On July 18, U.S. President George W. Bush and Indian Prime Minister Manmohan Singh released a joint statement at the White House establishing closer relations between their two nations. In addition to expanding technology sharing in such areas as space systems and dual-use civilian and defense items, the declaration states that the U.S. will "work to achieve full civil nuclear energy cooperation with India." This commitment to nuclear cooperation with India, as well as expanded defense cooperation, signals a significant change in U.S. nuclear nonproliferation policy because India is not a signatory to the Nuclear Nonproliferation Treaty (NPT) and openly admits to possessing a nuclear weapons capability. By so engaging India, the U.S. establishes a second track towards nuclear cooperation. It will be up to Congress to ensure that this new policy carefully balances the need for nuclear stability in regions that contain de facto nuclear powers with the preference for global nonproliferation.

The NPT permits cooperation in the civilian nuclear power field with non-weapons states designated by the treaty only in exchange for clear commitments by those non-weapons states not to seek nuclear weapons. India is a non-weapons state under the NPT, but India, along with Pakistan, has refused to join the treaty and even conducted a series of nuclear weapons tests in 1998. In the past, the U.S. has withheld nuclear cooperation and severely limited defense cooperation with countries openly seeking nuclear weapons in defiance of international nonproliferation standards, in accordance with the NPT.

A Two-Track Nuclear Nonproliferation Policy for the Post-Cold War World

The new willingness of the U.S. to engage in cooperative activities in the civilian nuclear power field with a state outside the NPT raises serious questions about the future of U.S. nuclear nonproliferation policy. Specifically, is the U.S. effectively abandoning the NPT regime? It would be reasonable to assert that the new U.S.-India joint statement answers this question in the affirmative. That reasonable assertion, however, is not the only plausible conclusion, and it is certainly not the intent of the Bush Administration. While the U.S.-India joint statement does signal a change in U.S. nuclear nonproliferation policy, it is really adapting that policy to the realities of the post-Cold War world.

Post-Cold War regional tensions in places like South Asia have made it increasingly clear that the U.S. needs to open a second track in its overall nuclear nonproliferation policy. The first track constitutes the existing global nuclear nonproliferation regime defined by the NPT. The second track needs to focus on addressing regional security imbalances that motivate non-weapons states to seek nuclear weapons. The trick is to fashion policies and programs in the second track that will encourage non-weapons states under the treaty that nevertheless seek to possess nuclear weapons (de facto nuclear weapons states) to join or rejoin the NPT, as well as encourage other non-weapons states now within the regime to stay there.

India as a Test Case for Congress

The U.S.-India joint statement recognizes that U.S. nuclear nonproliferation policy will have to become more nuanced and discriminating than that of the Cold War. Such discrimination is nothing new, insofar as the NPT itself recognizes five nuclear weapons states (the U.S., China, France, Great Britain, and Russia). The need for even greater nuance stems from the fact that regional security issues are far more complex now than during the Cold War, when these regional problems were largely subsumed in the U.S.-Soviet confrontation. The problem is that introducing nuance into nonproliferation leaves open the question of how the U.S. can address these regional security issues without doing irreparable harm to its global nonproliferation policy.

It will be up to Congress to address this issue because the U.S.-India joint statement will require the Bush Administration to change a number of provisions in domestic nuclear nonproliferation law. The Bush Administration, however, has yet to identify what specific changes it will seek. At this point, Congress's best option is to establish broader guidelines for how it will respond to the Bush Administration's forthcoming requests for modifications of existing law. These guidelines should include the following:

Guideline No. 1: Do not establish a special exemption for India under the law. The temptation will be for Congress to take the easy route and adopt a "carve out" for India that exempts it from application under existing nuclear nonproliferation law. This would be shortsighted because the regional complexities that prompted the U.S.-India joint statement are not exclusive to South Asia. Further, the carve-out provisions will only lead to similar claims of special status by countries other than India and thereby undermine U.S. global nonproliferation goals. The better, although more difficult, legislative option is to establish a policy for advancing U.S. interests, including nonproliferation, in the second track of the two-track policy described earlier. This approach will establish a policy in U.S. law for addressing problems related to de facto nuclear states, like India, on a global basis, without country-specific exemptions.

Guideline No. 2: Direct the Bush Administration to adopt specific foreign and defense policies to address security issues in regions with de facto nuclear powers. The purpose of the second track in the two-track approach is to fashion policies that preserve peace and stability in a proliferated setting. As such, Congress should consider legislation that directs the Bush Administration to undertake simulations and tabletop exercises that explore the requirements for maintaining stability in a proliferated setting. The legislation should also direct the Bush Administration to undertake regional diplomacy to reduce the likelihood of nuclear conflicts in the applicable regions. In the case of India, this could include mediating disputes between India and Pakistan. On the defense side, the legislation should direct the Bush Administration to offer non-nuclear defense cooperation, including in such areas as missile defense, air defense, and counter-terrorism capabilities, that are designed to lessen a friendly or allied nation's dependence on nuclear weapons. In the case of India, the U.S. is already pursuing deeper defense cooperation in non-nuclear areas. The military options for addressing potentially hostile nuclear-armed states, such as China, could include reiterating the U.S. commitment to its policy of extended nuclear deterrence for the protection of allies and friends. While a paradox, it is nevertheless true that the U.S. nuclear deterrent is a barrier to nuclear proliferation. Expanding the application of the policy of extended nuclear deterrence, however, should be undertaken only after careful consideration on a case-by-case basis.

