Yet there appears to be some political compulsion on the part of the US and India to appear optimistic about the nuclear deal. This may well be to give President George w Bush and Prime Minister Manmohan Singh a chance to find a political solution.
But the reality is that some of the deal breakers are still alive and well after three days of talks in Delhi between US Under Secretary Nicholas Burns and Indian Foreign Secretary Shiv Shankar Menon.
Explained: Nicholas Burns' visit to Delhi
When the Washington correspondent of the Tribune asked me a few days ago whether the Burns visit was a clear signal that the issue would be clinched this time, I had no hesitation in saying that the matter would drag on beyond the visit. Apparently, the perception in Washington was that Burns would not have undertaken the trip without a clear indication that an agreement was in sight. This optimism was unjustified.
The focus on the reprocessing imbroglio after the visit seems to indicate that the other issue of the hypothetical question about the survivability of the deal after another nuclear test by India is out of the way.
There should be no doubt that public opinion in the US would not permit the operation of the deal after such a test. A reaffirmation of the Indian moratorium, as in the Joint Statement of 2005, in the 123 Agreement is all that India can concede. If India were to test on account of supreme national interest, nothing should stand in the way.
In 1998, it was quite obvious that the non-proliferationist world would come down like a ton of bricks on India. Indeed, it did, but India overcame the hazards in record time and went back to the pre-1998 situation.
The India-US nuclear tango | The nuclear deal chats
As long as the requirements of the Hyde Act could be met by a reaffirmation of the moratorium, it should be possible to settle the Indian anxieties about India's right to test. After all, India had indicated to the UN that the moratorium was virtually as good as a unilateral test ban.
The deadlock on the question of reprocessing is harder to deal with as it was presumed in 2005 that full civilian nuclear cooperation would mean reprocessing as well. The existence of stored spent fuel from Tarapur should have alerted us to the rigid policy of the United States on reprocessing. If we had examined other 123 agreements signed with other countries at that time, there would have been sufficient indications that we could not presume that there would be a blanket approval for reprocessing.
For years, the IAEA has been making budget allocations for inspection for reprocessing of Tarapur spent fuel by India. The Joint Statement of 2005 appeared too good to believe partly on account of the apparent concession on reprocessing, but it was logical in the context of giving India the same rights and obligations as the other technologically advanced states, such as the United States, as the Statement specifically states.
Now that the Hyde Act has excluded reprocessing from the proposed sphere of co-operation, there is a real roadblock. India simply cannot afford to acquire fuel without a way forward for disposal of spent fuel. Nor can the US law permit reprocessing of spent fuel by non-NPT countries.
In fact, both the US and the IAEA have been exploring ways and means of sharing the benefits of enrichment of uranium and reprocessing by setting up an international authority to handle these activities for non-nuclear weapon States. But it was never the intention to take these activities away from countries which already had a full nuclear fuel cycle.
The answer is to work out an arrangement for reprocessing under IAEA inspection with proper accounting of plutonium, for which there are proposals on the IAEA table already. India has no intention to use the imported fuel for weapons purposes and has no reason to complain about proper accounting of plutonium.
The US position that the reprocessing issue should be dealt with in a futuristic manner is not acceptable as it will only defer a decision on such an important issue. With the grave suspicion generated in India about the intentions of the US, such an approach is fraught with dangers. A 'middle path' on this issue, which the external affairs minister suggests can only be reprocessing under international supervision.
The meeting point on some of the issues has not been reached essentially because the two countries are trying to create a single instrument to achieve two different objectives. For the US, the nuclear deal is another brick on the non-proliferation citadel. For India, it is an alternative to the NPT to end its nuclear isolation.
The balance of rights and obligations contained in the Joint Statement misled both sides to believe that they had attained their objectives. As it unraveled over the last two years in the debates in the two countries, including the two legislatures, the inner contradictions have come to light. It will take more than a little hard work to remove the deadlock.
India and the US need to consider all alternatives other than letting the deal fail. Much has been invested politically in the deal and neither side can afford to abandon the path that the two leaders adopted in 2005. Narrowing the time and scope of the 123 Agreement may well be the only way to take the cooperation forward, although it may mean reopening of issues that have been treated as settled.
No option should be left unexplored to find a meeting point between the Hyde Act and the Prime Minister's statement in Parliament, which appear irreconcilable.
The 123 Agreement is not an end in itself, but a means to move in the direction of securing the cooperation of the other members of the Nuclear Suppliers Group, who are not bound by the Hyde Act. France and Russia are keen on opening trade with India, but cannot do so on account of the present restrictions under the US law. India has, rightly, been in touch with these countries.
If we approach the 123 Agreement as a device to open the door to international cooperation and not as a fundamental document, it may be possible to find the middle path soon.
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