Escape From Reality

Brahma Chellaney

Asian Age, May 14, 2007

Having made the nuclear deal the centrepiece of their warming ties, India and the United States are discovering the hard way that the commitments they made in July 2005 are difficult to reconcile and implement. If the world’s most populous and most powerful democracies are not to be saddled with a political albatross, they will have to ensure that what they had hyped as a “historic deal” does not foster such lingering disputes as to set back bilateral relations.

The latest discord centres on the terms of a follow-up bilateral accord to define the technical rules of civil nuclear commerce. Such an accord is required not by international law but by US law — the Atomic Energy Act, Section 123 of which demands a congressionally ratified nuclear cooperation agreement (NCA) as a prerequisite. But unlike the existing Section 123 agreements with other countries, Indo-US civil nuclear cooperation will be uniquely governed by a special, India-specific US domestic law, the Hyde Act.

The deal has become such a technical subject that it is easy to loose the bigger picture by focusing on the twists and turns in a never-ending saga or on the fine print of the NCA under negotiation. Despite its ostensible rationale to aid India’s energy needs, the deal would have an important bearing on the autonomy and integrity of Indian foreign policy and security.

Although the deal has been marketed as a major favour to India, it is America that is piling up pressure on New Delhi to yield further ground, as shown by the recent telephone calls by President George W. Bush and Secretary of State Condoleezza Rice to Prime Minister Manmohan Singh, as well as by the official statements in Washington expressing frustration over New Delhi’s alleged narrow-mindedness. To rub in the point that a Section 123 agreement would emerge only if New Delhi gives in, Undersecretary Nicholas Burns claimed the US has “carried through on all its commitments” and now “the ball is in India’s court.” Contrast this truculence with the love-fest that greeted the signing of the deal.

US pressure tactics in recent weeks have included shining renewed spotlight on New Delhi’s legitimate relations with Tehran, and the April 2 indictment of an Indian national and a Singaporean for allegedly conspiring to illegally export to India some dual-use but outdated American memory chips and capacitors. This indictment not only appeared politically timed to step up pressure on New Delhi just when the NCA negotiations had hit a major snag, but it also conflicts with Washington’s avowed objective to open high-tech commerce (with the US-India High-Technology Cooperation Group meeting since 2003).

The deal constitutes a major diplomatic accomplishment for the US, opening the path to its influencing India’s strategic policies. Naturally, Bush is eager to hold on to a deal that is one of his few second-term foreign policy successes. Bush knows that like him, Dr. Singh is coming under growing political siege at home. But while Bush has another 20 months in office left, Dr. Singh’s political future is uncertain. So the haste to tie up a 123 agreement. As the White House put it bluntly last Thursday, “We are determined to make it happen.”

Another reason for such intense pressure is that once the 123 agreement is concluded, the deal would virtually go out of India’s hands. It would be then up to the 35-nation IAEA board, the 45-state Nuclear Suppliers’ Group and the US Congress — in that order, according to the revised sequence the US has laid down — to refine and expand the conditions applicable to cooperation with India.

While peaceful nuclear cooperation would nicely dovetail with a US-India strategic partnership, the deal has evolved in such a way as to attenuate the obligations Bush undertook on July 18, 2005, while enlarging (and legalizing) Indian commitments through the means of the five-month-old Hyde Act. Not surprisingly, the US effort now is to ensure that a final 123 accord is in consonance with — or at least not incompatible with — this Act.

In any event, as a subsidiary bilateral arrangement under US law, the 123 agreement cannot circumvent the Hyde Act, which has defined the “procedures and conditions” by which such an accord may be considered by Congress. In fact, to qualify for such consideration, the 123 agreement would have to be submitted to the appropriate congressional committees with the entire deal package, including “a completed IAEA-India safeguards agreement and other documents and Presidential determinations” in a report form.

The “Presidential determinations” — on 10 different conditions listed in the Act’s Section 104(c)(2) — would centre on New Delhi’s compliance. They include extraneous conditions, such as binding India to the Proliferation Security Initiative, Australia Group and Wassenaar Arrangement, and securing its full participation in “efforts to dissuade, isolate, and, if necessary, sanction and contain Iran.” That the Hyde Act represents a blend of the toughest elements from the Senate and House bills is apparent from a Congressional Research Service comparative assessment, in table form, by Sharon Squassoni and Jill Marie Parillo.

