In A Nuclear Bind

Part II

Brahma Chellaney

Asian Age, September 9, 2007

A cognitive disconnect bedevils official claims over the nuclear deal. The avowed rationale is nuclear energy, yet in reality the deal can be of little help to India’s growing energy needs. Even with the import of a number of multibillion-dollar reactors, capital-intensive nuclear power’s share in India’s total electricity generation is likely to remain unimpressively small because the contribution of other energy sources will continue to rise faster (and more cheaply).

The deal actually is being driven by divergent US and Indian objectives. While India sees it as a path to closer engagement with the US, the deal for Washington is anchored in non-proliferation. As Undersecretary Nicholas Burns has put it, “within 25 years, I think 90 to 95 per cent of their entire [nuclear] establishment will be fully safeguarded. So the choice is: Should we isolate India for the next 35 years, or bring it in partially now and nearly totally in the future? I think that’s an easy choice for us to make strategically.”

● 123 Agreement likely to bind India indefinitely.

Burns’ statement may explain why unlike America’s most other 123 agreements that specify expiry in 30 years, the one with India is for an initial term of 40 years but is to continue in force infinitely in 10-year intervals until either party elects to end the accord. Given the US objective to tether India lastingly to the non-proliferation regime and the permanence of India’s own obligations to open its entire civil nuclear programme to international inspections, the agreement, once in force, will bind New Delhi indefinitely. An imports dependency instilled by the agreement would also serve as a disincentive to India electing to withdraw, say, after 40 years.

The Japan-US 123 accord provides that at the “request of either party, the parties shall consult with each other whether to amend this agreement or replace it with a new agreement.” In contrast, the Indo-US agreement permits only amendment, not replacement.

● A new motif of Indian diplomatic naiveté.

While America’s Hyde Act has gained notoriety for seeking to apply the principle of extraterritorial jurisdiction to regulate India’s conduct in areas unrelated to nuclear energy, the bilateral 123 agreement shows Indian diplomacy in unflattering light.

If the Hyde Act is a symbol of congressional condescension toward India, the 123 agreement epitomizes how Indian diplomacy continues to fare poorly at the negotiating table. Indeed, the agreement is a painful reminder of India living up to Spanish-born American philosopher George Santayana’s saying: “Those who cannot remember the past are condemned to repeat it.” Not only have Indian negotiators failed to safeguard India’s interests in this agreement, as highlighted in yesterday’s article, but New Delhi also has been left clutching at straws, as the examples below show.

● Cosmetic corrective measures.

The PM told Parliament that the 123 agreement “endorsed the right of India to take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supply.” The fact is that the agreement not only fails to define what “corrective measures,” if any, India could undertake, but also stops India unequivocally from embarking on correction that would matter.

When Manmohan Singh went back on his original pledge “never to accept discrimination” and agreed through the “Separation Plan” to permanent, legally immutable international inspections of the type applicable only to non-nuclear-weapons states, he assured Parliament in March 2006 that the perpetual safeguards would be tied to perpetual fuel supply. But the123 accord, which he says is “signed and sealed,” represents another breach of promise because it negates the link between perpetual safeguards and perpetual fuel supply.

First, the agreement records that India’s safeguards obligations are irrevocably final and would survive even if the accord were prematurely terminated by one side. Second, it carries absolutely no reference to the continuation of India’s safeguards obligations being contingent on perpetual fuel supply. And third, the agreement explicitly blocks India from ever undertaking real correction in response to a fuel supply cut-off — the lifting of IAEA safeguards.

Put simply, India has willingly forfeited the right to enforce perpetual fuel supply through the threat to end IAEA inspections. Little surprise thus that the agreement in its Article I “Definitions” defines well-understood terms but not “corrective measures.” As Burns has clarified, none of the fuel assurances in the 123 accord “contradicts or conflicts with the legal right of any American President” to terminate supply or invoke the right to demand the return of stockpiled fuel if India violated the stipulated conditions.

● Full cooperation becomes a mere concept.

The PM assured Parliament on August 17, 2006, that in keeping with the original deal’s commitment, he would insist on 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, 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.”

