exports to nations that had accepted full−scope IAEA safe−
guards. In addition, the United States created the Nuclear Suppliers Group (NSG), a group of nuclear supplier
6
states, to write multilateral export standards for civil nuclear material. US nuclear exports to India halted by 1980;
gradually, other global suppliers followed suit, until India found itself struggling even to buy enough nuclear fuel to
run its few existing power plants.

5
Interview with author conducted at the Harvard Kennedy School of Government, May 9, 2011.
6
By 2005, the NSG had a membership of 46. In 1992, at US prodding, the NSG agreed to limit nuclear exports to countries that
had agreed to full−scope safeguards. All of the parties to the NPT accepted the principle of limiting nuclear exports only to coun−
tries with full−scope safeguards at the 1995 NPT Review and Extension Conference.

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 After the end of the Cold War, relations between India and the United States warmed considerably. India lib−
eralized its economy, grew quickly as an economic power, and increased trade with the United States. In terms of
its own strategic interests, however, the United States continued to view India as a backwater, primarily of concern
because of its difficult relationship with Pakistan. During the Clinton Administration, this began to change. India
was, for the first time, accorded the standing of a rising world power. Diplomatic contact between the two coun−
tries increased. But when India conducted a series of five nuclear tests and declared itself a nuclear weapon pow−
er in 1998—an action that Indian leaders justified as a response to a growing nuclear arsenal in China and China's
transfer of nuclear weapons technology to Pakistan—the United States reacted with immediate condemnation and
7
imposed a new raft of trade sanctions. Over the next two and a half years, however, the Clinton Administration
continued to engage with India on the nuclear question. In the end, the two sides were unable to reach agree−
ment. Even so, many believed the extensive engagement and high−level talks, in themselves, had led to greatly
8
improved understanding between the two countries.

The Bush Administration and India

As soon as he took office in 2001, US President George W. Bush made India one of his foreign policy priorities.
Given unrest in the Middle East, a growing terrorist threat, and China's rapid rise, it was in the United States' inter−
est to forge a stronger strategic partnership with India, he believed, and to help India to become more powerful,
both economically and militarily. A series of diplomatic overtures culminated in the 2004 ”Next Steps in Strategic
Partnership” (NSSP), which lifted US sanctions in many areas of high technology trade—space research, sophisti−
cated dual−use (i.e., civil or military) technologies, and missile defense.

Despite the positive momentum of these developments, they were, in their impact on India, ”modest,” Saran
said. From India's point of view, the relationship was destined to remain a limited one, he added, unless and until
the greatest area of bilateral conflict—the United States' sanctions on civil nuclear trade with India—was resolved.
Saran recalled meeting with Rice just before she became Secretary of State, to discuss what new initiatives might
be announced during the July 2005 state visit between Prime Minister Singh and President Bush. The two spoke of
combating terrorism, preparing for global pandemics, and addressing climate change, but Saran also recalled rais−
ing the issue of energy: ”It was a no brainer that energy was going to become a major constraint on our growth in
a fairly short period of time.” The United States kept talking about a new ”strategic partnership,” Saran added, but
Indian diplomats openly questioned, ”Is it only going to be a buzz word? Or is this going to be substantial?”

Still, Saran had never dreamed the United States would be willing to go so far so fast. In fact, India itself had
proposed something far more modest: might the United States be willing to resume fuel assistance for the Tarapur
reactors? Rice, however, balked at this idea. For one thing, it would not be easy to do, as it would require Con−

7
”China and the Nuclear Tests in South Asia,” 1999, Center for Nonproliferation Studies, Monterey Institute of International
Studies, http://cns.miis.edu/archive/country_india/china/nsacris.htm, retrieved July 13, 2012. Two weeks after India's test,
Pakistan followed suit with nuclear tests and the announcement that it, too, now had a nuclear weapon. In response, the in−
ternational community feared a new South Asian arms race was in the offing. In fact, both India and Pakistan pulled in their
antlers, and the hubbub died down relatively quickly.
8
”US−India Nuclear Cooperation: A Strategy for Moving Forward,” by Michael A. Levi and Charles D. Ferguson, Council on For−
eign Relations, CSR # 16, June 2006.