The PM had assured Parliament last August 17 that, “If in their final form, the US legislation or the adopted NSG guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament.” Yet, when the Hyde Act bristling with extraneous and mortifying conditions was passed, Dr. Singh paused only to admit that some of its provisions were “a cause for concern” before sanctioning negotiations on a 123 agreement.

It has now become clear that if the 123 accord is to be in harmony with the Hyde Act and yet not rub salt on Indian wounds, there is only one way out — semantic guile on the fine print. That is exactly what is on offer from the US side to break the current deadlock and seal the accord.

The new formulations proffered by the US in the last round of talks in Washington early this month centre not on substance but on a semantic exercise that would take India round the mulberry bush and defer its day of reckoning to a time when it has no escape route. Yet Burns characterized these formulations as “extensive progress” and Foreign Secretary Shivshankar Menon hailed them as “considerable progress.”

In such hoopla, the principal fact is getting obscured — that the grating conditions against India are in the Hyde Act, and even if they did not figure in the 123 agreement, New Delhi would still be bound by them. After all, it is only after India has complied with all the Hyde Act’s preconditions that Congress would take up the final deal for approval. Indeed, even after such approval, the US is to hang the threat of re-imposition of civil nuclear sanctions to enforce India’s continuous compliance with the Act’s post-implementation conditions.

Put simply, no semantic trickery over the fine print of the123 agreement can free India from the rigours of the Hyde Act. While New Delhi, of course, would not want to compound its burden by entering into an adverse 123 accord with the US, the devil is not so much in the details of such an agreement as in the Hyde Act — a red rag to a bull.

Yet New Delhi remains fixated on the terms of the 123 agreement, to the exclusion of the onerous conditions the Hyde Act already seeks to enforce. Such a blinkered focus also raises an important question: Whatever 123 accord were to emerge, will India be able to hold the US to its terms? In other words, will India be signing on to a legally enforceable agreement?

India’s bitter experience over an earlier 123 agreement with the US, signed in 1963, is a sobering guide to this question. That accord was protective of Indian interests and free of any Hyde Act-style overarching domestic-legal framework. Yet, when the US walked out midway through that 30-year accord — cutting off fuel supply to the twin-reactor Tarapur power station, despite a guarantee to provide “timely” low-enriched uranium on demand — New Delhi could do little more than sulk. With the accord not enjoying the status of a treaty in international law, India realized it was futile to keep claiming it had the “force” of a treaty.

The truth is that the US has maintained a consistent legal position that because it enters into a 123 agreement to meet a requirement of its own internal law, it follows logically that such an accord cannot supersede American law. Indeed, the Carter administration used that very contention to rationalize the 1978 US action in changing domestic law in such a way as to unilaterally rewrite American obligations under the 1963 accord with India.

A 123 agreement, in effect, will legally bind India but not America. Nothing better illustrates this than the manner New Delhi still adheres to the terms of the 1963 agreement, despite America’s material breach long ago and the accord having itself expired in 1993. New Delhi has continued to exacerbate its spent-fuel problem at Tarapur by granting the US a right it didn’t have even if it had honoured the 123 agreement — a veto on India reprocessing the discharged reactor fuel. Nor has India ever sought compensation from the US for the large costs it continues to incur to store the highly radioactive spent fuel.

When New Delhi signed the 2005 deal, it could have asked the US to show its sincerity by beginning immediate cooperation to facilitate the reprocessing of the Tarapur spent fuel, a source of continuing storage and safety concern. Instead, even as key issues from the earlier 123 accord remain outstanding, India is seeking to enter into a new 123 agreement.

(To be continued)

© Asian Age, 2007

123
Semantic Subterfuges

Brahma Chellaney

Asian Age, May 15, 2007

The wheel has come full circle. America broke its 1963 agreement with India by enacting a new domestic law — the 1978 Nuclear
Non-Proliferation Act (NNPA) — which in
turn amended its 1954 Atomic Energy Act (AEC). Now New
Delhi is negotiating a
new Section 123 bilateral accord under the very US
legal provisions that were devised to discipline
India
for its 1974 detonation and to deter any other state from emulating its example.

