Saturday, July 28, 2007

brahma chellaney: Frail Deal Built on Word Play

jul 25, 2007

while the 'woman president' hoopla is pre-occupying the country,
manmohan singh and party are selling the country's national interests
down the river.

remember the speculation that the american mole in the indian
government jaswant singh talked about was manmohan singh himself, and
that jaswant singh was forced to shut up because of grave threats
against him and his family?

also note that china has been very very quiet about this 'deal'. china
is never quiet about something that would affect its national
interests (remember how much they shouted about india's nuclear tests
in 1998?). i think the yanks have assured china that they have finally
managed to emasculate india completely.

what jawaharlal nehru accomplished with the surrender of tibet
manmohan singh has accomplished with the surrender of the nuclear
capability: giving up one's solid bargaining leverage in return for
absolutely nothing.

manmohan singh has succeeded in becoming the worst prime minister in
india's history. jawaharlal nehru has so far held that distinction.
however, nehru was just an idiot whose main preoccupation was white
women. manmohan singh is not an idiot, he is deliberately selling
india for dollars.

---------- Forwarded message ----------
From: Brahma Chellaney


Frail Deal Built on Wordplay

Brahma Chellaney

Asian Age, July 28, 2007

While the Indian foreign minister has claimed "all concerns of India
have been reflected and adequately addressed" in the just-concluded
bilateral civil nuclear cooperation agreement under Section 123 of the
US Atomic Energy Act (AEC), Washington has asserted that the accord
safeguards US interests "from a variety of different perspectives." In
public comments and background briefings, the two governments have
zealously sought to put their own spin. The true picture would be
known once they unwrap the still-secret text. New Delhi in particular
appears anxious to soften public opinion at home before releasing the
fine print.

Two important points, however, have already been admitted
by both sides — that the so-called 123 agreement expressly states that
nuclear cooperation would be governed by "national laws" of the two
parties; and that its text is within the parameters set by the
India-specific, conditions-laden Hyde Act. As US Undersecretary of
State Nicholas Burns has bragged, "We're very satisfied because we
know the agreement is well within the bounds of the Hyde Act."

In fact, US officials have gone to the extent of saying
that the concessions they made in the fine print are more in the form
of semantic guile than in substance, designed to help India address
critics at home and seal the accord. The Washington Times, close to
the White House, has quoted administration and congressional sources
as saying that "some language is deliberately vague to help both sides
save face" and that the text was "deliberately written in a way that
can be interpreted differently by the two sides".

In other words, both sides can claim success, while in reality the
cooperation would be conditioned by the Hyde Act, euphemistically
referred to in the text as the applicability of "national laws". That
is exactly what this columnist had warned in a two-part article last
May 14-15 — that if the 123 agreement were to be in consonance with
the Hyde Act and yet not rub salt on Indian wounds, there was only one
way out: semantic subterfuge in the fine print. The reluctance to
release the text more than a week after the agreement was concluded is
a sign that there have been only semantic compromises on key issues.
And US officials are saying so.

For India, this represents a major climb-down: having told Parliament
that the Hyde Act contained provisions that were either "prescriptive"
in ways incompatible with the July 18, 2005 joint statement or
"extraneous" to engagement "between friends," New Delhi has come round
to accepting cooperation with the US on the basis of the onerous and
grating conditions in the US legislation. Indeed, in defining India's
bottom-line in Parliament last August 17, Prime Minister Manmohan
Singh had admitted: "We have concerns over both the House and Senate
versions of the Bill."

However, once the US legislative process was completed without meeting
most of the PM's benchmarks, New Delhi readily entered the next stage
— negotiations over a 123 agreement — by pretending that Dr. Singh's
assurances to Parliament could be addressed in that process. That was
just a charade to buy political space, given that India's deal-related
commitments by then had already been expanded and turned into
immutable legal obligations through US domestic law.

New Delhi was aware that even if the 123 agreement did not incorporate
the controversial conditions of the Hyde Act, it would hardly free
India from their obligations. America has always maintained that
because such a bilateral agreement is a requirement not under
international law but under US law, it cannot supersede American law.
Washington has only reinforced its legal position by incorporating in
the 123-agreement text the primacy of "national laws."

New Delhi indeed knows from its bitter Tarapur experience that a 123
agreement has little sanctity in international law. The earlier
Indo-US 123 accord, signed in 1963, was abandoned by Washington in
1978 — four years after the first Indian nuclear test — simply by
enacting a new domestic law that retroactively overrode the bilateral
pact. That broke with impunity a guarantee to supply "timely" fuel "as
needed" for the US-built Tarapur plant.

