U.S.-India Nuclear Negotiations Part II

123
Semantic Subterfuges

Brahma Chellaney

Asian Age, May 15, 2007

The wheel has come full circle. America broke its 1963 agreement with India by enacting a new domestic law — the 1978 Nuclear
Non-Proliferation Act (NNPA) — which in
turn amended its 1954 Atomic Energy Act (AEC). Now New
Delhi is negotiating a
new Section 123 bilateral accord under the very US
legal provisions that were devised to discipline
India
for its 1974 detonation and to deter any other state from emulating its example.

One expected New
Delhi to know those clauses better than any other
state. Yet, it seems caught by surprise by the US
insistence that the new 123 accord incorporate an explicit American right to secure the
return of transferred nuclear items and materials if India (to quote the AEC Section
123a proviso) “detonates a nuclear-explosive device or terminates or abrogates an agreement providing for IAEA safeguards.”

The “right to return” is just one of nine conditions under the amended AEC Section 123a
that a bilateral agreement is required to meet. In the legislative process that
led to the Hyde Act, the four versions — the official bill, the House bill, the
Senate bill and the final product —
had only one common element: none exempted any Section 123a criteria other than
the requirement for “full-scope” or comprehensive IAEA inspections
on all nuclear facilities. Among the
eight not-exempted criteria include
the right-to-return rider and a veto-empowering
condition — “no enrichment or reprocessing
by the recipient state without prior approval.”

The Hyde Act not
only classifies India
as a non-nuclear-weapons state (NNWS), but also authorizes the president to
waive sanctions on Indian activities, inconsistent
with the AEC Section 129 non-proliferation conditions, that occurred only prior
to July 18, 2005. For all subsequent activities since
that date, India
is to be held to various NPT-style prohibitions for an NNWS as defined by Section 129 except one — the possession of
nuclear-explosive devices.

In the ongoing
123-agreement negotiations, the newly submitted US
formulations
seek to allay India’s
misgivings through semantic rather
than policy shifts. Where differences are irreconcilable, the formulations equivocate
or even omit a direct reference to an issue. The US
wordsmiths have fashioned a revised draft that beats about the bush on issues
of primary concern to India.
Armed with the overarching Hyde Act
and the long-term India trap
it sets, the US
has little to lose through some dissemblance in
the 123 accord.

Let us examine what is on offer.

Reprocessing
of spent fuel
. Having branded India as an NNWS in
its new law, the US is willing to
offer not the advance-consent right it now provides its European partner-states
and Japan but an assurance of the type it has given to a single nuclear-weapons state (NWS) — that it would hold
joint consultations on any reprocessing request and attempt to reach agreement within a finite
timeframe.

That
assurance is in the 1985 US-China agreement. Article 5(2) of that agreement says
that although neither party “has any plans” to reprocess, “in the event that a party would like at some future
time to undertake such activities, the parties will promptly hold consultations
to agree on a mutually acceptable arrangement.”

It
then goes on to say that “the parties will consult immediately and will seek
agreement within six months on
long-term arrangements for such activities … If such an arrangement is not
agreed upon within that period of
time, the parties will promptly consult for the purpose of agreeing on measures … to undertake such activities on an
interim basis.”

It
is odd that the US wishes to offer New Delhi the 1985 assurance it gave China — which is unencumbered by any of the constraints being
enforced on India — rather than the post-1985 reprocessing
arrangements it has worked out with its NNWS partners, including Japan and the European Atomic Energy Community
(EURATOM), eight of whose 15 member-nations have power reactors.

To
get around the NNPA (and AEC) condition for US prior consent, the US has granted
its non-nuclear partners long-term “advance programmatic approval” to reprocess
and recycle US-origin plutonium. For
example, just over a decade ago, EURATOM states were given advance rights, with
inbuilt safeguards against arbitrary revocation by the US.

Without
at least a similar advance right, India would get into a much bigger mess than Tarapur. Even though the
US did not have any
prior-consent veto in the 1963
agreement, it still breached its terms by continuously
refusing to either exercise its
first option to
buy Tarapur spent fuel in excess of India’s needs or to carry out a safeguards-related
“joint determination”
with India
of the reprocessing facility.

In the new 123 accord, the US has staked claim to an explicit double veto: India cannot ship back spent fuel to America without its prior consent, as decreed by
the Hyde Act
Section 103(b)(6); nor can India start any reprocessing activity sans prior US consent. This dual right to
doubly squeeze India is to hold
even if the US
were to unilaterally terminate or
suspend all cooperation.

A
US assurance to India like that to China
would be meaningless. First, the 123
agreement with China
openly encourages collaboration on reprocessing,
in sharp contrast to the way the US
Congress has beforehand sought to dissuade reprocessing
cooperation with India.
Second, seen against the US bad faith in
rebuffing India
for decades on a “joint determination” on Tarapur, the new formulation merely proposes
“joint consultations” within a timeframe without any assurance that the US would actually allow India to reprocess.

Third,
while India
has agreed to permanent, legally irrevocable IAEA inspections
on its entire civilian programme, the Sino-American
agreement stands out for not applying
even voluntary, revocable IAEA safeguards on US nuclear exports. It is so lax
that Article 8(2) declares that even “bilateral safeguards are not required,” although
Beijing
agreed more than a decade later to some loose end-use checks under US
congressional pressure. China
has taken on no irreversible commitment and can easily walk out from the agreement,
but India will not be able to
free itself from grating legal obligations
even if the US
rejected its reprocessing request
after joint consultations.

