By Arun Kumar, IANS
Washington : Once approved by the US Congress, the 123 agreement to make the India-US civil nuclear deal operational overtakes the contentious enabling Hyde Act in all respects except one – a nuclear test by India, American experts suggest.
The deal could come unstuck if India conducts a test “for the sole sake of ‘asserting its sovereignty'”, experts at leading US think tanks suggested when asked by IANS what happens if India chooses to do so.
“If India conducts a nuclear test, that would presumably trigger the consultation provisions of the 123 agreement,” said Teresita Schaffer, director, South Asia Programme, Centre for Strategic and International Studies (CSIS).
“The US would be obliged to stop cooperation unless it became convinced, during those consultations, that the circumstances justified invoking the waiver provisions. But basically: India preserved its right to test; the US preserved its right to react if India tests,” she said.
Sharon Squassoni, senior associate, Non-proliferation Programme at Carnegie Endowment for International Peace, agrees. The Hyde Act only provides a waiver from the US Atomic Energy Act 1954’s provision for a halt in exports because of India’s 1998 nuclear test, but it would not suspend the requirement to stop exports in case India tests again.
“US exports must halt under Section 129 of the Atomic Energy Act unless the president determines that the cessation of exports would be seriously prejudicial to the achievement of US non-proliferation objectives or otherwise jeopardise the common defence and security. If the president waives on those grounds, Congress can pass a law to reinstate the halt,” she said.
Fearing that the administration would offer such justifications, Daryl G. Kimball, executive director, Arms Control Association, who looks at the deal as “deeply flawed”, says, “What it comes down to is that India has the right to test, other countries have the right to protest.
“It’s baffling that anyone in India believes that they can go in for a test without any consequences. There are consequences for everyone … there are consequences for the US too,” he says, asking other states ” to stop NSG (Nuclear Suppliers Group) to stop India”.
Even the “right of return” for nuclear materials and equipment would not be automatically triggered, he noted. “Look at that in the context of what the US is committed to do.
“That’s what I am worried about. The US will help India,” Kimball said referring to Washington’s pledge for a “reliable supply of fuel to India” including through a “group of friendly supplier countries” like Russia, France and Britain.
On the other hand, Lisa Curtis, senior research fellow at Asian Studies Centre, the Heritage Foundation, views the 123 accord as “a compromise document in every sense of the word”.
“While Section 106 of the Hyde Act is clear on the US point of view on future nuclear testing, Indian officials have been clear on the issue from their perspective, indicating that if it was in their supreme national interest ( i.e., Pakistan or China tests first), they would act in their own self-interest,” she said.
“It’s worth noting that India is not under the US nuclear umbrella like some other countries that are non-nuclear weapons states within the NPT. India has fought three wars with Pakistan and one with China, and we have to take into account these regional realities.
“But this also means that Washington needs to continue and redouble efforts to minimise the chance of a future India-Pakistan conflict, particularly steps related to nuclear confidence building, to avoid a dangerous regional arms race.
“Washington played a positive role in helping to defuse Indo-Pakistani military crises in 1999 and 2001-2002, and it should continue to remain engaged in the region in a way that promotes conflict resolution,” she said.
But “a potential future Indian nuclear test for the sole sake of ‘asserting its sovereignty’ would almost certainly squash the civil nuclear deal and impact negatively on overall US-India relations”, Curtis said.
But what takes precedence in the event of a dispute – the 123 agreement or the Hyde Act? The experts offered varying interpretations.
Schaffer for one said, “The US government is bound to act within the law and consistent with its international agreements. Any ‘dispute’ would become a matter of how both are interpreted.”
But Squassoni did not consider this question ” really relevant”. For “the Hyde Act and the Atomic Energy Act not only govern the pre-requisites for entering into a nuclear cooperation agreement but also how nuclear cooperation should be conducted and how it might be terminated.
“A 123 agreement doesn’t take precedence over the Atomic Energy Act – why should the India 123 agreement take precedence over the Hyde Act?” she asked, noting, “The provisions for termination are left completely open in the 123 agreement, yet the Hyde Act and the Atomic Energy Act contain very specific requirements.”
Kimball was of the view that generally speaking 123 will take precedence over the Hyde Act. Many of its provisions (IAEA safeguards, NSG exemption) relate to what has to be done before 123 comes into force.
But the fundamental Hyde provision that presidential authority would be revoked if India tests will remain. Other provisions are not going to apply afterwards, he said. The “sense of Congress” is anyway not legally binding.
State Department spokesman Sean McCormack’s recent statement that 123 contains a provision that the deal would be terminated in the event of nuclear test was thus an accurate statement, he said, although the text itself does not mention “testing”.
But under 123 the president could still issue a waiver on grounds of a changed security environment. “But it will be a presidential waiver, politically difficult to do, and he would not make such a decision,” Kimball said.
In Curtis’ view, “the US law takes precedence but Congressional officials are also mindful of international bilateral commitments and that is why there will be a good deal of time spent by Congressional members in ensuring the 123 Agreement is in conformity with US law.
“This is a highly complex negotiation and we are forging new territory in many ways. No one ever expected that bringing India in closer conformity with the international nuclear non-proliferation regime, while respecting its core security concerns, would be a simple task.
“But it is an effort that will pay off for the US, for India, and for the international community, and this should be evident given India’s rising global role and its responsible stewardship of its nuclear assets, despite remaining outside the NPT framework for so many years,” she concluded.