The Manmohan Singh Government has put the best construction on the final product of a joint conference of the United States Senate and House of Representatives, while expressing its reservations on "certain extraneous and prescriptive provisions" in the reconciled legislation. What the Government will not be able to conclude from an evaluation of H.R. 5682 the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 is that it delivers fully and faithfully on what was promised in the Indo-U.S. joint statements of July 18, 2005 and March 2, 2006. In exchange for the U.S. ensuring the lifting of all obstacles to "full civil nuclear energy cooperation," India undertook seven specific commitments. They were (1) separating its civil and military nuclear facilities; (2) voluntarily placing the former under International Atomic Energy Agency safeguards; (3) accepting an Additional Protocol with respect to civilian nuclear facilities; (4) continuing India's unilateral moratorium on nuclear explosive testing; (5) working with the U.S. for the conclusion of a multilateral Fissile Material Cut Off Treaty; (6) refraining from the transfer of enrichment and reprocessing technologies to states that do not have them and "supporting international efforts" to limit their spread; and (7) ensuring that necessary steps have been taken to secure nuclear materials and technology through comprehensive export control legislation and through harmonisation and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines. The March 2 statement took note of India's separation plan drawn up in consultation with the U.S. and added an eighth commitment - that IAEA safeguards on civilian nuclear facilities would remain in place in perpetuity. In exchange for this commitment, which was not made in the July 18 agreement, India received assurances that its civilian facilities thus safeguarded would be guaranteed access to uninterrupted fuel supplies.
However, when it became clear that the legislation in process in the U.S. Congress deviated significantly from Washington's commitments, strong objections and concerns were raised by scientists, political parties, and in the media. In response, the Prime Minister made a clear and forthright statement in the Rajya Sabha on August 17. In effect, he drew red lines the U.S. should not expect India to cross. While H.R. 5682, in its final form, is a substantial improvement on the earlier Senate and House versions, problems and ambiguities remain and it does appear that red lines have been crossed. The `extraneous' provisions include blatant attempts to dictate Indian foreign policy on Iran, proliferation, disarmament, and certain other issues. Aside from these and some concerns over the annual certification and sequencing issues, three major difficulties will need to be addressed.
Prime Minister Singh assured Parliament that India would not settle for anything less than "full civil nuclear cooperation," including access to enrichment and reprocessing technology as well as the reprocessing of spent fuel. While H.R. 5682 in its final form allows for cooperation in this field in section 104(d)(4), there are three caveats India must not lose sight of. Reprocessing spent fuel resulting from imports from (or re-exports to) the U.S. will require case-by-case applications. Moreover, the legislation reiterates that it shall be the policy of the U.S. to work with other members of the Nuclear Suppliers Group to restrict the export of enrichment and reprocessing technology and equipment to India. Finally, as the note on "Background and Need for the Legislation" attached to the final text of the Act itself states, it is standard practice to write the prohibition on the sale of enrichment and reprocess equipment and technology into the bilateral Nuclear Cooperation Agreement (the `123 agreement') that the U.S. signs with prospective partners. In other words, the truth about the extent and scope of India's access to international civilian nuclear cooperation will be known only when the 123 agreement is finalised. As of now, it does look highly unlikely that the amended NSG guidelines will allow India to have access to these technologies.
Secondly, the Prime Minister assured Parliament that India would not accept any "verification measures regarding our safeguarded nuclear facilities beyond those contained in an India-Specific Safeguards Agreement with the IAEA." The Senate's earlier provision mandated intrusive fallback safeguards in the event of the IAEA being unable to implement its safeguards agreement with India. The final legislation softens this language by demanding an "appropriate assurance that arrangements will be put in place expeditiously that are consistent with the requirements of section 123 1.(1) of the [Atomic Energy] Act... regarding the maintenance of safeguards..." However, even this coy provision seems to run counter to Dr. Singh's assurance that India would not accept additional verification by American inspectors.
Thirdly, Dr. Singh said India had received assurances of uninterrupted fuel supplies as a condition for placing its civilian facilities under perpetuity safeguards and that the U.S. would assist India to source fuel in the event of a disruption. Not only does the reconciled legislation make no such provision; it actually specifies that U.S. policy shall seek to prevent the transfer to India of nuclear fuel and equipment from any other country if U.S. nuclear transfers to India are terminated for reasons specified in the Act or under any other U.S. law. It also carries forward the Obama amendment opposing the possibility of India forming a strategic reserve of nuclear fuel in anticipation of supply disruptions. Fuel disruptions caused by an Indian nuclear test will not be covered by the deal. While this newspaper is opposed to India conducting any nuclear explosive tests, it regards this negative provision in H.R. 5682 as an unwarranted intrusion into the sovereign decision-making power of the county.
The critical question is: how will the Manmohan Singh Government recover the ground lost in the 123 Agreement and the NSG?