N-Deal wins congress vote - problems remain

06 October 2008
NEW DELHI, Oct 4 (IPS) - While the United States-India civilian nuclear cooperation deal has cleared its final and toughest legislative hurdle, the U.S. Senate, and will soon be turned into law by President George W. Bush into law, New Delhi is not yet celebrating in a full-throated fashion. Supporters of the deal have termed its passage in the U.S. Senate on Oct. 2, the birth anniversary of Mahatma Gandhi, as "historic" and as symbolic of India's "liberation" from "Atomic Apartheid" and the system of technology denial imposed on the country after its first nuclear blast 34 years ago. "There is simply no doubt that the wide support the deal has received in the International Atomic Energy Agency and plurilateral forums like the 45-nation Nuclear Suppliers' Group (NSG) is rooted in the desire of many states to accommodate India into the global power structure," says Lalit Mansingh, a former foreign secretary of India and an ambassador to the U.S. "The world knows India is emerging as a major power and must be respected as such although it has not signed the Nuclear Non-Proliferation Treaty (NPT),’’ Mansingh said. ‘’The deal is only one indication of this new attitude. But it is an important one. Its passage through the U.S. Congress must be welcomed." U.S. leaders have been effusive about the Congressional vote, which was pushed through after waiving normal rules of business and in the face of a number of hurdles and attempts to move amendments, especially by Democratic Party legislators. To rush the vote through in the present, final, session, of the U.S. Congress, Bills were fast-tracked in both its houses, which would have otherwise needed a 30-day waiting period. Finally, the Senate voted 86 to 13 in favour of the legislation called the U.S.-India Nuclear Cooperation Approval and Non-Proliferation Enhancement Act, which essentially ratifies a bilateral agreement signed last year between the two governments, named the 123 agreement after Section 123 of the US Atomic Energy Act pertaining to civilian nuclear cooperation with other countries. But Indian leaders are cautious and know that despite the passage of the US legislation, they will have to face a strong political opposition domestically and perhaps also in the NSG, which cleared the deal on September 6. While many leaders of the ruling United Progressive Alliance, including chairwoman Sonia Gandhi, have welcomed the passage of the U.S. legislation, the opposition parties have condemned it. The Communist Party of India-Marxist, leading the Left, has termed the legislation "a complete surrender to the Americans". The Left will observe Saturday, when Secretary of State Condoleezza Rice is expected to formally sign the 123 agreement with Foreign Minister Pranab Mukherjee, as a "black day" and hold protest demonstrations. Leaders of the main opposition, right-wing Bharatiya Janata Party have said the deal is unequal and would effectively bar India from conducting future nuclear tests. The BJP would not hesitate to conduct another test and would "review and renegotiate" the deal if voted to power. Indian leaders are equally concerned at the subtle differences between the just-enacted US legislation and the 123 agreement, and the interpretations placed on some US commitments by senior officials, including assurances of uninterrupted fuel supplies and restrictions on the transfer of uranium enrichment and spent-fuel reprocessing technologies. Just before the Congress debate, President Bush stated that some of the commitments in the 123 agreement are "political" in nature and not legally binding. Last week, as the Senate began its debate, Rice wrote a letter to the Senate majority leader to assure him that a nuclear test by India would result in "the most serious consequences,’’ including an automatic cut-off of U.S. cooperation and sanctions. This is in sharp contrast with the Indian stand that nothing in the 123 agreement prevents India from conducting a nuclear test, and that India can take "corrective measures", such as walking out of IAEA safeguards in case supplies are interrupted in response to an Indian test. On Thursday, U.S. Ambassador to India, David C. Mulford, told the media in New Delhi that "not every single commitment" in the 123 agreement is binding on the U.S., and in any case, the U.S. government cannot compel American companies to sell technology or equipment to India. Indian officials are particularly concerned at some key issues such as interpretation of the "meaning and legal effect" of the 123 agreement on the basis of all communications from the Bush administration to Congress prior to Sep. 20. These include a recently revealed letter to Howard Berman, chair of the House Committee on Foreign Affairs, in which Bush made the distinction between politically and legally binding commitments, and also tried to assuage other non-proliferation sentiments among U.S. lawmakers. Indian officials are equally concerned at the provision that nothing in the 123 agreement can supersede the legal requirements of the Hyde Act, passed by the U.S. Congress in December 2006, to enable nuclear cooperation with India. New Delhi's position is that it is only bound by the 123 agreement, and not the Hyde Act or any other U.S. domestic law. Similarly, the new U.S. legislation limits India's fuel reserves to "reasonable" and normal reactor operating requirements. But India asserts its right to build a "strategic fuel reserve". To get quick House approval of the India agreement, Condoleezza Rice acknowledged that the NSG waiver granted to India has some loopholes. In a personal commitment to Berman, she promised that the U.S. would make its "highest priority" to achieve a decision at the next NSG meeting to prohibit the export of enrichment and reprocessing equipment and technology to countries which have not signed the Nuclear Non-Proliferation Treaty (NPT). All these caveats and reservations add up to conditions that go beyond the 123 agreement and the original accord inked between Bush and Prime Minister Manmohan Singh in July 2005. India says such conditions are unacceptable. In a statement signing the new Act into law, Bush can waive some of these conditions and make the new law more palatable to India. Many Indian policymakers are waiting to see how far Bush will go to accommodate Indian concerns and rewrite the fine print of the law. As India's Atomic Energy Commission chairman Anil Kakodkar put it: "We need to study the whole thing and act according to our national interests." However, a lot will depend on the changed balance of political forces in the U.S. after the coming presidential and Congress elections. "If the Democrats emerge victorious in both sets of elections, they might again try to introduce conditions in the actual operation of the U.S. law, despite the presidential waivers," says Achin Vanaik, professor of international relations and global politics at Delhi University. Vanaik believes that the deal marks a turning point in U.S.-India relations, and more broadly, India's position within the global power structure. ''So long as India overcomes its isolation from the global nuclear trade regime and is accepted as a legitimate nuclear power, despite not having signed the NPT or any other nuclear restraint or disarmament agreement, the Indian elite will be pleased,'' he said.
Praful Bidwai, a fellow of the Transnational Institute, is a senior Indian journalist, political activist and widely published commentator. He is a co-author (with Achin Vanaik) of New Nukes: India, Pakistan and Global Nuclear Disarmament.