Of course, the talk of this Hyde bound restrictions becomes a moot point if you believe that India is only bound by 123 and not by Hyde. But if history is any pointer, then we better believe the significance of US domestic laws on 123. If I am correct, the 1963 123 agreement did not have the domestic law thingy but still US wrote new US law in late 70's which retroactively bound 1963 123 agreement.Obama’s India-nuke legacy
Stagecraft & Statecraft / Brahma Chellaney
Barack Obama’s epochal political breakthrough in becoming the first black presidential candidate in history of either of the two main US political parties is a tribute to his stump skills and the popular hopes he inspires. In contrast to his ageing opponent John McCain, whose conservatism is anchored in the past, the 46-year-old Obama is the candidate for change, offering a distinctly different vision centred on charting a better future.
That is Obama’s real strength.
A first-term US senator, Obama has come up rapidly. But even as a rookie Senator, Obama left a distinct imprint in congressional deliberations. Take the US-Indian nuclear deal. The deal is currently in limbo. But if it ever takes effect, Obama’s contribution would have been no small in the constraints the US Congress has imposed on civil nuclear cooperation with India.
When the full Senate considered the deal, Obama criticised what he called the "blank cheque" offered to India through the official waiver legislation introduced by the Bush administration in March 2006.
Obama’s intervention is recorded in Congressional Record of November 16, 2006:
"Mr President, I rise today to express my support for the US-India Peaceful Atomic Energy Cooperation Act. I believe strengthening the relationship between our two nations is an important strategic goal and this legislation helps us take a dramatic step in this direction.
"However, I have concerns with potential non-proliferation consequences of this agreement. Much to my disappointment, the administration has done very little to address these concerns, instead, sending draft legislation to the Congress that was essentially a blank cheque.
"The managers of the Bill, Senators Lugar and Biden, have done a tremendous job taking the administration’s proposal and shaping it into meaningful, bipartisan legislation. The Bill now before the Senate helps move us closer to India while addressing some key non-proliferation issues.
"However, I remain concerned about the issue of nuclear testing. A decision by the Indian government to conduct such a test could trigger an arms race in South Asia that would be extremely dangerous and destabilising.
"The good news is that the joint statement between President Bush and Prime Minister Singh of July 18, 2005, declared that India’s unilateral moratorium on nuclear testing will continue. I take Prime Minister Singh at his word, but also believe in following President Reagan’s mantra of ‘trust but verify’."
Obama was not content that the official Bill actually attached a legally binding rider to the deal tantamount to dragging India through the backdoor into the Comprehensive Test Ban Treaty. While the CTBT grants its parties the right to withdraw by invoking supreme national interest, the official Bill put India under a permanent test ban by mandating re-imposition of civil nuclear sanctions in the event of a test.
To help further toughen the legislation, Obama introduced two amendments that reshaped the terms on which India is now being offered the deal.
The first amendment was an insertion that imposed fetters on India’s access to fuel, restricting such imports to "reasonable reactor operating requirements." Obama’s amendment not only undercut the stated raison d’être of the original deal — "full civil nuclear energy cooperation and trade with India" — but also busted Dr Manmohan Singh’s assurance to Parliament that New Delhi would secure the right to build lifetime fuel stocks to guard against supply disruption.
Obama’s Senate Amendment 5169, passed by a voice vote, stated: "It is the policy of the United States that any nuclear power reactor fuel reserve provided to the government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements." His amendment, which became Section 114 of the Senate Bill, found its way into the final legislation as Section 103 (b) (10) of the Hyde Act.
The amendment’s avowed purpose was to "clarify US policy in order to deter nuclear testing."
Consider the following exchange in the Senate:
Obama: On a related note, is it the chairman’s interpretation of the legislation that, in the event of a future nuclear test by the government of India, nuclear power reactor fuel and equipment sales, and nuclear technology cooperation would terminate; other elements of the US-India nuclear agreement would likely terminate; and the US would have the right to demand the return of nuclear supplies?
Lugar: Yes, under our Bill, the only requirement which is waived is that in Section 123.a(2) of the Atomic Energy Act of 1954 — for full-scope safeguards. India’s 123 Agreement would still have to meet the requirement of Section 123.a(4), (Just goes to shows that 123 has to be in sync with the domestic laws as stated in article2(1) of 123: "Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes.") which requires that in the event of a test by India of a nuclear-explosive device, the US shall have the right to request the return of supplies as you have stipulated.
Obama: I offered an amendment that the managers have already accepted pertaining to the supply of nuclear power reactor fuel in safeguarded civilian nuclear facilities. To further clarify this issue, is it the managers’ understanding that provision of fuel to the government of India should be sized in a way to maintain a deterrent to Indian nuclear testing, while also providing protections against short-term fluctuations in the supply of nuclear fuel? In other words, is it your understanding that providing a fuel reserve to India is not intended to facilitate resum-ption in nuclear testing?
Lugar: Yes, that is our understanding.
Obama: Does the chairman believe that, as this agreement moves forward to the Nuclear Suppliers’ Group, the US should work to ensure that other nations provide nuclear power reactor fuel in a similar fashion?
