In My View

1-2-3, Cha, Cha, Cha

The Indo-US nuclear deal is looking less and less like a tango and more like an African hula dance. While the main aim of the US government is to bring India into the ambit of the global nuclear regime, and thus restrict its manoeuvrability, India looks at it as an escape hatch through which the country can slip into the market for nuclear commerce and access of hitherto forbidden technology.

In the process, the current negotiations on what is called the ‘123 deal’ or more formally, a Peaceful Nuclear Cooperation Agreement – under the sec 123 of the US Atomic Energy Act of 1954 – is about getting the semantics right so that the final agreement not only conforms to the assurances given by the Prime Minister, Dr Manmohan Singh to Parliament but also, to the India-specific law, passed by the USCongress called the Hyde Act. A tall order, indeed!

Yet, notably the US president has the right to waive much of the limitation that can be imposed by the Congress under sec 128 and 129 of the Atomic Energy Act, because of failure of “full scope safeguards” of the IAEA on the recipient, and/or termination of peaceful nuclear material and technology on account of “material breach” of a Peaceful Nuclear Cooperation Agreement. This can be only on account of US presidential determination that, “cessation of such exports would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardise the common defense and security.”

Crucially, India has concluded strategic partnership agreement, called the Defence Framework Agreement, with the USA two years ago. India has already received the generosity of the US legislatures once when the US Senate Foreign Relations Committee observed that India could not be provided exemption by the US president under the provision of the sec 123 of the US Atomic Energy Act. The result has been the Hyde Act.

While doing the same, the Act had still imposed certain conditions, much of it is well known in the Indo-US strategic circles. In terms of exporting Uranium enrichment and reprocessing technology technology, the US domestic bar is really technical in nature as any other country could export the technology to India after the Nuclear Suppliers’ Group (NSG) regulations are relaxed. Though the USA still maintains a certain control through influence on the NSG’s decision to supply them through a third country.

Notwithstanding the feel-good nature of these aforesaid provisions, there are two important caveats. The first is an attempt at transforming India’s voluntary moratorium on nuclear weapon testing into an international commitment of no further tests. The second is of more fundamental nature. Sec 108 of the Hyde Act states that it directs the US President to inform the US Congress of the construction of a nuclear facility in India, and significant changes in the production by India of nuclear weapons or in the types or amounts of fissile material produced.

This would necessitate an amount of intrusive oversight by the American government on the Indian nuclear programme, both civil and military.

Chairman of the Indian Atomic Energy Commission, Dr Anil Kakodkar had been talking about the proposed agreement to “explicitly state” all the safeguards that the country needs to maintain its vital interests.

He had also stated that the prime minister’s statement of concern in Parliament on 17 August, 2006, needs to be reflected in the 123 agreement as concrete provisions addressing them.

Some of those concerns are worth recounting. They are,

(a) Dr Singh had stated that the requirement by the US president for annual certification to the US Congress of India’s compliance with the “non proliferation and other commitments” changes the nature of “permanent waiver” to India to an “annual waiver.”

(b) He had also said, “We have made clear to the US that India’s strategic programme is totally outside the purview of the July (2005) (Joint) Statement, and we oppose any legislative provisions that Mandate scrutiny of either our nuclear weapons programme or our unsafeguarded nuclear facilities.”

(c) “We will not allow external scrutiny of our strategic programme in any manner, much less allow it to be a condition for future nuclear cooperation between India and the international community,” Dr Singh had assured the country.

The question may thus arise, why should the USA or the members of the NSG be interested to do a deal with India, under the circumstances, if it were to leave significant elements of the Indian nuclear programme outside of the purview of international scrutiny?

No Indian leader has yet addressed this issue. They have not stated, what are the benefits the US seeks from bringing India into the fold of the global nuclear regime? Some rationale has been provided by the US strategic analysts. They have stated that by bringing India – an important hold-out country of the Nonproliferation of Nuclear Weapons Treaty (NPT) - into international fold, the US hopes to achieve its strategic goal of strengthening the exclusionary clauses of the current nuclear regime.

If one were to follow from that rationale, then India’s stated intransigence about its strategic nuclear programme could only add to the uncertainty that rules the nuclear realm, especially after the fracas with the Iranian and North Korean nuclear programme.

In other words, if the 123 agreement has to address the Indian concerns, it will have to do so at the cost of its most important strategic goal.

Pinaki Bhattacharya, currently located in Kolkata, is Special Correspondent with the Mathrubhumi (Kerala). He writes on Strategic Security issues. He can be contacted at pinaki63@dataone.in