A year later, full cooperation has been reduced to a mere idea to be dangled before the nation like a carrot. “The concept of full civil nuclear cooperation has been clearly enshrined in this Agreement,” Singh told Parliament last month.

Look at the absurdity of the situation: India has agreed to build a special reprocessing facility that meets US expectations, but it will not be in a position to import any components for this safeguarded plant because its negotiators failed to persuade America to relax civil reprocessing and enrichment sanctions. Yet as the Hyde Act’s explanatory statement notes, civil reprocessing and enrichment cooperation “is not restricted” but “agreements for cooperation must specify if such cooperation is to take place.” Articles 5 and 6 of the Japan-US 123 agreement, for example, permit transfer of civil reprocessing and enrichment equipment. The US signed a special agreement with Australia in 2000 to facilitate collaboration in civil laser enrichment, based on the Silex technology.

(To be continued)

© Asian Age, 2007

Wool Pulled Over India’s Eyes

Part III

Brahma Chellaney

Asian Age, September 10, 2007

There would have been no political uproar over the nuclear deal had the prime minister taken on board all important stakeholders on an issue centred on the future of India’s most-prized strategic asset — its nuclear programme. Acquiescence to the deal’s shifting goalposts also stoked controversy.

Undaunted by the conditions-laden Hyde Act, New Delhi went ahead and concluded an ambiguously formulated 123 agreement with a country that has a record of gutting even carefully crafted international treaties and bilateral accords, including an earlier 123 pact with India. The US can happily live with ambiguities in the latest 123 agreement because the accord — a requirement only under American law — carries no force under the 1969 Vienna Convention on the Law of Treaties and, in any event, it confers enforceable rights just on the supplier-state. How willingly India ceded ground can be seen from the reprocessing issue.

● Illusive reprocessing right.

Reprocessing is at the heart of India’s plans to build long-term energy security. The PM had pledged to secure an unqualified right to reprocess spent fuel. Indian nuclear chief Anil Kakodkar even called India’s right to reprocess “non-negotiable.”

India ended up, however, making concessions beyond its Separation Plan merely to obtain an empty theoretical right to reprocess. The practical right to reprocess is to be separately negotiated in the future. Like on full cooperation, India settled for a conceptual entitlement than for an actual right.

The Separation Plan, whose contents were negotiated with Washington and presented to Parliament, had specified only two reprocessing-related actions: (i) “India is willing to accept safeguards in the campaign mode after 2010 in respect of the Tarapur Power Reactor Fuel Reprocessing (PREFRE) Plant”; and (ii) the Tarapur and Rajasthan spent-fuel storage pools “would be made available for safeguards with appropriate phasing between 2006-2009.”

Why did India go beyond the Separation Plan in agreeing to sideline PREFRE and build an expensive new facility at its own cost? According to the 123 agreement, to bring its reprocessing right “into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards, and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility.”

India has agreed not only to build a new dedicated facility, but also, as Manmohan Singh admitted, to route all spent fuel of foreign-origin through that plant. PREFRE thus will be used only for safeguarded indigenous fuel. This concession symbolizes yet another breach of assurance to Parliament.

According to the US government, it will be years before India can hope to secure the actual right to reprocess — New Delhi has to first build the dedicated facility and then negotiate with Washington a separate Section 131 reprocessing agreement. At his July 27, 2007, news conference, Burns was clear: (i) there is no timeframe within which the US intends to grant India the operational consent to reprocess; and (ii) before negotiations on the “arrangements and procedures” under Section 131 of AEC can begin, India has first to build the new “state-of-the-art” reprocessing facility to US satisfaction.

Yet the PM speciously told Parliament on August 13, 2007, that the right to reprocess has already been “secured upfront,” going to the extent of calling it a “permanent consent.” If Singh wishes to see an agreement with an operational consent to reprocess, he could look up the 1987 Japan-US accord, which came into force the following year.

