U.S.-India Nuclear Deal: Correct the Sequence

Put The Ball In Their Court

To help build bipartisan Indian support, let the US present a final deal

Brahma Chellaney

The Times of India, June 19, 2008

The blame game on the nuclear deal has begun in earnest. “It is now an Indian problem”, says Henry Kissinger. “India needs to make some tough choices”, chips in US Commerce Secretary Carlos Gutierrez. Instead of putting the onus on India, why doesn’t the US do its part and present New Delhi a final deal it cannot rebuff? After all, the deal has yet to be ratified by the US Congress or considered by the Nuclear Suppliers’ Group, a cartel the US helped establish in response to India’s 1974 test.

Before India plays its last card, shouldn’t America secure an NSG rule-change and congressional ratification? That card involves taking the safeguards accord to the International Atomic Energy Agency’s governing board for approval. That is a small step, given that the text of the accord has already been finalized and “frozen”. The Americans can now easily take this text to the NSG and their Congress for the necessary approvals so that New Delhi knows the final terms of the deal before it forfeits that last card. Given the distinct possibility of the deal attracting more grating conditions as it traverses the next stages, shouldn’t India know the deal’s closing terms before it approaches the IAEA board? Can India tie its hands before the final deal is clear?

            Even a quick look at the original July 18, 2005, agreement-in-principle will show that India’s obligations were merely reciprocal to America’s actions. That accord first lays out America’s obligations, with the President committed to seek “agreement from Congress to adjust U.S. laws and policies, and … work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India”. It then defines India’s part as occurring in return: The Prime Minister conveyed that for his part, India would reciprocally agree that it would be ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the US”. 

            Along the way, however, the sequence was reversed, to India’s disadvantage. The original terms also got changed. Today, there is not even the pretence that the deal offers “full civil nuclear energy cooperation”, or that India is set to “acquire the same benefits and advantages” as the US. What is on offer is restricted cooperation tied to conditions that require India, among others, to brook a permanent test ban; to grant an open-ended right to the US to suspend fuel supplies forthwith simply by issuing a one-year termination notice; to forego reprocessing of spent fuel until it has, in the indeterminate future, won a separate, congressionally vetted agreement; and to agree to route not just spent fuel of US-origin but all “foreign nuclear material” through a costly new dedicated reprocessing facility, for which no components are to be allowed to be imported because of a wider continual ban.

           The Next Steps in Strategic Partnership (NSSP) initiative was designed to help ease US technology controls against India in three separate areas — high technology, civilian space and commercial nuclear power. These three areas became known as the “trinity”. Yet, instead of a broad deal covering all the “trinity” issues, the US offered a deal in just one area where its commercial interests were dominant — the revival of its moribund nuclear-power industry. An enduring strategic partnership with the US will clearly aid Indian interests. But can such a partnership emerge without the US delivering on the other “trinity” areas — high-technology and civilian space cooperation?

While the nuclear deal has required complex actions — a change in US law, a so-called 123 agreement and a proposed NSG waiver — the opening of civilian space and high-technology cooperation with India merely demanded US executive action. By elastically interpreting existing US law and applying to India the same standards it does to another non-NPT state, Israel, Washington could have opened the doors to civilian space and high-technology cooperation. Instead, the US Congress has audaciously cross-linked civil nuclear cooperation to the continuance of US export controls against New Delhi in another “trinity” area, with the Hyde Act stipulating that US missile sanctions law (which prohibits dual-use space exports) will still apply to India even after it “unilaterally adheres” to the US-led Missile Technology Control Regime as part of the current deal.

That the deal could be subject to even more conditions is a real concern. First, the US has declined to share with India its revised “pre-decisional” proposal to the NSG. Its first proposal, submitted before the Hyde Act’s passage, sought to make the test ban on India a multilateral reality. Its latest proposal is said to add new conditions that mesh with the Hyde Act’s constraints. Second, congressional ratification could follow the 1985 example, when the attachment of three extraneous conditions held up the US-China nuclear deal for 13 years. The Hyde Act indeed states that it will be open to Congress to “pass a joint resolution of approval with conditions” by giving up “the expedited procedures” that permit a simple up-or-down vote.


Before seeking to force India’s hand, the US ought to present a final deal. A deal that comes with “clean” NSG and congressional approvals and with transparent, just terms will win bipartisan Indian support. The ball should now be in America’s court because India has already delivered on issues ranging from a civil-military separation plan to a safeguards accord.


The writer is professor, Centre for Policy Research.


© Times of India, 2008.

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