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 gress to amend the US Atomic Energy Act of 1953. To expend this kind of political capital for a gesture that would,
ultimately, have only a small impact on US−India relations did not make sense to Rice. If the Bush Administration
was going to take on this issue, she believed, it made more sense to go big.

Bush and his foreign policy advisors had, in fact, been discussing the idea of doing something much bigger.
They well understood, said Burns, that ”the fact that we were sanctioning India—and the highly emotional impact
that had on India, the symbolic impact—was a big political impediment on the political, economic, and military
dimensions of our relationship.” And, while the NPT had, in a broad sense, succeeded in curtailing the global
spread of nuclear weapons, it had not succeeded in bringing India into the fold. ”Here was an administration will−
ing to say—this rarely happens in government—30 years of US policy has failed,” said Burns; perhaps it was time to
try something new.

We looked at it and said, okay, we have sanctioned India for 30 years but it has had little
effect. India is not going to go backwards. It's not going to give up its nuclear weapons.
But it has also not proliferated its nuclear technology, unlike, say, Pakistan or North Ko−
rea. It's actually adhering to part of a law that it doesn't even recognize.

Bush and his advisors believed they could make the case that—far from undermining the NPT—a civil nuclear
pact with India would actually strengthen it. The situation was admittedly awkward, ”because India would still be
an outlaw nuclear weapons state,” Burns added. At the same time, if the United States could persuade India to
open its nuclear reactors to IAEA inspections and to comply with other international norms governing civil nuclear
trade, ”we thought the benefits from that were greater than the status quo of continued sanctions.”

The Bush team understood that critics at home and abroad would initially view the initiative as a worrisome
precedent—perhaps even the beginning of the end for the NPT. What if Israel demanded like treatment? Or Paki−
stan, in the interest of parity? It was therefore important to make it clear that this was a one−time exception only,
Burns said.

In the end, this deal was built on the unique nature of India. We said, we will not nego−
tiate away the sanctions, or India's entry into the non−proliferation system, on a generic
basis, so that other countries who might come along and meet the same standards can
then say, well, how about us? We won't come back and ask for the same thing with an−
other country.

But even as they went forward, both President Bush and Prime Minister Singh knew they would have to ex−
pend considerable time and political capital to conclude the agreement, and both would have to weather political
controversy at home. For both countries, the stakes were high—but not equally high. The United States had to
protect its leadership role in the international non−proliferation movement. For India, something more fundamen−
tal was at stake. India faced a grave energy crisis—the primary impediment to its economic growth, according to
many analysts. In addition, many Indian officials were tired of India's ”nuclear outlaw” status. Yet the terms of the
pact could, potentially, be enormously disruptive to India's existing nuclear establishment and some would view it
as antithetical to India's very identity as a non−aligned country. The pact would therefore occasion soul−searching

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 and impassioned debate within India. Before plunging into such turbulent waters, both leaders—but especially Singh
—wanted to be sure there was really enough agreement between them to make the negotiation a success. Against
this backdrop, the private negotiations between Nicholas Burns and Shyam Saran began in April 2005.

Nicholas Burns & Shyam Saran

On March 17, 2005—the day after Rice and Singh quietly agreed to take initial steps toward negotiating a civil
nuclear pact—Nicholas Burns received Senate confirmation for his appointment as Undersecretary for Political
Affairs, then the third−ranking post in the State Department and the senior career Foreign Service position. When
Rice returned from her Asia trip, she told Burns about her meeting with Singh and asked him to lead the negotia−
tion.

Burns had a strong working relationship with Rice, dating back to the administration of President George H. W.
Bush (1989−1993). With a 24−year career in the Foreign Service, he had most recently served as US Ambassador to
NATO. Prior to that, he had variously served as Ambassador to Greece, State Department spokesperson, and Sen−
ior Director for Russia and Ukraine at the National Security Council. It was a long and distinguished career, much
of it spent in Europe and the Middle East. When Rice asked that he lead the India negotiation, however, Burns was
taken by surprise. ”'You know I'm not an India expert. I've never even been there,'” he recalled saying at the time.
”She said, 'Doesn't matter.' She said, 'You're a negotiator.’”