One expected New
Delhi to know those clauses better than any other
state. Yet, it seems caught by surprise by the US
insistence that the new 123 accord incorporate an explicit American right to secure the
return of transferred nuclear items and materials if India (to quote the AEC Section
123a proviso) “detonates a nuclear-explosive device or terminates or abrogates an agreement providing for IAEA safeguards.”

The “right to return” is just one of nine conditions under the amended AEC Section 123a
that a bilateral agreement is required to meet. In the legislative process that
led to the Hyde Act, the four versions — the official bill, the House bill, the
Senate bill and the final product —
had only one common element: none exempted any Section 123a criteria other than
the requirement for “full-scope” or comprehensive IAEA inspections
on all nuclear facilities. Among the
eight not-exempted criteria include
the right-to-return rider and a veto-empowering
condition — “no enrichment or reprocessing
by the recipient state without prior approval.”

The Hyde Act not
only classifies India
as a non-nuclear-weapons state (NNWS), but also authorizes the president to
waive sanctions on Indian activities, inconsistent
with the AEC Section 129 non-proliferation conditions, that occurred only prior
to July 18, 2005. For all subsequent activities since
that date, India
is to be held to various NPT-style prohibitions for an NNWS as defined by Section 129 except one — the possession of
nuclear-explosive devices.

In the ongoing
123-agreement negotiations, the newly submitted US
formulations
seek to allay India’s
misgivings through semantic rather
than policy shifts. Where differences are irreconcilable, the formulations equivocate
or even omit a direct reference to an issue. The US
wordsmiths have fashioned a revised draft that beats about the bush on issues
of primary concern to India.
Armed with the overarching Hyde Act
and the long-term India trap
it sets, the US
has little to lose through some dissemblance in
the 123 accord.

Let us examine what is on offer.

■ Reprocessing
of spent fuel. Having branded India as an NNWS in
its new law, the US is willing to
offer not the advance-consent right it now provides its European partner-states
and Japan but an assurance of the type it has given to a single nuclear-weapons state (NWS) — that it would hold
joint consultations on any reprocessing request and attempt to reach agreement within a finite
timeframe.

That
assurance is in the 1985 US-China agreement. Article 5(2) of that agreement says
that although neither party “has any plans” to reprocess, “in the event that a party would like at some future
time to undertake such activities, the parties will promptly hold consultations
to agree on a mutually acceptable arrangement.”

It
then goes on to say that “the parties will consult immediately and will seek
agreement within six months on
long-term arrangements for such activities … If such an arrangement is not
agreed upon within that period of
time, the parties will promptly consult for the purpose of agreeing on measures … to undertake such activities on an
interim basis.”

It
is odd that the US wishes to offer New Delhi the 1985 assurance it gave China — which is unencumbered by any of the constraints being
enforced on India — rather than the post-1985 reprocessing
arrangements it has worked out with its NNWS partners, including Japan and the European Atomic Energy Community
(EURATOM), eight of whose 15 member-nations have power reactors.

To
get around the NNPA (and AEC) condition for US prior consent, the US has granted
its non-nuclear partners long-term “advance programmatic approval” to reprocess
and recycle US-origin plutonium. For
example, just over a decade ago, EURATOM states were given advance rights, with
inbuilt safeguards against arbitrary revocation by the US.

Without
at least a similar advance right, India would get into a much bigger mess than Tarapur. Even though the
US did not have any
prior-consent veto in the 1963
agreement, it still breached its terms by continuously
refusing to either exercise its first option to
buy Tarapur spent fuel in excess of India’s needs or to carry out a safeguards-related
“joint determination”
with India
of the reprocessing facility.

In the new 123 accord, the US has staked claim to an explicit double veto: India cannot ship back spent fuel to America without its prior consent, as decreed by
the Hyde Act Section 103(b)(6); nor can India start any reprocessing activity sans prior US consent. This dual right to
doubly squeeze India is to hold
even if the US
were to unilaterally terminate or
suspend all cooperation.

A
US assurance to India like that to China
would be meaningless. First, the 123
agreement with China
openly encourages collaboration on reprocessing,
in sharp contrast to the way the US
Congress has beforehand sought to dissuade reprocessing
cooperation with India.
Second, seen against the US bad faith in
rebuffing India
for decades on a “joint determination” on Tarapur, the new formulation merely proposes
“joint consultations” within a timeframe without any assurance that the US would actually allow India to reprocess.

