U.S.-India Nuclear Negotiations Part I

Escape From Reality

Brahma Chellaney

Asian Age, May 14, 2007

Having made the nuclear deal the centrepiece of their warming ties, India and the United States are discovering the hard way that the commitments they made in July 2005 are difficult to reconcile and implement. If the world’s most populous and most powerful democracies are not to be saddled with a political albatross, they will have to ensure that what they had hyped as a “historic deal” does not foster such lingering disputes as to set back bilateral relations.

The latest discord centres on the terms of a follow-up bilateral accord to define the technical rules of civil nuclear commerce. Such an accord is required not by international law but by US law — the Atomic Energy Act, Section 123 of which demands a congressionally ratified nuclear cooperation agreement (NCA) as a prerequisite. But unlike the existing Section 123 agreements with other countries, Indo-US civil nuclear cooperation will be uniquely governed by a special, India-specific US domestic law, the Hyde Act.

The deal has become such a technical subject that it is easy to loose the bigger picture by focusing on the twists and turns in a never-ending saga or on the fine print of the NCA under negotiation. Despite its ostensible rationale to aid India’s energy needs, the deal would have an important bearing on the autonomy and integrity of Indian foreign policy and security.

Although the deal has been marketed as a major favour to India, it is America that is piling up pressure on New Delhi to yield further ground, as shown by the recent telephone calls by President George W. Bush and Secretary of State Condoleezza Rice to Prime Minister Manmohan Singh, as well as by the official statements in Washington expressing frustration over New Delhi’s alleged narrow-mindedness. To rub in the point that a Section 123 agreement would emerge only if New Delhi gives in, Undersecretary Nicholas Burns claimed the US has “carried through on all its commitments” and now “the ball is in India’s court.” Contrast this truculence with the love-fest that greeted the signing of the deal.

US pressure tactics in recent weeks have included shining renewed spotlight on New Delhi’s legitimate relations with Tehran, and the April 2 indictment of an Indian national and a Singaporean for allegedly conspiring to illegally export to India some dual-use but outdated American memory chips and capacitors. This indictment not only appeared politically timed to step up pressure on New Delhi just when the NCA negotiations had hit a major snag, but it also conflicts with Washington’s avowed objective to open high-tech commerce (with the US-India High-Technology Cooperation Group meeting since 2003).

The deal constitutes a major diplomatic accomplishment for the US, opening the path to its influencing India’s strategic policies. Naturally, Bush is eager to hold on to a deal that is one of his few second-term foreign policy successes. Bush knows that like him, Dr. Singh is coming under growing political siege at home. But while Bush has another 20 months in office left, Dr. Singh’s political future is uncertain. So the haste to tie up a 123 agreement. As the White House put it bluntly last Thursday, “We are determined to make it happen.”

Another reason for such intense pressure is that once the 123 agreement is concluded, the deal would virtually go out of India’s hands. It would be then up to the 35-nation IAEA board, the 45-state Nuclear Suppliers’ Group and the US Congress — in that order, according to the revised sequence the US has laid down — to refine and expand the conditions applicable to cooperation with India.

While peaceful nuclear cooperation would nicely dovetail with a US-India strategic partnership, the deal has evolved in such a way as to attenuate the obligations Bush undertook on July 18, 2005, while enlarging (and legalizing) Indian commitments through the means of the five-month-old Hyde Act. Not surprisingly, the US effort now is to ensure that a final 123 accord is in consonance with — or at least not incompatible with — this Act.

In any event, as a subsidiary bilateral arrangement under US law, the 123 agreement cannot circumvent the Hyde Act, which has defined the “procedures and conditions” by which such an accord may be considered by Congress. In fact, to qualify for such consideration, the 123 agreement would have to be submitted to the appropriate congressional committees with the entire deal package, including “a completed IAEA-India safeguards agreement and other documents and Presidential determinations” in a report form.

