Why nuclear deal with the U.S. has kicked up a political storm in India

Posted on September 1, 2007 by Chellaney

N-deal must be debated

Times of India, August 30, 2007

Brahma Chellaney

As finance minister during 1991-95, Manmohan Singh drastically slashed funding to the nuclear power programme, disabling new projects and halting uranium exploration. But as prime minister, Singh has become such a fervent advocate of importing high-priced reactors for electricity that he has brought his own political future under a cloud.

At the root of the crisis is Singh’s insistence that Parliament has no role on the bilateral agreement with the US other than to be merely informed about it. That is odd. As New Delhi discovered in the late 1970s when the US walked out from a similar but more India-protective agreement, such an accord has no force under the 1969 Vienna Convention on the Law of Treaties. After all, this agreement is required not by international law, but by Section 123 of a US law. And unlike last time, the agreement now is governed by a specially enacted US law, which stipulates a series of good-behaviour conditions for India to meet. Can Parliament acquiesce to India being put at the mercy of the supplier?

Instead of building a broad national consensus, Singh, sadly, has sought to spin reality to suit political ends, blocking Parliament since 2005 from closely scrutinising the deal. Little surprise then that opposition has steadily built up against a deal that has a bearing on the symbol of India’s pride and independence — its nuclear programme. Contrast this picture with the bipartisan support the White House was able to garner for the deal and its enabling legislation, the Hyde Act.

At every stage, New Delhi has been far less transparent than Washington, with Indians getting to know the various concessions and conditions from US briefings or statements. And although the nuclear accord was concluded on July 23, its text inexcusably was not released until August 3 to allow New Delhi to use the interregnum to soften public opinion through deceptive leaks to the media.

That strategy has not only backfired, but some of Singh’s own remarks have helped generate a political storm that his handlers are now seeking to control largely through disingenuous spin. The PM first mocked his Leftist allies’ opposition to the deal, asking them to like it or lump it. He then declared on the eve of the Parliament session: "The deal is signed and sealed. It is not renegotiable".

If the nuclear agreement is not "renegotiable", that means Parliament can be little more than a spectator. Yet the same agreement, paradoxically, cannot take effect until the US Congress has examined and approved it through a joint resolution of both chambers. Indeed, the US Congress has explicitly reserved its right to attach conditions to the nuclear agreement — a right it exercised in 1985 on a nuclear deal with China, delaying its implementation by 13 years.

The deal is a striking reminder of the need for the world’s most populous democracy to improve its public accountability and oversight. It is precisely due to the anaemic checks and balances in the Indian system that a PM, who came to office without winning a single popular election in his political career, has escaped legislative scrutiny of his actions at home even as he has expended Indian taxpayers’ money on lobbying members of the US Congress to pass the necessary enabling legislation — the infamous Hyde Act.

Is it thus any surprise that the deal has spurred national demands that the Indian Constitution, one of the most-amended constitutions in the world, be changed to make parliamentary ratification mandatory for any international agreement or treaty to take effect? It hardly goes to the credit of Indian democracy that the executive has an untrammelled right to conclude and ratify international pacts without parliamentary approval.

Even if Parliament has no right to ratify an international accord, doesn’t it at least have the right to dissect its clauses and offer an advisory opinion? If India’s first nominated PM has his way, Parliament will have no role to play other than hold an academic debate on arrangements under the deal.

The writer is a strategic affairs analyst.

Copyright: Times of India, 2007

http://timesofindia.indiatimes.com/N-deal_must_be_debated/articleshow/2320958.cms

Indian prime minister’s political future under cloud over nuclear deal with the U.S.

Posted on August 22, 2007 by Chellaney

Accountability to Parliament at the heart of Singh’s troubles

By BRAHMA CHELLANEY

The Japan Times

NEW DELHI — Indian Prime Minister Manmohan Singh’s political future has come under a cloud over a controversial civil nuclear cooperation agreement with the United States that has helped isolate his party in Parliament.

At the root of the crisis is Singh’s insistence that Parliament has no role in completing an international pact other than to be merely informed about it.

Singh’s Congress Party holds only 26 percent of the seats in the ruling lower house of Parliament and runs a wobbly coalition government with the help of a number of smaller parties, including a leftist bloc that has now come out openly against the nuclear deal.

Singh bears much of the blame for his deep political trouble. When he signed the original agreement-in-principle with U.S. President George W. Bush in July 2005, he caught his country by surprise but promised to reach out to political parties and build a national consensus in favor of the deal, seen as unduly impinging on India’s strategic autonomy.

Instead, through a public-relations blitzkrieg, Singh has consistently sought to spin reality to suit political ends and blocked Parliament from scrutinizing the deal. As a result, opposition has steadily built up against a deal that has a bearing on the symbol of India’s pride and independence — its nuclear program.

The present crisis has been triggered by a followup bilateral nuclear agreement — required not by international law but by Section 123 of the U.S. Atomic Energy Act. Although the accord was concluded July 23, its text was not publicly released until Aug. 3 to allow the government to use the interregnum to soften public opinion through selective leaks to the media.

That strategy has not only failed, but some of Singh’s own remarks have helped generate a political storm that his handlers are now seeking to hold back. Singh first mocked his leftist allies’ opposition to the deal, asking them to like it or lump it. He then declared on the eve of a new session of Parliament: "The deal is signed and sealed. It is not renegotiable."

If the so-called 123 agreement was already "signed and sealed" and not "renegotiable," the message he conveyed to Parliament was that it could do little more than be a spectator. Yet the same agreement cannot take effect until the U.S. Congress has examined and approved it through a joint resolution of both chambers. In fact, the U.S. Congress even has the right to attach conditions to this agreement — a right it exercised in 1985 on a nuclear deal with China, delaying its implementation by almost 13 years.

Indeed, the U.S.-India deal has served as a striking reminder of the need for the world’s most populous democracy to improve its public accountability and oversight.

It is precisely due to the anemic checks and balances in the Indian system that a prime minister, who uniquely came to office without winning a single popular election in his entire political career, has escaped legislative scrutiny of his actions at home even as he has expended Indian taxpayers’ money on lobbying American members of Congress to pass the necessary enabling U.S. legislation on the deal. That legislation, enacted last December and known as the Hyde Act, in fact, has inflamed Indian public opinion because of the long list of conditions it attaches to nuclear-energy cooperation.

Singh is the latest in a series of septuagenarians and octogenarians who have led India since 1989 but, unlike his predecessors, has no grassroots base. A technocrat who served as finance minister in the first half of the 1990s, Singh became prime minister in 2004 by accident when Congress Party leader Sonia Gandhi declined to assume that office and nominated him instead.

The nuclear deal has spurred national demands that the Indian Constitution — one of the most-amended constitutions in the world — be changed to make parliamentary ratification mandatory for any international agreement or treaty to take effect. It does not redound to the credit of Indian democracy that the executive has an untrammeled right to conclude and ratify international pacts without parliamentary approval.

