U.S.-India Nuclear Contretemps

Nuclear Winter

India should blame itself for its dashed
expectations

Brahma
Chellaney

The Times of India, May 2, 2007

With the
vaunted Indo-US nuclear deal floundering,
the world’s two biggest democracies have begun to blame each other. While the still-continuing
negotiations, as symbolized by Foreign Secretary Shivshankar Menon’s Washington visit this week, outwardly suggest the deal
can still be salvaged, New Delhi now admits it will not get in practice what the original
accord had promised in principle — the
rights of “a responsible state with advanced nuclear technology”, and “full
civil nuclear cooperation”. Indeed, America’s message has become plain: like it or lump it.

If the deal has shaped up in
a way that it condemns India
to second-class status and links
restrictive civil cooperation to assorted good-behaviour conditions in perpetuity, New Delhi
bears more blame than Washington. While America never hid its non-proliferation aim to see
India’s nuclear-weapons
capability crimped, New Delhi entered the deal
with remarkable naiveté, with Parliament being
assured that the nation would get the “same benefits and advantages as the US”.

India actually slipped at the very
outset, when it hurriedly embraced the US-drafted deal on July 18, 2005 without
fully grasping the significance of
its
phraseology. For one, the accord committed India to identify and separate
civilian “nuclear facilities and programmes” for external inspection, when the only issue discussed until then
was about “power reactors”. For another, it held New Delhi
to a “unilateral” nuclear-test moratorium, when India’s commitment had been to a
“voluntary” suspension.

As a result of these boo-boos, India was
forced to identify not only 14 power reactors for permanent inspection, but also 21 heavy-water,
fuel-fabrication and research facilities, besides agreeing
to shut down its Cirus plutonium-production reactor. The US, citing its domestic law, such as the Arms Export
Control Act where “unilateral” commitment is defined,
now insists that India, on the pain of punishment, lose its right to resume testing and that it adhere to the Missile Technology
Control Regime (MTCR) “unilaterally” while remaining a prime target of MTCR.

India slipped again
when the US
began legalizing its demands. Instead
of making it loud and clear that India
won’t allow its
pledges to be expanded or stripped of their voluntary quality and turned into irrevocable obligations through the means of US
legislation, the deal-pushers in New
Delhi
elatedly cheered
on every congressional move, to the extent that special envoy Shyam Saran joined US Undersecretary Nick Burns in Paris to hail the House committee bill as “a
great job” done. When the conditions-laden Hyde Act was finally
enacted, the same cheerleaders spun reality to
meretriciously claim that Indian obligations
would flow only from the bilateral “123 agreement”.

Now the chickens have come home to roost. With the US insisting on incorporating some of the Hyde Act’s egregious provisions in the 123 accord, New Delhi has had to drop its blinkers. The US
wants the right to cut off all cooperation and secure the return of transferred
items if India, in Washington’s estimation, fails
to live up to the prescribed non-proliferation conditions. It also wishes to expressly
block India
from breaking out of safeguards
obligations even if fuel supplies were suspended or terminated.
Had the US not sought such terms,
New Delhi would
still have pretended that the Hyde Act provisions didn’t matter.

While India
cannot allow itself to be railroaded into
accepting an adverse 123 accord, the
legal sanctity of such an agreement has to be seen against
the fact that it won’t have the status of an international
treaty under the Vienna Convention. Yet, from the American standpoint, the 123 agreement — a requirement under US law
— has to be consistent with the Hyde Act and Atomic Energy Act, especially
because it has to go before Congress for ratification. When India ought to
have spoken up, it snuggled into
a
hallucinatory loop of delusion. Now when the US seeks to follow up on the Hyde Act, India cries
foul.

Think of an opposite
scenario: a 123 agreement that incorporates
none of the Hyde Act provisions. Would that really free India from the Act’s
oppressive demands? Not really. The Hyde Act lays down conditions independent of and in
relation to the 123 accord. The Act also defines the conditions for India in
the other processes with the International Atomic Energy Agency and Nuclear
Suppliers’ Group
.

       As an auxiliary arrangement under US law defining the technical rules of nuclear commerce, no 123
agreement — however diplomatically worded — can release India from the Hyde Act’s obligations.
An earlier 123 accord over Tarapur, signed in
1963, was abandoned by Washington in 1978 simply by enacting
a new domestic law that retroactively overrode the bilateral pact. That broke with
impunity a guarantee to provide “timely” fuel “as needed” for Tarapur. Today, India can’t get
a similar lifetime fuel-supply guarantee even on paper, thanks to the Hyde Act,
which also bars reprocessing and
enrichment cooperation. The US currently
has 23 different 123 agreements with partner-states but none is tied to such an
overarching, country-specific
domestic law.

Instead of blaming Washington, New Delhi ought to reflect
on its own mistakes. And consider itself lucky that it can still disentangle
itself with little damage to its interests.
Now both sides ought to ensure that what was hyped as an epoch-making deal does not unravel in
a way to embitter bilateral ties.

The writer is a security affairs
analyst.

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