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http://www.telegraphindia.com/106121...ry_7151369.asp


Roadblocks ahead

When parliamentarians debate the India-US civilian nuclear cooperation deal, they would find that India is in a complete bind over the deal. There is little possibility of either backing out now that the US Congress has passed the Hyde Act or is going to do so later if the bilateral agreement for cooperation does not suit India’s interests. What seems improbable now will become impossible later.

The Hyde Act is the enabling legislation that allows Washington and New Delhi to enter into a bilateral agreement for civilian nuclear cooperation. The Bush administration has gone out of its way to get the legislation through the lame duck session of the US Congress. For India to back out now would invite a backlash.

However, saying no after getting into a bilateral agreement with the United States of America (known as the “123” Agreement after Section 123 of the US Atomic Energy Act of 1954) would be even more difficult. The Indian parliament cannot hold back the government, as there is no provision in India for the parliament to ratify international agreements.

The manner in which US under- secretary of state, Nicholas Burns, was escorted around Delhi by top foreign service officials on the eve of the Hyde Act being passed, suggested that the government was fully on board, even if it was aware of the shortcomings of the act. New Delhi has also given the impression of a supportive public mood.

The US, too, would have made a favourable assessment of public opinion in India from the fact that our strategic experts and diplomatic reporters have either been singing hosannas in the media or have kept silent about the deal.

Two arguments have been given by the government at various times to defend the deal: One, that whatever the US does through the Hyde Act is its internal business and does not affect us; two, that India would be bound only by the bilateral 123 Agreement. This claim that the unacceptable (“extraneous and prescriptive”) provisions of the Hyde Act can somehow be mitigated through the 123 Agreement is misleading.

Let us understand the subterfuge involved. The overarching law that governs US policy on nuclear issues is the Atomic Energy Act of 1954. From this law follows the Henry J. Hyde US-India Peaceful Atomic Energy Cooperation Act of 2006 or, in short, the Hyde Act. This legislation deals with exemptions for the India-US cooperation deal from certain requirements of the generic legislation — the Atomic Energy Act.

The part of the Atomic Energy Act, which deals with international cooperation is listed under chapter 11, Section 123, and entitled “Co-operation with other nations”. The 123 Agreement between India and the US follows from the Hyde Act and it has to be negotiated under this particular section of the Atomic Energy Act. The Atomic Energy Act, the Hyde Act and the bilateral 123 Agreement are, therefore related hierarchically.

Any agreement under Section 123 of the Atomic Energy Act would by definition be under US law. In negotiating such an agreement, the US administration cannot go against its internal law — neither the Hyde Act nor the parent legislation, the Atomic Energy Act. In any conflict between an international agreement and US law, the latter predominates. A case in point is the fuel supply agreement India had with the US for the Tarapur atomic power plant. After India tested in 1974, fuel supply to Tarapur was stopped as was reprocessing of the spent fuel because US domestic laws kicked in.

To then say that if the Hyde Act does not meet India’s requirement, this can be corrected in the 123 Agreement is to fly in the face of the existing hierarchy of US laws.

The Hyde Act has provisions, which clearly go against the understanding India and the US had. This was reflected in the joint statement of July 18, 2005 and the separation plan of civilian and military facilities of March 2, 2006.

The act does not provide for full nuclear fuel cycle cooperation. There are no guarantees of life-time fuel supply in return for safeguards in perpetuity for civilian nuclear power plants. End-use verification procedures remain, as do the double-layer of safeguards of the International Atomic Energy Agency and the fallback safeguards under US law. The intrusive annual reporting requirements also remain in the legislation. India is expected to unilaterally give a date to cease fissile material production even before the international Fissile Material Cut-off Treaty is signed. The US retains its right to conduct nuclear tests, as it has not signed the Comprehensive Test Ban Treaty. But India, which also refused to sign the CTBT, will be bound by a bilateral commitment not to conduct any more tests or face punishment, ending all co-operation. Indian foreign policy is expected to be “congruent to that of the United States” and the provisions about following Washington’s lead on Iran remain.

To then claim that through sleight-of-words these issues can be dealt with in the 123 Agreement is to test public credulity. If the bilateral agreement uses acceptable language on end-use verification and further tests, the relevant US laws which direct the administration to cease nuclear cooperation when India conducts a nuclear test or fails end use certification will remain operational. The 123 Agreement, through clever use of language, may create a semblance of acceptability of Indian concerns but the enabling legislation, the Hyde Act, and the Atomic Energy Act will still apply to India.

This, however, is not the only problem that New Delhi will face. The negotiations with the IAEA and the Nuclear Suppliers’ Group will not be easy. The IAEA has never dealt with a case like India’s — under the provisions of the Nuclear Non-Proliferation Treaty, it has either dealt with nuclear weapons powers (those who tested before 1968) or the non-nuclear weapons powers. India is not a nuclear weapons power under the definition of NPT and yet possesses nuclear weapons. Therefore, the IAEA needs to evolve “India-specific safeguards” to put a special inspections and accounting regime in place.

The US wants these safeguards to be as close as possible to those applicable to non-nuclear weapons powers. The Hyde Act clearly states that the Additional Protocol which India signs with the IAEA should be based on the Model Protocol 540 which applies to non-nuclear weapons states. The IAEA has, thus, been charged with creating an absolute firewall between India’s civilian and military programme which would require a stringent inspections regime. Since the IAEA does not have the requisite financial resources to implement such a regime, one should not be surprised if the US steps in to help in its implementation.

The emphasis on consensus in the NSG advocated by the Hyde Act will ensure that the US administration does not bestow special favours on India while other members of the cartel also do not act in violation of America’s commercial interests.

The negotiations are going to get progressively tougher. It is like climbing a mountain — the air is rarefied and then the weather worsens. Going up becomes difficult but coming down is not without risk.