Singh’s effort to present the deal as a fait accompli to the national legislature also raises a basic issue: Even if Parliament has no right to ratify an international pact, doesn’t it at least have the right to dissect its clauses and offer an advisory opinion?

But if India’s first nominated prime minister has his way, Parliament will have no role to play other than hold an academic debate on any of the arrangements that are being worked out under the deal, including the 123 agreement with the U.S. and an upcoming safeguards-related accord with the Vienna-based International Atomic Energy Agency.

Singh affirms that he has "kept Parliament fully in the picture at various stages of our negotiations with the United States" by making "several statements." But the question is whether statements made by the prime minister in Parliament should merely convey what has been agreed to and signed, or comply with the will of the legislature.

The deal raises weighty issues, given that India is assuming perpetual, legally immutable obligations that are to remain in force (including IAEA safeguards on its entire civil nuclear program) even if the U.S. exercised its right to suspend or terminate cooperation.

Brahma Chellaney, a professor of strategic studies at the privately funded Center for Policy Research, is the author, among others, of "Nuclear Proliferation: The U.S.-India Conflict."

The Japan Times: Wednesday, Aug. 22, 2007

Japan-India Strategic Partnership

Posted on August 17, 2007 by Chellaney

Japan, India: natural allies

By BRAHMA CHELLANEY

NEW DELHI — Prime Minister Shinzo Abe, weakened by a mortifying defeat in Upper House elections, will address the Indian Parliament later this month. This is an honor that U.S. President George W. Bush and Chinese President Hu Jintao did not get during their state visits to India last year. India and Japan are Asia’s largest and most-developed democracies, and the honor for Abe flows from the Indian recognition that a strategic partnership between the two is critical to the region’s power equilibrium.

Indeed, Japan has never had a head of government so interested in forging close ties with India as Abe. Even before he became prime minister last September, Abe had identified India as a pivotal partner for Japan in a book he published two months earlier. In "Toward a Beautiful Country," Abe devotes three pages to describing how Japan could advance its "national interests by strengthening our ties with India." He says: "It will not be a surprise if in another decade, Japan-India relations overtake Japan-U.S. and Japan-China ties."

It is Abe who helped expand the Australia-Japan-U.S. Trilateral Security Dialogue to include India in a separate Quadrilateral Initiative, founded on the concept of democratic peace. Abe’s predecessor, Junichiro Koizumi, for his part, was instrumental in frustrating Chinese opposition and getting India, Australia and New Zealand into the East Asia Summit initiative, which is to fashion the proposed East Asian Community.

Abe’s domestic failings, however, have led to his party’s record losses in the recent elections, undermining his leadership and putting a question mark on his political survival. Abe’s ascension as prime minister had symbolized not only the generational change in Japanese politics, but also the rise of an assertive new Japan ready to flex its foreign-policy muscle.

The Upper House losses could encumber the leitmotifs of Abe’s nationalist agenda, including the proposed revision of the unique "peace constitution" that the U.S. imposed on a defeated Japan to tame a historically warrior nation. Unlike India’s frequently amended constitution, Japan has not amended its constitution even once. Yet Japanese voters have signaled that they care more about the economy than about Abe’s idea to create a "beautiful Japan" on the resurrected traditions of the Taika Reform (A.D. 645) and the Meiji Restoration (1868).

Abe’s host, Prime Minister Manmohan Singh, has also been weakened by his party’s losses in state elections this year. The leftist parties on whose support his wobbly coalition government depends have now raised a banner of revolt against the U.S.-India nuclear deal, issuing a diktat "not to proceed further" with the agreement. India’s opposition parties have also attacked the deal, putting Singh on the defensive.

Singh, the latest in a series of septuagenarians and octogenarians who have led India since 1989, epitomizes India’s leadership deficit. A technocrat who served as finance minister in the first half of the 1990s, Singh became prime minister in 2004 by accident when Congress Party leader Sonia Gandhi declined to assume that office and nominated him instead.

As democracies, India and Japan are going to be buffeted by domestic politics. But their democratic traditions, along with a striking convergence of strategic interests in Asia and beyond, help make them natural allies. Both seek United Nations Security Council reforms and both wish to avert a unipolar Asia. In fact, few countries face such implacably hostile neighbors as India and Japan do.

In an Asia characterized by a qualitative reordering of power, the direction of the India-Japan relationship is clearly set toward closer engagement. There is neither any negative historical legacy nor a single outstanding political issue between them. Public perceptions in each country about the other state are very positive.

Many Japanese are still grateful for Justice Radha Binod Pal’s role in delivering a dissenting judgment at the 1946 Tokyo Trial for war crimes, and a commemorative plaque in his honor has been erected at the entrance to the newly renovated Yushukan Museum in the compound of the controversial Yasukuni Shrine in Tokyo.

On the 62nd anniversary of the nuclear bombings of Hiroshima and Nagasaki, Japan appeared poised for strategic doctrinal change. It remains the world’s largest economic powerhouse after the United States, with an economy still much larger than China’s but with only a tenth of the population. As Asia’s first economic success story, Japan has always inspired other Asian states. Now, with the emergence of new economic tigers and the ascent of China and India, Asia collectively is bouncing back from a 150-year decline. Asian security will be greatly shaped by relations among the region’s three main powers — China, India and Japan — and their ties to the U.S.

Booming trade alone won’t guarantee security. China is Japan’s largest trade partner, but that has not prevented Beijing from aggressively playing the history card against Tokyo. China is India’s fastest-growing trade partner, but that has not stopped it from publicly hardening its stance on the territorial disputes.

To maintain the peaceful environment that promotes security and economic growth, Japan and China, and India and China, must build stable political relations. A strong Japan, a strong China and a strong India need to find ways to reconcile their interests in Asia so that they can peacefully coexist and prosper. Never before in history have all three been strong at the same time.

In this distinct strategic triangle, if China were A, and India and Japan were B and C, the sum of B plus C will always be greater than A. That is why India and Japan are bound to become close strategic buddies, even as they attempt to ensure that their relations with Beijing do not sour.

Concerned over China’s lengthening shadow, Japan and India are bracing for a strategic challenge in the Asian heartland, not to gain preeminence but to thwart preeminence. But while Japan seeks more space on the world stage, only to be hemmed in by its security dependency on Washington, India fancies closer ties with the U.S. as a way to play a bigger global role.

For India, a strategic and economic partnership with Japan dovetails with its vision of a dynamic, multipolar Asia. That is why the August 2000 agreement during Prime Minister Yoshiro Mori’s visit to develop a "Global Partnership of the 21st Century" has been expanded to include the term, "strategic." This new "Strategic and Global Partnership," as Singh and Abe agreed last December, is to be centered on "closer political and diplomatic coordination on bilateral, regional, multilateral and global issues, comprehensive economic engagement, stronger defense relations, greater technological cooperation" and "a quantum increase" in other contacts.