And
fourth, the US-China arrangement
grants Washington
no leverage to deny Beijing reprocessing permission. It was only recently that Beijing signed up to buy its first US-origin power reactors — that too from the Japanese-owned
Westinghouse
company — after Westinghouse agreed
to transfer substantial technology and expend 50 per cent of the value of the
contract on goods and services produced in
China.

Because its 123 agreement permits Beijing
to terminate cooperation at will and
yet keep its spent fuel outside IAEA inspections,
it did not need a permanent or advance consent right. In
the years ahead, when the
Westinghouse
reactors are commissioned and produce sufficient spent fuel for reprocessing, Beijing
would simply notify Washington of its plan and, if
the latter didn’t cooperate, unilaterally begin
to reprocess after six months and/or terminate
all cooperation. In contrast, the Indo-US deal stacks the deck against India.

The reason why the US
takes a dim view of Indian reprocessing
is that it would allow India,
as part of its
long-term energy security plans, to expand its
plutonium economy and develop its fast-breeder and thorium capabilities.
That conflicts with the US
aim to constrict India
from further developing
its independent fuel-cycle capabilities even under IAEA
safeguards.

No wonder US negotiators
today are offering India a deceptive formulation on reprocessing, not the
long-term “advance
consent” concept that America
pioneered in the early 1980s in agreements with Sweden
and Norway.
That concept comes with objective criteria for revocation of any US advance
consent so that a future American administration
does not arbitrarily withdraw it.

US
negotiators today disingenuously
cite the NNPA restriction. The fact is that ever since
1984, when a federal district court dismissed a suit by non-proliferation
activists challenging long-term
consents as violating the NNPA, American
courts have consistently held that the NNPA’s interpretation
is a political matter inappropriate
for judicial resolution.

More
importantly, the US Congress has not prohibited or limited the use of advance
consents. Indeed, the Senate defeated a 1988 resolution to reject a 123
agreement with Japan
because of its advance-consent provision. And in
1996, a new 123 agreement with EURATOM took effect after the US not only
granted advance consent, but also proclaimed “no interference”
in fuel-cycle decisions of that
Community’s member-states.

Bush
has the executive authority to “exempt” India from or otherwise skirt the
prior-consent requirement. Congress has anyway spurned his plea that the new 123
accord automatically take effect unless
a disapproval
resolution was passed with a two-thirds vote. Instead, it will treat the accord
as making an “exemption,” thus requiring
a
joint resolution of approval within 90 days.
Bush’s problem, if any,
is the Hyde Act, which implicitly treats
nuclear India’s
status as being even less than that
of America’s
NNWS allies.

Right to
return.
This claimed right is founded on a one-sided concept that the supplier
is at liberty to terminate
cooperation retroactively. America’s
new proposal is to formulate an intricate,
drawn-out process to give effect to an explicit US right to an all-encompassing return of transferred nuclear items and
materials if it terminates
cooperation on grounds that its continuation
would
jeopardize its supreme national interests. By making
the actual implementation of the “right to return” problematic, the proposal
aims to calm India.

However, such semantic
subterfuge in the draft 123 accord seeks
to obscure the key point: any
acknowledgement of the American right to seek return on account of a US-determined Indian non-compliance with non-proliferation
conditions would turn India’s voluntary test moratorium into
a binding,
irrevocable prohibition through a double instrument
— a bilateral agreement atop the Hyde Act.

The
“right-to-return” demand and the Hyde Act Section 106 prohibition on further
testing are part of the same design
that has prompted the Bush administration
to propose an NSG exemption for India
tied to a test ban. India
is being dragged through the
backdoor into the Comprehensive Test
Ban Treaty, rejected by the Senate in
1999. By going beyond the CTBT and technically
quantifying a nuclear-explosive test,
the Hyde Act actually seeks to hold India to CTBT-plus obligations.

Full
cooperation.
To escape from its obligation to open “full civil nuclear cooperation and trade” with India, the US wants the 123-agreement text to
be neutral on that subject. The intent
is to use such undefined scope of
cooperation to create an illusion in
India that full cooperation
has not been ruled out, while allowing
the US to stay faithful to
the Hyde Act’s bar on civil enrichment, reprocessing
and heavy-water cooperation with New
Delhi.

Where the
replication of a provision from the US-China
agreement will be worthless in
relation to India, Washington
eagerly offers it. But where a provision is indeed
worth replicating — such as Article
3, which provides for unrestricted fuel-cycle cooperation — it looks the other
way.

Lifetime fuel reserves. While India
wants to build “lifetime” strategic fuel reserves for civilian reactors as an insurance against
supply cut-off, the US
offers only assured fuel shipments. The Hyde Act precludes “lifetime” fuel
stockpiling by allowing stocks only for “reasonable” operating needs, with reasonableness defined by the US.

And while India wants the right to take “corrective measures”
if supplies were disrupted, the US
is willing to permit such action if
it meant convening a meeting of “friendly” supplier-states, not the lifting of IAEA inspections.
Given that the Hyde Act forbids India
from breaking out of its obligations
even if supplies are discontinued,
correction can only be toothless.

There are other
core disagreements, too. All are rooted in
three factors. The first is America’s
failure to fully discharge its pledge to “
adjust
US laws and policies … to achieve full civil nuclear energy cooperation with India.” There
has also been a breach of the deal’s underlying
principle that such adjustments
would not hold India
to an NNWS status.

And finally, while India
is ready to be a friend and partner of the US,
America
insists it become its ally. Friendship
or partnership is based on parity, reciprocity and mutual respect, while an
alliance has a leader that dictates terms. The nuclear deal, in principle,
offered India parity and
reciprocity but, in practice, the US still insists on setting
the terms.

(Concluded)

©
Asian Age, 2007

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