Embarrassing revelations on the nuclear deal
Brahma Chellaney Rediff September 3, 2008
The Bush administration, through a gag order on its written responses to congressional questions, had sought to keep the Indian public in the dark on the larger implications of the nuclear deal, lest the accord run into rougher weather. But now its 26 pages of written answers have been publicly released by a senior congressman.
The administration’s January 2008 letter to the House Foreign Affairs Committee — made public by Representative Howard L. Berman (the committee chairman) and available at http://www.hcfa.house.gov/110/press090208.pdf — confirms facts that were known but were being denied by the Indian government. Consider the following:
►The U.S. has given no binding fuel-supply assurance to India. Prime Minister Manmohan Singh had told the Lok Sabha on 13 August 2007 that “detailed fuel supply assurances” by the U.S. for “the uninterrupted operation of our nuclear reactors” are “reflected in full” in the 123 Agreement. But the Bush administration has denied this. Its letter to the House Committee states that the U.S. will render help only in situations where “disruptions in supply to India … result through no fault of its own,” such as a trade war, or market disruptions, or an American company’s inability to deliver. “The fuel supply assurances are not, however, meant to insulate India against the consequences of a nuclear explosive test or a violation of nonproliferation commitments,” the letter said.
What is embarrassing for New Delhi is that the letter reveals that, “We believe the Indian government shares our understanding of this provision.”
The letter also affirms that the U.S. has given no legally binding fuel-supply assurance of any kind to India, only “presidential commitments” subject to U.S. law.
►No U.S. consent to India’s stockpiling of lifetime fuel reserves for safeguarded power reactors. Prime Minister Singh had told the Lok Sabha on 13 August 2007 that, “This Agreement envisages, in consonance with the Separation Plan, US support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply for the lifetime of India’s reactors.” But the Bush administration’s letter to the House Committee clearly signals that India will not be allowed to stockpile such fuel stocks as to undercut U.S. leverage to re-impose sanctions.
The letter states that the 123 Agreement’s provisions are in no way inconsistent with the Hyde Act’s stipulation — the so-called Obama Amendment — that the supply of fuel be “commensurate with reasonable operating requirements.” It contends that “it is premature to conclude that the strategic reserve will develop in a manner inconsistent with the Hyde Act,” meaning that India will be able to stockpile fuel only for “reasonable operating requirements”, a concept left undefined.
►U.S. civil nuclear cooperation is explicitly conditioned to India not testing ever again. Prime Minister Singh told the Lok Sabha as recently as 22 July 2008 that, “I confirm that there is nothing in these agreements which prevents us from further nuclear tests if warranted by our national security concerns. All that we are committed to is a voluntary moratorium on further testing.” Last year, he had told Parliament that, “There is nothing in the Agreement that would tie the hands of a future Government or legally constrain its options to protect India’s security and defense needs.” The Bush administration, however, has told the House Committee that India has been left in no doubt that all cooperation will cease “immediately” if New Delhi conducted a test. “As outlined in Article 14 of the 123 Agreement, should India detonate a nuclear-explosive device, the United States has the right to cease all nuclear cooperation with India immediately, including the supply of fuel, as well as request the return of any items transferred from the United States, including fresh fuel,” the letter states.
After the public release of the letter, the state department had this to say on the testing issue: "The Indians understand what our views are with regard to nuclear testing. We have made them clear. And they understand those. There was no attempt to cover up anything." Department spokesman Robert Wood went on to say: "Certainly, India’s obligations under the 123 agreement are very clear and the Indians have agreed to a moratorium on testing. And we expect they will adhere to that commitment."
►The U.S. has retained the right to suspend or terminate supplies at its own discretion. The Bush administration letter plainly contradicts the Prime Minister’s assertion in Parliament on 13 August 2007 that, “An elaborate multi-layered consultation process has been included with regard to any future events that may be cited as a reason by either Party to seek cessation of cooperation or termination of the  Agreement.” The letter states that the U.S. right to suspend all supplies forthwith is unfettered. And that the U.S. has the right to suspend or terminate cooperation in response to Indian actions that extend beyond a nuclear test, including “material violation” of the 123 Agreement or the safeguards accord with the IAEA.
Even after cooperation has been formally terminated, India — the letter points out — would remain subject to “the application of safeguards (Article 10), reprocessing consent (Article 6) and peaceful use (Article 9)," as per the Hyde Act. While the Indian government continues to say it will be bound only by the 123 Agreement, the Bush administration letter makes it explicit that the U.S. will be bound also by the Hyde Act and the 1954 U.S. Atomic Energy Act.