In India, Prime Minister Singh gave the job of chief negotiator to his Foreign Secretary, Shyam Saran, a senior
official and experienced negotiator. Saran was a high−profile Indian diplomat who had been named to the post in
9
August 2004, leapfrogging over several more senior Indian Foreign Service officials. An economist by training,
Saran had spent his 35−year career in the Indian Foreign Service, primarily in Asia. In recent years, he had served
as India's Ambassador to Myanmar, Indonesia, and Nepal, respectively.

As they entered negotiations, each man understood the constraints and imperatives of his own administra−
tion, but the two were accorded great latitude in approaching the task before them. ”These were the first such
complicated negotiations, actually, that India and the US had engaged in, so we did not really have a template
when we started this,” Saran said. ”It was not the result, for example, of a very elaborate inter−agency process. It
was essentially a decision taken by the two leaders, that we should go ahead with this initiative.”

Because of this, in fact, ”Shyam and I quickly decided we couldn't afford to farm this out to our respective bu−
reaucracies,” Burns said. Each would, of course, assemble a negotiating team, with a full range of experts from
physicists to lawyers, but ”we decided we would lead the negotiations ourselves—that we'd be there every mo−
ment of the day.” As a result, he added, ”Both of us had to be willing to put in hundreds of hours—probably thou−
sands of hours by the end of the negotiations in 2007. We had to learn the issues, intellectually: the intricacies of
the nuclear fuel cycle, the intricacies of enrichment. So both of us had to do a great deal of homework.”

9
”Shyam Saran Is New Foreign Secretary,” The Hindu, June 11, 2004,
http://www.hinduonnet.com/2004/06/11/stories/2004061105460100.htm, retrieved July 13, 2012.

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 To establish a rapport, at the beginning, Burns hosted Saran for dinner in Washington D.C. The two had no
trouble agreeing broadly on what they were trying to accomplish. The hard part came when the negotiators tried
to ”codify” their broadly agreed goal, Burns said. ”Actually putting it into the English language became an exceed−
ingly difficult exercise.”

India as a Nuclear Weapons State

From the outset, the United States understood that India would not be willing to give up its nuclear weapons.
”That,” said Saran, ”was off the table.” But would the United States officially recognize India as a nuclear weapons
state? India hoped so. The symbolism of being an ”outlaw” state, subject to punitive sanctions, had long been a
source of anger and resentment in India. To the Singh Administration, it seemed clear that recognition of India's
nuclear weapons status was implicit in the US proposal. If the United States would simply put that in writing, it
would go a long way to defusing political opposition in India.

But Rice and Burns were adamant that the United States would do no such thing. To recognize India as a legit−
imate nuclear weapons state would stand in defiance of the NPT's central tenet—that the only legitimate nuclear
weapons powers were the original five. ”I told Foreign Secretary Saran at our very first meeting, 'Shyam, this is
about your civil nuclear complex. I cannot and will not, on behalf of my government, negotiate anything that will
strengthen your nuclear weapons program or that will legitimize it. I can't do that.'”

If the Bush Administration intended to argue for an exception for India on the basis of India's unique history
and responsible conduct, Saran countered, then surely their joint statement could include language that—if not
recognizing India as a legitimate nuclear weapons state per se—at least acknowledged that India had been ”re−
sponsible” with its nuclear weapons technology? The United States, Burns responded, could perhaps find a way to
use the word ”responsible,” because India had not proliferated its nuclear technology, but the word ”responsible”
had to be delinked from the words ”nuclear weapons.”

In the end, the two settled on the following sentence:

President Bush conveyed his appreciation to the Prime Minister over India's strong
commitment to preventing WMD proliferation and stated that as a responsible state
with advanced nuclear technology, India should acquire the same benefits and ad−
vantages as other such states.

