Blunder, then blame the United States

There is nothing new in the latest U.S. statements on key nuclear deal-related issues — from fuel-supply and reprocessing conditions to denial of dual-use technologies and assertion of a unilateral right to suspend cooperation forthwith. Yet, New Delhi now is unfairly accusing Washington of reinterpreting the terms.

Brahma Chellaney

Asian Age, September 22, 2008

The nuclear deal now on offer creates a Tarapur-style trap of gargantuan dimensions. The deal’s terms are far worse than the agreement under which the U.S.-built Tarapur nuclear power station was set up in the 1960s. Yet, New Delhi is entering into a new deal without resolving the long-festering Tarapur imbroglio, symbolized by the spent fuel that has been accumulating there for 37 years, with the U.S. asserting a veto on Indian reprocessing and refusing to grant consent.

Disputes over the latest deal are flaring up even before it has been legalized, with New Delhi starting the blame game in earnest. Through its pet stooges in the media, it has accused Washington in recent days of “unilaterally altering the ground rules”, of “repudiating fuel-supply assurances”, of “introducing a dangerous new interpretation” on reprocessing, and of “robbing the deal of its essence”.

Playing injured innocence, however, just doesn’t wash. The fact is that while Washington has been consistent, candid and hard-nosed on the deal since 2005, New Delhi played a game of public deception all along, hoping its charade would not be uncovered. But now that it has run out of covers to cloak its ever-widening field of distortions, blaming America has become easy.

The revelations that spring from President George W. Bush’s latest “Hyde Package” to Congress and his administration’s leaked letter to a congressional panel are entirely consistent with earlier U.S. official statements as well as with the provisions of the Hyde Act and the 123 agreement. There is nothing new. Yet, the U.S. today is being accused of seeking to rewrite or reinterpret the deal’s terms. Consider the following:

● The U.S. gave no guarantee of reactor-lifetime fuel supply or to help India build a strategic fuel reserve. Bush’s recent statement that American fuel-supply assurances are “not legally binding” is no different than past assertions by other U.S. officials. For instance, then U.S. Undersecretary Nicholas Burns clarified in July 2007 that none of the U.S. fuel assurances in the 123 accord “contradicts or conflicts with the legal right of any American President” to terminate supply and demand the return of supplied materials if India breached the U.S.-prescribed conditions.

The 123 agreement, significantly, makes no mention of the term, “lifetime”. It offers assured fuel supply only so long as India adheres to the stipulated conditions. Supply assurance, as the Hyde Act decrees, can cover only disruption due to market failure or technical problems, but not sanctions arising from India’s non-compliance. Burns, asked in an August 2, 2007 interview if America was committed to arranging alternative fuel supply if India tested, replied: “That’s absolutely false”. The Hyde Act indeed demands that India be prevented from building any fuel stockpile of a size that would permit its “riding out any sanctions that might be imposed” by the U.S. in the future.

● Bush’s assertions on no upfront or permanent reprocessing consent to India are in line with what his officials said earlier. Nicholas Burns, for instance, announced the following at a July 27, 2007 news conference: one, there is no timeframe within which the U.S. intends to grant India an operational consent to reprocess; and two, India has first to build a new “state-of-the-art” reprocessing facility to U.S. satisfaction before special “arrangements and procedures” for reprocessing can be worked out.

India inexplicably agreed to negotiate a separate Section 131 agreement on reprocessing later — an accord that will need to pass congressional muster — although Washington granted Japan and EURATOM the actual right to reprocess upfront in a 123 agreement. For example, the 1987 Japan-U.S. 123 accord was accompanied by a nine-page “implementing agreement” that gave effect to “advance, long-term consent for reprocessing, transfers, alteration and storage of nuclear material” by spelling out the reprocessing-related arrangements.

In fact, New Delhi has gratuitously agreed to route all “foreign nuclear material” through a new reprocessing facility. As a result, even France is unwilling to grant India reprocessing right upfront at this stage.

● The recent U.S. disclosure that India has agreed to inspections beyond those by the International Atomic Energy Agency is consistent with the Hyde Act’s stipulation for “fall-back U.S. safeguards” and with the 123 agreement’s Article 10(4). The revelation shatters the Prime Minister’s assurance to Parliament that “we will accept only IAEA safeguards” and that “there is no question of accepting other verification measures or … allowing American inspectors to roam around our nuclear facilities”.