Now, New Delhi claims it has secured assured fuel supply in the new
123 agreement, and that in the event of any disruption, the US would
find an alternative source. But US officials are already disputing
that. The Washington Times has quoted officials as saying "the
language does not commit them to do anything specific. Rather, if
there is an interruption because of technical or logistical
difficulties, they will try to do what is appropriate." That is in
line with the Hyde Act, which says assured fuel supply covers only
disruption due to "market failures or similar reasons," not sanctions
arising from India's non-compliance with US-imposed conditions.

More broadly, it should not be forgotten that only after India has
complied with all the Hyde Act's preconditions that the US Congress
would take up the final deal for approval. And although the Hyde Act
provides for an up-or-down vote on a joint resolution — a practice
that does not permit any amendment — the legislation's own explanatory
statement reserves the right for Congress to "pass a joint resolution
of approval with conditions" by giving up "the expedited procedures
offered by Sections 123 and 130 of the AEA." That is exactly what
happened with the US nuclear deal with China, when Congress attached
three conditions to its 1985 joint resolution of approval, resulting
in a nearly 13-year hold.

But before the final Indo-US deal can go before Congress, it has to
secure approval from the 35-nation International Atomic Energy Agency
board and the 45-state Nuclear Suppliers' Group. Even in the best-case
scenario, with all the remaining hurdles being crossed, the US will
perpetually hang the threat of re-imposition of civil nuclear
sanctions to enforce India's compliance with the Hyde Act's
post-implementation conditions.

New Delhi is itching to enter into a new 123 agreement without
resolving the outstanding issues from the earlier 123 accord. The
Tarapur spent fuel has been accumulating for 36 years. Washington has
neither compensated New Delhi for the large costs it continues to
incur to store the highly radioactive spent fuel nor allowed India to
reprocess it by accepting that IAEA safeguards can be effectively
applied at the PREFRE facility specially built for this purpose.

While the PM had pledged to secure the removal of
"restrictions on all aspects of cooperation," including "reprocessing
spent fuel," the US, under the new 123 accord, has conceded only a
theoretical right to India to reprocess, with the practical right to
be worked out in negotiations with the US in the future. India would
build a new reprocessing facility with safeguards involving US
participation. This not only prolongs the Tarapur imbroglio but also
raises a larger question: why acquiesce to the US having a political
say on reprocessing when the issue of safeguards involves only the
IAEA?

Take another issue — a perpetual nuclear test ban on
India. Through the means of a domestic law, America today seeks to
implicitly bind India to an international pact whose ratification the
US Senate rejected in 1999 — the Comprehensive Test Ban Treaty.

Such a test ban, as both sides have admitted, cannot be,
and has not been, diluted by the 123 agreement. Even the US "right to
return" remains untouched. However, as the Washington Times puts it,
"to help New Delhi save face domestically, the administration agreed
to consult with the Indian government before taking any action in
response to a test, officials said. The Indians presented that
language as a major US concession, but US officials said consultations
do not mean much in practice."

New Delhi should be fully cognizant of what it is getting into. It
would be effectively embracing CTBT-plus obligations that no nation
has done. Although the PM had pledged that India is "not prepared to
go beyond a unilateral voluntary moratorium on nuclear testing," the
Hyde Act seeks to enforce a tight, irrevocable test prohibition
against India by actually going beyond the existing provisions of US
law, which empower the president to continue exports on strategic
grounds despite a test. By decreeing that the waiver for India will
automatically terminate with any Indian test, the Hyde Act itself
admits that it goes "beyond Section 129" of AEC.

Besides seeking "full and immediate use of US rights to demand the
return of all nuclear-related items … if India were to test," the Act
goes beyond even the CTBT by specifying in technical terms what is
prohibited for India. In the CTBT negotiations, the US had
successfully opposed an Article I definition of a "nuclear explosion"
to leave open loopholes for "permissible activities" of the type it
carries out at its Nevada test site. While refusing to accede to the
CTBT itself, the US would be enforcing CTBT-plus obligations on India.
Once India has imported power reactors worth billions of dollars, the
Hyde Act will effectively bear it down.

Against this background, the debate on the 123 agreement
needs to be conducted in a sober, realistic way, not through spin and
hoopla. By papering over fundamental differences, the deal could
engender serious Indo-US discord in the years ahead. That danger is
already manifest from the conflicting analysis of the still-secret 123
agreement by official briefers. One US congressional official is
quoted as saying, "The way the Indians are reading it is not correct
from the administration's point of view."

Too often in its independent history, India has rushed to
believe what it wanted to believe, only to cry betrayal later.

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