Bullish partisanship over the Indo-U.S. nuclear deal

Please don’t nuke facts

 

Brahma Chellaney

The Asian Age, August 13, 2008

 

 

With the future shape of the Indo-US nuclear deal now out of India’s grasp and in the hands of foreigners, two things stand out domestically. The first is that the line between fact and fiction has become so blurred that spin now dominates the discourse. Indeed, such is the bullish partisanship on the issue and the shutting out of parliamentary scrutiny — mirrored in the astonishing postponement of the Parliament’s traditional monsoon session to the end of the monsoon season — that little room has been left for an informed debate.

 

            The second is that the risks of serious misunderstandings and tragedy in the years later have been compounded through deliberate ambiguities in the agreed documents. Ambiguities may be fine with the US and the International Atomic Energy Agency because the leverage lies with them. But for a recipient state to turn a deaf ear to the stated positions and interpretations of other parties is to court trouble.

 

            In fact, New Delhi has publicly prided its ingenuity in fashioning ambiguities. Take the claim that the safeguards accord has been cleverly worded to enable India to take “unspecified sovereign actions” in a contingency — an assertion out of sync with the negotiating record.

 

Such claims flow out of a contested reference in that accord’s preamble, which records that an “essential basis” of India’s “concurrence to accept Agency safeguards” is the “conclusion of international cooperation arrangements” to help secure “uninterrupted” fuel supply and build a “strategic reserve” of fuel. Whether such rights-empowering international arrangements exist or not is merely a preambular insertion by India without tying the IAEA to anything.

 

The preamble also notes that India “may take corrective measures” in the event of fuel-supply disruption. But “corrective measures” neither find mention in the numbered articles of the accord nor have been defined in the text, although Section XI on “definitions” spells out simple terms like “facility”, “reactor”, “nuclear material” and “Director General”.  In effect, the accord precludes real correction by making safeguards indefinite and legally irrevocable.

 

IAEA Director-General Mohamed ElBaradei, in his statement introducing the accord for board approval, made clear that the preamble merely provided for “contextual background”.  He pointed out “the agreement is of indefinite duration” and its termination provisions “are the same as for other INFCIRC/66-type agreements” (designed for non-nuclear-weapons states to cover individual plants and shipments of fuel). The IAEA will enforce inspections until any safeguarded Indian facility — indigenous or imported — is “no longer usable for any nuclear activity”.

 

Did India contest ElBaradei’s statement? No, although ElBaradei implicitly rubbished the India-specific claim by saying, “The text before you is an INFCIRC/66-type safeguards agreement based on the Agency’s standard safeguards practices and procedures”. Several states also put on the record the cosmetic and non-operational nature of the aforesaid preambular references. Still, despite presenting a three-page statement at the end, India chose not to deny such contentions or even to stress its right to take corrective measures.

 

So, apart from claims publicly proffered at home by officials, there is nothing in the negotiating record about India explicitly staking any right to take any corrective step. All it has is a dubious reference in the preamble, which the IAEA chief has dismissed as “contextual background”. In his subsequent news conference, ElBaradei went on to say that a “concrete result” would be India’s co-option to help implement the Comprehensive Test Ban Treaty and conclude the Fissile Material Cut-Off Treaty.

 

Against this background, would India have any case if it were stopped from building a strategic fuel reserve or slapped with a fuel cut-off? The onus will always be on India to behave well or risk a double whammy — a fuel squeeze or suspension while saddled with everlasting international inspections on its entire civil nuclear programme. Despite getting none of the rights the five established nuclear-weapons states have vis-à-vis the IAEA, India has accepted the Agency’s paramount authority to settle “any question arising out of the interpretation or application of this agreement”.

The board easily ratified the accord by consensus because it meets non-proliferation standards and opens the path to drafting India into the NPT regime as a de facto party. While this accord sets the technical parameters for co-opting India into the non-proliferation regime, the impending exemption by the Nuclear Suppliers’ Group will set the political parameters.

The potential costs of equivocation primarily flow out of the earlier-negotiated 123 agreement with the US — an accord that fudges or tiptoes around key issues relating to strategic fuel reserves, reprocessing right, corrective measures and a linkage between perpetual safeguards and perpetual fuel supply. It also stands out for its lack of a dispute-resolution mechanism and for merely recording that India would seek the right to corrective measures in the safeguards accord.

