Nowhere to hide from Hyde
As had been pledged by U.S. Secretary of State Condoleezza Rice, the NSG waiver has turned out to be “fully consistent” with the Hyde Act, mirroring its core conditions on India. Yet, New Delhi’s continuing efforts to spin reality betray a consummate contempt for the intelligence of the Indian people.
Asian Age, September 10, 2008
What happens when the government of the day refuses to hold the traditional monsoon session of Parliament, lets loose countless spin doctors on a malleable national media and relies largely on information control to thrust a controversial nuclear deal on the nation? The result is what you saw last weekend: orgiastic self-congratulation and breathless newspaper headlines like, “India Enters Nuclear Club”, “Nuclear Dawn” and “From A Pariah To A Power”.
It was as if India had finally come of age by testing intercontinental-range nuclear capability. The exultation, however, was over a deal that would cap India’s still-nascent nuclear-weapons capability and turn the country’s nuclear-power industry from self-reliance to imports dependency while leaving the national exchequer poorer by billions of dollars.
The elation over a conditional exemption for India from the Nuclear Suppliers’ Group rules should come as no surprise: the Indian press ran fairly similar headlines less than two years ago when the U.S.-legislative waiver was approved — the so-called Hyde Act. Today that very Act has come to symbolize abominable conditions.
Before long, reality will catch up with the latest spin, too. The NSG exemption indeed conditions exports to India to three layers of riders:
(i) New Delhi indefinitely honouring its July 18, 2005, commitments;
(ii) Foreign Minister Pranab Mukherjee’s September 5, 2008, pledges; and
(iii) satisfying all the myriad provisions of Parts 1 & 2 of the NSG Guidelines, except the “full-scope” rule calling for international inspections on each and every nuclear facility.
That the Hyde Act represents the mother of all conditions can be seen from the shadow it has cast over the NSG waiver. Consider the following:
■ Despite the NSG exemption, India says it will await the outcome of the U.S. congressional ratification process before signing bilateral agreements with other suppliers, including France and Russia. Why? Because in conformity with the Hyde Act, which stipulates that an NSG exemption for India should not take effect before the final congressional consent, New Delhi reached an understanding with Washington prior to the NSG waiver not to sign contracts with other suppliers until the U.S. Congress had done its part. Mukherjee has gone to the extent of calling that understanding “the procedure”.
This is just one example of how New Delhi itself honours the Hyde Act while speciously claiming the bilateral 123 Agreement supersedes that Act. Even after the recently disclosed Bush administration letter made it explicit that America is bound also by the Hyde Act and the 1954 U.S. Atomic Energy Act, New Delhi still claims the 123 Agreement is the only binding document.
■ Mukherjee phrased several of his September 5 pledges to the NSG in language echoing the Hyde Act’s India-specific stipulations. In doing so, he went beyond India’s July 2005 commitments.
The Hyde Act wants India to support “international efforts to prevent the spread of enrichment and reprocessing (ENR) technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants”. Mukherjee obligingly has pledged, “We support international efforts to limit the spread of ENR equipment or technologies to states that do not have them”. The Hyde Act asks for “substantial progress toward concluding an Additional Protocol”, and Mukherjee deferentially assures “early conclusion of an Additional Protocol”.
The Act demands efforts to minimize the risk of “regional arms races”, and Mukherjee submits India will stay away from “any arms race, including a nuclear arms race” and temper “the exercise of our strategic autonomy with a sense of global responsibility”. His promise, to work for “the strengthening of the non-proliferation regime”, also echoes the Act’s call.
■ Just as the Hyde Act classifies India as a non-nuclear-weapons state (NNWS) and makes it subject to the U.S.legal provisions valid for NNWSs, the NSG waiver applies nuclear-trade conditions set for NNWSs. Apart from being allowed to retain some nuclear facilities in the military realm, India is being treated, both by the U.S. and NSG waivers, as a NNWS, for all intents and purposes.
By linking transfers to India to compliance with the extensive, technically couched conditions in Parts 1 & 2 of the NSG Guidelines — terms applicable only to NNWSs — the US-led cartel has cast a wide non-proliferation net, with India now required to abjure activities proscribed for NNWSs, including testing.
■ Mirroring the Hyde Act’s bar on the transfer of civil reprocessing, enrichment and heavy-water technologies or equipment (except for a multinational or U.S.-supervised facility in India), the NSG waiver is based on a publicly acknowledged understanding not to export such items to India. This understanding is no surprise in view of the Hyde Act’s open call “to further restrict the transfers of such equipment and technologies, including to India”.
Indeed, the NSG waiver explicitly ties sensitive exports to the presumption of their denial contained in NSG Guidelines Paragraph 6 (titled, “Special Controls on Sensitive Exports”) and Paragraph 7 (“Special Controls on Export of Enrichment Facilities, Equipment and Technology”).
■ While the Hyde Act’s bar on Indian testing is explicit, the one in the NSG waiver is implicit, yet unmistakeable. The waiver is overtly anchored in NSG Guidelines Paragraph 16, which deals with the consequence of “an explosion of a nuclear device”. The waiver’s Section 3(e) refers to this key paragraph, which allows a supplier to call for a special NSG meeting, and seek termination of cooperation, in the event of a test or any other “violation of a supplier-recipient understanding”.
The leaked Bush administration letter has cited how this Paragraph 16 rule will effectively bind India to the Hyde Act’s conditions on the pain of a U.S.-sponsored cut-off of all multilateral cooperation. As Japan has placed on the NSG record following the waiver approval, “the logical consequence” of an Indian test would be “to terminate trade”. Put simply, India will not be able to escape from the U.S.-set conditions by turning to other suppliers.
Yet, even as India’s voluntary test moratorium has been turned into a multilateral legality, New Delhi is still seeking to pull the wool on public eyes.
■ Like the Hyde Act, the NSG waiver seeks to crimp the Indian deterrent’s space by subjecting Indian actions and activities to the glare of international scrutiny. While the Hyde Act demands that “the President shall keep the appropriate congressional committees fully and currently informed” about “significant changes in the production by India of nuclear weapons or in the types or amounts of fissile material produced”, the NSG is to regularly “confer and consult” with India on its pledges. The NSG waiver even raises the spectre of new conditions but offers India only empty “consultations” on future amendments.
Against this background, is it any surprise that, just as they did after the Hyde Act’s passage, the spin doctors have fanned out across the airwaves to claim the NSG waiver as another “victory” for India? Looking straight into the camera, they fib, betraying a consummate contempt for the intelligence of the Indian people.
It is worth pausing to remember Abraham Lincoln’s words: “It is true you may fool all of the people some of the time; you can even fool some of the people all of the time; but you can’t fool all of the people all of the time”.