The decision to add real security content is intended, as the two prime ministers admitted, "to reinforce the strategic orientation of the partnership." Defense ties are now developing with ease. All the three Japanese service chiefs visited India last year in a two-month period. With Japan dispatching more naval ships to the Indian Ocean in support of the U.S.-led "Operation Enduring Freedom," India and Japan are in a position to conduct naval exercises together at short notice.

After last year’s India-Japan exercises, Indian naval ships visited Japan’s Yokosuka base four months ago, holding trilateral maneuvers with Japanese and U.S. forces off Tokyo Bay.

Asia’s sharpening energy geopolitics also buttresses the partnership between India and Japan, both heavily dependent on oil imports by sea from the Persian Gulf region. Strategic collaboration between these two major non-Western democracies is being necessitated by mercantilist efforts to assert control over energy supplies and transport routes, as well as by strategic plans to assemble a "string of pearls" in the form of listening posts and special naval-access arrangements along vital sea lanes.

If India is to ensure that an adversarial power does not exercise undue influence over regional waterways, it needs not only to guard the "gates" to the Indian Ocean, but also to join hands with the much-larger Japanese navy.

When Abe arrives on Aug. 21, he would like to market his "Cool Earth" initiative, as part of his endeavor to fashion a collective international response to the climate crisis that has arisen due to the relentless buildup of planet-warming greenhouse gases in the atmosphere.

Singh, for his part, is expected to seek Japan’s support in the Nuclear Suppliers’ Group for his pet initiative — the nuclear deal with the U.S. whose future is still far from certain. But the Abe-Singh discussions are likely to transcend personal hobbyhorses and focus on long-term strategic issues.

Given that the balance of power in Asia will be determined by events as much in the Indian Ocean rim as in East Asia, India and Japan have to work together to promote peace and stability, protect critical sea lanes and stem the incipient Asian power disequilibrium.

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

The Japan Times: Thursday, Aug. 16, 2007

Political controversy in India over nuclear deal with the U.S.

Posted on August 15, 2007 by Chellaney

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

Sun rises on India-Japan relationship

Posted on August 8, 2007 by Chellaney

The emerging power disequilibrium in Asia makes an India-Japan partnership critical

A yen for closer ties

By BRAHMA CHELLANEY

The Hindustan Times, August 9, 2007

Japanese Prime Minister Shinzo Abe, weakened by a mortifying defeat in upper-house elections, will address the Indian Parliament later this month. This is an honour that US President George W. Bush and Chinese President Hu Jintao did not get during visits to India last year. India and Japan are Asia’s largest and most-developed democracies, and the honour for Abe flows from the recognition that a strategic partnership between the two countries is critical to Asian power equilibrium.

Indeed, Japan has never had a head of government so interested in forging close ties with India as Abe. Even before he became PM last September, Abe had identified India as a pivotal partner for Japan in a book he published two months earlier. In Towards A Beautiful Country, Abe devotes three pages to describing how Japan could advance its “national interests by strengthening our ties with India”. He says: “It will not be a surprise if in another decade, Japan-India relations overtake Japan-US and Japan-China ties”.

It is Abe who helped expand the Australia-Japan-US Trilateral Security Dialogue to include India in a separate Quadrilateral Initiative, founded on the concept of democratic peace. Abe’s predecessor, Junichiro Koizumi, was instrumental in frustrating Chinese opposition and getting India into the East Asia Summit (EAS) initiative, which is to fashion the proposed East Asian Community (EAC). Such initiatives help India to play an important player far beyond its region.

Abe’s domestic failings, however, have led to his party’s record losses in the recent elections, undermining his leadership and putting a question mark on his political survival. Abe’s ascension as PM had symbolized not only the generational change in Japanese politics, but also the rise of an assertive new Japan.

Abe retains a comfortable majority in the lower house, but the upper-house losses could encumber the leitmotifs of his nationalist agenda, including the proposed revision of the unique “peace constitution” that the US imposed on a defeated Japan to tame a historically warrior nation. Unlike India’s frequently amended constitution, Japan has not amended its constitution even once. Yet Japanese voters have signalled that they care more about the economy than about Abe’s idea to create a “beautiful Japan” on the resurrected traditions of the Taika Reform (645 AD) and Meiji Restoration (1868).

As democracies, India and Japan are going to be buffeted by domestic politics. But their democratic traditions, along with a striking convergence of strategic interests in Asia and beyond, help make them natural allies. Both seek UN Security Council reforms and both wish to avert a unipolar Asia. In fact, few countries face such implacably hostile neighbours as India and Japan do.

In an Asia characterized by a qualitative reordering of power, the direction of the India-Japan relationship is clearly set towards closer engagement. There is neither any negative historical legacy nor a single outstanding political issue. Public perceptions in each country about the other state are very positive. Many Japanese are still grateful for Justice Radha Binod Pal’s role in delivering a dissenting judgement at the 1946 Tokyo Trial, and a commemorative plaque in his honour has been erected at the entrance to the newly renovated Yashukan Museum, next to the controversial Yasukuni shrine in Tokyo.

On the 62nd anniversary of the nuclear bombings of Hiroshima and Nagasaki, Japan appears poised for strategic doctrinal change. It remains the world’s largest economic powerhouse after the US, with an economy still much larger than China’s, but with only a tenth of the population. As Asia’s first economic-success story, Japan has always inspired other Asian states. Now, with the emergence of new economic tigers and the ascent of China and India, Asia collectively is bouncing back from nearly two centuries of decline.

Asian security will be greatly shaped by the relations between China, India and Japan, and their ties to the US. Booming trade alone won’t guarantee security. China is Japan’s largest trade partner, but that has not prevented Beijing from aggressively playing the history card against Tokyo. China is India’s fastest-growing trade partner, but that has not stopped it from publicly hardening its stance on the territorial disputes.

To maintain the peaceful environment that promotes security and economic growth, Asia’s three main powers must build stable political relations. A strong Japan, a strong China and a strong India need to find ways to reconcile their interests in Asia so that they can peacefully coexist and prosper. Never before in history have all three been strong at the same time.

In this distinct strategic triangle, if China were A, and India and Japan were B and C, the sum of B plus C will always will be greater than A. That is why India and Japan are bound to become close strategic buddies, even as they attempt to ensure that their relations with Beijing do not sour. But while Japan seeks more space on the world stage, only to be hemmed in by its security dependency on Washington, India fancies closer ties with the US as a way to playing a bigger global role.

For India, a strategic and economic partnership with Japan dovetails with its vision of a dynamic, multipolar Asia. That is why the August 2000 agreement during Prime Minister Yoshiro Mori’s visit to develop a ‘Global Partnership of the 21st Century’ has been expanded with the term, ‘strategic’. This new ‘Strategic and Global Partnership’, as Manmohan Singh and Abe agreed last December, is to be centred on “closer political and diplomatic coordination on bilateral, regional, multilateral and global issues, comprehensive economic engagement, stronger defence relations, greater technological cooperation” and “a quantum increase” in other contacts.

