Monthly Archives: August 2007

Indian prime minister’s political future under cloud over nuclear deal with the U.S.

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Accountability to Parliament at the heart of Singh’s troubles

By BRAHMA CHELLANEY

The Japan Times

NEW DELHI — Indian Prime Minister Manmohan Singh’s political future has come under a cloud over a controversial civil nuclear cooperation agreement with the United States that has helped isolate his party in Parliament.

At the root of the crisis is Singh’s insistence that Parliament has no role in completing an international pact other than to be merely informed about it.

Singh’s Congress Party holds only 26 percent of the seats in the ruling lower house of Parliament and runs a wobbly coalition government with the help of a number of smaller parties, including a leftist bloc that has now come out openly against the nuclear deal.

Singh bears much of the blame for his deep political trouble. When he signed the original agreement-in-principle with U.S. President George W. Bush in July 2005, he caught his country by surprise but promised to reach out to political parties and build a national consensus in favor of the deal, seen as unduly impinging on India’s strategic autonomy.

Instead, through a public-relations blitzkrieg, Singh has consistently sought to spin reality to suit political ends and blocked Parliament from scrutinizing the deal. As a result, opposition has steadily built up against a deal that has a bearing on the symbol of India’s pride and independence — its nuclear program.

The present crisis has been triggered by a followup bilateral nuclear agreement — required not by international law but by Section 123 of the U.S. Atomic Energy Act. Although the accord was concluded July 23, its text was not publicly released until Aug. 3 to allow the government to use the interregnum to soften public opinion through selective leaks to the media.

That strategy has not only failed, but some of Singh’s own remarks have helped generate a political storm that his handlers are now seeking to hold back. Singh first mocked his leftist allies’ opposition to the deal, asking them to like it or lump it. He then declared on the eve of a new session of Parliament: "The deal is signed and sealed. It is not renegotiable."

If the so-called 123 agreement was already "signed and sealed" and not "renegotiable," the message he conveyed to Parliament was that it could do little more than be a spectator. Yet the same agreement cannot take effect until the U.S. Congress has examined and approved it through a joint resolution of both chambers. In fact, the U.S. Congress even has the right to attach conditions to this agreement — a right it exercised in 1985 on a nuclear deal with China, delaying its implementation by almost 13 years.

Indeed, the U.S.-India deal has served as a striking reminder of the need for the world’s most populous democracy to improve its public accountability and oversight.

It is precisely due to the anemic checks and balances in the Indian system that a prime minister, who uniquely came to office without winning a single popular election in his entire political career, has escaped legislative scrutiny of his actions at home even as he has expended Indian taxpayers’ money on lobbying American members of Congress to pass the necessary enabling U.S. legislation on the deal. That legislation, enacted last December and known as the Hyde Act, in fact, has inflamed Indian public opinion because of the long list of conditions it attaches to nuclear-energy cooperation.

Singh is the latest in a series of septuagenarians and octogenarians who have led India since 1989 but, unlike his predecessors, has no grassroots base. A technocrat who served as finance minister in the first half of the 1990s, Singh became prime minister in 2004 by accident when Congress Party leader Sonia Gandhi declined to assume that office and nominated him instead.

The nuclear deal has spurred national demands that the Indian Constitution — one of the most-amended constitutions in the world — be changed to make parliamentary ratification mandatory for any international agreement or treaty to take effect. It does not redound to the credit of Indian democracy that the executive has an untrammeled right to conclude and ratify international pacts without parliamentary approval.

Singh’s effort to present the deal as a fait accompli to the national legislature also raises a basic issue: Even if Parliament has no right to ratify an international pact, doesn’t it at least have the right to dissect its clauses and offer an advisory opinion?

But if India’s first nominated prime minister has his way, Parliament will have no role to play other than hold an academic debate on any of the arrangements that are being worked out under the deal, including the 123 agreement with the U.S. and an upcoming safeguards-related accord with the Vienna-based International Atomic Energy Agency.

Singh affirms that he has "kept Parliament fully in the picture at various stages of our negotiations with the United States" by making "several statements." But the question is whether statements made by the prime minister in Parliament should merely convey what has been agreed to and signed, or comply with the will of the legislature.

The deal raises weighty issues, given that India is assuming perpetual, legally immutable obligations that are to remain in force (including IAEA safeguards on its entire civil nuclear program) even if the U.S. exercised its right to suspend or terminate cooperation.