 

Clearly spelled-out provisions, not equivocation and semantic subterfuge, was what Prime Minister Manmohan Singh had pledged in Parliament to “ensure there is no repeat of our unfortunate experience with Tarapur”. Yet the accords negotiated with the US and IAEA risk making India an easier prey to external pressures. A quick comparison of these accords with the 1963 Indo-US 123 agreement and the 1971 safeguards pact underscores that danger.

 

While the 1963 agreement guaranteed fuel “as needed” by India, the equivocation in the latest 123 accord is manifest from the fuel-related assurances left hanging in Article 5.6, which says the US is “willing to incorporate assurances regarding fuel supply in the bilateral US-India agreement” — that is, at some point in the future. The accord arms the US with an open-ended right to suspend supplies forthwith simply by issuing a one-year termination notice on any ground, however extraneous.

 

While the 1963 agreement permitted India to reprocess after a “joint determination” with the US that the reprocessing facility was “safeguardable”, the latest accord requires India not only to build a new dedicated facility to US satisfaction but also to separately negotiate and sign a congressionally vetted agreement on reprocessing. Although the US overrode the terms of the 1963 agreement through a new 1978 domestic law, the latest 123 accord says its implementation will be governed by national laws, underscoring the Hyde Act’s primacy.

 

The more-equitable 1971 safeguards accord was trilateral, with the US as a party. The applicability and duration of safeguards were explicitly tied to American fuel supply. Its structure and provisions were uniquely India-specific.

 

By contrast, the latest accord — modelled on the upgraded, NPT-system safeguards for non-nuclear-weapons states — is little India-specific. Despite a preambular reference to India’s civil-military separation plan — a mention that forms part of what ElBaradei sneeringly calls “contextual background” — the accord in none of its articles acknowledges the existence of an Indian nuclear-weapons programme even for the purpose of defining the scope or limits of safeguards.

 

The blunt fact is that India secured better agreements in an era in which the Chinese military invasion had shattered its confidence and the US PL-480 aid had fostered the image of a country with a begging bowl than in a period marking its rise as a knowledge powerhouse and nuclear-weapons state.

 

Little surprise, therefore, that spin is being aggressively employed to shroud inconvenient truths. In his July 22 speech in Parliament, the prime minister stated that while the G-8 passed a “harsh resolution” after the 1998 tests, at the “meeting of the G-8 held recently in Japan, the chairman’s summary has welcomed cooperation in civilian nuclear energy between India and the international community”. Really?

 

This is what the chair’s summary said: “We look forward to working with India, the IAEA, the NSG and other parties to advance India’s non-proliferation commitments and progress so as to facilitate a more robust approach to civil nuclear cooperation with India to help it meet its growing energy needs in a manner that enhances and reinforces the global non-proliferation regime”. Note the reference to cooperation is secondary. The primary thrust is on advancing “India’s non-proliferation commitments and progress”. Civil nuclear cooperation is just the means to achieve the objective to reinforce the NPT regime. The G-8 leaders, in their separate declaration, actually pledged to “redouble our efforts to uphold and strengthen” the NPT, which perpetuates a five-nation nuclear monopoly.

The prime minister also made the following dream-selling claim on July 22: “It will open up new opportunities for trade in dual-use high technologies, opening up new pathways to accelerate industrialization of our country”. The deal, however, is intended to open commercially lucrative exports for safeguarded Indian facilities while specifically denying dual-use nuclear technologies. Easing high-technology and civilian space export controls is not part of this deal.

New Delhi, after agreeing to more and more conditions, is now threatening to turn its back on the imports-centred deal unless the NSG waiver is “clean” and “unconditional”. This is redolent of what the prime minister told Parliament on August 17, 2006: “It is clear if the final product is in its current form, India will have grave difficulties in accepting the bill. The US has been left in no doubt as to our position”. But when the Hyde Act was passed ignoring that warning, New Delhi didn’t make even a peep.

More misrepresentation will come when the NSG makes multilateral some of the bilateral conditions of the 123 Agreement and unilateral terms of the Hyde Act. The latest US draft submitted to the NSG after consultations with India shows that New Delhi has already acquiesced to its test moratorium being turned into a multilateral legality. But to deflect attention, spinmeisters introduced a red herring — the draft’s “full-scope safeguards” objective, presenting that as the main sticking point and then claiming India has upheld its interest by making the US drop that reference.

(c) The Asian Age, 2008.

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