● The U.S. publicized intent to deny India sensitive and other dual-use technologies even under safeguards is no surprise. Washington had made it clear by 2006 that, despite originally committing to “full civil nuclear trade with India”, its cooperation in practice would be less than full. The U.S. indeed concluded a 123 accord with India more restrictive than its existing cooperation agreements with Australia, Japan and South Korea.

Piteously, India will not able to import any components for the special reprocessing facility it has agreed to build to U.S. expectations, because its negotiators failed to persuade America to relax civil reprocessing, enrichment and heavy-water sanctions.

The Prime Minister had pledged in Parliament: “Before voluntarily placing our civilian facilities under IAEA safeguards, we will ensure all restrictions on India have been lifted”. That pledge he is set to break.

● The recent U.S. affirmation of an unfettered right to suspend all supplies forthwith meshes with the 123 agreement’s provisions. That accord only demands the serving of a one-year termination notice on any ground, however extraneous. Suspension of supplies can follow immediately.

For the U.S., such an unconstrained right was vital to tether New Delhi to the Hyde Act, an India-specific NPT. In congressional testimony last Thursday, the Bush administration again affirmed that “whether it’s a test or an abrogation of a safeguards agreement, our actions will be bound by U.S. law”. Latest U.S. statements on testing (such as, “the Indian government intends to uphold the continuation of the test moratorium”) suggest that New Delhi has given its word to Washington never to test again.

Once the deal takes effect, the Hyde Act’s post-implementation conditions will also kick in — from an annual presidential certification of Indian good behaviour to pressing India’s “full compliance” with a non-nuclear, U.S.-led cartel like the Missile Technology Control Regime.

Against this background, can the U.S. be accused of leading up the garden path an India that was beseeching to be taken into a blind alley? Shouldn’t New Delhi, in all fairness, acknowledge Washington’s long-held position that a 123 agreement with any state is neither a treaty nor has force under the Vienna Convention on the Law of Treaties (which the U.S. hasn’t even ratified)?

Many of the accusations now being hurled by surrogacy are actually part of a public-relations exercise by New Delhi to dissuade the congressional attachment of more conditions during the ongoing ratification process. Despite threats to turn its back on the U.S. and do business only with France and Russia, New Delhi will dare not displease Washington. Continued cooperation under the deal hinges on India meeting its panoply of non-proliferation commitments that extend far beyond a test moratorium. The U.S. could make life difficult for India at any time through an unfavourable assessment of its progress in meeting those commitments.

(c) The Asian Age, 2008.

The Japan Times, September 17, 2008

The controversy that has dogged the vaunted U.S.-Indian civil nuclear deal is unlikely to dissipate anytime soon despite the recent rule change by the Nuclear Suppliers’ Group. Deep-seated partisan rancor in India over the deal and the still-needed U.S. congressional ratification will ensure that. But more than commercial nuclear power, it is U.S. arms exports and closer strategic ties with India that the deal is likely to promote.

Stretching The Truth

The Hindustan Times, September 18, 2008

Phoney claims are being repeated to mould public perceptions on the India-U.S. civilian nuclear deal, writes Brahma Chellaney.

As if the corrosion of its state institutions was not enough, India is being pummelled by an officially scripted onslaught of half-truths and outright deception over the vaunted Indo-U.S. nuclear deal. Phoney claims are being repeated even after they stand publicly discredited by President George W. Bush’s latest ‘Hyde Package’ to Congress and his administration’s earlier leaked letter to a congressional panel. It is as if truth no longer matters.

Can the obsessive deal-peddling take precedence over everything? Has no thought been given to the lasting damage that an unabashedly partisan approach relying on politicized bureaucrats and spin doctors would wreak? If the refusal to hold the traditional monsoon session of Parliament is unprecedented — setting a precedent toxic for the future of democracy — no less ominous is the deliberate spread of a slew of distortions to push the deal-making, without the consensus-building Prime Minister Manmohan Singh had promised. Making false claims without any qualms, especially to cover up broken promises to Parliament, is no mean matter.

The U.S. says loudly the deal is fully governable by its Hyde Act, an India-specific NPT. But New Delhi still markets the loosely worded 123 agreement as the only binding document — an accord that actually arms the U.S. with a unilateral right to suspend cooperation “immediately”. Bush publicly asserts that the 123 agreement’s fuzzy fuel-supply assurances do not “transform these political commitments into legally binding commitments”. Recipient India responds by trying to give international-law lessons to supplier America.

