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Fission for trouble

No strategic issue has proven more divisive in modern India than the nuclear deal, writes Brahma Chellaney.
None | By Brahma Chellaney
UPDATED ON MAY 28, 2007 11:28 PM IST

It has taken the US years of negotiations to conclude a still-valid nuclear cooperation agreement (NCA) with any close ally. Yet, as illustrated by George W. Bush’s telephone call to Manmohan Singh, it has stepped up pressure on India to conclude an NCA straight away, although the two sides remain poles apart on some key issues after barely five months of negotiations. Now Undersecretary Nicholas Burns is arriving to press for an agreement at next week’s Bush-Singh meeting in Germany.

Having been hustled into signing the nuclear deal in July 2005, India is being pressed to conclude the follow-up NCA, despite the draft accord’s one-sidedness or lack of clarity on core issues. The new formulations proffered by the US seek to address India’s concerns more by semantic jugglery than substance. If the NCA were to paper over fundamental differences, US-India civil nuclear cooperation could engender serious discord in the years ahead. Given that India would be at the receiving end in any conflict — as happened when the US walked out midway through an earlier 30-year NCA signed in 1963 — New Delhi cannot accept equivocation clothed as compromise.

An NCA is required under Section 123 of the US Atomic Energy Act. Dubbed the ‘123 agreement’, it is a framework accord under US law, setting the bilateral terms of reference. It does not guarantee that nuclear cooperation would indeed take place. This is especially so in relation to India.

First, the US Congress has retained the right to stop the deal from taking effect if it does not meet the list of conditions established thro-ugh the Hyde Act. A 123 agreement cannot trump those conditions even if it were silent on any of them. Unlike NCAs with other partner-states, America’s cooperation with India is to be uniquely governed by this all-embracing, country-specific Act.

Second, even in the best-case scenario, with the deal in force, the US Nuclear Regulatory Commission would still need to license each nuclear export. And that means public hearings. Every application to license an export would be an occasion for non-proliferation zealots to turn the NRC into a platform to critically scrutinise India’s record, as happened whenever the US sought to ship fuel for the Tarapur power reactors between 1974 and 1980.

India’s nuclear weapon and missile programmes are still in the developmental phase. In light of the Hyde Act’s proviso that the US ‘seek’ to cap, roll back and eliminate South Asian nuclear arsenals as well as its requirement for a cyclic report on India’s ‘rate of production’ of fissile material and nuclear-explosive devices, Indian developmental plans and actions would spur political pressures through congressional and NRC hearings.

Third, the US is working to ensure India will not be able to avail civil nuclear technology from any other supplier-state on terms less onerous that those it is imposing. It intends to make sure the Nuclear Suppliers’ Group guidelines on India mirror the congressional conditions, as mandated by the Hyde Act.

For India, the writing on the wall is clear. Instead of the original deal’s promise of “full cooperation” and the “same benefits and advantages as other leading countries with advanced nuclear technology, such as the US”, restrictive, conditions-laden cooperation is on offer today, with the Hyde Act also aiming to regulate India’s conduct in areas unrelated to civil nuclear commerce.

India, thus, needs to proceed with caution. It is one thing for the US to legislate conditions and limitations on nuclear commerce with India. But if India itself acquiesced to restricted and restraining cooperation through an accord, it would compound its missteps since July 2005. Prudence lies in negotiating as long as it takes to clear the draft text of unreasonable restrictions, imbalance and prevarication.

In any event, why should India make haste when the deal’s avowed rationale is anchored in long-term issues of energy? The deal isn’t pivotal to the growth of Indo-US ties either. Those relations do not need this deal for traction as their direction has already been set — toward closer strategic cooperation. If anything, the deal has infused controversy and soured the public mood in India.

In fact, no strategic issue has proven more divisive in India in modern times than this nuclear deal. The benchmarks the PM laid down in Parliament last August 17 have to hold good at least in the bilateral accord. How would the discerning Singh justify his government signing a 123 agreement that fell short of his own bottomline?

A circumspect negotiating stance should aim to fully address India’s core concerns and ensure no further US shifting of the

goalposts. If not, the deal would attract more grating conditions as it traverses the next stages. Indeed, the need for two separate India-specific multinational clearances — from the 35-nation IAEA board and the 45-State NSG — is going to launch New Delhi into uncharted international waters. The US wants an NCA that reads more like the 123 of how to yoke India. It will arm the US with five unique sets of double rights.

First, the US will have the right not only to cut off all cooperation but also the right to secure the return of transferred nuclear equipment and material if India conducts a nuclear test. The US says it is entitled to terminate cooperation retroactively and to bind India to an international pact the Senate rejected in 1999 — the Comprehensive Test Ban Treaty.

Second, the US will have the right to determine how much fuel India can stockpile for “reasonable” reactor-operating needs as well as the right to impound such stocks if New Delhi failed to adhere to the prescribed good behaviour. The claimed “right to return” negates the very notion of lifetime fuel reserves that the PM has sought as an insurance against a Tarapur-style fuel cut-off.

Third, the US will enjoy a double right even on the fuel discharged from reactors. India is to neither ship back the spent

fuel to America without its consent, nor reprocess it sans prior US approval. By declining to grant long-term advance consent for reprocessing, the US is loath to put India on par even with its non-nuclear allies. Worse, its dual veto against India is to hold even if it unilaterally terminated or suspended cooperation. With a lesser right in the now-expired 1963 NCA, the US has stopped India to this day from reprocessing the accumulating Tarapur spent fuel.

Fourth, the US will have the right to deny India the promised “full cooperation” through continued sanctions on export of

civil enrichment, reprocessing and heavy-water equipment and technology. Yet it will have the right to enforce India’s “full compliance” with US-led technology-control regimes. Put simply, India is to be tethered to these cartels while remaining their target.

Fifth, in addition to ensuring IAEA inspections on all aspects of India’s civilian nuclear programme, the US will have 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 “fall-back US safeguards” in case of “budget or personnel strains in the IAEA”. The fall-back option will ensure India is subject to intrusive, challenge inspections of the type the IAEA applies to non-nuclear States. The unbridled binary entitlements the US asserts should make India summon the courage and resolve to hold off on a bilateral accord. Surely, the 123 agreement cannot come ahead of long-term national interests.

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