Brahma Chellaney, a professor of strategic studies at the privately funded Center for Policy Research, is the author, among others, of "Nuclear Proliferation: The U.S.-India Conflict."

 
The Japan Times: Wednesday, Aug. 22, 2007
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Japan-India Strategic Partnership

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Japan, India: natural allies

By BRAHMA CHELLANEY
Copyright: Japan Times

NEW DELHI — Prime Minister Shinzo Abe, weakened by a mortifying defeat in Upper House elections, will address the Indian Parliament later this month. This is an honor that U.S. President George W. Bush and Chinese President Hu Jintao did not get during their state visits to India last year. India and Japan are Asia’s largest and most-developed democracies, and the honor for Abe flows from the Indian recognition that a strategic partnership between the two is critical to the region’s power equilibrium.

Indeed, Japan has never had a head of government so interested in forging close ties with India as Abe. Even before he became prime minister last September, Abe had identified India as a pivotal partner for Japan in a book he published two months earlier. In "Toward a Beautiful Country," Abe devotes three pages to describing how Japan could advance its "national interests by strengthening our ties with India." He says: "It will not be a surprise if in another decade, Japan-India relations overtake Japan-U.S. and Japan-China ties."

It is Abe who helped expand the Australia-Japan-U.S. Trilateral Security Dialogue to include India in a separate Quadrilateral Initiative, founded on the concept of democratic peace. Abe’s predecessor, Junichiro Koizumi, for his part, was instrumental in frustrating Chinese opposition and getting India, Australia and New Zealand into the East Asia Summit initiative, which is to fashion the proposed East Asian Community.

Abe’s domestic failings, however, have led to his party’s record losses in the recent elections, undermining his leadership and putting a question mark on his political survival. Abe’s ascension as prime minister had symbolized not only the generational change in Japanese politics, but also the rise of an assertive new Japan ready to flex its foreign-policy muscle.

The Upper House losses could encumber the leitmotifs of Abe’s nationalist agenda, including the proposed revision of the unique "peace constitution" that the U.S. imposed on a defeated Japan to tame a historically warrior nation. Unlike India’s frequently amended constitution, Japan has not amended its constitution even once. Yet Japanese voters have signaled that they care more about the economy than about Abe’s idea to create a "beautiful Japan" on the resurrected traditions of the Taika Reform (A.D. 645) and the Meiji Restoration (1868).

Abe’s host, Prime Minister Manmohan Singh, has also been weakened by his party’s losses in state elections this year. The leftist parties on whose support his wobbly coalition government depends have now raised a banner of revolt against the U.S.-India nuclear deal, issuing a diktat "not to proceed further" with the agreement. India’s opposition parties have also attacked the deal, putting Singh on the defensive.

Singh, the latest in a series of septuagenarians and octogenarians who have led India since 1989, epitomizes India’s leadership deficit. A technocrat who served as finance minister in the first half of the 1990s, Singh became prime minister in 2004 by accident when Congress Party leader Sonia Gandhi declined to assume that office and nominated him instead.

As democracies, India and Japan are going to be buffeted by domestic politics. But their democratic traditions, along with a striking convergence of strategic interests in Asia and beyond, help make them natural allies. Both seek United Nations Security Council reforms and both wish to avert a unipolar Asia. In fact, few countries face such implacably hostile neighbors as India and Japan do.

In an Asia characterized by a qualitative reordering of power, the direction of the India-Japan relationship is clearly set toward closer engagement. There is neither any negative historical legacy nor a single outstanding political issue between them. Public perceptions in each country about the other state are very positive.

Many Japanese are still grateful for Justice Radha Binod Pal’s role in delivering a dissenting judgment at the 1946 Tokyo Trial for war crimes, and a commemorative plaque in his honor has been erected at the entrance to the newly renovated Yushukan Museum in the compound of the controversial Yasukuni Shrine in Tokyo.

On the 62nd anniversary of the nuclear bombings of Hiroshima and Nagasaki, Japan appeared poised for strategic doctrinal change. It remains the world’s largest economic powerhouse after the United States, with an economy still much larger than China’s but with only a tenth of the population. As Asia’s first economic success story, Japan has always inspired other Asian states. Now, with the emergence of new economic tigers and the ascent of China and India, Asia collectively is bouncing back from a 150-year decline. Asian security will be greatly shaped by relations among the region’s three main powers — China, India and Japan — and their ties to the U.S.

