Don’t Nuke The Facts

Important to sift the truth from the spin

Brahma Chellaney

The Times of India January 9, 2007

The future of the U.S.-India nuclear deal remains uncertain despite President Bush signing into law the enabling bill. The conditions-loaded legislation, in fact, has increased the odds that implementing the deal will be a long, challenging process.

Some have wondered how a president mauled in the recent congressional elections, politically damaged by the growing costs of the Iraq debacle and increasingly seen at home as a lame duck, managed to get Congress to enact a law related to a highly contentious deal. The fact is that it was U.S. big business that got Congress to pass the so-called Hyde Act.

In yielding to big-business interests, Congress, however, tagged on tough conditions that can only cloud the deal’s future. A three-and-a-half-page official bill wound up as 41-page legislation, with the legal intent behind each of its provisions clarified by Congress through a detailed accompanying Explanatory Statement.

The deal has divided India like no other issue in modern times. After all, it centres on the very future of the country’s nuclear programme. With only the first phase of its five-part process complete, the deal is bound to intensify passions in India. That makes it all the more important that spin should not be allowed to obfuscate facts. 

It has been contended that the Hyde Act is binding only on the U.S. True, but doesn’t the Act list the various conditions India has to meet before it becomes eligible for civil nuclear cooperation with the US? And doesn’t it overtly apply the principle of extraterritorial jurisdiction to regulate India’s conduct thereafter by perpetually hanging the Damocles’ sword of exports cut-off over its head?

Rarely before in U.S. history has a law been enacted imposing such numerous and onerous conditions on an avowed strategic partner to permit cooperation in just one area as the Hyde Act. What stands out is that several of its conditions have little to do with the deal’s raison d’être — civil nuclear energy. And by mandating the continued applicability of U.S. missile sanctions law to India, the Act seeks to deny it space-related dual-use items.

One commentator writing in these columns (“Don’t Press Panic Button”, Dec. 27) heaped ridicule on a statement by leading nuclear scientists that the Act seeks the return of all U.S.-origin items and materials if India were to conduct a nuclear test. He went on to conclude that it imposes “no additional burdens” on India in the event of a test.

First, the Act explicitly goes beyond the existing provisions of U.S. law that empower the president to continue exports on strategic grounds despite a test. The Act itself admits it goes “beyond Section 129 of the Atomic Energy Act” by decreeing that the waiver for India will necessarily terminate with any Indian test.

Second, as the Explanatory Statement makes clear, Congress expects the president to “make full and immediate use of U.S. rights to demand the return of all nuclear-related items, materials, and sensitive nuclear technology that have been exported or re-exported to India if India were to test…”

Third, the Act goes beyond even the Comprehensive Test Ban Treaty by specifying in technical terms what is prohibited for India. In the CTBT negotiations, the US had successfully opposed an Article I definition of a “nuclear explosion” to leave open loopholes for what it calls “permissible activities”. Today, through domestic law, the U.S. aims to impose CTBT-plus obligations on India while refusing to accede to the CTBT itself.

            Once India has invested billions of dollars in importing power reactors, the Hyde Act, with its congressionally enforced conditions, will effectively bear it down. Even when the U.S. walked out midway from a binding 30-year bilateral pact over just one plant, Tarapur, New Delhi continued to honour the accord’s terms till the end — and even beyond to this day.

            It is important to sift the truth from the spin. Playing to the Indian weakness for cosmetically attractive facets, Congress retained the tough elements from the Senate and House bills but gave softer labels to some. For his part, Bush not only scheduled his signature ceremony to coincide with the important Indian Parliament debate, but also issued a statement geared towards public relations in India.

For example, Bush said he would construe as “advisory” the Act’s Section 103 policy statements, without revealing that these statements had largely been made operative through Section 104. He voiced concern about the potential delegation of “legislative power to an international body” — the Nuclear Suppliers’ Group — but revealingly kept mum over the Act’s precondition: that the NSG first carve out by consensus an exemption for India with the same conditions.

India needs an informed debate on an increasingly complex deal, with the prime minister acknowledging he “still has some concerns” over the Hyde Act. It is thus imperative that facts are understood and respected.

The writer is a strategic affairs analyst.