The incorporation of real security content is intended, as the two PMs admitted, “to reinforce the strategic orientation of the partnership”. Defence ties are now developing with ease. All the three Japanese service chiefs visited India last year in a two-month period. With Japan dispatching more naval ships to the Indian Ocean in support of ‘Operation Enduring Freedom’, India and Japan can conduct naval exercises at short notice. After last year’s joint exercises, Indian naval ships visited Japan’s Yokosuka base less than four months ago, holding trilateral manoeuvres with Japanese and US forces.

Asia’s sharpening energy geopolitics also buttresses the partnership between India and Japan, both heavily dependent on oil imports by sea from the Gulf region. Indo-Japanese strategic collaboration is being necessitated by mercantilist efforts to assert control over energy supplies and transport routes, as well as by strategic plans to assemble a “string of pearls” in the form of listening posts and special naval-access arrangements along vital sea-lanes. If India is to ensure that an adversarial power does not exercise undue influence over regional waterways, it needs not only to guard the ‘gates’ to the Indian Ocean, but also to join hands with the much-larger Japanese navy, Asia’s most powerful.

Given that the balance of power in Asia will be determined by events as much in the Indian Ocean rim as in East Asia, India and Japan have to work together to promote peace and stability, protect critical sea-lanes and stem the incipient Asian power disequilibrium.

Text of U.S.-India Civil Nuclear Cooperation Accord Released

Posted on August 4, 2007 by Chellaney

123: Text and Context

By Brahma Chellaney

Asian Age, August 4, 2007

MAIN POINTS

US gains right to unilaterally terminate cooperation at will.

No provision for instituting alternate suppliers before terminating cooperation.

India concedes to US unfettered “right of return”.

Agreement upholds supremacy of US law.

India given reprocessing right only in principle. Actual right uncertain.

Fuel-supply assurance subject to US right to terminate.

No full cooperation.

India accepts IAEA-safeguarded enrichment or reprocessing is “dual-use” activity.

Accord provides for fallback safeguards.

Accord provides for end-use US monitoring.

Sugar-coated provisions on consultations.

Agreement turns unilateral test ban into bilateral legality.

Through NSG, US intends to turn test ban into multilateral legality.

The released text of the so-called 123 agreement on civil nuclear cooperation reveals that the United States, besides upholding the primacy of its laws, has gained two absolute rights — the right to unilaterally terminate cooperation with India at will (without first arranging alternative suppliers), and the right to take back all supplied items and materials.

In withholding the text for two long weeks, the U.S. and Indian governments sought to spin reality to suit political ends. Now the facts need to be separated not just from spin but also from wishful thinking.

This proposed bilateral agreement has at least 12 important facets:

TERMINATION: It confers on the U.S. an unfettered and uninfringeable right to terminate cooperation with India at will. Article 14(2) states: “The party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations”. That would put India at the mercy of the supplier, which would be holding all the leverage.

Even though termination is to take effect at the end of a one-year notice period, the agreement explicitly empowers the US to forthwith suspend all cooperation without much ado. The only requirement is that a “party giving notice of termination shall provide the reasons for seeking such termination”.

In light of the one-sided dependency the agreement would create, such a U.S. right will not only help bind India to the non-proliferation conditions set by the U.S. Congress through the Hyde Act, but it also goes against the purported assurances of uninterrupted supply of fuel and spare parts. Significantly, Article 14 on termination does not enjoin the withdrawing party to make alternate arrangements for supplies to the other side before it ceases all cooperation.

INTERNATIONAL LAW: In a departure from a standard clause found in America’s 123 agreements with other states, this accord does not uphold a core principle of international law — that failure to perform a treaty or agreement cannot be justified by invoking the provisions of a domestic law. Rather, this agreement is unambiguously anchored in the supremacy of national laws and regulations (which means US laws like the Hyde Act, because there is no Indian law governing nuclear cooperation with the US or any other specific country).

Contrast this accord with the 1985 US-China 123 agreement, which in its Article 2 (1) states: “The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement. Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes. The parties recognize, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

The third sentence about the non-invocation of domestic laws is tellingly missing from this agreement, even as the first two sentences find mention. This omission is because of one simple fact: Never before in U.S. legislative history has a law been enacted imposing such numerous and onerous conditions on an avowed strategic partner to permit cooperation in just one area as the Hyde Act does.

That is why even the agreement’s Article 15, titled “Settlement of Disputes”, is toothless, making no reference to the applicability of the principles of international law. It reads: “Any dispute concerning the interpretation or implementation of the provisions of this agreement shall be promptly negotiated by the parties with a view to resolving that dispute”. That means the recipient-state will have to listen to the supplier.

Both the U.S. and Indian sides have publicly acknowledged that the agreement is within the legal framework of the India-specific Hyde Act, which reigns supreme in this arrangement.

TEST BAN: While there is no explicit reference to nuclear testing, a test prohibition against India has been unequivocally built into the agreement’s provisions through the incorporation of the U.S. right to demand the return of all supplied materials and items. India’s unilateral moratorium is being stripped of its voluntary character and turned into a bilateral legality in this manner. Through the US “right of return,” the 123 agreement explicitly hangs the Damocles’ sword over India’s head.

While the Hyde Act’s Section 106 openly bans Indian testing, the 123 agreement reinforces that test ban both by upholding the applicability of national laws to govern cooperation and by incorporating the US “right of return”.

As part of the same design to enforce permanent Indian compliance with the Comprehensive Test Ban Treaty — a pact the US Senate soundly rejected in 1999 — Washington has already recommended that the Nuclear Suppliers’ Group (NSG) link its proposed exemption for India to a similar test ban. The NSG exemption could even come with a “right of return” being conferred on all supplier-states. In other words, the test ban under the 123 agreement is to be converted into a multilateral legality through the NSG.

INDIAN FULL COMPLIANCE: The US has an unencumbered right under the 123 agreement to terminate cooperation not only in response to an Indian test but also if India, in Washington’s judgement, fell short of the “full compliance” required of it by the Hyde Act with regard to other prescribed non-proliferation conditions. The 123 agreement does not in any way rein in the US right to unilaterally terminate cooperation.

Implicit in this agreement is India’s readiness to honour the U.S.-set non-proliferation conditions.

RIGHT OF RETURN: By conceding that the U.S. has a right to unilaterally terminate cooperate and demand the return of all equipment and fuel supplied in the past, New Delhi has lent legitimacy to what is a dubious concept in international law that the supplier is at liberty to terminate cooperation retroactively.

The agreement states that before invoking the right of return, the concerned party would “undertake consultations with the other party”. But that is nothing but public relations because such consultations would be of no consequence. The supplier-state, however, would “compensate promptly that party for the fair market value” of the items and materials it takes back.

PERMANENT INDIAN OBLIGATIONS: While the US has the right to terminate cooperation at will and withdraw from all obligations, India has been denied the right to withdraw from all its obligations, even if the agreement was terminated at America’s instance. The agreement more than once cites the permanent nature of India’s obligation to accept international inspections on its entire civil nuclear programme, including the indigenously built facilities it is voluntarily opening to external scrutiny.