Booming trade alone won’t guarantee security. China is Japan’s largest trade partner, but that has not prevented Beijing from aggressively playing the history card against Tokyo. China is India’s fastest-growing trade partner, but that has not stopped it from publicly hardening its stance on the territorial disputes.

To maintain the peaceful environment that promotes security and economic growth, Japan and China, and India and China, must build stable political relations. A strong Japan, a strong China and a strong India need to find ways to reconcile their interests in Asia so that they can peacefully coexist and prosper. Never before in history have all three been strong at the same time.

In this distinct strategic triangle, if China were A, and India and Japan were B and C, the sum of B plus C will always be greater than A. That is why India and Japan are bound to become close strategic buddies, even as they attempt to ensure that their relations with Beijing do not sour.

Concerned over China’s lengthening shadow, Japan and India are bracing for a strategic challenge in the Asian heartland, not to gain preeminence but to thwart preeminence. But while Japan seeks more space on the world stage, only to be hemmed in by its security dependency on Washington, India fancies closer ties with the U.S. as a way to play a bigger global role.

For India, a strategic and economic partnership with Japan dovetails with its vision of a dynamic, multipolar Asia. That is why the August 2000 agreement during Prime Minister Yoshiro Mori’s visit to develop a "Global Partnership of the 21st Century" has been expanded to include the term, "strategic." This new "Strategic and Global Partnership," as Singh and Abe agreed last December, is to be centered on "closer political and diplomatic coordination on bilateral, regional, multilateral and global issues, comprehensive economic engagement, stronger defense relations, greater technological cooperation" and "a quantum increase" in other contacts.

The decision to add real security content is intended, as the two prime ministers admitted, "to reinforce the strategic orientation of the partnership." Defense ties are now developing with ease. All the three Japanese service chiefs visited India last year in a two-month period. With Japan dispatching more naval ships to the Indian Ocean in support of the U.S.-led "Operation Enduring Freedom," India and Japan are in a position to conduct naval exercises together at short notice.

After last year’s India-Japan exercises, Indian naval ships visited Japan’s Yokosuka base four months ago, holding trilateral maneuvers with Japanese and U.S. forces off Tokyo Bay.

Asia’s sharpening energy geopolitics also buttresses the partnership between India and Japan, both heavily dependent on oil imports by sea from the Persian Gulf region. Strategic collaboration between these two major non-Western democracies is being necessitated by mercantilist efforts to assert control over energy supplies and transport routes, as well as by strategic plans to assemble a "string of pearls" in the form of listening posts and special naval-access arrangements along vital sea lanes.

If India is to ensure that an adversarial power does not exercise undue influence over regional waterways, it needs not only to guard the "gates" to the Indian Ocean, but also to join hands with the much-larger Japanese navy.

When Abe arrives on Aug. 21, he would like to market his "Cool Earth" initiative, as part of his endeavor to fashion a collective international response to the climate crisis that has arisen due to the relentless buildup of planet-warming greenhouse gases in the atmosphere.

Singh, for his part, is expected to seek Japan’s support in the Nuclear Suppliers’ Group for his pet initiative — the nuclear deal with the U.S. whose future is still far from certain. But the Abe-Singh discussions are likely to transcend personal hobbyhorses and focus on long-term strategic issues.

Given that the balance of power in Asia will be determined by events as much in the Indian Ocean rim as in East Asia, India and Japan have to work together to promote peace and stability, protect critical sea lanes and stem the incipient Asian power disequilibrium.

Brahma Chellaney, a professor of strategic studies at the privately funded Center for Policy Research in New Delhi, is the author of "Asian Juggernaut: The Rise of China, India and Japan"(HarperCollins).

 
The Japan Times: Thursday, Aug. 16, 2007
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Political controversy in India over nuclear deal with the U.S.

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A Divisive Deal

 

India Today, August 27, 2007 

 

Rather than chase a misbegotten nuclear deal with the United States now, a rising India could easily get a better bargain if it were patient

 

GUEST COLUMN: Brahma Chellaney

 

Behind the political storm triggered by the civil nuclear deal with the US lies deep-seated national concern over its long-term implications for India’s security and strategic autonomy. The deal has divided India like no other strategic issue since independence. After all, the deal is not just about importing nuclear reactors for electricity. It will determine what kind of India emerges in the years to come — a major independent power with the requisite economic and military strength, or a middling power trimming its sails to the prevailing American winds and still relying on imports to meet basic defence needs.