This was a true compromise—which is to say, neither side loved it—but it included enough recognition of In−
dia's responsible conduct to allow Indian leaders to claim to their home constituency that, tacitly, the United
States had recognized India as a nuclear weapons state. For the United States, the sentence met its own require−
ment: it neither acknowledged nor sanctioned India's status as a nuclear weapons state. The sentence credited
India for its commitment to prevent WMD proliferation, for example, but did not mention nuclear proliferation,

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 10
per se. It described India as a state with ”advanced nuclear technology,” Burns said, ”but you'll notice, it doesn't
11
say weapons technology.”

Much of the negotiation over the text of the agreement involved this kind of word−smithing, Burns continued:
”There were tortuous negotiations over where do we put the comma, and can we use this word as opposed to that
word, and can we make this passive voice as opposed to active voice?” The resulting language—”diplo−speak”—
sometimes had an odd and awkward quality, Burns acknowledged: ”When you read these lines, you probably
think, did these people pass Ninth Grade English?” But this was unavoidable, Saran said: ”Each word has some
connotation, both politically and legally.” And, added Burns, sometimes the goal was to come up with wording just
ambiguous enough to serve multiple purposes: ”Sometimes, both sides can author a sentence together and be
able to describe it differently, perhaps, to their different constituencies.”

The Heart of the Deal

Not everything in the agreement was controversial. Both countries, for example, understood that the Bush
Administration would need to persuade the US Congress to make adjustments to US law and policy, in order to
create a civil nuclear agreement with India. Both countries wanted India to be accepted by the NSG as a full part−
ner in international trade. The United States did not object to India's wish to expedite the provision of fuel for its
uranium−starved reactors in Tarapur, and was willing to advocate for India's participation in two international civil
12
nuclear projects.

But under its NPT obligations, the United States could not engage in civil nuclear trade with India without as−
surance that the American material and technology provided would not be used to build up India's arsenal of nu−
clear weapons. Thus, to the Bush Administration, the entire agreement was contingent on India meeting a major
demand. ”We wanted to make sure that any assistance we gave India was only to the civil side, not to the military
side—and we weren't willing to take it on faith,” Burns said. That meant allowing the IAEA to inspect and other−
wise safeguard India's civil reactors and facilities. But in India's nuclear complex, research, weapons and power
were co−mingled. They shared reactors; they shared laboratory facilities. To meet the US demand, India would
have to separate the civil side from the military side.

Depending on how many of the civilian reactors were included under IAEA safeguards, such a division could be
a complex, expensive undertaking, and highly controversial. ”People in the Department of Atomic Energy, people
in the Department of Space Sciences, people in the defense research organizations—these are all very important
organizations, because they are, in a sense, the power behind much of the technological change that has taken

10
Weapons of mass destruction (WMD) was a broader term that included biological, chemical, and cyber weapons as well as
nuclear ones.
11
While this wording met the Bush Administration's requirements, critics in the nonproliferation community would later argue
that this sentence, essentially, gave India ”the benefits and advantages” of NPT membership without requiring of it the same
commitments.
12
India wanted to join a European Union−led nuclear fusion research project called the International Thermonuclear Experi−
mental Reactor (ITER) and a multilateral group setting safety and efficiency standards for the next generation of conventional
nuclear power plants called the Generation IV International Forum.

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 place in India.” Saran said. ”They are very proud people, very proud of the fact that despite all the road blocks
which have been put before them by the United States and other western countries, they have managed to over−
come those difficulties and accomplish a great deal for India.” This powerful branch of the Indian government was
disinclined to trust the United States' motives in proposing the deal in the first place. To dismantle and divide the
current organization and facilities, they argued, would deal a crippling, perhaps fatal, blow to India's nuclear pro−
gram.

The specter of this division, for India, would make the negotiations extraordinarily challenging. In addition,
the discussions took place in the context of a complex and evolving set of multilateral initiatives that governed
global civil nuclear trade and the efforts to end nuclear weapons proliferation.