The Japan-US 123 accord was accompanied by a nine-page “implementing agreement” which gave effect to “advance, long-term consent for reprocessing, transfers, alteration and storage of nuclear material” to Tokyo by spelling out the various reprocessing-related arrangements. In his message to Congress, President Ronald Reagan said, “These arrangements should enable Japan to plan for its long-term energy needs on a more assured, predictable basis…”

Shouldn’t New Delhi have also insisted on a “more assured, predictable basis” of cooperation through a similar operational right to reprocess? Why did it agree to defer operational consent to the future, to be worked out under Section 131, which is titled “Subsequent Arrangements”? While the 123 agreement states that negotiations on the subsequent arrangements “will begin within six months of a request by either party and will be concluded within one year” thereafter, the arrangements have to pass muster with the US Congress, which under Section 131 is empowered to adopt a concurrent resolution blocking such a plan.

Couldn’t nuclear India have secured a 123 deal with the US on terms at least similar to those granted to non-nuclear Japan? Like a parent calming a demanding kid, the US placated the Indian government by handing the consent-in-principle lollipop.

● Yet another stage has been added to the deal.

After more than two years, the deal has completed just two of the five obligatory stages. But now, through the 123 agreement, a sixth stage has been added — a separate Section 131 agreement on reprocessing.

Furthermore, the sequencing of the next steps has now been changed to New Delhi’s disadvantage. As the July 27, 2007, separate Indian and US fact-sheets revealed, New Delhi has agreed to first conclude an IAEA safeguards agreement before the Nuclear Suppliers’ Group even attempts to carve out an India exemption from its 1992 export guidelines.

While America legislated a conditional export-control exemption for India without awaiting the safeguards pact, the US-led NSG will follow a different principle. Washington will seek to ensure that the NSG does not make an exemption on terms less restrictive than those set by the US Congress. The Hyde Act stipulates that the NSG exemption for India should neither be less stringent than what the Act itself prescribes, nor take effect before the final congressional consent to the deal. The latter rider is intended to ensure that other suppliers do not gain a head-start over US businesses.

But look at the implications of New Delhi’s climbdown on the reprocessing issue: having expended millions of dollars in a lobbying campaign to get the infamous Hyde Act passed, India has now to brace up to two more battles on Capitol Hill — securing congressional approval first of the 123 agreement, and then of a special 131 agreement. That is likely to subject India to continuing congressional scrutiny and demands for a long time.

By deferring a resolution of the reprocessing issue to the future while flaunting a barren notional right at present, India also risks getting into a bigger mess than over Tarapur, whose spent fuel continues to accumulate 38 years after the twin-reactor power station began operating. The Tarapur mess has persisted even though the 1963 agreement granted India an operational consent to reprocess and provided for no congressional role. Yet Washington blocked India from reprocessing by exploiting an innocuous provision calling for a “joint determination” that the reprocessing facility would be adequately safeguarded. The US simply refused to join India in such a “joint determination” even after the IAEA had certified that very facility — PREFRE — to be “safeguardable.” Indeed, the IAEA has applied safeguards in the “campaign mode” to PREFRE since the 1980s, whenever India introduced safeguarded fuel there from another power station, RAPS.

In the new 123 accord, the US has gained an effective veto on Indian reprocessing until such indeterminate time India has satisfied it by building a new “state-of-the-art” facility and working out the subsequent “arrangements and procedures.” The last Indian reprocessing facility at Kalpakkam took five years to complete, but the new one is likely to take longer, given the external involvement in its design and the absence of an international “state-of-the-art” model. National Security Adviser M.K. Narayanan has already warned that “spoilers” could nit-pick on its design to delay the process. “You will get spoilers I am quite sure … if someone is quibbling that ‘I don’t like it to be facing west, it should face east,’ I mean that would be different,” he said in an interview published on July 28, 2007.

Against this background, it is inexcusable that Indian negotiators have sought to pull the wool over the public’s eyes on key issues. Can allegiance to the deal be allowed to trump national interest?

Today the deal has become a political cudgel in a spreading storm. Yet there is a silver lining. The furore drives home an important message: Indian democracy has matured to the point that without winning public trust, no PM can move forward on a core national-interest issue.