 

            India stands out as the only large country still deeply dependent on arms imports, to the extent that it has emerged as the world’s largest weapons importer. The nuclear deterrent is the only strategic programme it has pursued somewhat successfully. While its nuclear posture calls for a “credible minimal deterrent”, the country still hasn’t developed a minimal, let alone credible, deterrent against its main challenge, China. Yet, New Delhi blithely put the nuclear programme on the negotiating table to reach a deal that implicitly imposes qualitative and quantitative restrictions on the Indian nuclear-weapons capability.

 

India has already paid a very heavy price internationally for its nuclear programme. And the deal seeks to exact a further price, in the name of freeing the country from some of the rigours of US export controls. America’s technology controls and sanctions approach were fashioned largely in response to India’s 1974 nuclear test. Today, the main target of that policy has come full circle doubly. First, India has agreed to become part and parcel of the US-led non-proliferation system just when that regime has begun to visibly corrode. India is to “unilaterally adhere” to cartels that still exclude it from their membership.

 

Second, in concluding a new accord under Section 123 of the US Atomic Energy Act, India has paid no heed to the lessons from an earlier “123 agreement”, signed in 1963. In the 1970s, America had cut off all fuel supply to the US-built Tarapur reactors by enacting a new domestic law that rewrote the terms of the 123 agreement. The new, iniquitous 123 agreement not only grants the US the right to suspend all supplies forthwith by merely issuing a termination notice, but also omits a standard clause now found in America’s 123 accords with other states — that neither party will “invoke the provisions of its internal law as justification for its failure to perform” the agreement. India, gaining the right to be merely consulted but granting America the right to take all final decisions, has put itself at the latter’s mercy.

 

            Let us look at the benefits the deal offers. India principally would be able to import power reactors and fuel — and in the process help revive the US nuclear-energy industry. India, however, would continue to face stringent US export controls on advanced and dual-use technologies critical to rapid economic growth. Even for its civil nuclear facilities, India will not be able to buy enrichment, reprocessing and heavy-water components, however minor.

 

            Now look at the price. First, India is set to replicate in the energy sector the very mistake it has pursued on armaments by sinking into an imports dependency. India is today willing to spend tens of billions of dollars to import overly-expensive reactors when it can more profitably invest that money to commercially develop its own energy sources. Second, such imports will be a path to energy insecurity, since the reactor and fuel business is the world’s most politically regulated commerce.

 

            Third, the deal’s strategic costs are exorbitant. Like its conventional weaponry, India’s embryonic nuclear-arms capability will remain subcontinental in range. To ensure that, India has been slapped with a nuclear test ban through a US law, with the 123 accord granting no reprieve. The US President is now required to annually certify to Congress that “India is in full compliance” with a long list of congressionally-imposed “commitments and obligations”. India, for its part, has agreed to shut down by 2010 its newly-refurbished Cirus reactor, which produces a third of its weapons-grade plutonium.

 

Nothing better shows the patron-client ties the deal anoints than one simple fact: While the US has an unfettered right to withdraw from all its obligations, India’s obligations are legally irrevocable and never-ending. Even if cooperation is arbitrarily terminated by the US, India will still be stuck with everlasting international inspections on its entire civil nuclear programme. Little surprise thus that the deal has attracted increasing notoriety in India.

            New Delhi needs to realize time is on its side. As a rising power, India could easily get a better deal, if it were patient and waited a few more years. Its interests, in any case, demand a deal not just restricted to what commercially appeals to America — power reactors and fuel — but facilitating an end to the full range of US-inspired technology sanctions.

The writer is a strategic affairs expert 

Copyright: India Today, 2007

Sun rises on India-Japan relationship

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The emerging power disequilibrium in Asia makes an India-Japan partnership critical

 

A yen for closer ties

 

By BRAHMA CHELLANEY

The Hindustan Times, August 9, 2007

 

 

Japanese Prime Minister Shinzo Abe, weakened by a mortifying defeat in upper-house elections, will address the Indian Parliament later this month. This is an honour that US President George W. Bush and Chinese President Hu Jintao did not get during visits to India last year. India and Japan are Asia’s largest and most-developed democracies, and the honour for Abe flows from the recognition that a strategic partnership between the two countries is critical to Asian power equilibrium.

 

Indeed, Japan has never had a head of government so interested in forging close ties with India as Abe. Even before he became PM last September, Abe had identified India as a pivotal partner for Japan in a book he published two months earlier. In Towards A Beautiful Country, Abe devotes three pages to describing how Japan could advance its “national interests by strengthening our ties with India”. He says: “It will not be a surprise if in another decade, Japan-India relations overtake Japan-US and Japan-China ties”.

