U.S. disclosure puts Indian prime minister on the defensive

Revelations unravel hype and spin

The nuclear deal poses one of the most divisive challenges India has ever faced. The latest U.S. revelations on its conditions point to the manner the deal has been politically mismanaged by the Indian government.

Brahma Chellaney  The Hindu newspaper, September 5, 2008

The Bush administration had imposed a virtual gag order on its January 2008 written responses to congressional questions because their public disclosure, as the state department acknowledged, would contradict the Indian government’s claims and torpedo the nuclear deal. “We’ve handled answers to sensitive questions in an appropriate way that responds to congressional concerns,” the department said last March, ruling out their public release.

Oddly, the House Foreign Affairs Committee kept the administration’s unclassified answers under wraps for nearly eight months until the committee’s new chairman — a known deal critic — made them public this week to help build pressure on the Nuclear Suppliers’ Group to impose explicit conditions on India, too. The pointed questions and the candid replies, contained in the 26-page released letter available at http://www.hcfa.house.gov/110/press090208.pdf, reveal the following:

First, the deal involves no binding U.S. fuel-supply assurance. Prime Minister Manmohan Singh had told the Lok Sabha on August 13, 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 letter discloses the U.S. will render help only in situations where supply disruption results “through no fault” of India’s, such as a trade war or market-related conditions. The supply assurances, it states, are not “meant to insulate India against the consequences of a nuclear-explosive test or a violation of nonproliferation commitments.”

What is embarrassing for New Delhi is that the letter reveals that, “We believe the Indian government shares our understanding of this provision.”

Second, the deal is explicitly conditioned to India not testing again. Dr. Singh told the Lok Sabha as recently as July 22, 2008 that, “I confirm there is nothing in these agreements which prevents us from further nuclear tests if warranted by our national security concerns.” The Bush administration letter, however, reveals that India has been left in no doubt that all cooperation will cease “immediately” if it tested.

“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 U.S., including fresh fuel,” it states.

Third, the letter affirms that the 123 Agreement is in “full conformity” with the Hyde Act. In a press release on July 2, 2008, the 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, in answer to the question whether the 123 Agreement “overrides the Hyde Act regarding any conflicts, discrepancies or inconsistencies,” has stated that the accord is “fully consistent with the legal requirements of the Hyde Act.”

Fourth, the U.S. says it has retained the right to suspend or terminate supplies at its own discretion. The disclosed letter, by affirming an unfettered U.S. right to suspend all supplies forthwith, plainly contradicts Dr. Singh’s assertion in Parliament on August 13, 2007 that an “elaborate multi-layered consultation process” would help protect India from a Tarapur-style fuel cut-off. The letter also reveals the U.S. has the right to suspend or terminate cooperation in response to Indian actions that extend beyond a 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 123 Agreement.

Fifth, there is no explicit U.S. consent to India’s stockpiling of lifetime fuel reserves for safeguarded power reactors. Dr. Singh had on August 13, 2007 vouched for “U.S. 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 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 it acknowledged had been left undefined.

Sixth, the letter makes clear the 123 Agreement has granted India no right to take corrective measures. 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, with the permanence of safeguards being “without conditions.”

Contrast this with what Dr. Singh claimed August 13, 2007: “India’s right to take ‘corrective measures’ will be maintained even after the termination of the Agreement.” Or Dr. 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 calls Dr. Singh’s statement on explicit linkage “a high level of generality.”

Seventh, the letter states 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. The letter suggests that the hope enshrined in Article 5(2) of the 123 Agreement of a future amendment to permit sensitive transfers was merely intended to help the Indian government save face in public.

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.

Recently, Dr. Singh told Parliament that the deal “will open up new opportunities for trade in dual-use high technologies … to accelerate industrialization of our country.” The letter, however, discloses that the deal is to specifically deny dual-use nuclear technologies and items. Easing high-technology and civilian space export controls is not part of this deal.

Eighth, the letter, contradicting Dr. Singh’s claim in 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 IAEA render it “unable” to fully enforce inspections, the 123 Agreement provides for fall-back safeguards, the letter states.

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 than those applicable to non-nuclear-weapons states.

Dr. Singh has denied that India had agreed to safeguards by any entity other than the IAEA. But the Bush administration letter reveals that, “The Government of India has expressed its view that for the purposes of implementing the U.S.-India Agreement, Agency 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 [123] Agreement does not limit the safeguards required by the Agreement to Agency safeguards” [emphasis added].

In light of these revelations, is it any surprise that systematic efforts have been made in India to inflate the deal’s benefits and shroud its conditions? The partisan manner the deal has been pursued, ever since it was sprung as a surprise on the nation in July 2005, has only undermined India’s negotiating leverage. Consequently, the deal has attracted additional conditions at every stage of its evolution. The NSG process will be no exception.

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 U.S.-India Conflict.”

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