In a hypothetical situation, if the US were to terminate all cooperation and suspend all fuel and equipment transfers, India would be stuck both with everlasting IAEA inspections on its entire civil programme and with lack of access to an alternate supplier.

REPROCESSING: The US has also reserved its right in the 123 agreement to unilaterally suspend the reprocessing-related “arrangements and procedures” it intends to work out with New Delhi in the years ahead, once India has built a new reprocessing facility under International Atomic Energy Agency safeguards. National Security Adviser M.K. Narayanan has already warned that “spoilers” may nitpick on the facility’s design and cause delays.

The text clearly shows that the US has granted India the right to reprocess only in principle. The grant of actual right would take many years, with the US retaining a veto on Indian reprocessing until then. It will take at least five years to build the new facility, after whose construction, the agreement says, “the parties will agree on arrangements and procedures” for reprocessing “in this new facility”. It goes on to say that consultations on such arrangements and procedures “will begin within six months of a request by either party and will be concluded within one year”. Thereafter, the reprocessing agreement would go to the US Congress for vetting.

This entire process — from the start of work on the facility to congressional approval — would be a long haul. Yet, once in place, the US could terminate the reprocessing-related “arrangements and procedures” in yet-to-be-defined “exceptional circumstances”.

SUGAR-COATED PROVISIONS: The sugar-coated provisions in the Agreement relating to “consultations” and uninterrupted fuel supply appear more to help India save face than to set out enforceable obligations. Although “consultations” are referred to repeatedly in the text, in no context does the agreement provide for consultations to achieve a mutually acceptable outcome. At best, it provides for consultations within a specified timeframe in one context.

In all the specified circumstances, consultations are to be toothless and, in any event, subsidiary to the central requirement that the agreement be in accord with the provisions of national laws. The agreement gives India little say.

LIFETIME FUEL RESERVES: The agreement plays cleverly on words to fashion an illusion at times. For example, Article 5(4) states: “The quantity of nuclear material transferred under this Agreement shall be consistent with any of the following purposes: use in reactor experiments or the loading of reactors, the efficient and continuous conduct of such reactor experiments or operation of reactors for their lifetime, use as samples, standards, detectors, and targets, and the accomplishment of other purposes as may be agreed by the parties”.

Note this provision does not allow India to build up lifetime reserves, as the prime minister had pledged in Parliament. It only permits fuel supply consistent with the efficient and continuous operation of reactors for their lifetime. This is just one example how an optical illusion is sought to be created.

In fact, nowhere does the agreement specifically permit India to accumulate lifetime fuel reserves. The agreement is so cleverly worded that it refers to strategic fuel reserves in its aims and objectives, and then in Article 5(6)(a) it states that “the United States is committed to seeking agreement from the U.S. Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers’ Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations”. In other words, the agreement admits that the U.S. has yet to make the necessary adjustments in its laws that it promised in July 2005.

Then, in the very next subsection (b) of Article 5(6), it is stated as follows: “To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps: i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement on peaceful uses of nuclear energy under Section 123 of the U.S. Atomic Energy Act, which would be submitted to the U.S. Congress”. But this is the agreement under Section 123, and there is no such ironclad assurance!

LACK OF FULL COOPERATION: The agreement brings out starkly that India has accepted terms that fall short of the promised “full cooperation”.

In keeping with the Hyde Act’s prohibition on transfers of equipment and technology in certain areas, the 123 agreement offers this palliative in Article 5(2): “Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the parties’ respective applicable laws, regulations and license policies”.

In accepting this clause, India has not only acquiesced to restrictive cooperation, but also gone one step beyond its current policy to align with U.S. policy on an important point — that any enrichment, reprocessing or heavy-water activity, even when occurring under stringent IAEA inspections, is “dual-use” in nature and thus liable to be restricted.

This is the very thrust of the U.S. case against Iran, with Tehran being asked to forego all IAEA-safeguarded enrichment or reprocessing activity, despite Iran’s insistence that it is its lawful right to pursue such fuel cycle-related work under the provisions of the NPT. In seeking to forge an arbitrary new regime dividing the world into fuel-cycle possessors and fuel-cycle abstainers, the US has dubbed even IAEA-safeguarded enrichment and reprocessing activity as “dual use”.

U.S. END-USE MONITORING & FALLBACK SAFEGUARDS: In addition to ensuring IAEA inspections on all aspects of India’s civilian nuclear programme, the U.S. had staked an unparalleled double prerogative: the right to statutorily establish its own end-use monitoring, as called for in the Hyde Act Section 104(d)(5)(B)(i); and the right to institute “fallback safeguards” in case of “budget or personnel strains in the IAEA”. The fallback option, stipulated in Hyde Act’s Section 104 (d)(5)(B)(iii), is to ensure that India is subject to intrusive, challenge inspections of the type the IAEA applies in non-nuclear states.

In the 123 agreement, the US has succeeded in subtly asserting its prerogatives on both fronts.

The provision for fallback safeguards finds mention in the agreement’s Article 10(4), which states that, “If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures”. That complies with the Hyde Act stipulation.

End-use US monitoring (to which India is committed through an earlier bilateral agreement on high-tech imports) is reflected in the agreement’s Article 12(3): “When execution of an agreement or contract pursuant to this Agreement between Indian and United States organizations requires exchanges of experts, the parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices”.

PRIME MINISTER’S ASSURANCES: While the U.S. has managed to fully uphold all its laws, including the India-targeting Hyde Act, with New Delhi’s own admitted support, it is manifest from the released text that the Indian government has been unable to fully uphold even the prime minister’s solemn assurances to Parliament.

History is repeating itself. Ignoring the egregious way America cut off all fuel supply for Tarapur in the 1970s in material breach of the 123 agreement it signed in 1963, India is entering into new arrangements with its wings clipped (like on nuclear testing) as well as ambiguity or uncertainty on key issues. Even the actual grant of and continuation of the reprocessing right is to be contingent on India’s good behaviour.

Creating a U.S.-monitored energy dependency through imported reactors dependent on imported fuel through a fresh 123 agreement loaded in favour of the supplier-state is to ask for trouble, especially when the new 123 accord is not half as protective of Indian interests as the 1963 agreement.

(Brahma Chellaney, a strategic-affairs expert, is the author of Nuclear Proliferation: The US-India Conflict.)

U.S.-India Bilateral Civil Nuclear Cooperation Agreement under Section 123 of U.S. Atomic Energy Act

Posted on July 30, 2007 by Chellaney

LET FACTS SPEAK FOR THEMSELVES

The first U.S. and Indian official statements on the still-secret 123 agreement reveal the conditions India has been made to accept for resumption of civil nuclear cooperation. While India has been allowed symbolically to save face on some issues, the benchmarks set by the Indian prime minister in August 2006 now look more unattainable than ever.

By Brahma Chellaney

The Asian Age, July 31, 2007

U.S. non-proliferation policy, with its export controls and sanctions approach, was fashioned largely in response to India’s 1974 nuclear test. More than 33 years later, that policy has come full circle, with the United States reaching agreement with India to resume civil nuclear cooperation. Yet, U.S. and Indian official statements on the still-undisclosed text of the so-called 123 agreement have brought out in sharp relief the onerous conditions New Delhi has been made to accept.