 

It is Abe who helped expand the Australia-Japan-US Trilateral Security Dialogue to include India in a separate Quadrilateral Initiative, founded on the concept of democratic peace. Abe’s predecessor, Junichiro Koizumi, was instrumental in frustrating Chinese opposition and getting India into the East Asia Summit (EAS) initiative, which is to fashion the proposed East Asian Community (EAC). Such initiatives help India to play an important player far beyond its region.

 

            Abe’s domestic failings, however, have led to his party’s record losses in the recent elections, undermining his leadership and putting a question mark on his political survival. Abe’s ascension as PM had symbolized not only the generational change in Japanese politics, but also the rise of an assertive new Japan.

 

Abe retains a comfortable majority in the lower house, but the upper-house losses could encumber the leitmotifs of his nationalist agenda, including the proposed revision of the unique “peace constitution” that the US imposed on a defeated Japan to tame a historically warrior nation. Unlike India’s frequently amended constitution, Japan has not amended its constitution even once. Yet Japanese voters have signalled that they care more about the economy than about Abe’s idea to create a “beautiful Japan” on the resurrected traditions of the Taika Reform (645 AD) and Meiji Restoration (1868).

 

            As democracies, India and Japan are going to be buffeted by domestic politics. But their democratic traditions, along with a striking convergence of strategic interests in Asia and beyond, help make them natural allies. Both seek UN Security Council reforms and both wish to avert a unipolar Asia. In fact, few countries face such implacably hostile neighbours as India and Japan do.

 

In an Asia characterized by a qualitative reordering of power, the direction of the India-Japan relationship is clearly set towards closer engagement. There is neither any negative historical legacy nor a single outstanding political issue. Public perceptions in each country about the other state are very positive. Many Japanese are still grateful for Justice Radha Binod Pal’s role in delivering a dissenting judgement at the 1946 Tokyo Trial, and a commemorative plaque in his honour has been erected at the entrance to the newly renovated Yashukan Museum, next to the controversial Yasukuni shrine in Tokyo.

 

On the 62nd anniversary of the nuclear bombings of Hiroshima and Nagasaki, Japan appears poised for strategic doctrinal change. It remains the world’s largest economic powerhouse after the US, with an economy still much larger than China’s, but with only a tenth of the population. As Asia’s first economic-success story, Japan has always inspired other Asian states. Now, with the emergence of new economic tigers and the ascent of China and India, Asia collectively is bouncing back from nearly two centuries of decline.

Asian security will be greatly shaped by the relations between China, India and Japan, and their ties to the US. Booming trade alone won’t guarantee security. China is Japan’s largest trade partner, but that has not prevented Beijing from aggressively playing the history card against Tokyo. China is India’s fastest-growing trade partner, but that has not stopped it from publicly hardening its stance on the territorial disputes.

To maintain the peaceful environment that promotes security and economic growth, Asia’s three main powers must build stable political relations. A strong Japan, a strong China and a strong India need to find ways to reconcile their interests in Asia so that they can peacefully coexist and prosper. Never before in history have all three been strong at the same time.

 

In this distinct strategic triangle, if China were A, and India and Japan were B and C, the sum of B plus C will always will be greater than A. That is why India and Japan are bound to become close strategic buddies, even as they attempt to ensure that their relations with Beijing do not sour. But while Japan seeks more space on the world stage, only to be hemmed in by its security dependency on Washington, India fancies closer ties with the US as a way to playing a bigger global role.

 

For India, a strategic and economic partnership with Japan dovetails with its vision of a dynamic, multipolar Asia. That is why the August 2000 agreement during Prime Minister Yoshiro Mori’s visit to develop a ‘Global Partnership of the 21st Century’ has been expanded with the term, ‘strategic’. This new ‘Strategic and Global Partnership’, as Manmohan Singh and Abe agreed last December, is to be centred on “closer political and diplomatic coordination on bilateral, regional, multilateral and global issues, comprehensive economic engagement, stronger defence relations, greater technological cooperation” and “a quantum increase” in other contacts.

 

The incorporation of real security content is intended, as the two PMs admitted, “to reinforce the strategic orientation of the partnership”. Defence ties are now developing with ease. All the three Japanese service chiefs visited India last year in a two-month period. With Japan dispatching more naval ships to the Indian Ocean in support of ‘Operation Enduring Freedom’, India and Japan can conduct naval exercises at short notice. After last year’s joint exercises, Indian naval ships visited Japan’s Yokosuka base less than four months ago, holding trilateral manoeuvres with Japanese and US forces.

