Future of Indo-U.S. Nuclear Deal Part 2

In A Nuclear Bind


Part II


Brahma Chellaney


Asian Age, September 9, 2007


A cognitive disconnect bedevils official claims over the nuclear deal. The avowed rationale is nuclear energy, yet in reality the deal can be of little help to India’s growing energy needs. Even with the import of a number of multibillion-dollar reactors, capital-intensive nuclear power’s share in India’s total electricity generation is likely to remain unimpressively small because the contribution of other energy sources will continue to rise faster (and more cheaply).


The deal actually is being driven by divergent US and Indian objectives. While India sees it as a path to closer engagement with the US, the deal for Washington is anchored in non-proliferation. As Undersecretary Nicholas Burns has put it, “within 25 years, I think 90 to 95 per cent of their entire [nuclear] establishment will be fully safeguarded. So the choice is: Should we isolate India for the next 35 years, or bring it in partially now and nearly totally in the future? I think that’s an easy choice for us to make strategically.”



123 Agreement likely to bind India indefinitely.


Burns’ statement may explain why unlike America’s most other 123 agreements that specify expiry in 30 years, the one with India is for an initial term of 40 years but is to continue in force infinitely in 10-year intervals until either party elects to end the accord. Given the US objective to tether India lastingly to the non-proliferation regime and the permanence of India’s own obligations to open its entire civil nuclear programme to international inspections, the agreement, once in force, will bind New Delhi indefinitely. An imports dependency instilled by the agreement would also serve as a disincentive to India electing to withdraw, say, after 40 years.


The Japan-US 123 accord provides that at the “request of either party, the parties shall consult with each other whether to amend this agreement or replace it with a new agreement.” In contrast, the Indo-US agreement permits only amendment, not replacement.



A new motif of Indian diplomatic naiveté.


While America’s Hyde Act has gained notoriety for seeking to apply the principle of extraterritorial jurisdiction to regulate India’s conduct in areas unrelated to nuclear energy, the bilateral 123 agreement shows Indian diplomacy in unflattering light.


If the Hyde Act is a symbol of congressional condescension toward India, the 123 agreement epitomizes how Indian diplomacy continues to fare poorly at the negotiating table. Indeed, the agreement is a painful reminder of India living up to Spanish-born American philosopher George Santayana’s saying: “Those who cannot remember the past are condemned to repeat it.” Not only have Indian negotiators failed to safeguard India’s interests in this agreement, as highlighted in yesterday’s article, but New Delhi also has been left clutching at straws, as the examples below show.



Cosmetic corrective measures.


The PM told Parliament that the 123 agreement “endorsed the right of India to take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supply.” The fact is that the agreement not only fails to define what “corrective measures,” if any, India could undertake, but also stops India unequivocally from embarking on correction that would matter.


When Manmohan Singh went back on his original pledge “never to accept discrimination” and agreed through the “Separation Plan” to permanent, legally immutable international inspections of the type applicable only to non-nuclear-weapons states, he assured Parliament in March 2006 that the perpetual safeguards would be tied to perpetual fuel supply. But the123 accord, which he says is “signed and sealed,” represents another breach of promise because it negates the link between perpetual safeguards and perpetual fuel supply.


First, the agreement records that India’s safeguards obligations are irrevocably final and would survive even if the accord were prematurely terminated by one side. Second, it carries absolutely no reference to the continuation of India’s safeguards obligations being contingent on perpetual fuel supply. And third, the agreement explicitly blocks India from ever undertaking real correction in response to a fuel supply cut-off — the lifting of IAEA safeguards.


Put simply, India has willingly forfeited the right to enforce perpetual fuel supply through the threat to end IAEA inspections. Little surprise thus that the agreement in its Article I “Definitions” defines well-understood terms but not “corrective measures.” As Burns has clarified, none of the fuel assurances in the 123 accord “contradicts or conflicts with the legal right of any American President” to terminate supply or invoke the right to demand the return of stockpiled fuel if India violated the stipulated conditions.



Full cooperation becomes a mere concept.


The PM assured Parliament on August 17, 2006, that in keeping with the original deal’s commitment, he would insist on the “removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy, ranging from nuclear fuel, nuclear reactors, to reprocessing spent fuel.” Lest there be any ambiguity, he added: “We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above.”


A year later, full cooperation has been reduced to a mere idea to be dangled before the nation like a carrot. “The concept of full civil nuclear cooperation has been clearly enshrined in this Agreement,” Singh told Parliament last month.


Look at the absurdity of the situation: India has agreed to build a special reprocessing facility that meets US expectations, but it will not be in a position to import any components for this safeguarded plant because its negotiators failed to persuade America to relax civil reprocessing and enrichment sanctions. Yet as the Hyde Act’s explanatory statement notes, civil reprocessing and enrichment cooperation “is not restricted” but “agreements for cooperation must specify if such cooperation is to take place.” Articles 5 and 6 of the Japan-US 123 agreement, for example, permit transfer of civil reprocessing and enrichment equipment. The US signed a special agreement with Australia in 2000 to facilitate collaboration in civil laser enrichment, based on the Silex technology.


(To be continued)


© Asian Age, 2007


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