The deal’s raison d’être is spot on: a new strategic partnership. Yet, on issues from reprocessing to assured fuel supply, the U.S. has sought to accommodate India’s concerns more through symbolism than policy modification. America, for instance, has kept a veto on Indian reprocessing until such time it can negotiate follow-up “arrangements and procedures” — that too after India has completed a new “state-of-the-art” facility. On other key issues, including a unilateral test ban on India, the U.S. “right to return” and centrality of the Hyde Act, there hasn’t been a change even in nuance.

Even before the fine print has been released, the writing on the wall has become clear.

■ First is the primacy of the Hyde Act, which defines India-specific terms and conditions over 41 pages.

According to U.S. Undersecretary Nicholas Burns, “we kept reminding the Indian side, and they were good enough to negotiate on this basis that anything we did had to fall within, and respect, the legal guidelines that Congress had set forth.” For his part, National Security Adviser M.K. Narayanan has conceded: “The Prime Minister had always taken the view that if you have a legal problem, we will not try to ask you to break the law, but we should find the language that would meet the obligations of both sides.” Then in another interview the NSA stated: “As far as we are concerned, we haven’t breached the Hyde Act in that sense … We have seen to [it] that no law is broken.”

Semantic lollypops indeed are what India has been left holding.

If anything, the 123 agreement expressly reinforces the Hyde Act by citing the applicability of national laws to govern cooperation.

Contrast that with what Parliament was told last December after the Hyde Act’s enactment: the government has “taken note of certain extraneous and prescriptive provisions in the legislation,” and that “there are areas which continue to be a cause for concern, and we will need to discuss them with the U.S. administration before the bilateral cooperation agreement can be finalized.”

■ Second is a permanent test ban on India, with the cooperation arrangements stacked against Indian testing through overt punitive elements.

According to Burns, the proposed cooperation is premised on the U.S. “hope and trust that it won’t be necessary for India to test in the future.” As U.S. Ambassador to India David Mulford has made it clear, Washington expects no more nuclear tests by India. “We are assuming and operating on the basis that the situation will not occur and that India’s commitment to its unilaterally declared moratorium on testing will hold up,” he said emphatically. Separately, Washington has recommended that the 45-nation, U.S.-led Nuclear Suppliers’ Group (NSG) also impose a similar test prohibition on New Delhi. India, in other words, is being dragged through the backdoor into the Comprehensive Test Ban Treaty (CTBT), whose ratification the U.S. Senate rejected in 1999.

Not only does the Hyde Act go beyond other U.S. laws to remove executive flexibility and require automatic termination of waiver in case of an Indian test, but also New Delhi has itself acquiesced to cooperation on the basis of the test prohibition in the Act’s Section 106. India thus will have no case in international law if the U.S. terminated all cooperation in response to an Indian test. Yet Prime Minister Manmohan Singh is quoted as telling the Congress Working Committee that, “India retains the right to test, while the U.S. retains the right to react!”

■ Third is the U.S. right to seek the return of all nuclear items and materials if India were to breach any of the prescribed conditions, including the test prohibition and a bar on any entity or individual “under India’s jurisdiction” making an export in violation of Nuclear Suppliers’ Group (NSG) or Missile Technology Control Regime (MTCR) guidelines.

As Burns has put it, “That right-of-return has been, of course, preserved as it must be under our law, and there has been no change in how we understand the rights of the American President and the American Government.” By acquiescing to the U.S. “right to return,” India is accepting that the supplier is at liberty to lawfully terminate cooperation retroactively.

■ Fourth is New Delhi’s grudging acceptance that despite America’s July 18, 2005, promise of “full civil nuclear cooperation and trade,” India will face a continued embargo on importing equipment and components related to enrichment, reprocessing and heavy-water production, even when such activities are under International Atomic Energy Agency (IAEA) inspections and for peaceful purposes.

Burns has cited “major restrictions in American law” to justify such continued sanctions. The Indian fact-sheet released last weekend says the “purpose” of the 123 agreement is to enable “full” cooperation, without admitting that the U.S. reluctance to adjust its laws in that respect defeats the cited purpose.

Not only does the Hyde Act debar transfer to India of any “sensitive” civil nuclear equipment or technology, but also its Section 105(a)(5) directs Washington to “work with members of the NSG, individually and collectively, to further restrict the transfers” of reprocessing, enrichment and heavy-water technologies to India. Yet the Act demands that the target country, India, actively work with the U.S. to prevent the spread of enrichment and reprocessing technologies to third countries!

■ Fifth is that the American assurance of uninterrupted fuel supply for safeguarded reactors covers only disruption due to market failure or technical or logistical difficulties, but not sanctions arising from India’s non-compliance with the U.S.-prescribed non-proliferation conditions.

So, despite fuel assurances having been written into the 123-agreement text, Burns has made it clear that “none of that 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, in the “the worst-case hypothetical event in the future,” breached the stipulated non-proliferation conditions.

It would actually defeat the very objective of the Hyde Act — to hold India on a non-proliferation leash — if New Delhi were guaranteed permanent fuel supply in all circumstances. The U.S. has committed to convene a meeting of other fuel suppliers in case of a supply disruption, as Ambassador Mulford has clarified, only “under certain circumstances.” The Hyde Act indeed decrees 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. The only fuel stocks it permits India to build are merely to “minimize down time when reactor cores are removed.”

Given that the Hyde Act serves as the legal framework for cooperation, the U.S. fuel assurances in the 123 agreement are subordinate to the legislative conditions. These assurances, including a notional right for India to take corrective measures, are really intended to help New Delhi save face at home.

With the latest 123 agreement, America now has 24 such bilateral agreements, none of which guarantees what the PM had sought — lifetime fuel supply. The one accord that did — the 1963 agreement with New Delhi, which guaranteed fuel “as needed” by India — the U.S. broke with impunity, despite the absence of an overarching law like the Hyde Act. Now, India will accept perpetual IAEA inspections on its entire civil nuclear programme without an unequivocal guarantee of perpetual fuel supply.

■ Sixth is that India has agreed, according to Burns, that “all future breeder reactors will come under safeguards.”

That will leave out only the tiny experimental breeder and the under-construction prototype breeder (which together, according to U.S. National Security Adviser Stephen Hadley, have “very limited capability”). And although both sides admit the Indian strategic programme would not be directly affected, the deal’s embedded qualitative and quantitative checks would “limit the size and sophistication of India’s nuclear-weapons programme,” in the earlier words of Joseph R. Biden, chairman of the Senate Foreign Relations Committee.

■ Seventh is that despite the hoopla about a supposed major American concession, the U.S. will keep a prior-consent veto on Indian reprocessing until New Delhi in the years ahead has negotiated with it “arrangements and procedures” that pass muster with Congress.