Asia’s sharpening energy geopolitics also buttresses the partnership between India and Japan, both heavily dependent on oil imports by sea from the Gulf region. Indo-Japanese strategic collaboration is being necessitated by mercantilist efforts to assert control over energy supplies and transport routes, as well as by strategic plans to assemble a “string of pearls” in the form of listening posts and special naval-access arrangements along vital sea-lanes. If India is to ensure that an adversarial power does not exercise undue influence over regional waterways, it needs not only to guard the ‘gates’ to the Indian Ocean, but also to join hands with the much-larger Japanese navy, Asia’s most powerful.

Given that the balance of power in Asia will be determined by events as much in the Indian Ocean rim as in East Asia, India and Japan have to work together to promote peace and stability, protect critical sea-lanes and stem the incipient Asian power disequilibrium. 

Text of U.S.-India Civil Nuclear Cooperation Accord Released

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123: Text and Context

 

By Brahma Chellaney

 

Asian Age, August 4, 2007

 

 

MAIN POINTS

 

  • US gains right to unilaterally terminate cooperation at will.
  • No provision for instituting alternate suppliers before terminating cooperation.
  • India concedes to US unfettered “right of return”.
  • Agreement upholds supremacy of US law.
  • India given reprocessing right only in principle. Actual right uncertain.
  • Fuel-supply assurance subject to US right to terminate.
  • No full cooperation.
  • India accepts IAEA-safeguarded enrichment or reprocessing is “dual-use” activity.
  • Accord provides for fallback safeguards.
  • Accord provides for end-use US monitoring.
  • Sugar-coated provisions on consultations.
  • Agreement turns unilateral test ban into bilateral legality.
  • Through NSG, US intends to turn test ban into multilateral legality.

The released text of the so-called 123 agreement on civil nuclear cooperation reveals that the United States, besides upholding the primacy of its laws, has gained two absolute rights — the right to unilaterally terminate cooperation with India at will (without first arranging alternative suppliers), and the right to take back all supplied items and materials.

 

In withholding the text for two long weeks, the U.S. and Indian governments sought to spin reality to suit political ends. Now the facts need to be separated not just from spin but also from wishful thinking.

 

            This proposed bilateral agreement has at least 12 important facets:

 

  1. TERMINATION: It confers on the U.S. an unfettered and uninfringeable right to terminate cooperation with India at will. Article 14(2) states: “The party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations”. That would put India at the mercy of the supplier, which would be holding all the leverage.

Even though termination is to take effect at the end of a one-year notice period, the agreement explicitly empowers the US to forthwith suspend all cooperation without much ado. The only requirement is that a “party giving notice of termination shall provide the reasons for seeking such termination”.

 

In light of the one-sided dependency the agreement would create, such a U.S. right will not only help bind India to the non-proliferation conditions set by the U.S. Congress through the Hyde Act, but it also goes against the purported assurances of uninterrupted supply of fuel and spare parts. Significantly, Article 14 on termination does not enjoin the withdrawing party to make alternate arrangements for supplies to the other side before it ceases all cooperation.

 

  1. INTERNATIONAL LAW: In a departure from a standard clause found in America’s 123 agreements with other states, this accord does not uphold a core principle of international law — that failure to perform a treaty or agreement cannot be justified by invoking the provisions of a domestic law. Rather, this agreement is unambiguously anchored in the supremacy of national laws and regulations (which means US laws like the Hyde Act, because there is no Indian law governing nuclear cooperation with the US or any other specific country).

Contrast this accord with the 1985 US-China 123 agreement, which in its Article 2 (1) states: “The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement. Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes. The parties recognize, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

 

The third sentence about the non-invocation of domestic laws is tellingly missing from this agreement, even as the first two sentences find mention. This omission is because of one simple fact: Never before in U.S. legislative 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 does.

 

That is why even the agreement’s Article 15, titled “Settlement of Disputes”, is toothless, making no reference to the applicability of the principles of international law. It reads: “Any dispute concerning the interpretation or implementation of the provisions of this agreement shall be promptly negotiated by the parties with a view to resolving that dispute”. That means the recipient-state will have to listen to the supplier.

