By Arun Kumar, IANS
Washington : The tempest in New Delhi that threatens to unravel the India-US civil nuclear deal may well be the proverbial “storm in a teacup”, as the hapless Indian ambassador here suggested in a moment of indiscretion.
It may be hard to hear reason in the din over Ronen Sen’s self-admittedly tactless remark about “headless chickens”, but analysts point out that the implementing the bilateral and highly technical 123 agreement finalised here last month is well within the lines drawn by Prime Minister Manmohan Singh and President George Bush.
Reconstructing the deal that was two years in the making, step by step, they remind that the July 18, 2005 Joint Statement between Manmohan Singh and Bush itself declared “their resolve to transform the relationship between their countries and establish a global partnership” and Washington’s alleged embrace was not a new found love.
The US president then promised to “seek agreement from Congress to adjust US laws and policies” and “work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India including but not limited to expeditious consideration of fuel supplies for
safeguarded nuclear reactors at Tarapur.”
For his part, Manmohan Singh agreed on “identifying and separating civilian and military nuclear facilities and programmes in a phased manner and filing a declaration regarding its civilian facilities with the International Atomic Energy Agency (IAEA).”
India also agreed on “taking a decision to place voluntarily its civilian nuclear facilities under IAEA safeguards; signing and adhering to an Additional Protocol with respect to civilian nuclear facilities; continuing India’s unilateral moratorium on nuclear testing… and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines.”
The two nations took the next decisive step on March 2, 2006 when a joint statement issued at the conclusion of Bush’s India visit “welcomed the successful completion of discussions on India’s separation plan and looked forward to the full implementation of the commitments in the July 18, 2005 Joint Statement on nuclear cooperation.”
However, the Republican controlled US Congress muddied the waters somewhat when last December it passed with overwhelming majorities an enabling law approving the deal in principle but also setting some conditions unpalatable to India and also somewhat contrary to promises made by Bush.
A prescriptive but non-binding section Section 102 of what has come to be known as “Henry J. Hyde Act” for one stated “the sense of Congress” that “the United States should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under United States law”.
Similarly “Statements of Policy” in Section 103, suggested that US should also “seek to prevent the transfer to a country of nuclear equipment, materials, or technology from other participating governments in the NSG or from any other source if nuclear transfers to that country are suspended or terminated” under the US Atomic Energy Act of 1954 or any other US law.
It even asked the US to achieve a moratorium on the production of fissile material for nuclear explosive purposes by India, Pakistan, and China as also “secure India’s full and active participation in US efforts to dissuade, isolate, and, if necessary, sanction and contain Iran” for its alleged efforts to acquire a nuclear weapons capability.
Bush, however, considered such prescriptions an encroachment into presidential prerogative to conduct the nation’s foreign affairs, and used a signing statement, a device little understood outside US that lets the president interpret a law signed by him, to assert that “My approval of the Act does not constitute my adoption of the statements of policy as US foreign policy.”
More significantly, he said if Section 104(d)(2) of the Act could be construed to prohibit the transferring or approving the transfer of an item to India contrary to Nuclear Suppliers Group transfer guidelines “a serious question would exist as to whether the provision unconstitutionally delegated legislative power to an international body.”
As such the executive branch shall give due weight to sections 103 and 104(d)(2) but treat them as “advisory”, he stated shortly after signing the nuclear bill into law Dec 18.
Section 104.3 also set conditions for export or re-export to India of any equipment, components, or materials related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water.
But these could be permitted if the end user “is a multinational facility participating in an IAEA-approved programme to provide alternatives to national fuel cycle capabilities; or is “associated with, a bilateral or multinational programme to develop a proliferation-resistant fuel cycle.”
The proposed 123 agreement thus met India’s insistence on its right to reprocess spent nuclear without breaking the US law thanks to New Delhi’s out of the box proposal to set up a special facility for fuel imported from any quarter.
Section 106 of the Hyde Act, however does state that, “any waiver under section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device” after the enactment of the Hyde Act.
With India not ready to include any reference to its unilateral moratorium on testing in a bilateral agreement, the 123 agreement avoids a reference to testing altogether, but also in deference to US law Article 14.4 does retain the “right to return” of transferred nuclear or non-nuclear material in the event of termination for whatever reason, presumably testing.
However, as Washington’s chief interlocutor, Nicholas Burns has pointed out the termination would not be automatic as Articles 13 and 14 provide for prompt consultations and consideration of the relevant circumstances leading to alleged violations of its terms.
Additionally Article 2.2 (e) “provides for development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors”. Article 5.6 (b) goes even further in suggesting convening of a group of friendly supplier countries like Russia, France and the United Kingdom to help restore fuel supply to India.
Article 2.4 affirms that agreement will not “affect the un-safeguarded nuclear activities of either party” or interfere with “military nuclear facilities” built “independent of this Agreement for their own purposes”.
To critics of the deal who suggest that Hyde Act could take away whatever gains India might have wrested through the 123 accord, analysts point to Article 16.4 stating “This Agreement shall be implemented in good faith and in accordance with the principles of international law”.
To make matters still plainer Article 14.3 “says that no breach of the accord would be considered ‘material’ unless it meets the test of the Vienna Convention” – under which “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
The 123 agreement which must be approved by the US Congress thus meets all of India’s concerns -insistence on assurances of fuel supply, right to reprocess spent fuel and its sovereign right to test – without running foul of the Hyde Act.
But then to the critics of the deal from the left or the right any stick is good enough, be it fair or “fowl” (reference to ‘headless chicken’), as a wag put it.
(Arun Kumar is the North America editor for IANS. He can be contacted at [email protected])