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India has little reason to cheer

Siddharth Varadarajan

Of the 10 concerns raised by Prime Minister Manmohan Singh, the final U.S. law on nuclear cooperation addresses little more than two-and-a-half. Does this mean India should walk away?

IT IS a measure of the American legislature's indifference to the assurances conveyed by Prime Minister Manmohan Singh to the Indian Parliament on August 17 that most of the objections he raised about the legislative shape given to the U.S.-India nuclear agreement have largely been ignored. Worse, the U.S. Congress — with the encouragement and support of the Bush administration — has actually tried to mislead the Indian establishment and public opinion by introducing cosmetic or procedural changes that leave untouched the shifting of goalposts that has consistently occurred since the two countries issued their joint statement last July.

First, it is now clear, for example, that despite the Prime Minister's categorical assurance that India would not settle for anything less than the resumption of "full civil nuclear energy cooperation," neither the U.S. Congress nor the Administration have any intention of allowing India to access enrichment and reprocessing technologies. Such is the dishonesty here that although the Act creates an enabling provision, the Background Note attached to the legislation makes it quite clear no such cooperation is going to take place. On this issue, then, the score is zero.

Secondly, on the issues of reciprocity and sequencing, the Act addresses only half the concern highlighted by the Prime Minister. The July 18 agreement spoke of India and the U.S. taking reciprocal steps to implement their side of the bargain. India is no longer expected to bring into effect its safeguards agreement with the International Atomic Energy Agency but has nevertheless to take matters up to the point where all that remains is the final signature. What this means is that the agreement should have already been submitted to the IAEA Board of Governors for approval, since that is a condition precedent to the final signing. Only then will the U.S. President make his `determination' of Indian compliance, following which the bilateral U.S.-India Nuclear Cooperation Agreement (i.e. 123 Agreement) gets taken up by Congress for approval. At that point, if Congress insists on changes — including changes that may prompt India to seek a revision in the language of its safeguards agreement — the procedure will become extremely fraught with legal and political complications. The July 2005 agreement envisaged the 123 Agreement and India-specific safeguards agreement proceeding in tandem but this is not going to happen. On this issue, therefore, the score is only half.

Certification by another name

Thirdly, the Prime Minister used very strong language to oppose the requirement that the U.S. President make annual reports to Congress including certification that India is in full compliance with its non-proliferation and other commitments. "We have made it clear to the United States our opposition to these provisions, even if they are projected as non-binding on India, as being contrary to the letter and spirit of the July Statement. We have told the US Administration that the effect of such certification will be to diminish a permanent waiver authority into an annual one. We have also indicated that this would introduce an element of uncertainty regarding future cooperation and is not acceptable to us." What has been the U.S. response? Congress has merely replaced the word "certification" with "assessment." Thus, the U.S. President is still obligated by Section 104 (g)(2)(D) to report every year his assessment of whether India is complying. He must also provide his assessment of whether India is working with the U.S. to contain and constrain Iran. These are all elements of political subjectivity. True, the Act does not say the deal is off in case of a negative assessment, but then neither did the Senate version stipulate such a course of action in case of a negative "certification." Yet, Dr. Singh quite correctly anticipated that this kind of annual reporting process would cause difficulties for India by introducing an element of uncertainty and wanted it removed. On this issue, then, the score is zero.

Fourthly, the Prime Minister said he would "oppose any legislative provisions that mandate scrutiny of either our nuclear weapons programme or our unsafeguarded nuclear facilities." Depending on what Dr. Singh meant by "scrutiny," the score is either zero or one. Certainly, the Act mandates the U.S. President to scrutinise in minute detail every aspect of India's nuclear weapons programme, including dual use capabilities and the production and import of nuclear materials. Of course, India is not obliged to facilitate this scrutiny, which arguably takes place even now.

Fifthly, Dr. Singh assured Parliament that the nuclear deal would involve the U.S. helping to guarantee for India uninterrupted fuel supplies in exchange for the placing of its civilian reactors under in-perpetuity safeguards. He also stated: "An important assurance is the commitment of support for India's right to build up strategic reserves of nuclear fuel over the lifetime of India's reactors." The Act, in fact, enjoins the U.S. government to oppose the stockpiling of nuclear fuel beyond a small reserve to take care of market imperfections. As if the Act were not explicit enough, the accompanying Background Note prepared by the six Senators and Congressmen who cleared the final version of the law explicitly reiterates this caveat in black and white. Here, once again, the score is zero.

Sixthly, the Prime Minister insisted the autonomy and integrity of India's civilian nuclear programme would be maintained. Here, he did not specify any particular section in the draft U.S. law that might compromise this programme. But unless India is able to exercise its right to reprocess — under international safeguards, of course — the integrity of its indigenous three-stage civil nuclear programme will always be under pressure. The new Act is completely silent on this matter though it is possible the Government could negotiate appropriate language on reprocessing in the 123 Agreement. On this front, therefore, the score is half.

Seventhly, the Prime Minister said India would never accept a moratorium on the production of fissile material. To the extent to which the U.S. Act does not mandate such a moratorium, his assurance has been borne out as the score here is one. But there is a potential area of discord. The Act demands that India "working actively" with the U.S. on a multilateral Fissile Material Cut-Off Treaty. In Parliament, Dr. Singh said India stood for a "non-discriminatory, multilaterally negotiated and internationally verifiable" FMCT. The U.S. insists the FMCT must not be verifiable. How India can work actively towards such an objective remains to be seen.

Eighthly, Dr. Singh promised Parliament there would be no deviation from India's commitment to non-discriminatory, universal nuclear disarmament. How effectively India is able to push this commitment is a different matter since the Act attempts to tie India down to backing only horizontal proliferation. Indeed, many of the "non-proliferation" measures the country is being told to actively support are quite likely to produce the opposite result — as the North Korean case demonstrated last month. Here, too, then, the score is only half.

Ninthly, the Prime Minister had objected to "provision in the proposed US law that were India to detonate a nuclear explosive device, the US will have the right to cease further cooperation." Curiously, he did not demand that this reference be removed or at least modified to include a reference to the possibility of the U.S. or others testing. Nevertheless, he did state that India would not be able to accept a reference to its unilateral test moratorium in the 123 Agreement. That hurdle has yet to be crossed. But the current Act is very clear that an Indian test — regardless of the circumstances which might occasion it — would lead to the end of nuclear cooperation, to efforts by the U.S. to cut off nuclear supplies to India from any other country, and to the demand that India return any equipment or fuel it may have received from an American source. Regardless of what the 123 Agreement says, then, India's unilateral moratorium is already being treated as a condition precedent for the entire deal and represents an attempt to intrude on Indian sovereignty. On this issue, the score is clearly zero.

Tenthly, the Prime Minister promised India would not accept additional verification measures other than IAEA safeguards. All the U.S. Act has done is swap an explicit demand for intrusive end-use verification with implicit provisions. In essence, there is no change. Here, the score is zero.

Where does this leave us? Out of 10, India scores between two-and-a-half and three. Does this mean India should walk away? Not quite. There is still the Nuclear Suppliers Group, whose changed guidelines may offer India a less restrictive framework for nuclear cooperation. This is, of course, highly unlikely but India can afford to wait and see how the debate at the NSG develops. The Background Note to the U.S. Act makes it clear that Washington will not tolerate a situation where NSG countries get to sell material to India that U.S. contractors might be barred from selling.

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