(Concluded)

© Asian Age, 2007 

A Divisive Deal

India Today, August 27, 2007 

Rather than chase a misbegotten nuclear deal with the United States now, a rising India could easily get a better bargain if it were patient

GUEST COLUMN: Brahma Chellaney

Behind the political storm triggered by the civil nuclear deal with the US lies deep-seated national concern over its long-term implications for India’s security and strategic autonomy. The deal has divided India like no other strategic issue since independence. After all, the deal is not just about importing nuclear reactors for electricity. It will determine what kind of India emerges in the years to come — a major independent power with the requisite economic and military strength, or a middling power trimming its sails to the prevailing American winds and still relying on imports to meet basic defence needs.

            India stands out as the only large country still deeply dependent on arms imports, to the extent that it has emerged as the world’s largest weapons importer. The nuclear deterrent is the only strategic programme it has pursued somewhat successfully. While its nuclear posture calls for a “credible minimal deterrent”, the country still hasn’t developed a minimal, let alone credible, deterrent against its main challenge, China. Yet, New Delhi blithely put the nuclear programme on the negotiating table to reach a deal that implicitly imposes qualitative and quantitative restrictions on the Indian nuclear-weapons capability.

India has already paid a very heavy price internationally for its nuclear programme. And the deal seeks to exact a further price, in the name of freeing the country from some of the rigours of US export controls. America’s technology controls and sanctions approach were fashioned largely in response to India’s 1974 nuclear test. Today, the main target of that policy has come full circle doubly. First, India has agreed to become part and parcel of the US-led non-proliferation system just when that regime has begun to visibly corrode. India is to “unilaterally adhere” to cartels that still exclude it from their membership.

Second, in concluding a new accord under Section 123 of the US Atomic Energy Act, India has paid no heed to the lessons from an earlier “123 agreement”, signed in 1963. In the 1970s, America had cut off all fuel supply to the US-built Tarapur reactors by enacting a new domestic law that rewrote the terms of the 123 agreement. The new, iniquitous 123 agreement not only grants the US the right to suspend all supplies forthwith by merely issuing a termination notice, but also omits a standard clause now found in America’s 123 accords with other states — that neither party will “invoke the provisions of its internal law as justification for its failure to perform” the agreement. India, gaining the right to be merely consulted but granting America the right to take all final decisions, has put itself at the latter’s mercy.

            Let us look at the benefits the deal offers. India principally would be able to import power reactors and fuel — and in the process help revive the US nuclear-energy industry. India, however, would continue to face stringent US export controls on advanced and dual-use technologies critical to rapid economic growth. Even for its civil nuclear facilities, India will not be able to buy enrichment, reprocessing and heavy-water components, however minor.

            Now look at the price. First, India is set to replicate in the energy sector the very mistake it has pursued on armaments by sinking into an imports dependency. India is today willing to spend tens of billions of dollars to import overly-expensive reactors when it can more profitably invest that money to commercially develop its own energy sources. Second, such imports will be a path to energy insecurity, since the reactor and fuel business is the world’s most politically regulated commerce.

            Third, the deal’s strategic costs are exorbitant. Like its conventional weaponry, India’s embryonic nuclear-arms capability will remain subcontinental in range. To ensure that, India has been slapped with a nuclear test ban through a US law, with the 123 accord granting no reprieve. The US President is now required to annually certify to Congress that “India is in full compliance” with a long list of congressionally-imposed “commitments and obligations”. India, for its part, has agreed to shut down by 2010 its newly-refurbished Cirus reactor, which produces a third of its weapons-grade plutonium.

Nothing better shows the patron-client ties the deal anoints than one simple fact: While the US has an unfettered right to withdraw from all its obligations, India’s obligations are legally irrevocable and never-ending. Even if cooperation is arbitrarily terminated by the US, India will still be stuck with everlasting international inspections on its entire civil nuclear programme. Little surprise thus that the deal has attracted increasing notoriety in India.

            New Delhi needs to realize time is on its side. As a rising power, India could easily get a better deal, if it were patient and waited a few more years. Its interests, in any case, demand a deal not just restricted to what commercially appeals to America — power reactors and fuel — but facilitating an end to the full range of US-inspired technology sanctions.