Third,
while India
has agreed to permanent, legally irrevocable IAEA inspections
on its entire civilian programme, the Sino-American
agreement stands out for not applying
even voluntary, revocable IAEA safeguards on US nuclear exports. It is so lax
that Article 8(2) declares that even “bilateral safeguards are not required,” although
Beijing
agreed more than a decade later to some loose end-use checks under US
congressional pressure. China
has taken on no irreversible commitment and can easily walk out from the agreement,
but India will not be able to
free itself from grating legal obligations
even if the US
rejected its reprocessing request
after joint consultations.

And
fourth, the US-China arrangement
grants Washington
no leverage to deny Beijing reprocessing permission. It was only recently that Beijing signed up to buy its first US-origin power reactors — that too from the Japanese-owned
Westinghouse
company — after Westinghouse agreed
to transfer substantial technology and expend 50 per cent of the value of the
contract on goods and services produced in
China.

Because its 123 agreement permits Beijing
to terminate cooperation at will and
yet keep its spent fuel outside IAEA inspections,
it did not need a permanent or advance consent right. In
the years ahead, when the Westinghouse
reactors are commissioned and produce sufficient spent fuel for reprocessing, Beijing
would simply notify Washington of its plan and, if
the latter didn’t cooperate, unilaterally begin
to reprocess after six months and/or terminate
all cooperation. In contrast, the Indo-US deal stacks the deck against India.

The reason why the US
takes a dim view of Indian reprocessing
is that it would allow India,
as part of its long-term energy security plans, to expand its
plutonium economy and develop its fast-breeder and thorium capabilities. That conflicts with the US
aim to constrict India
from further developing its independent fuel-cycle capabilities even under IAEA
safeguards.

No wonder US negotiators
today are offering India a deceptive formulation on reprocessing, not the long-term “advance
consent” concept that America
pioneered in the early 1980s in agreements with Sweden
and Norway.
That concept comes with objective criteria for revocation of any US advance
consent so that a future American administration
does not arbitrarily withdraw it.

US
negotiators today disingenuously
cite the NNPA restriction. The fact is that ever since
1984, when a federal district court dismissed a suit by non-proliferation
activists challenging long-term
consents as violating the NNPA, American
courts have consistently held that the NNPA’s interpretation
is a political matter inappropriate
for judicial resolution.

More
importantly, the US Congress has not prohibited or limited the use of advance
consents. Indeed, the Senate defeated a 1988 resolution to reject a 123
agreement with Japan
because of its advance-consent provision. And in
1996, a new 123 agreement with EURATOM took effect after the US not only
granted advance consent, but also proclaimed “no interference”
in fuel-cycle decisions of that
Community’s member-states.

Bush
has the executive authority to “exempt” India from or otherwise skirt the
prior-consent requirement. Congress has anyway spurned his plea that the new 123
accord automatically take effect unless a disapproval
resolution was passed with a two-thirds vote. Instead, it will treat the accord
as making an “exemption,” thus requiring a
joint resolution of approval within 90 days. Bush’s problem, if any,
is the Hyde Act, which implicitly treats nuclear India’s
status as being even less than that
of America’s
NNWS allies.

■ Right to
return. This claimed right is founded on a one-sided concept that the supplier
is at liberty to terminate
cooperation retroactively. America’s
new proposal is to formulate an intricate,
drawn-out process to give effect to an explicit US right to an all-encompassing return of transferred nuclear items and
materials if it terminates
cooperation on grounds that its continuation
would jeopardize its supreme national interests. By making
the actual implementation of the “right to return” problematic, the proposal
aims to calm India.

However, such semantic
subterfuge in the draft 123 accord seeks
to obscure the key point: any
acknowledgement of the American right to seek return on account of a US-determined Indian non-compliance with non-proliferation
conditions would turn India’s voluntary test moratorium into
a binding,
irrevocable prohibition through a double instrument
— a bilateral agreement atop the Hyde Act.

The
“right-to-return” demand and the Hyde Act Section 106 prohibition on further
testing are part of the same design
that has prompted the Bush administration
to propose an NSG exemption for India
tied to a test ban. India
is being dragged through the
backdoor into the Comprehensive Test
Ban Treaty, rejected by the Senate in
1999. By going beyond the CTBT and technically
quantifying a nuclear-explosive test,
the Hyde Act actually seeks to hold India to CTBT-plus obligations.

