What is the agreement approved by the IAEA on August 1, 2008?

The IAEA Board of Governors approved, by consensus, a new umbrella nuclear safeguards agreement between India and the IAEA. This agreement could take the place of India's existing INFCIRC/66-type agreements that cover some of the nuclear items supplied in the past, but only if the relevant countries agree. The agreement also will cover future items that could be supplied to India if the Nuclear Suppliers Group (NSG) grants an exception for trade with India from its guidelines. Part of the impetus for a new safeguards agreement was India’s commitment in March 2006 to place eight civilian nuclear power plants under IAEA safeguards as part of its plan to separate civilian and military nuclear facilities.

The agreement is a hybrid between comprehensive, INFCIRC/153-type agreements and INFCIRC/66-type agreements that cover facilities, materials and equipment. India will be placing facilities under safeguards (unspecified as yet) voluntarily and will place other items (facilities, material and equipment) under safeguards under the terms of bilateral cooperation agreements. The distinction here is important because while India cannot take these latter items out of safeguards unilaterally, it has made the duration of safeguards on its indigenous reactors contingent on an assured supply of fuel.

Is the new safeguards agreement controversial, and if so, why?

There are several oddities of the new safeguards agreement. First, the agreement states that the objective of safeguards applies to ensuring that nuclear material is not diverted to military uses. Yet, India will be placing not just nuclear material, but also facilities and equipment under safeguards.

Second, the language of the agreement links its purpose to sufficient fuel assurances, both in the preamble and in the body of the text. The "corrective measures" in the preamble have never been defined, but obviously refer to India's taking indigenous reactors out of safeguards if they no longer receive foreign fuel. The key, unspoken issue here is a potential cutoff in nuclear supply if India tests a nuclear device again.

Third, there has been an ongoing debate about whether safeguards must continue in perpetuity or not. The 2006 Hyde Act requires the President to determine that safeguards will be applied in perpetuity on Indian facilities, equipment and materials declared as civilian in its separation in plan. India apparently sees no obligation to apply safeguards in perpetuity to its indigenous reactors and has linked application of safeguards to fuel supply. The Director General of the IAEA ElBaradei intervened in the August 1 Board meeting, stating that IAEA safeguards do not incorporate the notion of perpetuity, but rather indefinite duration.

Can the U.S. Congress approve the peaceful nuclear cooperation agreement this year?

If the Congress follows the requirements of the 2006 Hyde Act and the Atomic Energy Act, there will not be enough legislative days for approval. According to Section 123b of the AEA, the agreement must lie before the House Committee on Foreign Affairs and the Senate Foreign Relations Committee for consultation of no fewer than 30 days of continuous session. Given the targeted date of adjournment of September 26, this would leave about 15 days of continuous session.

Other impediments to approval this year include the requirement in Section 123d of the AEA for the agreement plus presidential determinations to lie before the entire Congress for 60 days (after the initial 30 days of consultation are over), and a presidential determination required by the Hyde Act that seven conditions for submission of the agreement have been met. These include substantial progress by India on negotiating an Additional Protocol (i.e., strengthened safeguards measures) and a declaration by India to the IAEA of the facilities it will place under safeguards. The safeguards agreement approved by the Board on August 1 did not contain a declaration of specific facilities, and this declaration is unlikely to be made before passage by Congress is assured – a Catch-22 situation.

If the agreement is not adopted by a joint resolution of approval this year, the entire process must begin anew next year when a new Congress begins.

Is there a way to expedite Congressional approval?

It has been suggested that legislation could be introduced to circumvent the Hyde Act and the Atomic Energy Act so that the agreement could be approved this year. Although it is not impossible to introduce "notwithstanding" legislation, it is highly unlikely for several reasons. No peaceful nuclear cooperation agreement has been adopted in such a manner thus far. The Hyde Act was necessary because the Administration could not make the necessary determinations under the AEA for a non-routine agreement. The Administration would thus be asking Congress to make an exception on top of the exception already made.

Second, passage of such legislation would require assurances that the peaceful nuclear cooperation agreement has met the Hyde and Atomic Energy Act requirements. Expediting the process in this way runs the risk of failing to meet the requirements Congress laid down in the Hyde Act. Since the Congress has not yet formally assessed whether the proposed nuclear cooperation agreement and India’s safeguards agreement meets Hyde Act or AEA requirements, this could take more than a few days.

Third, the political leadership in both the House and the Senate would need to find political incentives to approve the agreement this year rather than next year. Many believe that given the wide bipartisan support of the Hyde Act, there would be little difficulty in approving the agreement next year, once due diligence in vetting the agreement has been done.

Finally, introducing "notwithstanding" legislation would open up the possibility of adding more conditions for approving the agreement, since such legislation would not automatically have the expedited voting procedures contained in the AEA. This could serve to delay, rather than expedite the agreement.

What are the next steps?

The Nuclear Suppliers Group will convene an extraordinary plenary on August 21, followed by a Consultative Group meeting on August 22. Officials anticipate that a second Consultative Group meeting and a second plenary will be necessary in September to secure NSG approval.

Will the NSG approve a "clean exemption?"

The United States and India have supported a clean NSG exemption – that is, one that contains no additional conditions for nuclear trade with India. In a letter to Secretary of State Condoleezza Rice on August 5, Chairman of the House Foreign Affairs Committee Howard Berman urged Secretary Rice to request an NSG exemption that was consistent with the terms of the Hyde Act. The letter stated that it was "incomprehensible" that the U.S. government would do otherwise and that an exemption that was inconsistent with the Hyde Act would jeopardize congressional support of the nuclear cooperation agreement with India.

Other members of the NSG have not formally stated their views on conditions that the NSG might attach to trade with India. A highly likely condition is a cutoff in nuclear supplies if India tested another nuclear weapon. Other conditions could include adoption of the Additional Protocol, a prohibition on trade in sensitive nuclear technologies (that is, uranium enrichment and spent fuel reprocessing), adherence to the Comprehensive Test Ban Treaty and a halt in producing fissile material for nuclear weapons.

Sharon Squassoni is a senior associate in the Nonproliferation Program at the Carnegie Endowment for International Peace.