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Hurdles in the last mile

When future historians write on the negotiation of the India-United States civil nuclear deal, they will marvel at the way the American side made full use of its legislative process to rewrite vital portions of a settled agreement while the Manmohan Singh Government was pushed on to the back foot at every point. Two weeks after draft Bills on nuclear commerce with India were marked up for legislative approval on Capitol Hill, the Government has finally seen it fit publicly to air some misgivings about the proposed U.S. law change. Pressed by this newspaper, at a press briefing in St. Petersburg, to spell out the "concerns about certain aspects" of the Bills that Prime Minister Manmohan Singh said he was taking up with President Bush, Foreign Secretary Shyam Saran provided a few examples of provisions India was not comfortable with. These pertained to the denial of enrichment and reprocessing technology, the nature of safeguards and fuel assurances, and end-use verification procedures.

The July 18, 2005 joint statement was meant to be a tightly crafted reciprocal agreement. It spelt out in precise and economical language the obligations each side undertook to fulfil in order to resume "full civil nuclear cooperation." Both inside Parliament and out, the Prime Minister and his senior-most officials insisted that India was to have exactly the same rights and privileges as the five recognised nuclear weapons states (NWSs), and that no Indian facility would be placed under international safeguards until all trade and technology restrictions on India had been lifted. The ink on the agreement had hardly dried when senior Bush administration officials told Congress that the Indian plan for the separation of its military and civilian nuclear facilities had to be acceptable to the U.S. They also insisted that the India-specific safeguards New Delhi had agreed to negotiate with the International Atomic Energy Agency (IAEA) could not mirror the `voluntary offer' safeguards of the NWSs but would have to apply in perpetuity. In tandem, U.S. Congressmen raised the Iran bogey, thus helping the Bush administration press-gang a nervous Indian Government into the war party at the IAEA Board of Governors. The first stage of the implementation process came to an end in early March, when India and the U.S. signed off on a quite equitable separation plan during President Bush's visit to India. Washington conceded ground on the Indian fast-breeder programme but got New Delhi to accept in-perpetuity safeguards in exchange for yet-to-be defined cast-iron guarantees of perpetual fuel supplies for imported Indian reactors.

Even if the deal's wider political and strategic implications were deeply worrying, its technical parameters seemed acceptable to the Indian scientific community. This newspaper editorially assessed the civil nuclear cooperation aspect of the deal to be constructive, although it warned simultaneously against the foreign policy and strategic linkages that were likely to be inserted by Washington. Over the past few months, it has become abundantly clear that the battle for the `sanctity' of the July 18, 2005 agreement is far from over. Key Congressional panels have cleared the way for a vote on the proposed change of law — but the riders and conditions attached to the operational parts of the Bills represent an attempt to rewrite what was claimed to be set in stone and sold as such to political India and Parliament.

First, "full" civil nuclear cooperation is no longer on offer since the Senate version of the Bill rules out the export of enrichment, reprocessing, and heavy water production technologies to India except under tightly controlled circumstances. Secondly, India is being required to provide the IAEA a "complete" declaration of civilian nuclear facilities and materials rather than of what it chooses to put on to its separation plan, as agreed by the U.S. in March. Thirdly, New Delhi is being told to negotiate not an India-specific safeguards agreement with the IAEA but one that is in conformity with the agency's "standards and principles." Fourthly, the reference in the July 18, 2005 agreement to "an Additional Protocol" has been replaced, in the Senate Bill, by an explicit reference to INFCIRC/540, the IAEA's model additional protocol for non-nuclear weapon states. Fifthly, the Senate Bill envisages a layer of U.S.-led inspections in addition to IAEA supervision. Sixthly, it requires that decisions in the NSG enabling nuclear trade with India are "made by consensus and consistent with its rules." Finally, the annual certification clauses are designed to give Washington additional leverage over New Delhi on wider strategic and foreign policy issues.

Where does the deal go from here? The Government must not continue to be in semi-denial, a state of mind reflected in the Prime Minister's testy remark that "we shouldn't blow it [the differences] out of proportion." Anything inconsistent with the July 18, 2005 agreement must be considered deal-breaking. There are seven key issues on which there must be no compromise. First, sequencing: India must not enter into any binding agreement like IAEA safeguards until the U.S. and Nuclear Suppliers Group bar on civil nuclear cooperation with India is lifted. Secondly, it should negotiate a safeguards agreement with the IAEA based purely on the parameters specified by its scientists and legal experts. Thirdly, the Indian additional protocol must closely resemble the U.S. additional protocol, including its national security exclusion and its provisions on masked and managed access by international inspectors. Fourthly, "full" civilian cooperation must mean precisely that; there can be no arbitrary exclusion of civilian technologies relating to enrichment, reprocessing, and heavy water production. Fifthly, if the `perpetual' fuel guarantees have an exit clause for Washington — which would apply in the event of India conducting, unwisely in this newspaper's opinion, another nuclear explosive test — then the safeguards agreement must have a force majeure clause. Sixthly, it will be demeaning for India to accept U. S. "certification" for something it is legally or politically unwilling to accept, such as collaboration in isolating Iran or joining the Proliferation Security Initiative. Finally, there can be no U.S. access to a safeguarded Indian nuclear facility other than what is envisaged for U.S. high-technology exports under the existing bilateral end-use verification agreement.

In order to strengthen its hand in the last mile of negotiations and demonstrate that the U.S. is not the only country with an assertive legislature, the Manmohan Singh Government would do well to subject the nuclear deal in its final form — including the safeguards agreement, Additional Protocol, and U.S.-India Nuclear Cooperation Agreement (the so-called `123 agreement') — to binding parliamentary approval.

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