Another nuclear deal ambush

A member of the US House of Representatives Howard L. Berman, a Democrat, has thrown yet another grenade aimed at blowing up the Indo-US nuclear agreement. On the eve of the Nuclear Suppliers Group meeting in Vienna on Thursday, the Congressman, who is Chairman of the powerful House Foreign Affairs Committee, has released confidential correspondence wherein the Bush Administration has given assurances that the US will not sell sensitive technologies relating to enrichment and reprocessing to India, and that it will terminate nuclear trade in the event of another Indian nuclear test. However, Indian officials who did not want to be quoted because of the upcoming NSG meeting said that the there was nothing new in Berman’s points. It appears that Berman is trying to influence the NSG meeting and hoping that it will insist on adding a clause to the draft waiver agreement that will be in line with the assurance that the Congress has got from the Administration. But if you look at the entire record-- the July 18, 2005 agreement, the Indo-US 123 Agreement, the India-specific IAEA safeguards, the position is much more nuanced.

The correspondence related to 45 highly technical questions that members of Congress posed about the deal before voting on the Hyde Act in 2006. The Administration has responded to the questions through a confidential letter on January 16, 2008 to Berman’s predecessor, Rep Tom Lantos who has since passed away. Berman, who has publicly opposed the Indo-US nuclear deal and declared that he will vote against it when it comes up again for an up or down vote if all the conditions set by the Congress at the time of passing the Hyde Act in 2006 are met.

A senior Indian official familiar with the deal said that the issues raised by Berman are a matter of interpretation. By the application of the US Atomic Energy Act of 1954, all cooperation between India and the US will come to an end should India test again because “the Hyde Act has provided a waiver for the tests conducted till May 13, 1998.” Actually the key operational clause of the Hyde Act was Section 104 which provided the US Administration the ability to overlook actions like the nuclear tests that had occurred before the July 18, 2005, the date in which the Indo-US nuclear agreement was signed by President George W Bush and Prime Minister Manmohan Singh in Washington DC.

However, the 123 Agreement worked out by India and the US detailing the conditions for the nuclear trade, made it clear through its Article XIV that that the parties would consult with each other before terminating their cooperation and in the process they would “take into account” whether the reasons for seeking the termination were related to “a party’s serious concern about a changed security environment or as a response to a similar action by other states which could impact national security.” The wording very clearly relates to the eventuality that India is compelled to begin testing again in the wake of tests by other parties like China or Pakistan.

India has also repeatedly emphasized that it is bound by the 123 Agreement and not the Hyde Act and officials have been at pains to point out that by the Vienna Convention on the Law of Treaties, international agreements always take precedence over domestic legislation. In other words, the Indo-US 123 Agreement will trump the Hyde Act.

The second issue raised by Berman—that of the issue of the US export of enrichment and reprocessing (ENR) technologies—is actually bogus. Actually the 123 Agreement’s Article V Section 2 makes it clear that the US will not provide India with enrichment, reprocessing or heavy water production technology. To acquire them India would have to seek an amendment of the 123 Agreement.

According to Indian officials, the reason why India agreed to this is that India already possesses all these technologies and is not seeking them. However, it is seeking components of these “sensitive” technologies, but this is a matter that has been left for further negotiation. Considering that the US does not give such technology to anyone, their decision to leave the matter for future negotiation was itself a gain for India.

New Delhi has taken the stand that the it is entering a civil nuclear agreement with the US and the NSG members. The key to the agreement is the acceptance by these countries of India’s military nuclear programme. The Indian policy in this is contained in a statement made by Prime Minister Atal Bihari Vajpayee in September 1998 at the United Nations General Assembly where he noted that “after concluding this limited testing program, India announced a voluntary moratorium on further underground nuclear test explosions. We conveyed our willingness to move towards a de jure formalization of this obligation. In announcing a moratorium, India has already accepted the basic obligation of the CTBT.”

In an official statement released on Wednesday, the government says it will be bound only "by the terms of the bilateral agreement between India and the United States, the India-specific safeguards agreement (with the IAEA) and the clean waiver from the NSG, which we hope will be forthcoming ...."

The statement goes on to add that insofar as testing is concerned, " We have a unilateral moratorium on testing...."