■ Full
cooperation. To escape from its obligation to open “full civil nuclear cooperation and trade” with India, the US wants the 123-agreement text to
be neutral on that subject. The intent
is to use such undefined scope of
cooperation to create an illusion in
India that full cooperation
has not been ruled out, while allowing
the US to stay faithful to
the Hyde Act’s bar on civil enrichment, reprocessing
and heavy-water cooperation with New
Delhi.

Where the
replication of a provision from the US-China
agreement will be worthless in
relation to India, Washington
eagerly offers it. But where a provision is indeed
worth replicating — such as Article
3, which provides for unrestricted fuel-cycle cooperation — it looks the other
way.

■ Lifetime fuel reserves. While India
wants to build “lifetime” strategic fuel reserves for civilian reactors as an insurance against
supply cut-off, the US
offers only assured fuel shipments. The Hyde Act precludes “lifetime” fuel
stockpiling by allowing stocks only for “reasonable” operating needs, with reasonableness defined by the US.

And while India wants the right to take “corrective measures”
if supplies were disrupted, the US
is willing to permit such action if
it meant convening a meeting of “friendly” supplier-states, not the lifting of IAEA inspections.
Given that the Hyde Act forbids India
from breaking out of its obligations
even if supplies are discontinued,
correction can only be toothless.

There are other
core disagreements, too. All are rooted in
three factors. The first is America’s
failure to fully discharge its pledge to “adjust
US laws and policies … to achieve full civil nuclear energy cooperation with India.” There
has also been a breach of the deal’s underlying
principle that such adjustments
would not hold India
to an NNWS status.

And finally, while India
is ready to be a friend and partner of the US,
America
insists it become its ally. Friendship
or partnership is based on parity, reciprocity and mutual respect, while an
alliance has a leader that dictates terms. The nuclear deal, in principle,
offered India parity and
reciprocity but, in practice, the US still insists on setting
the terms.

(Concluded)

©
Asian Age, 2007

Nuclear Non-Starter

The U.S.-India civil nuke deal is doomed

By Brahma Chellaney

Wall Street Journal, May 9, 2007

The much-trumpeted 2005 civil nuclear deal between the United States and India always had one problem: the elastically worded accord itself. New Delhi, however, bears the brunt of the blame for the current deadlock. While the U.S. never hid its nonproliferation objectives, India’s policy makers embraced the political deal without fully understanding its implications. Now that the technical rules of nuclear commerce are to be defined, they find it difficult to meet the demands set by the U.S. Congress.

The root of the current stalemate over the fine print rests in the new U.S. legislation, dubbed the Hyde Act, governing the deal. The U.S. wants the right to cut off all cooperation and secure the return of transferred nuclear items if India, in Washington’s estimation, fails to live up to certain nonproliferation conditions, such as a ban on nuclear testing. The prohibition seeks to implicitly bind India to an international pact whose ratification the U.S. Senate rejected in 1999—the Comprehensive Test Ban Treaty. The Hyde Act also sets out conditions to block India from ending International Atomic Energy Agency inspections even if American fuel supplies are suspended or terminated.

While the political deal had promised India “full civil nuclear cooperation and trade,” what is on offer now is restrictive cooperation, tied to the threat of reimposition of sanctions if New Delhi does not adhere to the congressionally prescribed stipulations. India, however, insists that cooperation encompass uranium enrichment, reprocessing of spent fuel and heavy-water production, given that all such activities would be under International Atomic Energy Agency safeguards and for peaceful purposes.

Under the deal inked in 2005, India agreed to “assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the U.S.” It now complains that the Hyde Act denies it these “same benefits and advantages.” However, New Delhi itself laid the groundwork for higher standards when months earlier it agreed to place 35 Indian nuclear facilities under permanent, legally irrevocable IAEA inspections—not the token, voluntary inspections accepted by the U.S. on select facilities.

