The 123 of U.S.-India Nuclear Discord

The Hindustan
Times,
May 29, 2007

No strategic issue has proven
more divisive in modern India than the nuclear
deal

Fission for Trouble

By BRAHMA CHELLANEY

It has taken the US years of
negotiations to conclude a still-valid nuclear cooperation agreement (NCA) with
any close ally. Yet, as illustrated by President George W. Bush’s telephone
call to Prime Minister Manmohan Singh, it has stepped up pressure on India to
conclude an NCA straight away, although the two sides remain poles apart on some key issues after barely five
months of negotiations. Now Undersecretary Nicholas Burns is arriving to press for an agreement at next week’s Bush-Singh meeting
in Germany.

        Having been hustled into
signing the nuclear deal in July 2005 without understanding its implications for strategic autonomy, India currently
is being pressed to conclude the follow-up
NCA, despite the draft accord’s one-sidedness or lack of clarity on core
issues. The new formulations proffered by the US
seek to address India’s
concerns more by semantic jugglery than substance.

If the NCA were to
paper over fundamental differences, US-India civil nuclear cooperation could
engender serious discord in the
years ahead. Given that India
would be at the receiving end in any conflict — as happened when the US walked out midway through an earlier 30-year
NCA signed in 1963 — New Delhi cannot accept
equivocation clothed as compromise.

          An NCA is required
under Section 123 of the US Atomic Energy Act. Dubbed the ‘123 agreement’, it
is merely a framework accord under US law, setting
the bilateral terms of reference. It does not guarantee that nuclear
cooperation would indeed take place.
This is especially so in relation to
India.

First, the US Congress has retained
the right to stop the deal from taking
effect if it does not meet the long list of conditions established through the new
Hyde Act. A 123 agreement cannot trump those conditions even if it were silent
on any of them. Unlike NCAs with other partner-states, America’s cooperation with India is to be
uniquely governed by this all-embracing,
country-specific Act.

          Second, even in the best-case scenario, with the deal in force, the US Nuclear Regulatory Commission would
still need to license each nuclear export. And that means public hearings. Every application to license an export would
be an occasion for non-proliferation zealots to turn the NRC into a platform to critically scrutinize India’s
record, as happened whenever the US sought to ship fuel for the
Tarapur power reactors between 1974 and 1980.

India’s nuclear-weapon
and missile programmes are still in
the developmental phase. In light of the Hyde Act’s proviso that the US “seek”
to cap, roll back and eliminate South
Asian nuclear arsenals as well as its requirement for a cyclic report on India’s
“rate of production” of fissile material and nuclear-explosive devices, Indian
developmental plans and actions would spur political pressures through congressional
and NRC hearings.

      Third, the US is working
to ensure India
will not be able to avail civil nuclear technology from any other
supplier-state on terms less onerous that those it is imposing. It intends
to make sure the Nuclear Suppliers’ Group guidelines
on India
mirror the congressional conditions, as mandated by the Hyde Act.

For India, the writing on the wall is clear. Instead of the original deal’s promise of “full cooperation” and the
“same benefits and advantages as other leading
countries with advanced nuclear technology, such as the US”, restrictive, conditions-laden cooperation
is on offer today, with the Hyde Act also aiming
to regulate India’s
conduct in areas unrelated to civil
nuclear commerce.

       India
thus needs to proceed with caution. It is one thing
for the US to legislate
assorted conditions and limitations on nuclear commerce with India. But if
India itself acquiesced to restricted and restraining cooperation through the means of a bilateral
accord, it would compound its missteps since
July 2005. Political prudence lies in
negotiating as long as it takes to
clear the draft text of unreasonable restrictions, imbalance and prevarication.

           In any event, why
should India make haste when the deal’s avowed rationale is anchored in long-term issues of energy? The deal isn’t
pivotal to the growth of Indo-US ties either. Those relations do not need this
deal for traction as their direction has already been set — toward closer
strategic cooperation. If anything,
the deal has infused controversy and
soured the public mood in India.

In fact, no
strategic issue has proven more divisive in
India in modern times than this
nuclear deal. The benchmarks the PM laid down in
Parliament last August 17 — even if they did not succeed in
dissuading the US from enacting a tough law on India — have to hold good at least in the bilateral accord. How would the discerning Singh
justify his government signing a 123
agreement that fell short on his own bottom-line?

A circumspect negotiating stance should aim to fully address India’s core
concerns and ensure no further US shifting
of the goalpost. If not, the deal would attract more grating
conditions as it traverses the next stages. Indeed, the need for two separate
India-specific multinational
clearances — from the 35-nation IAEA board and the 45-state NSG — is going to launch New Delhi into
uncharted international waters.

The US wants an NCA
that reads more like the 123 of how to yoke India.
It will arm the US with five unique sets of double
rights.

First, the US will have the right not only to cut off
all cooperation but also the right to secure the return of transferred nuclear
equipment and material if India conducts a nuclear test. The US says it is
entitled to terminate cooperation
retroactively and to bind India
to an international pact the Senate rejected in 1999 — the Comprehensive Test Ban Treaty.

Second, the US
will have the right to determine how
much fuel India can stockpile for “reasonable” reactor-operating needs as well as the right to impound such
stocks if New Delhi failed to adhere to the prescribed good behaviour. The claimed
“right to return” negates the very notion of lifetime fuel reserves that the PM
has sought as an insurance against a Tarapur-style fuel cut-off.

Third, the US will enjoy a double right even on the fuel
discharged from reactors. India is to neither ship back the spent fuel to
America without its consent,
nor
reprocess it
sans prior US approval. By declining to grant long-term
advance consent for reprocessing,
the
US is loath to put India on par even with its non-nuclear allies. Worse, its dual veto against India is to hold even if it unilaterally terminated or suspended cooperation. With a lesser right
in the now-expired 1963 NCA, the US
has stopped India to this day from reprocessing
the accumulating Tarapur spent fuel.

Fourth, the US
will have the right to deny India the promised “full cooperation” through continued sanctions on export of
civil enrichment, reprocessing
and heavy-water equipment and technology. Yet it will have the right to enforce
India’s “full compliance” with
US-led technology-control regimes. Put simply, India
is to be tethered to these cartels while remaining their target.

Fifth, in addition to ensuring
IAEA inspections on all aspects of
India’s civilian nuclear programme, the US will have an unparalleled double
prerogative: the right to statutorily establish its own end-use monitoring, as called for in
the Hyde Act
Section 104(d)(5)(B)(i); and the right to institute
“fall-back US safeguards” in case of
budget or personnel strains
in the IAEA”. The fall-back option
will ensure India is subject to intrusive,
challenge inspections of the type
the IAEA applies in non-nuclear
states.

The unbridled binary
entitlements the US asserts should make India summon the courage and resolve to
hold off on a bilateral accord. Surely, the 123 agreement cannot come ahead of
long-term national
interests.

©
The Hindustan
Times,
2007

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