The leaked letter embarrassingly discloses that “the Indian government shares our understanding” that fuel-supply assurances are not “meant to insulate India against the consequences of a nuclear-explosive test or a violation of non-proliferation commitments”. The letter derides as “a high level of generality” the PM’s claim in Parliament about a linkage between “lifetime” fuel supply and perpetual international inspections.

The PM tells Parliament India has “secured upfront” a “permanent consent” to reprocess spent fuel. Bush publicly contradicts him by saying this right “will not come into effect until India establishes a new national reprocessing facility” and agrees to special “arrangements and procedures” with the U.S. in the years ahead. And Bush’s ‘Nuclear Proliferation Assessment Statement’ attests that the reprocessing consent, once granted, can be withdrawn. However inadvertently, Washington has helped bust several other Indian claims, including that New Delhi has accepted inspections only by the International Atomic Energy Agency.

Yet, deal-aggrandizing distortions continue to swirl at such a pace that they get picked up and recycled as facts by a pliable media before anyone can controvert them. Flogging fabrications indeed has proven so useful in shaping public perceptions that claims are becoming more brazen. Take the claim that the deal marks the end of the technology-control regime against India.

Easing high-technology and civilian-space export controls is not even part of this deal. What the deal seeks to open are lucrative exports for “IAEA-safeguarded” Indian facilities while specifically denying dual-use technologies. In return for being allowed to import commercial power reactors and fuel under tight safeguards, India has been made to accept conditions that no nuclear-weapons state will countenance.

Bush’s ‘Hyde Package’ makes clear the U.S. has no intent to allow any sensitive transfers, including of civil enrichment and reprocessing technology. The Nuclear Suppliers’ Group waiver, similarly, is based on an understanding not to export sensitive items to India. This understanding, reflected in the various national statements, part of the negotiating record, should be seen against the Hyde Act’s open call to “further restrict the transfers of such equipment and technologies”.

Indeed, Section 3(a) of the NSG waiver explicitly ties exports to India to the NSG Guidelines’ Paragraphs 6 and 7, which incorporate a presumption of denial of sensitive items. This restriction is reinforced by the Guidelines’ Part 2, Paragraph 4. With the NSG nearing consensus to impose an overt ban on sensitive sales to a non-NPT state like India, what is now implicit will become explicit. As for dual-use technologies, the NSG Guidelines already annex an exhaustive list of such items barred for export.

Contrast this with the PM’s July 22 contention in Parliament that the deal frees “trade in dual-use high technologies” and his September 6 claim that the NSG waiver “marks the end … of the technology-denial regime”. All technology controls against India ought to go. But even after the deal takes effect, India will still face barriers to high-technology flow, including the U.S. Commerce Department’s dual-use export controls.  The U.S. Congress, for instance, has cross-linked civil nuclear cooperation to the continuance of U.S. export controls against New Delhi in an unrelated area, with the Hyde Act stipulating that U.S. missile sanctions law (which prohibits dual-use space exports) will still apply to India even after it “unilaterally adheres” (as it quietly did last week) to the Missile Technology Control Regime.

If high-technology and civilian-space trade is to be opened fully, it will require New Delhi to do more than pull the wool on public eyes at home — persuade Washington to apply to India the same standard it does to another non-NPT state, Israel. The partisan rancour springing from the deal’s political mismanagement has done India a great disservice. The truth-stretching threatens to do worse.

Brahma Chellaney is professor of strategic studies at the Centre for Policy Research, New Delhi.

http://www.hindustantimes.com/StoryPage/FullcoverageStoryPage.aspx?sectionName=&id=ed78240b-bff0-4f02-96e5-3ec1b482812bNucleardealimbroglio_Special&&Headline=Stretching+the+truth

Mortgaging nuclear crown jewels

Brahma Chellaney

The Hindu, September 17, 2008

Whatever happened to India’s vaunted "credible minimal deterrent?" Despite having Asia’s oldest nuclear programme, India still does not have a minimal, let alone credible, deterrent, as defined by its own nuclear doctrine. Yet to secure a dubious civil nuclear deal, India is allowing the various good-faith declarations it made on July 18, 2005, to be turned into binding, enforceable international commitments. If this deal takes effect, India can forget about being a strategic peer of China. It will become another Pakistan to U.S. policy, locked in a dependent relationship, with its nuclear crown jewels effectively mortgaged.