►The letter makes clear that the 123 Agreement has granted India no right to take corrective measures in case of any fuel–supply disruption. Rather, India’s obligations are legally irrevocable. The issue of what India meant by “corrective measures,” the letter stated, could be clarified only in the safeguards accord. [The recently concluded safeguards accord, however, makes only a passing preambular reference to “corrective measures,” without defining the term.] The letter further indicates there is no link between perpetual safeguards and perpetual fuel supply. It quotes Secretary of State Condoleezza Rice that, “We’ve been very clear with the Indians that the permanence of safeguards is permanence of safeguards without conditions.”
Contrast this with what Prime Minister Singh claimed in Parliament on 13 August 2007: “India’s right to take ‘corrective measures’ will be maintained even after the termination of the Agreement.” Or Singh’s assurances to Parliament since March 2006 that India’s acceptance of perpetual international inspections will be tied to perpetual fuel supply. In fact, the Bush administration letter mockingly says Singh’s statements on explicit linkage are “a high level of generality, and we are not in a position to speak for the Indian government as to whether anything more specific was intended by these words.”
►The Bush administration’s letter states that the 123 Agreement is in “full conformity” to the Hyde Act provisions. In a press release as recently as July 2, 2008, the Indian Prime Minister’s Office made the following claim: “The 123 Agreement clearly overrides the Hyde Act and this position would be clear to anyone who goes through the provisions.” But the Bush administration letter, in answer to the question whether the 123 Agreement “overrides the Hyde Act regarding any conflicts, discrepancies or inconsistencies," states that the accord is “fully consistent with the legal requirements of the Hyde Act.”
►The letter assures Congress that the “U.S. government will not assist India in the design, construction or operation of sensitive nuclear technologies through the transfer of dual-use items, whether under the Agreement or outside the Agreement.” That rules out the U.S. transfer of civil reprocessing and enrichment equipment or technologies to India even under safeguards. It also raises questions over the U.S. granting India operational consent to reprocess spent fuel with indigenous technology.
Under the 123 Agreement, India has agreed to forego reprocessing until it has, in the indeterminate future, won a separate, congressionally vetted agreement, after having built a new, state-of-the-art, dedicated reprocessing facility. The new facility, as the letter says, will take “many years” to design and build. But the letter also indicates that no U.S. export of items for this facility will be permitted, given that reprocessing is a “sensitive” activity.
On the issue of future sensitive transfers, the 123 Agreement had held out hope for India by stating in its Article 5(2) that, “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.” But the Bush administration’s letter to Congress has dashed that hope by clarifying that the U.S. government has no plans to seek to amend the deal to allow any sensitive transfers. It has labeled the 123 Agreement with India as a “framework” accord that cannot “compel such transfers.” In other words, it suggests that the hope enshrined in Article 5(2) was merely intended to help the Indian government save face in public.
Contrast this with what Prime Minister Singh said in Parliament on August 17, 2006 — that India wanted 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 regarding this benchmark, 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.” Earlier, on August 3, 2005, Singh told Lok Sabha that he had received “an explicit commitment from the United States that India should get the same benefits of civilian cooperation as [an] advanced country like the United States enjoys.”
Recently, Singh made the following dream-selling claim in Parliament July 22, 2008: “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, as the Bush administration letter makes clear, dual-use nuclear technologies and items. Easing high-technology and civilian space export controls is not part of this deal.
►The Bush administration letter, contradicting New Delhi’s claim in Indian Parliament, acknowledges that the 123 Agreement provides for “fall-back safeguards.” In addition to the Hyde Act mandating “fall-back U.S. safeguards” through Section 104 (d)(5)(B)(iii) in case “budget or personnel strains” in the International Atomic Energy Agency (IAEA) render it “unable” to fully enforce inspections, the 123 Agreement provides for fall-back safeguards in the following words in its Article 10(4): “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.” Given that international inspections on India’s entire civilian programme will cost millions of dollars annually and entail deployment of many technical experts, the U.S. intent is to ensure that, in the event the IAEA is unable to arrange such resources, India does not escape with less intrusive or stringent safeguards applicable to non-nuclear-weapons states.
Singh and his handlers have repeatedly denied that India had agreed to any safeguards by any entity other than the IAEA. But the Bush administration letter reveals embarrassingly that, “The Government of India has expressed its view that for the purposes of implementing the U.S.-India Agreement, Agency [IAEA] safeguards can and should be regarded as being ‘in perpetuity.’ At the same time it fully appreciates that paragraph 1 of Article 10 of the  Agreement does not limit the safeguards required by the Agreement to Agency safeguards.”
Dr. Brahma Chellaney, a professor of strategic studies at the Centre for Policy Research in New Delhi, is the author, among others, of Nuclear Proliferation: The US-India Conflict.