Two of the major sticking points of the U.S.-India nuclear deal (or 123 Agreement) were India’s right to reprocess spent nuclear fuel, but especially the degree to which India’s access to imported nuclear fuel would be guaranteed. The reason being that India wanted to maintain its liberty of action with regards to nuclear weapons testing, while the international community wanted to make sure the IAEA and NSG safeguards agreements that allowed the deal to go through wouldn’t just be a way for India to get a free pass on the Non-Proliferation Treaty.
India viewed both the Hyde Act and the Congressional legislation giving final approval to the 123 Agreement as too restrictive on the issues. Apparently President Bush did, too, because in his signing statement, he basically asserted that the 123 Agreement, and not the Congressional authorization, would apply:
“In addition, the legislation does not change the fuel assurance commitments that the US Government has made to the Government of India, as recorded in the 123 Agreement,” he maintained.
In plain words, it meant he overruled the non-proliferation hardliners in acceding to India’s rights for reprocessing spent nuclear fuel — which critics fear will enable New Delhi to build more weapons. And he stood by the fuel assurance commitments which critics had tried to kill.
Both assurances appeared to run contrary to pledges made by the administration to U.S lawmakers who codified the constrictive measures, but Bush maintained in his statement that “the legislation does not change the terms of the 123 Agreement as I submitted it to the Congress” and that the “Agreement is consistent with the Atomic Energy Act and other elements of US law.”
The U.S.-India deal could have been an opportunity to create the rules set governing India’s return from nuclear pariah status. Their nuclear industry needs foreign investment and fuel supplies, which seems like it could have been the leverage needed to get some concessions. Instead, all of the tough problems have been kicked down the road, basically left unresolved in order to get the deal signed. In effect, it’s turned a bunch of lingering but frozen disagreement into a rules set that can only be defined through a worst case scenario crisis. Given that limits tend to be tested (something that’s especially true of vague and imprecise limits), that seems like a recipe for disaster.