:: Inder Malhotra

Nuke pact: Insight into verbal jugglery

Inder Malhotra

THREE years and three months after Prime Minister Manmohan Singh and President George W. Bush first signed the India-United States civilian nuclear deal, it has been finally clinched even though its supporters are euphoric, and its critics continue to rubbish it. When the US secretary of state Condoleezza Rice arrived in Delhi the other day, she was expecting to sign the 123 Agreement, together with her Indian counterpart, external affairs minister Pranab Mukherjee. She was clearly disappointed because her hosts wanted to wait for the statement President Bush was to make at the time of signing the enabling Bill passed by both Houses of US Congress into law.

This he did on Wednesday, and the core of his statement on the occasion — to the effect that the Congressional law endorsing the 123 Agreement, albeit with some riders, did not detract from the US "commitment" on fuel supplies to India — was seen by New Delhi as one addressing India’s major concern. Mr Mukherjee, therefore, flew across half the world to sign the 123 Agreement and flew back within 24 hours after he and Ms Rice had appended their signatures to the document.

More important than the signing ceremony was the Indian foreign minister’s refrain that the agreement reflected "a careful balance between rights and obligations for both sides" and that its "text was legally binding on both". This Indian assumption, repeatedly voiced by Mr Mukherjee, is obviously based on the US Supreme Court’s long-standing judgment that the President’s statement while signing a Bill into law is "part of that law". But then what happens to the clear language which is to the contrary, that the Congress has made part of the enabling law? Not only that, but President Bush’s own September 10 letter to the chairman of House International Relations Committee had stated categorically that American assurances on fuel supply were "political, not legal".

Consequently, at least a joint understanding of the various "binding clauses" of the 123 Agreement is necessary before it can be made operational. Therefore, those who have already jumped to the conclusion that the long-awaited deal has been "signed, sealed and delivered" are way ahead of reality. In fact, there is another important hurdle to be crossed before the next step can be taken: advance permission by the US for reprocessing spent fuel of safeguarded Indian power reactors in a "dedicated" facility to be established can come into effect only after all the details of the arrangement are settled to the satisfaction of both sides and of the International Atomic Energy Agency (IAEA). This will surely take time.

Let us leave out other intricate and arcane points of possible disputation. But there is no easy escape from the American legislature’s prescription that in the event of an Indian test, the termination of all nuclear cooperation must be immediate and automatic. The 123 Agreement, on the other hand, provides for a discussion between the two sides on the "mitigating" circumstances of the test before further action. President Bush said nothing on this subject when he signed the agreement into law. In these circumstances, New Delhi’s standard statement — "we have a sovereign right to test; others have a sovereign right to react" — is meaningless verbal jugglery.

In any case, there is no point pretending that the shortcomings in the agreement and the contradictions and ambiguities in the two countries’ interpretations of it would not create problems in future. But when all is said and done, the paramount advantage of the deal is that India has at long last been freed from "nuclear apartheid" and the "technology denial regime" that was, ironically, fashioned specifically to prevent India from going nuclear. Global nuclear trade is now open to India. Much depends, therefore, on how skilful and adroit this country can be in making the best of its opportunities.

This said, it is time to take stock of our own responsibility for creating and aggravating the controversies and difficulties that have made the passage of the deal, over the last three years, so painful. To be sure, there was opposition to the deal also in the US, thanks to the "non-proliferation Ayatollahs" entrenched in the permanent American establishment. But so strong was President Bush’s commitment to the deal that he overcame all obstructions, not only in his own country but also at the Nuclear Suppliers’ Group in Vienna. In fact, he even brought China, which had shown its hand practically at the last moment, in line. Mr Bush’s anxiety to have at least one shining foreign policy achievement in the midst of his disastrous record in Iraq and Afghanistan is understandable. But he has also been determined to make strategic partnership with rising and democratic India broader and deeper.

In India, unfortunately, the deal got mired in domestic political discord. It was upto Dr Manmohan Singh to develop a consensus between the government and the principal Opposition party, the BJP, if only because the deal was a logical follow-up to the saffron party’s policy when it was in power. But he failed to do so. The BJP’s bitter opposition to deal was clearly cynical. The CPI(M)-led Left Front was opposed to the deal on ideological grounds (astonishingly, it waxed eloquent in defence of India’s right to test though it has been consistently opposed to India possessing nuclear weapons). Curiously, the Congress Party’s own performance was nothing short of appalling. It prevaricated pathetically until July 2008 when the Prime Minister told the Congress president that either the deal should be pushed through or he would quit. Why he did not take this position a year earlier only the good doctor can explain. However, once he did so, Sonia Gandhi gave the signal and the Party rallied around him and the deal.

One can be certain that for a long time to come, the nuclear deal, as concluded, would remain under relentless attack. Only future historians would give Dr Singh credit for having done the country some service.