ON JULY 27 the world`s oldest and the world`s largest democracy, to quote US undersecretary of state,
Nicholas Burns, reached an agreement on the terms and conditions of a civil nuclear cooperation accord, known as the 123 agreement. The Americans have termed it as the `symbolic centrepiece of a growing global partnership between our two countries.`
Going through the details of the agreement and the explanatory briefing provided by American officials and seeking to reconcile its provisions with the American Atomic Energy Act of 1954 and the more recent Hyde Act, I could only marvel at the negotiating skill and tenacity of the
Indian officials.
They got everything they wanted and more, leaving it to their American counterparts to find the convoluted language that could somehow suggest that the agreement was in line with the letter and spirit of current American law.
Current American law requires that all nuclear cooperation must cease with any country that carries out a nuclear explosion. The Americans insist that even while this has not been specifically stated in the agreement American law will apply. The Indians have insisted that they must not be subject to any restriction on this account. The Americans have promised under the agreement to help India build a strategic fuel reserve so that Indian nuclear activity can continue even if there is disruption in fuel supplies.
They have added that if under American law they are required to stop fuel supply themselves and to ask for the return of the fuel and technology that they have supplied they will work with India to find it alternate fuel supplies.
On carefully reading the text of the agreement, it appears that even this American law may not apply to the Indo-US agreement. The agreement states that `Consistent with the July 18, 2005, Joint Statement, the
United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. As part of its implementation of the July 18, 2005, Joint Statement the United States is committed to seeking agreement from the US Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market.`
It is possible that the change in domestic law may be an India-specific provision that allows nuclear cooperation to continue even if India carries out a nuclear explosion.
Such an interpretation may appear far-fetched but is supported by the provision in the agreement for the termination of the deal. This states that either party can give a year`s notice for terminating the agreement. It must give the reasons for this and be prepared to hold consultations on the subject.
In other words, there may be no immediate cessation of nuclear cooperation and American law may be amended to delay the cessation, even if India does carry out a nuclear explosion in response to the resumption of testing by China or Pakistan.
The Indians, however, have been careful to guard against the possibility and have insisted that the Americans help them negotiate an India-specific agreement with the IAEA which would allow them to withdraw the civilian reactors from safeguards if there was an interruption in fuel supplies rather than retaining the usual `perpetuity` safeguards provisions that are part and parcel of IAEA safeguard agreements.
The Indians had been adamant from the start that they did not want to return the spent fuel from their safeguarded reactors because they wanted to extract the plutonium from such fuel for use in their breeder reactors. Given their own problems with the storage of spent fuel, the Americans did not want the spent fuel back. As far as I know the Americans have not yet taken back the spent fuel from the Tarapur reactors which they had supplied and for which they had provided the fuel.
The Americans claim that the breakthrough for the agreement came when the Indians offered to build a reprocessing facility and to place it under IAEA safeguards. Why this was so is not clear but it is apparent that the Americans are also prepared to amend the 123 agreement in future to provide the equipment and technology for the state of the art reprocessing facility that the Indians have undertaken to build.
The Indians have got a `sweetheart` deal. Without detracting in any way from the negotiating skills of the Indian team it reflects largely on the Bush administration`s desperate need to chalk up at least one foreign policy success in a record of disastrous failures. There is also, of course, the vision of a strategic partnership, though not shared by all parts of the American foreign policy establishment. This will help cement the alliance that the US is seeking to build to `contain` China.
In that context it could be said that all the concessions that India won were those that had to be made if India was to achieve the same `nuclear status` as China. It may also be the expression of a hope that India would cooperate in isolating Iran and thus would withdraw support for, or delay, the proposed Iran-Pakistan-India pipeline.
The question is whether this agreement will win the consent of the Indians, the NSG, the IAEA and the American Congress.
The Indian Left, the allies that keep the Congress government afloat, has raised a ruckus about the agreement, maintaining that it restricts India`s sovereignty. The starting point for their objection is a non-binding clause in the Hyde Act which directs the US president to determine whether India is cooperating with American efforts to confront Iran about its nuclear programme.
Most observers, however, believe that the Left, now required to fight the Congress in two state elections is using this as a pretext to justify a parting of ways necessitated by the realities of the domestic political situation. The Bharatiya Janata Party`s Jaswant Singh has condemned the agreement stating that `a strategic partnership is not a synonym for strategic subservience, and that`s why we are opposed to it,` but he has apparently not provided any details of how this agreement makes India subservient.
The BJP will have a hard time opposing the agreement further since in the minds of most Indians the BJP government was the architect of this agreement.
For the most part the Indian establishment is solidly behind the agreement, which requires ratification only by the cabinet and not the parliament. This process has been completed. Even though a crisis atmosphere appears to prevail in New Delhi and a raucous debate can be expected in parliament, I doubt if this is an issue on which the coalition government will collapse requiring fresh elections.
In my view, Congress will make some token concessions such as delaying the commencement of negotiations with the IAEA and provide some more briefings to their coalition partners and win their neutrality if not assent. They will then proceed to woo the NSG and the IAEA using domestic opposition as a tool for getting them to endorse the unique concessions it has secured in the Indo-US agreement.