Issues in Non-Proliferation: 1968 to 2005

Over time, it had become apparent that the NPT, alone, was not sufficient to halt nuclear weapons prolifera−
tion. India's nuclear test in 1974 had been the first shot across the bow, and had resulted in stepped up export
controls—undertaken unilaterally by the United States and other supplier states and multilaterally by the Nuclear
Suppliers Group. But in the 1990s, a new problem became evident.

Loopholes in the IAEA Safeguards System. The IAEA safeguards system was designed to monitor nuclear mate−
rials that entered the non−nuclear−weapon states by trade, and to monitor nuclear power facilities within the
country. But when the system had been developed, enrichment and reprocessing plants were large and impossi−
ble to hide. Thus, the agreement had not anticipated the need to search for clandestine nuclear facilities. In the
1990s, several countries that had signed the NPT, including Iraq and North Korea, were discovered operating un−
13
declared nuclear facilities. In 2003, North Korea withdrew from the NPT and two years later, announced it had
14
acquired a nuclear weapon.

1997: the IAEA ’Additional Protocol.’ After the discovery of Iraq's clandestine program in the early 1990s, the
IAEA set to work on tightening its safeguards. By 1997, it had developed a so−called ”Additional Protocol.” By sign−
ing it, a non−nuclear−weapon state agreed to provide the IAEA with new kinds of documentary information and to
grant permission (and facilitation, in the form of rapid visa processing, for example) for IAEA personnel to conduct
inspections of suspect locations on very short notice. Many countries were reluctant to agree to this more intru−
15
sive form of oversight; by 2005, only a third of the NPT's signatories had signed the Additional Protocol. While
the United States and others continued to urge universal adoption of the Additional Protocol, it was an uphill bat−
tle.

13
While much uranium was needed to generate nuclear power, little was needed to create a nuclear weapon, so virtually every
country on earth could obtain enough uranium from its own lands to make a few nuclear weapons.
14
In 2006, North Korea would conduct a nuclear weapon test.
15
”Highlights” from ”IAEA Has Strengthened Its Safeguards and Nuclear Security Programs, but Weaknesses Need to Be
Addressed,” US General Accounting Office, GAO−06−93, October 7, 2005, http://www.gao.gov/products/GAO−06−93.

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 As with the original ”full−scope safeguards,” the obligations under the Additional Protocol were markedly dif−
ferent for non−nuclear−weapon states than they were for nuclear−weapon states. Nuclear−weapon states were
required to provide more information on the supply of nuclear material and equipment to non−nuclear−weapon
states, but were not required to grant the IAEA permission to conduct rapid inspections within their own countries.

Uranium Enrichment and Spent−fuel Reprocessing. Another topic of concern was the issue of so−called ”sensi−
tive” nuclear technologies—in particular, uranium enrichment and spent−fuel reprocessing. These technologies
produced the fuel needed by many nuclear power plants, but the facilities and know−how could easily be subvert−
ed to create weapons−grade material. Only a few non−nuclear−weapon states had enrichment and reprocessing
facilities, and the nuclear suppliers had agreed to exercise ”restraint” in transfers of such technology. In 2003, it
came to light that an international smuggling ring had provided uranium enrichment technology to Iran, Libya,
North Korea, and perhaps other countries as well. In the wake of this news, US President Bush announced that the
United States would no longer sell sensitive nuclear technologies to any country that did not already possess them,
and called on the NSG to do the same. The US stance was controversial within the NSG, however, as some coun−
tries feared discrimination at the hands of the small group of advanced countries that did most of the world's
commercial nuclear fuel processing.

The CTBT and the JMCT. Alongside its non−proliferation agenda, the NPT included a vaguely−worded plank
calling for nuclear−weapon states to work toward the goal of worldwide disarmament. This project had never got−
ten very far, but in the wake of the Cold War, in the mid−1990s, the international community launched two com−
plementary multilateral efforts. If it was too much to ask the nuclear−weapon states to dismantle the bombs they
already had, would they, and others, at least promise to stop testing nuclear weapons and making more nuclear
materials for them?