The idea to build energy “security” by importing high-priced, foreign fuel-dependent power reactors is an absurdity — a money-spending boondoggle that is sure to rake up kickbacks for some but leave India insecure and buffeted by outside pressures. The deal, in effect, will ensnare India in a wide non-proliferation net and undermine its autonomy to build a full-fledged deterrent. India has already paid a heavy international price for its nuclear programme, but its deterrent capabilities remain nascent, thanks to the tentativeness and pusillanimity of those who have led it over the years. But just when it seemed ready to take off, it is being fastened to oppressive non-proliferation constraints whose sum effect would be, as U.S. Democratic vice presidential nominee Joseph Biden said earlier, “to limit the size and sophistication of India’s nuclear-weapons programme.”

With India wedged in a unique nuclear crescent stretching from Israel to China, a deal effectively capping its deterrent capability at the present rudimentary level will be a grievous blunder. Yet, as symbolized by his refusal to celebrate the 10th anniversary four months ago of India going overtly nuclear, Prime Minister Manmohan Singh remains fixated on deal-making, instead of deterrent-building. Dr. Singh’s polarizing single-mindedness on the ballyhooed deal has injected bitter divisiveness into an issue that centres on the future of India’s nuclear programme. Had Dr. Singh done what he had repeatedly promised — “build the broadest possible national consensus” — India would not have undercut its negotiating leverage. By turning it into a matter of personal prestige and desperately wanting a successful outcome, he has allowed the deal to attract, however inadvertently, additional conditions at every stage of its evolution.

Certain give-and-take is inevitable in any deal. But this deal has picked up such onerous conditions that it now threatens to cast a political albatross around India’s neck. To help build a personal legacy, the deal-making threatens to saddle the country with a damaging legacy. This is execrable, given the unparalleled manner India’s internal and external security has come under serious strain on Dr. Singh’s watch. At a time of growing insecurity, India can ill-afford to narrow its future strategic options. Yet, aided by a hundred spin doctors and an impressionable national media, the deal has been parlayed in larger-than-life dimensions, with its benefits liberally embellished and its fetters cloaked.

India’s constantly shifting goalpost can be seen from the manner it went from demanding a “clean and unconditional” exemption from the Nuclear Suppliers’ Group to seeking just a “clean” waiver, and then agreed with the U.S. to one text revision after another in Vienna, rendering the NSG process outcome pretty messy. That is exactly the path it treaded earlier to secure the U.S. legislative waiver (in the form of the conditions-laden Hyde Act), the bilateral 123 Agreement and the safeguards accord. The blunt fact is that the NSG waiver, however cleverly worded, cannot allow India to escape from the U.S.-set conditions by turning to other suppliers, as the publicly released correspondence between the Bush administration and the House Foreign Affairs Committee brings out starkly.

Any material violation of the eclectic non-proliferation commitments India is assuming will trigger a cut-off of cooperation by all supplier-states, leaving its civil power reactors high and dry, yet subject to permanent international inspections. Indeed, the greater the investments it makes in imports-based generating capacity, the greater will be its vulnerability to external penal actions and the constriction of its strategic options. Today, its goal of erecting a credible and survivable nuclear deterrent, as the private intelligence service Stratfor has put it, remains at least a decade away.

The manner a nuclear deal can be employed as a foreign-policy instrument has been underscored by the U.S. action to punish Russia over Georgia by scuppering a key deal with Moscow that was until recently a top Bush priority. That deal would have opened extensive U.S.-Russian nuclear trade, besides allowing Moscow to import, store and possibly reprocess spent fuel from proposed U.S. reactor exports to countries like India. If America can openly invoke a deal as a castigatory instrument against nuclear peer Russia, it certainly would have less hesitation to do so against an India that would become hopelessly dependent on foreign fuel and replacement parts under a patently inequitable deal whose fuel-supply assurances, in Bush’s own words, are not legally binding but mere “political commitments,” ostensibly to help Dr. Singh save public face. After all, didn’t the U.S. invoke that very instrument against India in response to its 1974 test, impeding deterrent-building and instilling the political timidity that has come to epitomize the Indian state?