The writer is a strategic affairs expert 

Copyright: India Today, 2007

© Asian Age, 2007

FRAIL DEAL BUILT ON WORDPLAY

Brahma Chellaney

Asian Age, July 28, 2007

While the Indian foreign minister has claimed “all concerns of India have been reflected and adequately addressed” in the just-concluded bilateral civil nuclear cooperation agreement under Section 123 of the US Atomic Energy Act (AEC), Washington has asserted that the accord safeguards US interests “from a variety of different perspectives.” In public comments and background briefings, the two governments have zealously sought to put their own spin. The true picture would be known once they unwrap the still-secret text. New Delhi in particular appears anxious to soften public opinion at home before releasing the fine print.

            Two important points, however, have already been admitted by both sides — that the so-called 123 agreement expressly states that nuclear cooperation would be governed by “national laws” of the two parties; and that its text is within the parameters set by the India-specific, conditions-laden Hyde Act. As US Undersecretary of State Nicholas Burns has bragged, “We’re very satisfied because we know the agreement is well within the bounds of the Hyde Act.”

            In fact, US officials have gone to the extent of saying that the concessions they made in the fine print are more in the form of semantic guile than in substance, designed to help India address critics at home and seal the accord. The Washington Times, close to the White House, has quoted administration and congressional sources as saying that “some language is deliberately vague to help both sides save face” and that the text was “deliberately written in a way that can be interpreted differently by the two sides”.

In other words, both sides can claim success, while in reality the cooperation would be conditioned by the Hyde Act, euphemistically referred to in the text as the applicability of “national laws”. That is exactly what this columnist had warned in a two-part article last May 14-15 — that if the 123 agreement were to be in consonance with the Hyde Act and yet not rub salt on Indian wounds, there was only one way out: semantic subterfuge in the fine print. The reluctance to release the text more than a week after the agreement was concluded is a sign that there have been only semantic compromises on key issues. And US officials are saying so.

For India, this represents a major climb-down: having told Parliament that the Hyde Act contained provisions that were either “prescriptive” in ways incompatible with the July 18, 2005 joint statement or “extraneous” to engagement “between friends,” New Delhi has come round to accepting cooperation with the US on the basis of the onerous and grating conditions in the US legislation. Indeed, in defining India’s bottom-line in Parliament last August 17, Prime Minister Manmohan Singh had admitted: “We have concerns over both the House and Senate versions of the Bill.”

However, once the US legislative process was completed without meeting most of the PM’s benchmarks, New Delhi readily entered the next stage — negotiations over a 123 agreement — by pretending that Dr. Singh’s assurances to Parliament could be addressed in that process. That was just a charade to buy political space, given that India’s deal-related commitments by then had already been expanded and turned into immutable legal obligations through US domestic law.

New Delhi was aware that even if the 123 agreement did not incorporate the controversial conditions of the Hyde Act, it would hardly free India from their obligations. America has always maintained that because such a bilateral agreement is a requirement not under international law but under US law, it cannot supersede American law. Washington has only reinforced its legal position by incorporating in the 123-agreement text the primacy of “national laws.”

New Delhi indeed knows from its bitter Tarapur experience that a 123 agreement has little sanctity in international law. The earlier Indo-US 123 accord, signed in 1963, was abandoned by Washington in 1978 — four years after the first Indian nuclear test — simply by enacting a new domestic law that retroactively overrode the bilateral pact. That broke with impunity a guarantee to supply “timely” fuel “as needed” for the US-built Tarapur plant.

Now, New Delhi claims it has secured assured fuel supply in the new 123 agreement, and that in the event of any disruption, the US would find an alternative source. But US officials are already disputing that. The Washington Times has quoted officials as saying “the language does not commit them to do anything specific. Rather, if there is an interruption because of technical or logistical difficulties, they will try to do what is appropriate.” That is in line with the Hyde Act, which says assured fuel supply covers only disruption due to “market failures or similar reasons,” not sanctions arising from India’s non-compliance with US-imposed conditions.

