Nuclear chickens come home to roost

Brahma Chellaney
Mint, June 29, 2011

During the more than three-year-long process to finalize the terms of the nuclear deal with the US, the prime minister kept meretriciously reassuring the nation that he would operationalize the deal only after securing a broad political consensus in support. He even pledged: “Once the process is over, I will bring it before Parliament and abide by the House.”

Yet, he completely bypassed Parliament. And instead of any attempt at consensus building, the nation witnessed a polarizing single-mindedness to clinch the deal at any cost.

Now, with several of Singh’s key assurances to the nation falling by the wayside, the nuclear chickens have come home to roost. The Nuclear Suppliers Group’s (NSG’s) new ban on enrichment and reprocessing (ENR) equipment transfers fulfils one of the last remaining conditions of America’s Hyde Act, highlighting the rising costs for India of a deal whose much-trumpeted benefits are likely to remain elusive. India also has ended up with no legally binding fuel-supply guarantee, despite its bitter experience over the US-built Tarapur plant. And it has secured no right to take corrective measures even if the US again unilaterally terminated cooperation, as did in the 1970s.

That the NSG granted India a clean, unrestricted waiver in 2008 is a myth the politically besieged Singh government created to save face in public. In truth, it had signalled to the US earlier that it could live with a conditional waiver as long as the conditions were not embarrassingly conspicuous. Indian diplomacy sought to ensure that prohibitions on nuclear test and ENR transfers remained implicit, or else the PM would stand exposed at home.

In this light, the NSG, amid a tussle between non-proliferation purists and pragmatists in its ranks, arrived at a waiver whose language was politically palatable to New Delhi but whose basic terms meshed with the stipulations in the Hyde Act and some of the purists’ demands. The waiver text incorporated several layers of riders — some explicit and some implicit — to the decision to open civil nuclear trade with India.

While the bar on Indian nuclear testing was imposed by linking it to the NSG Guidelines’ paragraph 16, which deals with the consequences of “an explosion of a nuclear device,” the prohibition on “transfers of sensitive exports” was fashioned by specifying that such transfers will “remain subject to paragraphs 6 and 7 of Guidelines.” Paragraphs 6 and 7 incorporate a presumption of denial of sensitive items. This linkage to the two paragraphs was devised as an interim step until the NSG formalized a ban on ENR and other sensitive sales.

Now last week’s formal ban — which, in effect, singles out India — meshes with the Hyde Act’s bar on the transfer of ENR and heavy-water equipment to India, other than for a multinational or US-supervised facility. It also jibes both with the Hyde Act’s call for a NSG-wide ban and with the US-India 123 Agreement, which excludes ENR and heavy water equipment transfers by saying they “will be subject to the Parties’ respective applicable laws, regulations and license policies.” Even the Indo-French and Indo-Russian civil nuclear agreements do not include ENR and other sensitive transfers in their scope of cooperation.

India, which committed itself to support NSG moves to halt the spread of ENR technologies “to states that do not have them,” has itself become a NSG target. It will, moreover, have to build a costly new internationally safeguarded reprocessing facility without getting the smallest component for it from overseas.

The NSG ban highlights another fundamental reality about India that is also embedded in the Hyde Act, the 123 Agreement and the Safeguards Agreement with the International Atomic Energy Agency: Apart from retaining nuclear facilities in the military realm, India is being treated, for all intents and purposes, as a non-nuclear-weapons state and thus subject to the non-proliferation conditions applicable to such states, but with its non-membership in the Nuclear Non-Proliferation Treaty (NPT) carrying additional penalties.

But the ban’s real effect is to expose New Delhi’s charade that it secured a clean, unconditional NSG waiver. Disturbingly, the government expended greater efforts to pull the wool over the Indian public’s eyes than to stick to Singh’s assurances to the nation.

Consider another telling fact: Although the deal was ratified by the US Congress on October 1, 2008, Singh has yet to make even a statement in Parliament on how its final terms square with his August 17, 2006, assurances to the nation. What can he tell Parliament when the US Congress has removed his government’s last possible fig leaf?

Through the ratification legislation — the US-India Nuclear Cooperation Approval and Non-Proliferation Enhancement Act (NCANEA) — Congress actually busted several myths peddled by New Delhi. First, NCANEA makes explicit that, “Nothing in the [123] Agreement shall be construed to supersede the legal requirements of the Henry J. Hyde Act.” Second, NCANEA stipulates that the US promise of uninterrupted fuel supply is a “political,” not legal, commitment. It cannot be anything else because the 123 Agreement itself confers an open-ended right on the US to suspend or terminate cooperation. And third, the final deal grants America specific rights, but spells out only India’s obligations.

More fundamentally, the deal has come to symbolize the travails of the Singh government — scandals, broken promises, malfeasance, poor public accountability, and the resort to casuistry to camouflage reality. The cash-for-votes scandal in Parliament set the stage for the other scams that have followed.

Brahma Chellaney is professor of strategic studies at the Center for Policy Research in New Delhi.

(c) Mint, 2011.