Nuke Deal: Breakthrough or Bad Bargain by Praful Bidwai

July 24, 2007
Nuke Deal: Breakthrough or Bad Bargain?
by Praful Bidwai

NEW DELHI - After tortuous negotiations spread over four days in Washington, the United States and India have reported "substantial progress" on a bilateral agreement on civilian nuclear cooperation, but said they would now "refer the issue to our governments for final review."

However, the deal, also known as the "123 agreement" because it will amend Section 123 of the U.S. Atomic Energy Act, is unlikely to find broad consensual acceptance either in India or the U.S.

So wary are the two governments about announcing a breakthrough that they have given no details of the agreement's contents, and in particular about its acceptance of India's right to reprocess fuel burned in imported reactors and continuity of fuel supplies from the U.S. in case India conducts a nuclear test.

The agreement is soon to be placed before India's Cabinet Committee on Security. It is due to be put up before the U.S. Congress for an "up-and-down" or yes-or-no vote without amendments. Under Indian law, it need not be ratified by parliament.

The deal became possible only with intervention by U.S. Vice President Dick Cheney and talks between the national security advisers of the two countries, as well as high-powered delegations of diplomats and technical experts.

Looming large over the talks was the presence of India's Atomic Energy Commission (AEC) chairman Anil Kakodkar. Although Kakodkar did not participate in the negotiations, he was continually consulted to ensure that his concerns about the deal are met. Kakodkar is known to be less than happy with the deal, and has orchestrated opposition to it through his former colleagues.

According to media reports, the 30-page-long agreement, reached after 300 working hours of talks, only "partly" concedes India's right to reprocess spent fuel to be used in its fast breeder reactor program. India has all along insisted on such a full-fledged "right" – strongly contested by nonproliferation advocates in the U.S.

Indian negotiators are believed to have offered to build a dedicated reprocessing facility for imported fuel and to place it under safeguards (inspections) of the International Atomic Energy Agency (IAEA).

This proposal is proving controversial in India, but the U.S. seems to have accepted it. It is not known if this carries any conditions.

On the second contentious issue, that of guarantees of U.S. nuclear supplies if India conducts a nuclear explosion, it has been agreed that the U.S. can demand a return of equipment and material exported to India.

But this has reportedly been hedged in with clauses that call for a presidential review of the circumstances in which India conducts a test, as well as technical conditions calculated to prevent a sudden and complete suspension of nuclear cooperation.

Both the U.S. Atomic Energy Act and a special legislation passed last December by the U.S. Congress, called the Henry J. Hyde U.S.-India Peaceful Atomic Energy Cooperation Act 2006, mandate a cessation of nuclear cooperation in case India conducts a test. Under the new agreement, such cessation will not be sudden.

"The Indian side obviously did some tough bargaining," says Achin Vanaik, a political scientist and independent nuclear analyst. "The critical question now is how the two main lobbies opposed to the deal react. There is, first, the nuclear scientists' lobby which is allergic to any external inspections. There is also the hawkish political right, led by the Bharatiya Janata Party [BJP], which wrongly holds that the deal will cap India's nuclear weapons capability."

Some nuclear scientists, such as A.N. Prasad, former director of the Bhabha Atomic Research Center, and A. Gopalakrishnan, former chairman of the Atomic Energy Regulatory Board, have attacked the proposal to create a dedicated reprocessing facility on the ground that its operations will be controlled by foreign agencies and that it will raise the processing costs. Yet others, including two former AEC chairmen, have demanded amendments to the Hyde Act.

However, the U.S. insists that the 123 agreement cannot substantially differ from the Hyde Act.

"It is not clear if the nuclear scientists' lobby can be brought around to supporting the agreement in its present form," argues M.V. Ramana, a researcher with the Center for Interdisciplinary Studies in Environment and Development, Bangalore. "If a majority of its constituents remain hostile to the agreement, political opposition to it will grow."

Adds Ramana: "Many of the arguments of this lobby are self-serving and reflect xenophobia and a reluctance to accept any kind of scrutiny, including IAEA inspections. However, there is some validity in the argument that a dedicated reprocessing facility will raise costs. But that is something India can live with. The trouble is that this lobby wants to have its cake and eat it too: it wants India to be treated on a par with the nuclear weapons-states recognized by the Nuclear Nonproliferation Treaty of 1970, although India is not a party to it."

BJP leaders have already declared that they oppose the Hyde Act and the 123 agreement in its present form. Observers close to India's leftist parties believe that they are unlikely to support the agreement, and will want to hold down Prime Minister Manmohan Singh to various commitments he made in parliament. As for the U.S., nonproliferation experts and political leaders, especially from the Democratic Party, oppose any deal that exempts India from U.S. laws and effectively legitimizes its nuclear arsenal while diluting the global norm against the spread of nuclear weapons.

Says Daryl G. Kimball, executive director of the Arms Control Association, if the U.S. agrees to allow India to reprocess imported spent fuel, "it would still be next to impossible to ensure that U.S. technology and material would not be used directly or indirectly to support or facilitate India's unsafeguarded weapons-related plutonium reprocessing activities. … [A reprocessing facility] would further free up India's limited fuel supplies for weapons purposes."

Kimball argues that this would be the fourth major departure from the U.S. laws and policies. The first happened in July 2005 when the Bush administration agreed to drop its long-standing policy of restricting nuclear cooperation with states that have nuclear weapons, or have tested them, and refuse to allow full-scope IAEA safeguards.

The second departure took place when the Bush administration gave up its demand that India suspend production of fissile material for weapons purposes. The third happened in March 2006 when the U.S. urged India to include in its list of 'civil' nuclear facilities slated to be put under safeguards reactors falling in its fast breeder program; "but again, India refused and the U.S. side went along."

Unless the 123 agreement is rejected by the Indian cabinet, or fails to win congressional ratification, which seems highly unlikely, the arms controllers would have to take their battle to other forums that must approve the deal before it gets come into effect: the 45-member Nuclear Suppliers' Group and the IAEA.

(Inter Press Service)