More broadly, it should not be forgotten that only after India has complied with all the Hyde Act’s preconditions that the US Congress would take up the final deal for approval. And although the Hyde Act provides for an up-or-down vote on a joint resolution — a practice that does not permit any amendment — the legislation’s own explanatory statement reserves the right for Congress to “pass a joint resolution of approval with conditions” by giving up “the expedited procedures offered by Sections 123 and 130 of the AEA.” That is exactly what happened with the US nuclear deal with China, when Congress attached three conditions to its 1985 joint resolution of approval, resulting in a nearly 13-year hold.

But before the final Indo-US deal can go before Congress, it has to secure approval from the 35-nation International Atomic Energy Agency board and the 45-state Nuclear Suppliers’ Group. Even in the best-case scenario, with all the remaining hurdles being crossed, the US will perpetually hang the threat of re-imposition of civil nuclear sanctions to enforce India’s compliance with the Hyde Act’s post-implementation conditions.

New Delhi is itching to enter into a new 123 agreement without resolving the outstanding issues from the earlier 123 accord. The Tarapur spent fuel has been accumulating for 36 years. Washington has neither compensated New Delhi for the large costs it continues to incur to store the highly radioactive spent fuel nor allowed India to reprocess it by accepting that IAEA safeguards can be effectively applied at the PREFRE facility specially built for this purpose.

            While the PM had pledged to secure the removal of “restrictions on all aspects of cooperation,” including “reprocessing spent fuel,” the US, under the new 123 accord, has conceded only a theoretical right to India to reprocess, with the practical right to be worked out in negotiations with the US in the future. India would build a new reprocessing facility with safeguards involving US participation. This not only prolongs the Tarapur imbroglio but also raises a larger question: why acquiesce to the US having a political say on reprocessing when the issue of safeguards involves only the IAEA?

            Take another issue — a perpetual nuclear test ban on India. Through the means of a domestic law, America today seeks to implicitly bind India to an international pact whose ratification the US Senate rejected in 1999 — the Comprehensive Test Ban Treaty.

             Such a test ban, as both sides have admitted, cannot be, and has not been, diluted by the 123 agreement. Even the US “right to return” remains untouched. However, as the Washington Times puts it, “to help New Delhi save face domestically, the administration agreed to consult with the Indian government before taking any action in response to a test, officials said. The Indians presented that language as a major US concession, but US officials said consultations do not mean much in practice.”

New Delhi should be fully cognizant of what it is getting into. It would be effectively embracing CTBT-plus obligations that no nation has done. Although the PM had pledged that India is “not prepared to go beyond a unilateral voluntary moratorium on nuclear testing,” the Hyde Act seeks to enforce a tight, irrevocable test prohibition against India by actually going beyond the existing provisions of US law, which empower the president to continue exports on strategic grounds despite a test. By decreeing that the waiver for India will automatically terminate with any Indian test, the Hyde Act itself admits that it goes “beyond Section 129” of AEC.

Besides seeking “full and immediate use of US rights to demand the return of all nuclear-related items … if India were to test,” the Act goes beyond even the CTBT by specifying in technical terms what is prohibited for India. In the CTBT negotiations, the US had successfully opposed an Article I definition of a “nuclear explosion” to leave open loopholes for “permissible activities” of the type it carries out at its Nevada test site. While refusing to accede to the CTBT itself, the US would be enforcing CTBT-plus obligations on India. Once India has imported power reactors worth billions of dollars, the Hyde Act will effectively bear it down.

            Against this background, the debate on the 123 agreement needs to be conducted in a sober, realistic way, not through spin and hoopla. By papering over fundamental differences, the deal could engender serious Indo-US discord in the years ahead. That danger is already manifest from the conflicting analysis of the still-secret 123 agreement by official briefers. One US congressional official is quoted as saying, “The way the Indians are reading it is not correct from the administration’s point of view.”

            Too often in its independent history, India has rushed to believe what it wanted to believe, only to cry betrayal later.

Copyright: The Asian Age, 2007