The latest deal-making ought to be seen as culmination of the process the U.S. set in motion in 1974 to bring India to heel. It imposes on India obligations that no other nuclear-armed state will countenance. The watertight civil-military separation, for instance, will destroy what the then Atomic Energy Commission chairman, R. Chidambaram, in 1996 described as “the lateral synergy which exists between the one and the other … You can’t have one without the other.” It also compels India to shut down its main military-production workhorse, the Cirus reactor — the biggest cumulative contributor of weapons-grade plutonium to India’s stockpile, as a recent U.S. Energy Department-funded study by Paul Nelson et al points out. Given that work on a replacement reactor has not begun to date, the Cirus dismantlement in two years’ time will surely result in a significant shortfall in bomb-grade plutonium production.

In addition, the deal seeks to qualitatively and quantitatively crimp deterrent-building through varied non-proliferation fetters. The deal-tied U.S.-legislative and multilateral review processes will subject to the glare of international scrutiny Indian nuclear actions and activities, including any “significant changes,” as the Hyde Act mandates, “in the production by India of nuclear weapons or in the types or amounts of fissile material produced.”

While inhibiting deterrent-building as per the U.S. goal to keep India’s capabilities regionally confined, the deal would help instil Indian security dependency on America. In fact, more than commercial nuclear power, it is U.S. arms exports and closer Indo-U.S. strategic ties that the deal is likely to promote. Before long, Dr. Singh is expected to sign three agreements that U.S. officials are pressing to forge closer bilateral military ties. One is a logistic support accord, another is to provide for end-use monitoring of transferred U.S. weapon systems, and the third is to promote military-communications interoperability.

Since the deal was unveiled, India has agreed to buy systems the U.S. has already sold Pakistan, including maritime reconnaissance aircraft, military transport planes and Harpoon missiles. This raises the question whether New Delhi is seeking to build a first-rate military with strategic reach and an independent nuclear deterrent, or a military that will remain irredeemably dependent on imports and serve as a money-spinning dumping ground for conventional weapons India can do without. A gas leak this year killed an Indian officer and five sailors on board a 1971-vintage amphibious transport ship junked by the U.S. navy and bought by India months earlier.

Such reckless and wasteful arms purchases at the expense of an indigenous deterrent will become more common, if the nuclear deal takes effect. While offering an immensely lucrative opening for outside vendors, the deal will saddle India with a retarded deterrent. India is being effectively tethered to an India-specific NPT, the Hyde Act, with Bush’s legislative submissions to win congressional ratification labelled the “Hyde Package.” Even the NSG waiver is in harmony with the Hyde Act, mirroring its core conditions. It is still not too late for New Delhi to step back from the precipice of a self-injurious deal and return to the unfinished task of deterrent-building, or else India will remain for the foreseeable future a subcontinental power with global power pretensions.

Brahma Chellaney, a professor of strategic studies at the Centre for Policy Research in New Delhi, is the author, most recently, of Asian Juggernaut: The Rise of China, India and Japan.

Nuclear Distraction

The U.S.-India civil nuclear deal came one step closer to final approval over the weekend, as the international Nuclear Suppliers Group granted its imprimatur. Yet the controversy over the proposed pact remains as fierce as ever, not least in India. As a result, ironically, it’s still possible the deal could end up distracting both sides from the hard work of deepening their relationship.

This is mainly a consequence of how the deal has been oversold by politicians both in New Delhi and in Washington. From the time it was unveiled more than three years ago as an agreement-in-principle, its backers have framed the deal in terms of broader strategic objectives. Supporters in India have argued it will cement U.S.-India ties and facilitate technology transfers in fields beyond commercial nuclear power. Backers in the U.S. have argued the deal will make it easier for Washington to call on India as a counterweight to China’s influence, and expand commercial opportunities for Americans.

But none of these claims is entirely realistic. In fact, these arguments merely distort the debate. In India, the nuclear deal has become a flashpoint for partisan debates about India’s place in the world and how it should manage its relationship with the U.S. This will make the deal, and possibly the relationship, less stable if power changes hands between parties in a general election in India due at the latest by next April. And it’s created unrealistic expectations in Washington.

In short, the hype over the nuclear deal needs to be tempered by certain realities.