 

Both the U.S. and Indian sides have publicly acknowledged that the agreement is within the legal framework of the India-specific Hyde Act, which reigns supreme in this arrangement.

 

  1. TEST BAN: While there is no explicit reference to nuclear testing, a test prohibition against India has been unequivocally built into the agreement’s provisions through the incorporation of the U.S. right to demand the return of all supplied materials and items. India’s unilateral moratorium is being stripped of its voluntary character and turned into a bilateral legality in this manner. Through the US “right of return,” the 123 agreement explicitly hangs the Damocles’ sword over India’s head.

While the Hyde Act’s Section 106 openly bans Indian testing, the 123 agreement reinforces that test ban both by upholding the applicability of national laws to govern cooperation and by incorporating the US “right of return”.

 

As part of the same design to enforce permanent Indian compliance with the Comprehensive Test Ban Treaty — a pact the US Senate soundly rejected in 1999 — Washington has already recommended that the Nuclear Suppliers’ Group (NSG) link its proposed exemption for India to a similar test ban. The NSG exemption could even come with a “right of return” being conferred on all supplier-states. In other words, the test ban under the 123 agreement is to be converted into a multilateral legality through the NSG.

 

  1. INDIAN FULL COMPLIANCE: The US has an unencumbered right under the 123 agreement to terminate cooperation not only in response to an Indian test but also if India, in Washington’s judgement, fell short of the “full compliance” required of it by the Hyde Act with regard to other prescribed non-proliferation conditions. The 123 agreement does not in any way rein in the US right to unilaterally terminate cooperation.

Implicit in this agreement is India’s readiness to honour the U.S.-set non-proliferation conditions.

 

  1. RIGHT OF RETURN: By conceding that the U.S. has a right to unilaterally terminate cooperate and demand the return of all equipment and fuel supplied in the past, New Delhi has lent legitimacy to what is a dubious concept in international law that the supplier is at liberty to terminate cooperation retroactively.

The agreement states that before invoking the right of return, the concerned party would “undertake consultations with the other party”. But that is nothing but public relations because such consultations would be of no consequence. The supplier-state, however, would “compensate promptly that party for the fair market value” of the items and materials it takes back.

 

  1. PERMANENT INDIAN OBLIGATIONS: While the US has the right to terminate cooperation at will and withdraw from all obligations, India has been denied the right to withdraw from all its obligations, even if the agreement was terminated at America’s instance. The agreement more than once cites the permanent nature of India’s obligation to accept international inspections on its entire civil nuclear programme, including the indigenously built facilities it is voluntarily opening to external scrutiny.

In a hypothetical situation, if the US were to terminate all cooperation and suspend all fuel and equipment transfers, India would be stuck both with everlasting IAEA inspections on its entire civil programme and with lack of access to an alternate supplier.

 

  1. REPROCESSING: The US has also reserved its right in the 123 agreement to unilaterally suspend the reprocessing-related “arrangements and procedures” it intends to work out with New Delhi in the years ahead, once India has built a new reprocessing facility under International Atomic Energy Agency safeguards. National Security Adviser M.K. Narayanan has already warned that “spoilers” may nitpick on the facility’s design and cause delays.

The text clearly shows that the US has granted India the right to reprocess only in principle. The grant of actual right would take many years, with the US retaining a veto on Indian reprocessing until then. It will take at least five years to build the new facility, after whose construction, the agreement says, “the parties will agree on arrangements and procedures” for reprocessing “in this new facility”. It goes on to say that consultations on such arrangements and procedures “will begin within six months of a request by either party and will be concluded within one year”. Thereafter, the reprocessing agreement would go to the US Congress for vetting.

 

This entire process — from the start of work on the facility to congressional approval — would be a long haul. Yet, once in place, the US could terminate the reprocessing-related “arrangements and procedures” in yet-to-be-defined “exceptional circumstances”.

 

  1. SUGAR-COATED PROVISIONS: The sugar-coated provisions in the Agreement relating to “consultations” and uninterrupted fuel supply appear more to help India save face than to set out enforceable obligations. Although “consultations” are referred to repeatedly in the text, in no context does the agreement provide for consultations to achieve a mutually acceptable outcome. At best, it provides for consultations within a specified timeframe in one context.  

In all the specified circumstances, consultations are to be toothless and, in any event, subsidiary to the central requirement that the agreement be in accord with the provisions of national laws. The agreement gives India little say.