In any case, a growing perception that the U.S. was shifting the goalpost created outrage in India’s Parliament. Why the shock and horror? It’s simple: India embraced the U.S.-drafted deal hurriedly in July 2005 without fully grasping its significance. As Prime Minister Manhoman Singh admitted in Parliament on August 3, 2005, he received “the final draft from the U.S. side” only upon reaching Washington a day before signing. Until that point, India’s negotiators had only discussed submitting “power reactors” to international inspections, not all civilian nuclear facilities. And they certainly didn’t anticipate a test ban. Indeed, after signing the deal, Mr. Singh had assured Parliament that “our autonomy of decision-making will not be circumscribed in any manner.”

The current deadlock could have easily been avoided. During the nine-month legislative drafting of the Hyde Act last year, India ought to have made it clear that it wouldn’t allow its deal-related commitments to be expanded or turned into immutable legal obligations through the means of a U.S. domestic law. It was only after national outcry over the bill’s approval by the U.S. House of Representatives that Prime Minister Singh grudgingly defined India’s bottom-line: The “full” lifting of “restrictions on all aspects of cooperation” without the “introduction of extraneous” conditions. He went on warn that, “If in their final form, the U.S. legislation or the adopted Nuclear Suppliers’ Group guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament.” That was too late to reverse the Congressional push for a tough law to govern the deal.

Last week, India’s top diplomat, Foreign Secretary Shiv Shankar Menon, tried to repair some of this damage by sitting down with his U.S. counterparts in Washington. But the reality is that each government finds its negotiating space severely constricted. The Bush administration is bound by the Hyde Act passed by Congress last December, and Mr. Singh is stuck with the deal-related benchmarks he defined in Parliament last August.

Even if the follow-up bilateral agreement did not incorporate the controversial conditions, it would hardly free India from the obligations the Hyde Act seeks to enforce. The U.S. has always maintained that because such a bilateral agreement is a requirement not under international law but under U.S. law—the Atomic Energy Act—it cannot supersede American law. In fact, an earlier U.S.-India bilateral nuclear cooperation 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 India’s U.S.-built Tarapur nuclear power plant near Bombay, forcing India to turn to other suppliers to keep the station running to this day. India cannot get a similar lifetime fuel-supply guarantee for the new commercial nuclear power reactors it wishes to import thanks to the Hyde Act, which also bars reprocessing and enrichment cooperation even under IAEA safeguards.

Another sticking point is India’s insistence on the right—under international safeguards—to reprocess fuel discharged from imported reactors. The U.S. has granted such a reprocessing right to its European allies and Japan for decades. Given that the Tarapur spent fuel has continued to accumulate over the decades near Bombay, with the U.S. declining either to exercise its right to take it back or to allow India to reprocess it under IAEA inspection, New Delhi says it cannot get into a similar mess again. In fact, Washington has not compensated India for the large costs it continues to incur to store the highly radioactive spent fuel from Tarapur.

Faced with the Hyde Act’s grating conditions, misgivings over the deal have begun to infiltrate the Indian establishment. The U.S. currently has 23 different bilateral nuclear cooperation agreements with partner-states but none is tied to such an overarching, country-specific domestic law. Even if the present hurdle were cleared, the deal faces more challenges in securing approval from the 45-state Nuclear Suppliers’ Group and the 35-nation IAEA board.

New Delhi believes time is on its side. India’s economic and strategic influence is growing, strongly positioning New Delhi to conclude a deal on terms that are fairer and more balanced than those on offer today. Its interests also demand a deal not just restricted to civil nuclear export controls, but encompassing the full range of dual-use technology controls in force against India.

The present deal, despite the good intentions behind it, seems doomed.

Mr. Chellaney, a professor of strategic studies at the privately funded Center for Policy Research in New Delhi, is the author of “Nuclear Proliferation: The U.S.-India Conflict” (Orient Longman, 1993).

Copyright: The Wall Street Journal, 2007

Nuclear Winter

India should blame itself for its dashed
expectations

Brahma
Chellaney

The Times of India, May 2, 2007

With the
vaunted Indo-US nuclear deal floundering,
the world’s two biggest democracies have begun to blame each other. While the still-continuing
negotiations, as symbolized by Foreign Secretary Shivshankar Menon’s Washington visit this week, outwardly suggest the deal
can still be salvaged, New Delhi now admits it will not get in practice what the original
accord had promised in principle — the
rights of “a responsible state with advanced nuclear technology”, and “full
civil nuclear cooperation”. Indeed, America’s message has become plain: like it or lump it.