To help the Indian government save face domestically, Washington has indeed conceded a theoretical right to New Delhi to reprocess, but preserved its veto until such time that India, on its own cost, has built, in Burns’ words, a “new state-of-the-art” reprocessing facility under IAEA safeguards, and only “then the subsequent arrangements and procedures will be agreed to by the U.S. and India.”

So the practical right to reprocess would not form part of the agreement under Section 123 of the U.S. Atomic Energy Act, but is to be worked out in the future under Section 131, titled “Subsequent Arrangements.” Securing the practical right would thus entail a second round of congressional scrutiny and approval.

The accompanying table on reprocessing shows how history is repeating itself. By agreeing to reprocessing-related terms that are tougher than those in the earlier 123 agreement signed in 1963, India risks sliding deeper into the same trap from which it wishes to extricate itself.

Just as it built a special facility at Tarapur to reprocess spent fuel under the safeguards-related terms of the 1963 accord, it has pledged to construct a new reprocessing facility under the latest agreement. But even though the PREFRE facility at Tarapur passed muster with the IAEA, and India reprocessed spent fuel from RAPS I & II there under IAEA inspections, the U.S. refused until the very end of that 123 agreement to jointly determine with New Delhi the facility’s safeguards-related adequacy.

The U.S. did not have any prior-consent veto in the 1963 agreement, yet it 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” of the PREFRE facility. What gives New Delhi confidence that when the U.S. shunned a simple “joint determination” of an IAEA-certified reprocessing facility, it would be willing to work out, to India’s satisfaction, complex “arrangements and procedures” under Section 131 in the years ahead?

India’s last reprocessing facility at Kalpakkam took five years to complete. The new “start-of-the-art” facility could take longer, given that the U.S. would have a say in its design. Only thereafter, as Burns has repeatedly clarified, would the U.S. negotiate with India reprocessing-related “arrangements and procedures” needing congressional approval.

Contrast that statement with the claim in the Indian fact-sheet that to give “effect” to the Indian right to reprocess, “India will establish a national reprocessing facility to reprocess IAEA safeguarded nuclear material, and the parties will agree on arrangements and procedures within one year.” No sooner had this claim been made than the NSA conceded in a newspaper interview that “I don’t think the whole thing will be decided in one year.” He raised the spectre of “spoilers” nitpicking on the facility design.

Even before the reprocessing issue is operationally resolved, Burns foresees that “American companies will be able to go in [for reactor contracts], and we’re very anxious to have that happen” as soon as Congress is able to pass the 123 agreement.

■ In addition, there are other conditions, spelled out in the Hyde Act.

Among them are U.S. end-use monitoring (which the government says is unavoidable, given the bilateral end-use verification agreement governing high-tech exports), New Delhi’s “unilateral adherence” to U.S.-led regimes unrelated to the nuclear field, and an annual presidential certification of India’s “full compliance” with the congressionally imposed conditions.

Eager to underpin the assorted congressional conditions, America negotiated the 123-agreement text by relying on a battery of lawyers, who have given India only a fig leaf to comply with the new U.S.-set non-proliferation obligations. Burns referred to “legions of lawyers on both sides of the table.” But there was no lawyer on the Indian side, as the NSA has admitted. According to the NSA, “our country is not litigious like that” and “I must say God played his role in this” agreement.

Having fashioned diplomacy on hope, the government wants the country to repose its faith in God, too. Personalized policymaking, wishful thinking and a disinclination to learn from the past, sadly, remain India’s curse.

U.S., India Reach Civil Nuclear Cooperation Agreement

Posted on July 27, 2007 by Chellaney

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.

Australia-India-Japan-US Quad

Posted on July 19, 2007 by Chellaney

Quad Initiative: An inharmonious concert of democracies

By BRAHMA CHELLANEY

The Japan Times

The newly launched Australia-India-Japan-U.S. "Quadrilateral Initiative" has raised China’s hackles, but its direction is still undecided owing to differing perceptions within the group over what its aims and objectives ought to be.

The quad, whose real architect is Prime Minister Shinzo Abe, is founded on the concept of democratic peace. This group of four held its inaugural meeting May 25 on the sidelines of the ASEAN Regional Forum (ARF) gathering in Manila.

It is well documented in the international-relations literature that established democracies rarely go to war with each other, even though democratic governments may not be more wedded to peace than autocracies. Leaders in free nations have little political space to wage war against another democracy. This has led some scholars to contend that democratic peace is the closest thing we have to a law in international politics.

As a concept, democratic peace holds special value in Asia. Democracy may have become the political norm in Europe, but that can hardly be said of Asia. While the community in Europe has been built among democracies, the political systems in Asia are so varied, and some so opaque, that building political trust poses a major challenge.

Yet, if Asia is to enjoy durable peace and power equilibrium, the coming together of democracies to promote common norms is necessary. Such a constellation of democracies tied together through interlinked strategic partnerships could advance political cooperation and stability founded on a community of values.

No nation needs to be apologetic about promoting democratic peace. However, the quad’s first meeting was unpublicized so as not to upset the world’s largest autocratic state, China, which had earlier sent a demarche, or diplomatic note, to Tokyo, New Delhi, Canberra and Washington. The demarche demanded to know why such an initiative was being established.

Now, some quad members are straining hard to reassure Beijing that this initiative constitutes no axis of democracies. In fact, Australia, India and the United States, in different ways, have sought to downplay the strategic significance of the initiative. For example, Indian Prime Minister Manmohan Singh has claimed the quad carries "no security implication."

During a visit to New Delhi last week, Australian Defense Minister Brendan Nelson went to the extent of saying that Australia favored limiting the initiative to trade, culture and other issues outside the domain of defense and security. If a strategic initiative is to be limited to non-strategic issues, why establish it in the first place?

Australia appears ill at ease in this new grouping, given the objective of its present government to build strategic engagement with Beijing. Thanks to China’s ravenous import of resources, Australia has been reaping an unprecedented economic boom.

Indeed, Canberra has been at pains to emphasize that neither its March 2007 security agreement with Tokyo nor the extension of bilateral U.S. security dialogues with Australia and Japan into a formal Trilateral Security Dialogue since March 2006 is aimed at China. With Canberra still seeking to grasp the larger strategic ramifications of the trilateral security arrangements, it is not a surprise that it wants to go slow on the quad.

It an open question, however, how long Canberra would be able to juggle a strategic relationship with China with its new security agreement with Tokyo, while maintaining a robust alliance with the U.S. as the bedrock of Australian security. Would Canberra, for instance, be able to sustain cozy ties with Beijing while permitting Japanese troops to train in Australia under the new accord?

Washington’s own support to a security-oriented quad is less than unreserved. America’s implicit faith in democratic peace is offset by its desire to pursue what has been its key interest in the Asia-Pacific region since 1898 when it took the Philippines as spoils of the naval war with Spain — the maintenance of a balance of power.

Today, the U.S. wants to ensure that China rises peacefully, without becoming an overt threat to American interests. At the same time, by deepening Japanese security dependency, it wishes to prevent Japan’s rise as an independent military power. It is also seeking to persuade India — with which the thawing of relations has been a key accomplishment of the Bush presidency — to move beyond the current strategic partnership to a military tieup.

