With the US Congress approving legislation that allows civilian nuclear trade with India, a new era in India’s nuclear relationship with the world has begun. While there is much jubilation in India over the US legislation - it paves the way to ending India’s three-decade-long nuclear isolation and will enable it to purchase nuclear fuel and technology - sections in India’s scientific and strategic community remain concerned.
However, it will be at least another six months before India can begin purchasing nuclear fuel and technologies. Several further steps remain. India and the United States will now have to finalize the bilateral 123 Agreement. New Delhi will have to sign India-specific safeguards with the International Atomic Energy Agency (IAEA). And the 45-country Nuclear Suppliers Group (NSG) has to give its nod to lifting the ban on international nuclear commerce with India.
The 123 Agreement is so called because Section 123 of the US Atomic Energy Act of 1954 establishes an agreement for cooperation as a prerequisite for nuclear deals between the US and any other nation.
Diplomats and lobbyists are patting themselves on their backs for having accomplished what seemed nearly impossible even a few weeks ago - getting the necessary enabling legislation passed through Congress. New Delhi is relieved that several of the concerns it had raised with regard to provisions in bills passed by the House of Representatives and the Senate have been addressed in the conference committee, which ironed out differences in the bills passed by the two houses.
Much of the language that was jarring has been deleted or diluted. For instance, the provision in the House of Representatives’ bill that made it binding on the US to stop fuel supplies to India by other countries should it stop its own supplies has been done away with.
And the Senate’s insistence on “annual certification” by the US administration that India is complying with all the conditions has been watered down to an annual “assessment” that the US government does in the case of several other laws. The controversial demand that India dovetails its Iran policy to US concerns over its nuclear program has been made a non-binding clause in the legislation.
C Raja Mohan, strategic-affairs editor with the Indian Express, has described the US legislation removing restrictions of nuclear trade as India’s “nuclear liberation”. It “has not only freed India from three and a half decades of nuclear bondage, but also met two of India’s very important strategic objectives - breaking the nuclear parity with Pakistan and establishing strategic equivalence with China”.
Mohan points out that the nuclear Non-Proliferation Treaty (NPT) regime had denied India cooperation both on nuclear weapons and on civil nuclear energy. Now the administration of US President George W Bush has come around to accepting that India should have both. Besides, “in declaring that this exemption from global nuclear rules is only for India and that a similar favor will not be extended to Pakistan, Congress broke the long-standing sense of nuclear parity between New Delhi and Islamabad. In accepting that New Delhi is a nuclear-weapon power, and making special rules for civilian nuclear cooperation with it, the US has also established a practical nuclear equivalence between India and China.”
But several scientists and analysts do not buy into this argument. They are not impressed with the legislation. They argue that language has been tweaked and clauses shifted around from one section to another and that by and large India’s concerns remain.
According to P K Iyengar, former chairman of India’s Atomic Energy Commission, the legislation aims at indirectly making India party to the NPT, the Fissile Material Cut-off Treaty and the Comprehensive Test Ban Treaty (CTBT) without India signing them. He pointed out that the cooperation would be terminated if India conducted a nuclear test. “It is impossible to have a minimum credible deterrent without conducting nuclear tests,” he said. There is concern too over end-use monitoring by the US.
Proponents of the nuclear deal in India are hailing it for ending the “nuclear apartheid of the past 30 years”. They are pointing out that the legislation, while not saying so explicitly, deals with India as a nuclear-weapons power.
This is not so, says Bharat Karnad, research fellow in the Center for Policy Research in Delhi and author of Nuclear Weapons and Indian Security: The Realist Foundations of Strategy. “India continues to be treated as a non-nuclear state,” Karnad told Asia Times Online.
It is being denied full civilian nuclear cooperation. Access to cutting-edge technologies relating to enrichment, reprocessing of spent fuel, and heavy-water production has been refused. “Besides, the requirement that India accept safeguards in perpetuity on its civilian nuclear reactors is something that is applicable to non-nuclear-weapon states,” Karnad argued.
The US legislation removing restrictions on nuclear cooperation with India is important because this is a requirement for the NSG to change its guidelines. “Once the NSG guidelines are changed India will be able to do deals with other NSG members,” said a retired diplomat, adding that this will give India more choice.
Noted strategic-affairs expert K Subrahmanyam pointed out: “The clauses in the 123 Agreement will be binding on India only if it buys nuclear reactors and material from the US, and not if it gets NSG clearance to buy them from France and Russia, for instance. This is the strategy China has adopted. France and Russia supply reactors and technology on the basis of NSG guidelines and under IAEA safeguards, and do not impose the kind of conditions the US Congress tends to impose.”
But will the other NSG members be willing to strike deals with India that disregard US concerns? Karnad maintains that the agreement Washington reaches with India will determine how the other NSG members respond to India.
The US legislation is not binding on India. “This legislation is entirely an American affair,” said Subrahmanyam. It is the bilateral 123 Agreement that Delhi and Washington will now have to finalize that will be binding on India. So it is the 123 Agreement that is “the real test”.
India seems to be hoping that issues of concern that remain in the US legislation will be removed in the 123 document. “We have to work for further negotiations on the 123 Agreement. If that is modified in favor of India, then we will go ahead in signing the deal,” said M R Srinivasan, former chairman of the Atomic Energy Commission.
Government sources say clauses in the legislation such as the non-binding one that calls on India to participate actively in US efforts to dissuade and contain Iran for its nuclear program are “not overly worrying” as they will not find a place in the 123 Agreement.
But such hopes seem misplaced. Skirting the legislation in the 123 document is not going to be easy. According to Karnad, “The 123 Agreement will have to adhere to all the parameters in the legislation and cannot be independent of what Congress has legislated as the public law of the land.” Since the 123 Agreement will go to Congress for approval, there is no way the agreement can skirt the legislation as it would then be rejected by Congress.
This point is underscored by South Asia analyst Teresita Schaffer of the Center for Strategic and International Studies. It is “important not to insert anything in the agreement that appears to contradict the provisions of the final nuclear bill”, she said.
The drama will now shift to New Delhi, where India’s Parliament is in session. The opposition Bharatiya Janata Party has pointed out that “the purpose of the deal is to impose on India “conditionalities that are worse than those incorporated in the NPT and CTBT, in perpetuity and without an exit clause”. For its part, the left can be expected to focus its attack on the deal undermining India’s sovereignty in foreign policy.
Meanwhile, Indian diplomats will step up efforts to win support of NSG member countries. For some months, they have been especially lobbying countries with reservations about India’s nuclear program. They have been stressing India’s impeccable track record with regard to non-proliferation and its responsible actions in unilaterally declaring a moratorium on nuclear testing and putting in place a no-first-use doctrine.
Indian diplomats say they have been pretty successful so far, having won support of such countries as Japan, Brazil and South Africa that had misgivings earlier. But a few members remain to be converted, and these will be the focus of the effort in the coming months.
Although the nuclear deal is not done yet, US nuclear-power companies have already started lining up to do business with India. Early this month, the largest trade mission from the United States to any country visited Mumbai. Of the mission’s 250 members, 30 were representatives of 14 US firms in the nuclear sector.
Indian officials who will negotiate the 123 Agreement would do well to bear in mind that the US is as keen as India to see the deal through. It means very big business for that country, and the US has much to gain from the deal. This should steel India’s resolve to stand firm and negotiate hard on the 123 Agreement.