The Comprehensive Test Ban Treaty (CTBT), adopted by the United Nations in 1996, would commit all parties
to agree not to set off any nuclear explosions of any kind. Since nuclear tests were especially important in creating
new, more advanced, and more powerful kinds of weaponry, proponents argued that a test ban would be an effec−
tive tool in ending the arms race. The CTBT would not go into effect until ratified by all 44 countries with nuclear
power reactors or research reactors, however. In many countries, including the United States, this pledge was
controversial; critics argued that it would prevent the country from conducting tests necessary to retain confi−
dence in its arsenal. Though President Bill Clinton had signed the CTBT on behalf of the United States, the US Sen−
ate had voted against ratification in 1999. India had neither signed nor ratified the CTBT. China, Egypt, Iran, Israel,
North Korea, Pakistan, and others all needed to take some action—signing, ratifying, or both—in order for the
treaty to take effect.

Meantime, in 1993, the United Nations General Assembly called for the negotiation of a “non−discriminatory,
multilateral and international effectively verifiable treaty banning the production of fissile material for nuclear
weapons or other nuclear explosive devices”—the so−called Fissile Material Cut−off Treaty. For the next decade,
no substantive discussions had taken place, but in 2004, there was a renewed effort to get the negotiations off the
ground. The Bush Administration supported this effort but took a stand against the idea of including a verification

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 mechanism in the FMCT, on grounds that it would be impossible to design one both effective and politically palat−
able.

By 2005, meanwhile, four of the five NPT nuclear−weapon states had made unilateral commitments to halt the
production of fissile material (all but China). None of the unofficial nuclear−weapon states—India included—had
done so, however.

Top Issues for Resolution in the Indo-US Civil Nuclear Pact

The crux of the negotiation between the United States and India, then, concerned the following questions:
given the backdrop of international non−proliferation treaties and concerns, how far did India need to go, and how
far was it willing to go, to secure civil nuclear trade with the United States—first, in disrupting its existing nuclear
program by separating its civil and military facilities; second, in accepting international oversight; third, in halting
the build−up of its nuclear arsenal; and fourth, in coming up to global nonproliferation standards on matters such
as nuclear testing or export of nuclear technologies? Part of the complexity had to do with the fact that under the
international non−proliferation regime, the obligations conferred on nuclear−weapon states and non−nuclear−
weapon states varied considerably. Where did India—a de facto but unrecognized nuclear−weapon state—fit in
such a scheme?

There were five controversial subjects to resolve:

 Which of India's facilities would be subject to IAEA safeguards?

 What to do about the so−called ”sensitive” technologies? Would India be eligible for trade in
these technologies with the United States? Would it be allowed to enrich and reprocess nuclear
materials it received through trade?
 What kind of safeguards should be required of India—those applicable to non−nuclear−weapon
states or those applicable to nuclear−weapon states? In particular, what to do about the
contro− versial ”Additional Protocol”?
 What kind of commitments should India make with respect to conducting nuclear tests?
 What kind of commitments should India make with respect to capping the production of fissile
material?

Which Facilities to Include in the Deal

India had 15 operating nuclear power reactors, four of them already under IAEA safeguards through past
agreements. Another seven were under construction and of these, two were slated to come under IAEA safe−
16
guards. In addition, India had one operating breeder test reactor and a much larger breeder under construction.
One of India's biggest demands was to be able to decide which of the remaining reactors would remain part of its

16
Breeder reactors were designed to produce more fuel than they consumed, by turning uranium into plutonium. They were
controversial in several ways. From a weapons−proliferation standpoint, they were controversial, because they produced plu−
tonium, which could be used to make nuclear weapons.

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 strategic program and which would be separated out as civilian reactors and as such, subject to international in−
spection. In addition, India did not want to place its enrichment and reprocessing facilities under safeguards.

This was a tricky issue, as only the official five NPT nuclear−weapon states were, at the time, allowed to pick
and choose which facilities to put under safeguards; all others had to permit their entire nuclear program to come
under IAEA scrutiny. To allow India this prerogative would be to accord it the privileges of an official nuclear−
weapon state—which would be controversial. On the other hand, India was clearly not going to go forward with
the deal if it required international oversight of facilities that included military research and development.

