THAT the nuclear agreement could have implications for Indias foreign policy became apparent with the passage of the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act in December 2006. Called simply the Hyde Act, it is the enabling U.S. legislation for civilian nuclear cooperation with India. The 123 Agreement has to be implemented in compliance with U.S. laws, including the Hyde Act. The Left has all along opposed the deal because of its concerns about the Acts ramifications for Indias foreign policy, most notably its policy towards Iran.
Even within the limited context of nuclear cooperation, the provisions of the Hyde Act limited it by explicitly seeking to restrict Indias access to sensitive nuclear technologies (SNTs) namely, technologies related to heavy water, nuclear fuel enrichment and reprocessing and nuclear dual-use technologies; deny assured fuel-supply for the lifetime of reactors (recall the Tarapur experience); deny automatic right to reprocess spent fuel; and, most importantly, prevent other members of the 45-nation Nuclear Suppliers Group (NSG) from transferring nuclear goods to India if the U.S. were to terminate its exports under any of its laws.
These ran counter to the Bush-Manmohan Singh Joint Statement of July 2005 and the assurances given by the Prime Minister to Parliament which included, among other things, full civilian nuclear cooperation, which meant cooperation and trade in all aspects of the nuclear fuel cycle (emphasis added). The 123 Agreement dropped the italicised word above in the relevant clause, thus implying that all nuclear technology would not be available for transfer.
The Indian government has, however, continued to maintain (for instance, External Affairs Minister Pranab Mukherjees statement in Parliament on March 3) that the 123 Agreement, and not the Hyde Act, would govern nuclear trade with the U.S. According to the government, the negotiated text of the agreement safeguards Indias interests against the inimical provisions of the Act.
The government has also said that it would seek a fairly open and clean exemption in the Guidelines of the NSG that will not impose restrictions on nuclear transfers to India even if U.S. domestic laws are restrictive. If this happens, India would be in a position to import SNTs from other countries, such as France and Russia. These views of the Indian government have prompted several U.S. opponents to the deal, including members of Congress, to seek clarifications from the U.S. administration on the contradicting perceptions of the two governments on the 123 Agreement, in particular its consistency with the Hyde Act and the U.S. Atomic Energy Act, and on the envisaged changes in the NSG Guidelines.
In October last, the U.S. House Committee on Foreign Affairs (chaired by Representative Howard Berman) sent over 40 questions to the State Department, which, according to the U.S. Arms Control Association, included the following:
Will the U.S. government terminate nuclear trade with India if it resumes testing?
Whether the U.S. intends to transfer SNT through the agreement or outside the agreement?
Will the India-specific IAEA safeguards agreement apply in perpetuity as called for by U.S. law, or will it be subject to unspecified corrective measures as India demands?
Would the U.S. government be legally required to help India secure nuclear fuel supplies from other states even if U.S. cooperation is suspended?
Interestingly, though the State Department has given its responses to the Committee as the information is unclassified it has not made them public as the administration has apparently issued a virtual gag order on Congress not to disclose the information provided as it could torpedo the deal. According to a spokesperson of the Committee, some of the information provided could be diplomatically sensitive.
However, at a hearing of the Committee on February 13, Secretary of State Condoleezza Rice stated that nuclear trade with India, which the 123 Agreement and changes sought in the NSG Guidelines would allow, would be completely consistent with the Hyde Act. Berman and others also moved a resolution (H. Res. 711) in October 2007, which called upon the U.S. administration to not support a proposed exemption for India in the NSG Guidelines that is not consistent with the Hyde Act and the AEA.
The Bill has been referred to the House Committee on Foreign Affairs. However, the U.S. administration reportedly presented a pre-decisional draft of the U.S.-proposed amendment to the NSG Consultative Group in September 2007, which has apparently been revised since, presumably following the questions from the House Committee and the pending House Bill. The revised text is yet to be presented to the NSG.
R. Ramachandran
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