U.S. Senate Approves U.S.-India Civil Nuclear Cooperation Deal
by Julian Ku
Yesterday the U.S. Senate overwhelmingly approved a deal to provide U.S. cooperation with India in the development of a civilian nuclear program (the vote was 85-12). The House approved similar legislation earlier this year by fairly huge margins as well so final passage is likely relatively soon.
I have two observations. First, this deal no doubt reflects the importance of India as a strategic ally for the U.S. It also represents a shift in U.S. strategy for controlling the use of nuclear weapons. The old U.S. strategy: no one gets nukes unless they submit to international treaty regimes. The new U.S. strategy: friends like India get help in peacefully controlling their nukes, enemies like Iran and North Korea get ugly threats of sanctions even if neither India, Iran, nor North Korea are currently part of the international non-proliferation treaty regime.
Second, being more of a foreign relations than international relations guy, I'm interested in the fact that the nuclear cooperation deal is being approved in the form of a congressional-executive agreement rather than as a treaty or even as a sole executive agreement. In fact, the President has to go to Congress twice to get approval for this deal. (A copy of the bill can be found here)
(1) After this bill passes, the President is now authorized to waive US law restrictions (in the Atomic Energy Act) in sharing of nuclear energy with India. Those restrictions essentially required International Atomic Energy Agency safeguards to be in place. These restrictions can be waived with respect to India only.
(2) The President is therefore authorized to execute an agreement without the restrictions that would basically limit such agreements to nations that are part of the Nuclear Non-Proliferation Treaty system. He has to make a bunch of determinations first, but those are pretty discretionary.
(3) Once executed, however, the President is not home free. Any future agreement has to come back to Congress one more time for approval via Joint Resolution.
This last requirement is similar in some ways to the trade agreement system, where the President gets trade promotion authority, then he goes out and makes deals, and then he has to bring those deals back to Congress for approval. This civil nuclear cooperation system is not supposed to require dual approvals, but India is a special case. If any other countries out there want a similar deal, the President will again have to get two congressional approvals, because the statute is being amended just for India.
Who said Congress doesn't get involved enough in foreign affairs? In this instance, Congress is all over this process and gets not one but two bites at the apple. Imagine that: presidential-congressional cooperation in an important foreign policy decision. In fact, this type of cooperation actually has happened all the time during the Bush Administration, despite wrongheaded overheated suggestions by critics to the contrary.
http://www.opiniojuris.org/posts/1163733585.shtml