Lugar: Yes, I hope that would be the case. (i.e. commensurate with reasonable reactor operating requirements and not for lifetime of fuel supply)
The "deterrent against Indian testing" Obama sought by keeping India on a tight fuel-access leash is a goal embraced by the full Congress in passing the Hyde Act. According to the Act’s accompanying explanatory statement, the fuel reserve provided to New Delhi should not be "of a size that would enable India to break its commitments, or end its moratorium on nuclear testing, and [still] maintain its civil nuclear energy production despite unilateral or international sanctions." It also records that US officials, contradicting Dr Singh’s lifetime-fuel claim in Parliament, had testified that America "does not intend to help India build a stockpile of nuclear fuel for the purpose of riding out any sanctions that might be imposed in response to Indian actions such as conducting a nuclear test."
To further crimp India’s fuel access, the Obama-authored stipulation allowing imports for only reasonable operating needs is coupled with the requirements of Hyde Act’s Section 104 (g) (2) (H) and Section 104 (g) (2) (J) that the President annually estimate the amount of uranium mined in India during the previous year and let Congress know whether the imported uranium had affected India’s rate of production of unsafeguarded fissile material.
Obama’s desire that any exemption for India from the rules of the 45-nation NSG similarly restrict Indian access to foreign fuel will be easy to realise, given that Washington has considerable leverage over the international firms that monopolise the reactor fuel business. To help maintain a tab on India’s nuclear activities, the Senate Bill’s Section 108 (a) stipulated that Congress be kept fully informed on India’s: (i) material non-compliance with any obligation; (ii) new nuclear facility construction; (iii) fissile-material production; and (iv) changes in the operational status of nuclear installations. That provision became the Hyde Act’s Section 104 (g) (1).
Obama helped insert another amendment to ensure that America did not facilitate civil nuclear exports to India by other states, if US exports to New Delhi were terminated. This effectively nullified Dr Singh’s commitment to Parliament that if fuel shipments were suspended, "the US and India would jointly convene a group of friendly supplier countries … to pursue such measures as would restore fuel supply to India." His amendment became Section 102 (6) in the Senate Bill and was incorporated in the Hyde Act as Section 102 (13).
To ensure that no firm in another NSG country exported to India on less-stringent terms, the Hyde Act’s Section 104 (g) (2) (C) is identical to the Senate Bill’s Section 108 (b) (3) in mandating that the President’s cyclic "Implementation and Compliance Report" to Congress provide a description of any significant commerce between India and other countries that either was inconsistent with NSG guidelines or would not meet standards applicable to US-origin material. The intent behind this provision is to use the threat of sanctions to block a proposed export by, say, a French or Russian firm on less-rigorous terms.
The point here is that Obama’s call for an effective "deterrent" against Indian testing is fully reflected in the final legislation. Also, as he desired, the legislation covers US policy and actions in the NSG.
Yet, despite this background, Dr Singh still pitches for the deal. And although a permanent test ban is built into the deal, a despairing Dr Singh recently made a curious policy pronouncement: "if the CTBT came into being, we will not sign it." That inexplicably reversed India’s stance that it won’t come in the way of the CTBT’s entry into force.
Whether Obama becomes President or not, his legacy helps constrict India’s access and options under the deal. Indeed, that legacy exposes a few myths:
l The deal offers to resolve India’s self-made uranium crunch by opening the path to unfettered access to foreign fuel;
l Unlike the US waiver, the NSG will grant India a "clean" exemption; and
l Once the deal with the US takes effect, New Delhi would gain access to civil nuclear items and materials from France and Russia on more-favourable political terms.
l Soaring oil prices justify greater emphasis on nuclear power.
There is little link between oil and nuclear energy, because oil is primarily used for transportation and the nuclear choice is for electricity generation.
Indeed, such myths show that if the deal traverses to the next stages, India will be in for nasty surprises.
But it is already clear that this deal cannot become a reality while George W. Bush is still President.
For example, to win congressional ratification, the agreement has to be submitted to Congress "for a period of 60 days of continuous session" before a joint resolution for approval can be taken up for consideration by the two legislative chambers. And despite the provision for a simple up-or-down vote the Hyde Act states that it will open to Congress to "pass a joint resolution of approval with conditions" by giving up the available "expedited procedures."
The blunt fact is that it will be an Obama or McCain administration — and a new government in New Delhi — that will have the final say on the deal. The cheerleaders of the deal who have been shouting themselves hoarse thus need to hold their fire.
An Obama triumph — good for America and good for the world — will help add momentum to the US-India relationship by freeing it of the albatross that the deal now represents.
This article also shows why many folks (including me) have pointed out again and again that there has to be a iron-clad guarantee for fuel supplies irrespective of testing or no-testing. What I do not understand is how can this deal bring energy security. Instead this deal brings energy dependence, it would be like telling unkil to come and grab our balls and squeeze them whenever you feel like.
Another aspect of the debate on N-deal is very little emphasis on economics of nuclear enegy. Percentage of articles focussing on economics is very low. I am yet to see a rebuttal of an article in frontline published after 123 was made public. Also, in the Rajya Sabha debate someone (Arun Shourie?) talked about the subsidies given by the GoI on nuclear energy. Subsidies are huge, I think more than 100% (IIRC).
would work to resolve the differences.