Part II: N-deal: Be careful what you wish for
The raging debate over the Fast Breeder Reactors may have subsided, but Rediff India Abroad's exclusive report N-Deal Failure Will hit Ties, shows that Bush administration officials and the US Congress may now have both alighted on the biggest 'deal-breaker' from the July 18 Joint Statement -- India's reiteration of its self-imposed moratorium on nuclear testing in a bilateral document.
In a document that is said to contain the Bush administration's replies to over ninety questions posed by the Senate Foreign Relations Committee, its chairman Senator Richard Lugar asked the administration whether it would be a good idea to stipulate that India would have to undertake not to test any more nuclear weapons to get the nuclear cooperation agreement.
Undersecretary Robert Joseph replied that 'In principle, making new US law or waivers contingent on India fulfilling its commitments in the Joint Statement is a sound idea. As reflected in its pledge in the Joint Statement, India has already declared that it will maintain its nuclear testing moratorium.'
Clearly, the Bush administration sees India's reiteration in the Joint Statement as a 'pledge.' Indeed, the Bush administration has been consistent on this view since at least November 2005.
On November 2, Joseph told the same committee that 'India's pledge to maintain its nuclear testing moratorium contributes to non-proliferation efforts by making its ending of nuclear explosive tests one of the conditions of full civil nuclear cooperation' (Emphasis added).
It is difficult to square that view with Prime Minister Manmohan Singh's 'pledge' to the Indian Parliament on July 29, 2005.
Dr Singh had 'pledged' that 'There is nothing in this Joint Statement that amounts to limiting or inhibiting our strategic nuclear weapons programme over which we will retain unrestricted, complete and autonomous control' (Emphasis added).
Only one of the 'pledges' can remain true - either Dr Singh's pledge to the Indian Parliament or the Bush administration's view of the Indian commitment as a pledge to the United States.
The Indian government must immediately clarify to the nation which 'pledge' it will honour. This clarification is necessary before India and the US move any further towards a nuclear cooperation agreement during President Bush's visit to India in a week's time.
Hopefully, Prime Minister Singh will do so in his statement to Parliament on February 27.
When the Americans started to re-interpret the July 18 statement, there was an uproar in India, and a demand to return to the basics of the Joint Statement. Now, the problem over the commitment on testing comes straight from that document.
This may prove tougher than deciding whether the Fast Breeder Reactors would come under safeguards or not. For India cannot accept any position other than that its moratorium is self-imposed and is not a pledge given to any other State.
On the other hand, it will be very difficult, if not impossible, to convince the entire US Congress as well as the Nuclear Suppliers Group that India should get full civil nuclear cooperation and still be left loose on the issue of further nuclear testing. There will be vociferous demands that India be tied in to an international commitment not to conduct any further test.
Joseph and his colleague Nicholas Burns, who is the Bush administration's pointman on the nuclear deal negotiations, have also opened up another can of worms, which threatens to reduce the '90% done' agreement into a contentious phase yet again.
Until now, the Bush administration has always said that it would propose stand-alone legislation that would make India an exception to key sections of the Atomic Energy Act and allow for nuclear cooperation.
But as the Rediff/India Abroad report says, Burns and Joseph have told the SFRC in their replies that 'the administration prefers stand-alone, India-specific legislation, but could envision alternatives as well.'
Envisioning alternatives would be something the Bush administration would want to do for two reasons: one, if it is not happy with the final separation plan and other commitments that India accepts but still wishes to go ahead with some sort of a nuclear cooperation agreement just to 'lock in' India into the non-proliferation mainstream; two, if it felt fairly confident that Congress would not approve a stand-alone piece of legislation for India.
The Bush administration can basically choose from three types of legislative proposals. One is to write a nuclear cooperation agreement under the existing US Atomic Energy Act. The agreement would state that the president waives India from the requirements of AEA Section 123, especially the requirement for full-scope safeguards (Section 123 a (2)). The US Congress would pass a joint resolution in favour of the agreement, with or without additional conditions.
Nuclear exports, however, would still have to be licensed by the US Nuclear Regulatory Commission which would vet each export for non-proliferation concerns. The president would have to judge each time that the export would ''not be inimical to the common defense and security'' or is of material that could be used in a nuclear explosive. This would be no improvement over the present state of nuclear affairs between India and the US.
A second option would be to amend the AEA. Specifically, Section 123 a (2) can be amended to not require full-scope safeguards or Section 128, which added that requirement to the original Atomic Energy Act of 1954, can simply be deleted. Such amendment, however, would not be India-specific. It would open up the possibility of nuclear cooperation with Pakistan in the future. Neither the Bush administration nor the US Congress is keen to go down this path.
In addition, under both the above options, the President would be required to report annually to Congress if a non-Nuclear Weapon State - as India would be reckoned for the purposes of any final nuclear cooperation agreement -- that received US nuclear cooperation indulged in any nuclear weapons-related activities. If it did, then the US would be required to terminate exports under Section 129 of the AEA.
Since India would continue to maintain its weapons programme, the Bush administration could choose to delete Section 129 of the AEA as well. Again, this would not be India-specific.
Indeed, India wouldn't want this option at all. For not only would it mean that India gets no special status above that of Pakistan, it would also mean India would have to continue to show 'good behaviour' for nuclear cooperation to continue.
In practice, it would mean no further nuclear testing, and no high visibility nuclear activity such as change of nuclear posture from the current de-alerted posture and no testing of an ICBM that can reach continental United States.
Hence the third option - stand-alone legislation to make India an exception to Sections 123 a (2), 128 and 129 of the AEA - is the only option that would be acceptable to both the US and India.
If proposed by the Bush administration and approved by the US Congress without amendments or additional conditions, such legislation would put the nuclear cooperation agreement beyond Congressional oversight.
That is, nuclear cooperation will not be subject to any annual presidential certification of Indian 'good behaviour' and congressional review of exports.
But it is very unlikely, if not impossible, that the US Congress would ratify an agreement that would take away its prerogative to ask for annual presidential certification and Congressional review. In which case, the agreement would cease if India tests a nuclear weapon again.
That brings us back to the position that either Dr Singh's 'pledge' in the July 18 Joint Statement can survive or his 'pledge' to the Indian parliament can survive.
It will be interesting to see how far President Bush will go to achieve his vision of a India-US strategic partnership.