If the deal has shaped up in
a way that it condemns India
to second-class status and links
restrictive civil cooperation to assorted good-behaviour conditions in perpetuity, New Delhi
bears more blame than Washington. While America never hid its non-proliferation aim to see
India’s nuclear-weapons
capability crimped, New Delhi entered the deal
with remarkable naiveté, with Parliament being
assured that the nation would get the “same benefits and advantages as the US”.

India actually slipped at the very
outset, when it hurriedly embraced the US-drafted deal on July 18, 2005 without
fully grasping the significance of
its phraseology. For one, the accord committed India to identify and separate
civilian “nuclear facilities and programmes” for external inspection, when the only issue discussed until then
was about “power reactors”. For another, it held New Delhi
to a “unilateral” nuclear-test moratorium, when India’s commitment had been to a
“voluntary” suspension.

As a result of these boo-boos, India was
forced to identify not only 14 power reactors for permanent inspection, but also 21 heavy-water,
fuel-fabrication and research facilities, besides agreeing
to shut down its Cirus plutonium-production reactor. The US, citing its domestic law, such as the Arms Export
Control Act where “unilateral” commitment is defined,
now insists that India, on the pain of punishment, lose its right to resume testing and that it adhere to the Missile Technology
Control Regime (MTCR) “unilaterally” while remaining a prime target of MTCR.

India slipped again
when the US
began legalizing its demands. Instead
of making it loud and clear that India
won’t allow its pledges to be expanded or stripped of their voluntary quality and turned into irrevocable obligations through the means of US
legislation, the deal-pushers in New
Delhi elatedly cheered
on every congressional move, to the extent that special envoy Shyam Saran joined US Undersecretary Nick Burns in Paris to hail the House committee bill as “a
great job” done. When the conditions-laden Hyde Act was finally
enacted, the same cheerleaders spun reality to meretriciously claim that Indian obligations
would flow only from the bilateral “123 agreement”.

Now the chickens have come home to roost. With the US insisting on incorporating some of the Hyde Act’s egregious provisions in the 123 accord, New Delhi has had to drop its blinkers. The US
wants the right to cut off all cooperation and secure the return of transferred
items if India, in Washington’s estimation, fails
to live up to the prescribed non-proliferation conditions. It also wishes to expressly
block India
from breaking out of safeguards
obligations even if fuel supplies were suspended or terminated.
Had the US not sought such terms,
New Delhi would
still have pretended that the Hyde Act provisions didn’t matter.

While India
cannot allow itself to be railroaded into
accepting an adverse 123 accord, the
legal sanctity of such an agreement has to be seen against
the fact that it won’t have the status of an international
treaty under the Vienna Convention. Yet, from the American standpoint, the 123 agreement — a requirement under US law
— has to be consistent with the Hyde Act and Atomic Energy Act, especially
because it has to go before Congress for ratification. When India ought to
have spoken up, it snuggled into a
hallucinatory loop of delusion. Now when the US seeks to follow up on the Hyde Act, India cries
foul.

Think of an opposite
scenario: a 123 agreement that incorporates
none of the Hyde Act provisions. Would that really free India from the Act’s
oppressive demands? Not really. The Hyde Act lays down conditions independent of and in
relation to the 123 accord. The Act also defines the conditions for India in
the other processes with the International Atomic Energy Agency and Nuclear
Suppliers’ Group.

       As an auxiliary arrangement under US law defining the technical rules of nuclear commerce, no 123
agreement — however diplomatically worded — can release India from the Hyde Act’s obligations.
An earlier 123 accord over Tarapur, signed in
1963, was abandoned by Washington in 1978 simply by enacting
a new domestic law that retroactively overrode the bilateral pact. That broke with
impunity a guarantee to provide “timely” fuel “as needed” for Tarapur. Today, India can’t get
a similar lifetime fuel-supply guarantee even on paper, thanks to the Hyde Act,
which also bars reprocessing and
enrichment cooperation. The US currently
has 23 different 123 agreements with partner-states but none is tied to such an
overarching, country-specific
domestic law.

Instead of blaming Washington, New Delhi ought to reflect
on its own mistakes. And consider itself lucky that it can still disentangle
itself with little damage to its interests.
Now both sides ought to ensure that what was hyped as an epoch-making deal does not unravel in
a way to embitter bilateral ties.

The writer is a security affairs
analyst.