First among these is that a durable U.S.-India partnership cannot be built on strategic opportunism, but rather must grow from shared national interests. In coming years, India will increasingly be aligned with the West economically. But strategically it can avail itself of multiple options, even as it moves from nonalignment to a contemporary, globalized strategic framework. In keeping with its long-standing preference for policy independence, India is likely to become multialigned, while tilting more toward the U.S.

Some clarity on this point from the deal’s backers in New Delhi might have made it easier to secure support. It would also have helped had Prime Minister Manmohan Singh done what he had repeatedly promised: "build the broadest possible national consensus in favor of the deal." He should not have turned the deal into an openly partisan issue, for it will have to be implemented well after his government’s term.

The danger now is that if the opposition wins the national election, it may re-open negotiations on the nuclear deal. That could risk sending the wrong signal about India’s general commitment to maintaining positive relations with the U.S., given the significance this particular deal has assumed in that relationship.

The deal’s backers in Washington have also been guilty of overselling it, albeit in different ways. On the strategic level, they have argued that the deal will bring India into the U.S. camp as a regional counterweight to China’s growing influence. But it appears unlikely that India would allow itself to be used as a foil against an increasingly assertive China, lest Beijing step up military pressure along the long disputed Himalayan frontier and surrogate threats via Pakistan, Burma and Bangladesh. India, as would any country, will continue to craft policy based on its own interests.

The Bush administration is also going overboard in touting the commercial benefits. As Bush administration letter to Congress, released last week, states, the deal is supposed to help revive the U.S. nuclear-power industry through exports and "access to Indian nuclear infrastructure," allowing "U.S. companies to build reactors more competitively here and in the rest of the world — not just in India." With its acute shortage of nuclear engineers, the U.S. intends to tap India’s vast technical manpower.

But not all of this is entirely realistic, especially expectations that India will be a boom market for U.S. nuclear exports. Even with the deal, nuclear power will continue to play a modest role in India’s energy mix. With the proposed import of eight 1,000-megawatt reactors within the next four years, the share of nuclear power in India’s electricity generation is unlikely to rise above the current 2.5%.

The Indian economy will probably not get much of a boost from the deal as a result. Furthermore, private investment in nuclear power will be hindered by many factors. The messy terms of the deal itself, with its many eclectic provisions designed to assuage nonproliferation concerns, will still impose many barriers on the transfer of nuclear fuel and technology, and not all of the conditions are even explicitly spelled out. Political uncertainty in India will also remain given the strong partisan opposition. And time is short to ratify the pact in Washington before elections in the U.S. bring in a new Congress and new administration.

The nuclear deal does play a role in bolstering U.S.-India ties (albeit not as much as politicians would have you believe). India has agreed to fully support U.S. nonproliferation initiatives, for example, and to consider participating in U.S.-led multinational military operations. And as a thank-you for the role President George W. Bush and Secretary of State Condoleezza Rice personally played in securing the suppliers group’s approval, Prime Minister Singh is expected to sign shortly three agreements that U.S. officials say are critical to forge closer bilateral military ties. These will facilitate cooperation on logistical operations, provide for monitoring of the end uses of transferred weapons systems, and enhance communications interoperability. But the two sides could have made progress on all these fronts independent of a civil nuclear deal.

The deal may also benefit ongoing negotiations over sales of military equipment to India. In addition to the orders it recently placed for American maritime reconnaissance aircraft and military transport planes, India — one of the world’s biggest arms importers — is gearing up to buy other American weapon systems. If Congress ratifies the nuclear deal, America is most likely to clinch the intense international competition to sell India 126 fighter-jets in a $10-billion contract. In this contest, Lockheed Martin has pitched its F-16 against Boeing’s F/A-18E/F Super Hornet.

Yet such progress isn’t dependent on a civil nuclear deal. Indeed, that may be the greatest danger of the current discussion. Because it has become such a controversial issue, the nuclear deal is threatening to overwhelm the broader dialogue India and the U.S. need to sustain about their relationship. The raging controversy hasn’t done anyone any good.

Mr. Chellaney, a professor of strategic studies at the Center for Policy Research in New Delhi, is the author, most recently, of "Asian Juggernaut: The Rise of China, India and Japan" (HarperCollins, 2007).

http://online.wsj.com/article/SB122098853203415865.html?mod=googlenews_wsj

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.

Brahma Chellaney

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”.

http://www.asianage.com/presentation/leftnavigation/opinion/op-ed/nowhere-to-hide-from-hyde.aspx