The “Presidential determinations” — on 10 different conditions listed in the Act’s Section 104(c)(2) — would centre on New Delhi’s compliance. They include extraneous conditions, such as binding India to the Proliferation Security Initiative, Australia Group and Wassenaar Arrangement, and securing its full participation in “efforts to dissuade, isolate, and, if necessary, sanction and contain Iran.” That the Hyde Act represents a blend of the toughest elements from the Senate and House bills is apparent from a Congressional Research Service comparative assessment, in table form, by Sharon Squassoni and Jill Marie Parillo.

The PM had assured Parliament last August 17 that, “If in their final form, the US legislation or the adopted NSG guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament.” Yet, when the Hyde Act bristling with extraneous and mortifying conditions was passed, Dr. Singh paused only to admit that some of its provisions were “a cause for concern” before sanctioning negotiations on a 123 agreement.

It has now become clear that if the 123 accord is to be in harmony with the Hyde Act and yet not rub salt on Indian wounds, there is only one way out — semantic guile on the fine print. That is exactly what is on offer from the US side to break the current deadlock and seal the accord.

The new formulations proffered by the US in the last round of talks in Washington early this month centre not on substance but on a semantic exercise that would take India round the mulberry bush and defer its day of reckoning to a time when it has no escape route. Yet Burns characterized these formulations as “extensive progress” and Foreign Secretary Shivshankar Menon hailed them as “considerable progress.”

In such hoopla, the principal fact is getting obscured — that the grating conditions against India are in the Hyde Act, and even if they did not figure in the 123 agreement, New Delhi would still be bound by them. After all, it is only after India has complied with all the Hyde Act’s preconditions that Congress would take up the final deal for approval. Indeed, even after such approval, the US is to hang the threat of re-imposition of civil nuclear sanctions to enforce India’s continuous compliance with the Act’s post-implementation conditions.

Put simply, no semantic trickery over the fine print of the123 agreement can free India from the rigours of the Hyde Act. While New Delhi, of course, would not want to compound its burden by entering into an adverse 123 accord with the US, the devil is not so much in the details of such an agreement as in the Hyde Act — a red rag to a bull.

Yet New Delhi remains fixated on the terms of the 123 agreement, to the exclusion of the onerous conditions the Hyde Act already seeks to enforce. Such a blinkered focus also raises an important question: Whatever 123 accord were to emerge, will India be able to hold the US to its terms? In other words, will India be signing on to a legally enforceable agreement?

India’s bitter experience over an earlier 123 agreement with the US, signed in 1963, is a sobering guide to this question. That accord was protective of Indian interests and free of any Hyde Act-style overarching domestic-legal framework. Yet, when the US walked out midway through that 30-year accord — cutting off fuel supply to the twin-reactor Tarapur power station, despite a guarantee to provide “timely” low-enriched uranium on demand — New Delhi could do little more than sulk. With the accord not enjoying the status of a treaty in international law, India realized it was futile to keep claiming it had the “force” of a treaty.

The truth is that the US has maintained a consistent legal position that because it enters into a 123 agreement to meet a requirement of its own internal law, it follows logically that such an accord cannot supersede American law. Indeed, the Carter administration used that very contention to rationalize the 1978 US action in changing domestic law in such a way as to unilaterally rewrite American obligations under the 1963 accord with India.

A 123 agreement, in effect, will legally bind India but not America. Nothing better illustrates this than the manner New Delhi still adheres to the terms of the 1963 agreement, despite America’s material breach long ago and the accord having itself expired in 1993. New Delhi has continued to exacerbate its spent-fuel problem at Tarapur by granting the US a right it didn’t have even if it had honoured the 123 agreement — a veto on India reprocessing the discharged reactor fuel. Nor has India ever sought compensation from the US for the large costs it continues to incur to store the highly radioactive spent fuel.

When New Delhi signed the 2005 deal, it could have asked the US to show its sincerity by beginning immediate cooperation to facilitate the reprocessing of the Tarapur spent fuel, a source of continuing storage and safety concern. Instead, even as key issues from the earlier 123 accord remain outstanding, India is seeking to enter into a new 123 agreement.

(To be continued)

© Asian Age, 2007

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