 

  1. LIFETIME FUEL RESERVES: The agreement plays cleverly on words to fashion an illusion at times. For example, Article 5(4) states: “The quantity of nuclear material transferred under this Agreement shall be consistent with any of the following purposes: use in reactor experiments or the loading of reactors, the efficient and continuous conduct of such reactor experiments or operation of reactors for their lifetime, use as samples, standards, detectors, and targets, and the accomplishment of other purposes as may be agreed by the parties”.

Note this provision does not allow India to build up lifetime reserves, as the prime minister had pledged in Parliament. It only permits fuel supply consistent with the efficient and continuous operation of reactors for their lifetime. This is just one example how an optical illusion is sought to be created.

 

In fact, nowhere does the agreement specifically permit India to accumulate lifetime fuel reserves. The agreement is so cleverly worded that it refers to strategic fuel reserves in its aims and objectives, and then in Article 5(6)(a) it states that “the United States is committed to seeking agreement from the U.S. Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers’ Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations”. In other words, the agreement admits that the U.S. has yet to make the necessary adjustments in its laws that it promised in July 2005.

 

Then, in the very next subsection (b) of Article 5(6), it is stated as follows: “To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps: i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement on peaceful uses of nuclear energy under Section 123 of the U.S. Atomic Energy Act, which would be submitted to the U.S. Congress”. But this is the agreement under Section 123, and there is no such ironclad assurance!

 

  1. LACK OF FULL COOPERATION: The agreement brings out starkly that India has accepted terms that fall short of the promised “full cooperation”.

In keeping with the Hyde Act’s prohibition on transfers of equipment and technology in certain areas, the 123 agreement offers this palliative in Article 5(2): “Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the parties’ respective applicable laws, regulations and license policies”.

 

In accepting this clause, India has not only acquiesced to restrictive cooperation, but also gone one step beyond its current policy to align with U.S. policy on an important point — that any enrichment, reprocessing or heavy-water activity, even when occurring under stringent IAEA inspections, is “dual-use” in nature and thus liable to be restricted.

 

This is the very thrust of the U.S. case against Iran, with Tehran being asked to forego all IAEA-safeguarded enrichment or reprocessing activity, despite Iran’s insistence that it is its lawful right to pursue such fuel cycle-related work under the provisions of the NPT. In seeking to forge an arbitrary new regime dividing the world into fuel-cycle possessors and fuel-cycle abstainers, the US has dubbed even IAEA-safeguarded enrichment and reprocessing activity as “dual use”.

 

  1. U.S. END-USE MONITORING & FALLBACK SAFEGUARDS: In addition to ensuring IAEA inspections on all aspects of India’s civilian nuclear programme, the U.S. had staked 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 “fallback safeguards” in case of “budget or personnel strains in the IAEA”. The fallback option, stipulated in Hyde Act’s Section 104 (d)(5)(B)(iii), is to ensure that India is subject to intrusive, challenge inspections of the type the IAEA applies in non-nuclear states.

In the 123 agreement, the US has succeeded in subtly asserting its prerogatives on both fronts.

 

The provision for fallback safeguards finds mention in the agreement’s Article 10(4), which states that, “If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures”. That complies with the Hyde Act stipulation.

 

End-use US monitoring (to which India is committed through an earlier bilateral agreement on high-tech imports) is reflected in the agreement’s Article 12(3): “When execution of an agreement or contract pursuant to this Agreement between Indian and United States organizations requires exchanges of experts, the parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices”.

 

  1. PRIME MINISTER’S ASSURANCES: While the U.S. has managed to fully uphold all its laws, including the India-targeting Hyde Act, with New Delhi’s own admitted support, it is manifest from the released text that the Indian government has been unable to fully uphold even the prime minister’s solemn assurances to Parliament.

History is repeating itself. Ignoring the egregious way America cut off all fuel supply for Tarapur in the 1970s in material breach of the 123 agreement it signed in 1963, India is entering into new arrangements with its wings clipped (like on nuclear testing) as well as ambiguity or uncertainty on key issues. Even the actual grant of and continuation of the reprocessing right is to be contingent on India’s good behaviour.

 

Creating a U.S.-monitored energy dependency through imported reactors dependent on imported fuel through a fresh 123 agreement loaded in favour of the supplier-state is to ask for trouble, especially when the new 123 accord is not half as protective of Indian interests as the 1963 agreement.

 

 (Brahma Chellaney, a strategic-affairs expert, is the author of Nuclear Proliferation: The US-India Conflict.)

 

© Asian Age, 2007.