Achieving these varied objectives won’t be easy for U.S. policy. As it is, the strategic underpinnings of the U.S.-Japan security alliance have begun to corrode. Unlike during the Cold War, the U.S. and Japan do not have a common enemy. While Japan feels increasingly threatened by the rapid accumulation of military power by China, which is "aiming to build capacity to perform operations in waters further and further from its shores" (in the words of the Japanese defense white paper released this month), America regards China as neither friend nor foe.

In fact, the U.S. and China, from being allies of convenience in the second half of the Cold War, have gradually emerged as partners tied by interdependence. America depends on Chinese surpluses and savings to finance its supersize budget deficits, while Beijing depends on its huge exports to America both to sustain its high economic growth and subsidize its military modernization. Politically, the U.S. shares key interests with China, as illustrated by the Beijing-brokered deal on the North Korean nuclear program in February 2007 that caught Tokyo unawares.

Doubts are surfacing in Japan whether it can rely on the U.S. nuclear and security umbrella protection in the future, especially if a conflict were to arise with China. Such doubts in turn are instilling security anxiety, which the U.S. has sought to staunch by upgrading the operational elements of the bilateral security arrangements and encouraging Australia to engage Japan in defense cooperation.

For the U.S., a security-oriented quad would hold little benefit in relation to Japan or China. Tokyo is already tied to bilateral and trilateral security arrangements. The expansion of these arrangements to a quadripartite format would do little to advance U.S. objectives vis-a-vis Japan but make it more difficult to win continued cooperation from China, which has been warning against the creation of an "Asian NATO."

It is also not clear that the U.S. desire to build India as an ally can be advanced through a quadrilateral-security framework. Through the bilateral approach, Washington has been gradually expanding its military-to-military cooperation with India, as underscored by the growing joint exercises and the impending Acquisition and Cross-Serving Agreement (ACSA). The U.S. attempt is to build functional interoperability with Indian forces.

Washington is also eyeing tens of billions of dollars in potential arms deals with India in the coming years, and has already notified Congress of the proposed sale to Indian special forces of six C-130J Super Hercules military aircraft and equipment for more than $ 1.3 billion. U.S. firms like Lockheed Martin and Boeing are currently lobbying to secure a deal with India for 126 fighter jets potentially worth up to $ 11 billion.

But as a country that has always prided its strategic autonomy, India is still reluctant to enter into too tight a strategic embrace with America. It wants to remain a strategic partner, rather than become an ally. U.S. progress in building defense cooperation with India will remain incremental, with the quad offering little advantage.

New Delhi’s own approach to the quad is low-key — tacitly supportive of building democratic peace but hesitant to do anything that could instigate China to step up direct or surrogate military pressure. Having committed in a joint declaration with Abe last December to "the usefulness of having dialogue among India, Japan and other like-minded countries in the Asia-Pacific region on themes of mutual interest," Prime Minister Singh revealed that at the Group of Eight Outreach Summit in Germany last month, he spoke with Chinese President Hu Jintao about the first quad meeting and "explained" that there was "no question of ganging up" against China.

When China undertakes actions designed to contain India, does it bother to "explain" them to New Delhi? Indeed, it determinedly presses ahead with steps antithetical to Indian interests, including a "string of pearls" strategy in the Indian Ocean rim that aims to pin down India.

For long, China cultivated North Korea and Pakistan as its twin fists to keep Japan and India at bay. To set up proxy military threats against India, Beijing went to the extent of transferring tested nuclear-weapon and missile designs to Pakistan.

If India can openly join hands with Russia and China in a Eurasian strategic triangle intended to help promote global power equilibrium, why should it be diffident about partnering other states to seek democratic peace and stability in Asia?

All this leaves Japan as the only enthusiastic quad member. In fact, the quad idea was conceived by Abe in his book, "Utsukushii Kunihe (Toward A Beautiful Country)," published a couple of months before he became prime minister. Given that Abe was born after World War II and his life has been shaped by democracy, the concept of democratic peace holds special appeal for him.

Despite the present Australian, American and Indian tentativeness, the quad represents the likely geopolitical lineup in the Asia-Pacific in the years ahead. It is no coincidence that the quad’s foundational meeting was preceded by the first-ever U.S.-Japan-India joint naval exercises near Tokyo and that all the quad members plus Singapore are to participate in naval maneuvers in the Bay of Bengal in September. The maneuvers, representing one of the largest multilateral war games ever conducted on the high seas, will involve three aircraft carriers — two from the U.S. and one from India.

The democracies of Asia are natural allies. Strategic partnerships between and among them will have a positive bearing on Asian security.

Brahma Chellaney, a professor of strategic studies at the Center for Policy Research in New Delhi, is a regular contributor to The Japan Times.

The Japan Times: Thursday, July 19, 2007

Should Pakistan Developments Worry India?

Posted on July 18, 2007 by Chellaney

Regional Peace Depends on Pakistan’s Very Future
Copyright: Economic Times, July 18, 2007

Brahma Chellaney
Strategic Affairs Expert

Barely 60 years after it was carved out of India, Pakistan’s future is looking increasingly uncertain owing to serious internal challenges and contradictions. Pakistan has now approached a critical turning point, with a choice between recouping from the present troubles or risking a free fall. Without a transition to democratic rule, Pakistan will find it hard to pull back from the brink.

Hobbled by military rule, militant Islam, endemic corruption and dependency on foreign aid, Pakistan remains a main breeding ground of global terror. Having spent the past 17 years trying to bleed India through its ‘war of a thousand cuts’, Pakistan today is itself bleeding — due to the threat from within. By setting up state-run terrorist complexes, Pakistan became its own enemy. The Frankensteins it created have come to haunt its own security.

Today, the battlelines pit jehadist puppeteers in the establishment against their jehadist puppets outside. The puppeteers have become the targets of those whom they reared for long.

Against this background, the central issue that will determine regional peace is not the state of Indo-Pak relations but Pakistan’s own future. Will Pakistan sink deeper in militarism, extremism and fundamentalism? Is it likely to fragment ethnically, given that it remains a state of five tribes in search of a national identity? Can it survive in its present shape?

The fight against international terrorism is very much tied to how the Pakistani state evolves in the coming years. Today, Pakistan is disparaged as “Problemistan”, “Terroristan” and “Al Qaidastan”, with Bush himself calling Pakistan “wilder than the Wild West”.

Pakistan’s fate has always been in the hands of three As — Allah, Army and America. Now Allah’s wrath has wrought havoc on what has become the playground of terrorists, while the spreading pro-democracy movement has the Army on the defensive. But the third factor, America, is still seeking to buck the popular tide by propping up military rule. New Delhi, however, can never make peace with the Pakistan military, whose power and prerogative flow from foiling peace with India.

http://economictimes.indiatimes.com/Should_Pak_developments_worry_India/articleshow/2212140.cms