To the Bush Administration, the only deal worth negotiating would bring the lion's share of India's nuclear re−
actors under permanent international regulation. If India kept most of its reactors outside the deal, placing a to−
ken few under safeguards, advocates of non−proliferation would argue that all the benefits of the pact had gone to
India, with India making only a very minimal gesture toward compliance with international non−proliferation
norms. The other question concerned future India reactors—would these fall under IAEA safeguards?

The ‘Sensitive’ Technologies

India wanted to be able to import materials and technology related to enrichment and reprocessing. In addi−
tion, India wanted to use materials obtained through trade in its own enrichment and reprocessing facilities. But
India did not want to place these enrichment and reprocessing facilities under international safeguards. By con−
trast, the NPT obligated the United States to obtain verifiable assurance that India would not use any nuclear ma−
terials obtained through trade to make fissile materials. In addition—though India had not thus far proliferated its
enrichment and reprocessing technology to non−nuclear−weapon states—the United States wanted to make sure it
did not do so in the future.

Safeguards, but What Kind of Safeguards?

As an independent nuclear−weapons state that had, for 35 years, refused to sign the NPT, India did not intend
to abide by all the requirements demanded of non−nuclear−weapons states under the terms of that treaty. Be−
cause not all of India's nuclear facilities would come under IAEA safeguards, the standard safeguards system could
not be applied to India. But in other respects, how far would it comply and how far would it differ?

The most controversial aspect of this question concerned the ”Additional Protocol.” Given its military pro−
gram, the intrusive aspects of this protocol were entirely unacceptable to India. At the same time, the United
States wanted the tightest possible oversight of India's civil nuclear program. What's more, the symbolism was
important. If India were not required to sign an Additional Protocol, it could become even harder to persuade the
non−weapon states in the NPT—two−thirds of which had not signed the Additional Protocol—to do so.

Nuclear Weapons Testing

Another question concerned whether India would agree to make a firm commitment, in the context of the bi−
lateral agreement with the United States, to conduct no future nuclear tests. After its 1998 nuclear test, India had
voluntarily declared a moratorium on nuclear testing but refused to give up the right to lift that moratorium in the
future. It had also refused to sign and ratify the Comprehensive Test Ban Treaty. Since the United States had not

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 ratified the CTBT either, it was in an awkward position to demand that India do so. But the US Atomic Energy Act
of 1954 (as amended) specifically authorized (though did not obligate) the US President to suspend commercial
nuclear trade with any country that conducted a nuclear test. Thus, whether or not India agreed to commit itself
to a test ban, a future nuclear test would, under US law, imperil the civil nuclear trade pact. This was deeply trou−
bling to India. It meant that the United States would be in a position to exert what India viewed as extortionate
pressure. But the Bush Administration was not prepared to remove this presidential prerogative from US law,
viewing it as an important issue of principle and policy. And the US Congress would almost certainly reject any
effort to weaken this presidential authority. India, the Administration argued, would have to accept US law on this
matter.

The Fissile Material Cut-off Treaty

A further point of dispute concerned fissile material. All of the five official nuclear−weapons states except
China had voluntarily pledged to halt the production of fissile materials for weapons. (China had stopped produc−
tion, but had not pledged to do so indefinitely.) India, however, had made it clear that it would make no such
pledge, except in the context of the multilateral Fissile Material Cut−off Treaty. The United States wanted India, at
least, to commit to working alongside the United States to create the FMCT. But this idea was problematic be−
cause the United States would only support the FMCT if it did not include a requirement that it be ”mutually verifi−
able,” and India would only support the FMCT if it did, in fact, include such a requirement.

The Challenge

All of these subjects of negotiation would ultimately require extensive debate and tortuous compromises,
written in legal language over two and a half years of negotiations. For Burns and Saran, the challenge in writing
the July 2005 statement was to address them in brief—perhaps only a sentence or phrase—in a way that pointed
the direction for the longer negotiation to follow.

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