:: Brahma Chellaney

UPA misjudged N-deal, now blames America

Brahma Chellaney

The nuclear deal now on offer creates a Tarapur-style trap of gargantuan dimensions. The deal's terms are far worse than the agreement under which the US-built Tarapur nuclear power station was set up in the 1960s. Yet, New Delhi is entering into a new deal without resolving the long-festering Tarapur imbroglio, symbolised by the spent fuel that has been accumulating there for 37 years, with the US asserting a veto on Indian reprocessing and refusing to grant consent.

Disputes over the latest deal are flaring up even before it has been legalised, with New Delhi starting the blame game in earnest. Through its pet stooges in the media, it has accused Washington in recent days of "unilaterally altering the ground rules", of "repudiating fuel-supply assurances", of "introducing a dangerous new interpretation" on reprocessing, and of "robbing the deal of its essence".

Playing injured innocence, however, just doesn't wash. The fact is that while Washington has been consistent, candid and hard-nosed on the deal since 2005, New Delhi played a game of public deception all along, hoping its charade would not be uncovered. But now that it has run out of covers to cloak its ever-widening field of distortions, blaming America has become easy.

The revelations that spring from President George W. Bush's latest "Hyde Package" to Congress and his administration's leaked letter to a congressional panel are entirely consistent with earlier US official statements as well as with the provisions of the Hyde Act and the 123 Agreement. There is nothing new. Yet, the US today is being accused of seeking to rewrite or reinterpret the deal's terms. Consider the following:

l The US gave no guarantee of reactor-lifetime fuel supply or to help India build a strategic fuel reserve. Mr Bush's recent statement that American fuel-supply assurances are "not legally binding" is no different than past assertions by other US officials. For instance, then US under-secretary Nicholas Burns clarified in July 2007 that none of the US fuel assurances in the 123 accord "contradicts or conflicts with the legal right of any American President" to terminate supply and demand the return of supplied materials if India breached the US-prescribed conditions.

The 123 Agreement, significantly, makes no mention of the term "lifetime". It offers assured fuel supply only so long as India adheres to the stipulated conditions. Supply assurance, as the Hyde Act decrees, can cover only disruption due to market failure or technical problems, but not sanctions arising from India's non-compliance. Mr Burns, asked in an August 2, 2007, interview if America was committed to arranging alternative fuel supply if India tested, replied: "That's absolutely false". The Hyde Act indeed demands that India be prevented from building any fuel stockpile of a size that would permit its "riding out any sanctions that might be imposed" by the US in the future.

l Mr Bush's assertions on no upfront or permanent reprocessing consent to India are in line with what his officials said earlier. Mr Burns, for instance, announced the following at a July 27, 2007 news conference: one, there is no timeframe within which the US intends to grant India an operational consent to reprocess; and two, India has first to build a new "state-of-the-art" reprocessing facility to US satisfaction before special "arrangements and procedures" for reprocessing can be worked out.

India inexplicably agreed to negotiate a separate Section 131 agreement on reprocessing later - an accord that will need to pass congressional muster - although Washington granted Japan and EURATOM the actual right to reprocess upfront in a 123 Agreement. For example, the 1987 Japan-US 123 accord was accompanied by a nine-page "implementing agreement" that gave effect to "advance, long-term consent for reprocessing, transfers, alteration and storage of nuclear material" by spelling out the reprocessing-related arrangements.

In fact, New Delhi has gratuitously agreed to route all "foreign nuclear material" through a new reprocessing facility. As a result, even France is unwilling to grant India reprocessing right upfront at this stage.

l The recent US disclosure that India has agreed to inspections beyond those by the International Atomic Energy Agency is consistent with the Hyde Act's stipulation for "fall-back US safeguards" and with the 123 Agreement's Article 10(4). The revelation shatters the Prime Minister's assurance to Parliament that "we will accept only IAEA safeguards" and that "there is no question of accepting other verification measures or… allowing American inspectors to roam around our nuclear facilities".

l The US publicised intent to deny India sensitive and other dual-use technologies even under safeguards is no surprise. Washington had made it clear by 2006 that, despite originally committing to "full civil nuclear trade with India", its cooperation in practice would be less than full. The US indeed concluded a 123 accord with India more restrictive than its existing cooperation agreements with Australia, Japan and South Korea.

Piteously, India won't be able to import components for the special reprocessing facility it has agreed to build to US expectations, because its negotiators failed to persuade America to relax civil reprocessing, enrichment and heavy-water sanctions.

The Prime Minister had pledged in Parliament: "Before voluntarily placing our civilian facilities under IAEA safeguards, we will ensure all restrictions on India have been lifted". That pledge he is set to break.

l The recent US affirmation of an unfettered right to suspend all supplies forthwith meshes with the 123 Agreement's provisions. That accord only demands the serving of a one-year termination notice on any ground, however extraneous. Suspension of supplies can follow immediately.

For the US, such an unconstrained right was vital to tether New Delhi to the Hyde Act, an India-specific NPT. In congressional testimony last Thursday, the Bush administration again affirmed that "whether it's a test or an abrogation of a safeguards agreement, our actions will be bound by US law". Latest US statements on testing (such as, "the Indian government intends to uphold the continuation of the test moratorium") suggest that New Delhi has given its word to Washington never to test again.

Once the deal takes effect, the Hyde Act's post-implementation conditions will also kick in - from an annual presidential certification of Indian good behaviour to pressing India's "full compliance" with a non-nuclear, US-led cartel like the Missile Technology Control Regime.

Against this background, can the US be accused of leading up the garden path an India that was beseeching to be taken into a blind alley? Shouldn't New Delhi, in all fairness, acknowledge Washington's long-held position that a 123 Agreement with any State is neither a treaty nor has force under the Vienna Convention on the Law of Treaties (which the US hasn't even ratified)?

Many of the accusations now being hurled by surrogacy are actually part of a public-relations exercise by New Delhi to dissuade the congressional attachment of more conditions during the ongoing ratification process. Despite threats to turn its back on the US and do business only with France and Russia, New Delhi will dare not displease Washington. Continued cooperation under the deal hinges on India meeting its panoply of non-proliferation commitments that extend far beyond a test moratorium. The US could make life difficult for India at any time through an unfavourable assessment of its progress in meeting those commitments.