Guideline No. 3: Bar direct nuclear weapons cooperation with any state standing outside the NPT regime. India should not expect and the U.S. should not offer cooperation in designing and building nuclear weapons. Such a prohibition, however, should not extend to areas that contribute to ensuring the safety and security of nuclear weapons and reducing the likelihood of accidental or unauthorized use of nuclear weapons.

Guideline No. 4: State that it is U.S. policy to encourage nuclear disarmament by de facto nuclear weapons states and return such states to the NPT fold. Nuclear disarmament by non-weapons states under the NPT is an achievable goal. South Africa abandoned its nuclear weapons program following the end of minority rule there. Belarus, Kazakhstan, and Ukraine gave up the nuclear weapons they inherited from the former Soviet Union through the Strategic Arms Reduction Treaty (START) process in the 1990s. More recently, Libya abandoned its clandestine nuclear weapons program. Any legislation Congress adopts should include a clear statement of policy in this regard. The proper starting point for this guideline is for Congress to state clearly that it is U.S. policy to oppose any modification to the NPT to expand the number of recognized weapons states beyond the existing five.

Guideline No. 5: Strictly prohibit nuclear cooperation with de facto nuclear weapons states engaged in "second tier" proliferation. India and other de facto nuclear weapons states should not benefit from nuclear cooperation if they fail to observe the standards established for responsible nuclear supplier states to limit the further spread of nuclear weapons. Indeed, they should be punished. India has recognized its responsibilities regarding second tier proliferation and has pledged not to engage in such activities in the joint statement. Congress should codify this policy by requiring the Bush Administration to certify that India or other de facto nuclear weapons states are not engaged in second tier proliferation prior to any nuclear transfers.

Guideline No. 6: Recognize that nuclear cooperation, particularly with de facto weapons states like India, is an option for the U.S. and not an entitlement for the recipient states. President Bush has pledged to provide India "full" cooperation in nuclear energy. Making such a sweeping commitment is itself of questionable judgment. The moral hazard is that a state like North Korea, for example, will be led to believe that it is entitled to the same consideration as India. Because the legislative guidelines provided here are designed to establish a policy toward de facto nuclear weapons states generally, and not just India, the law must be clear that the U.S. will not treat North Korea like it is treating India. Therefore, further broadening of commitments is something that Congress should oppose. India and other de facto nuclear weapons states need to understand that they are not entitled to any form of nuclear energy cooperation and the U.S. will make those judgments based on regional security requirements and proliferation risks.

Guideline No. 7: Set high economic standards for nuclear energy cooperation with de facto nuclear weapons states. There are few, if any, security benefits for the U.S. in nuclear energy cooperation with India or other de facto nuclear weapons states. Indeed, there are serious security risks. The interest that such cooperation serves is to stabilize international energy markets by reducing dependence on fossil fuels. This is primarily, although not exclusively, an economic interest. As such, nuclear energy cooperation with a state like India should meet certain economic standards. The first standard is that of economic viability. India, for example, should have to demonstrate that its production of nuclear energy will be price competitive with other alternatives. The adoption of this standard will help to ensure that India is fulfilling its pledge in the joint statement to separate its civilian and weapons programs. Accepting loses in the civilian sector can only be justified in the context of offsetting the costs of producing nuclear weapons. The second standard follows directly from the first. Congress should bar export subsidies to support nuclear energy cooperation with de facto nuclear weapons states. The third standard is to require such states to demonstrate that they have exhausted all other energy alternatives to nuclear power in regards to both access and price.

Conclusion

India's de facto nuclear weapons status is not a preference of the U.S. It is a fact. U.S. security and nonproliferation policy needs to account for this fact while not abandoning its preference for universal adherence to the NPT. The same circumstance is present in East Asia and the Near East, as well as South Asia. The pressing security issues stemming from the presence of de facto nuclear weapons states in these regions are maintaining peace and stability in the present circumstances. This means that U.S. policy must recognize that the dangers resulting from nuclear weapons in the hands of states like Iran and North Korea differ from those resulting from India's possession. Addressing these pressing security issues is really about managing relations in a proliferated setting and is the reason why the U.S. needs to open a second track in its nuclear nonproliferation policy. In establishing the second track, however, the U.S. must never lose sight of its preference for global nonproliferation. This presents Congress with a difficult legislative task. Balancing the need to manage nuclear stability in regional settings against the preference for global nonproliferation in the legislative process, while difficult, is not impossible.

Baker Spring is F. M. Kirby Research Fellow in National Security Policy in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.