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News Analysis
By K. Subrahmanyam
India can meet all challenges of 123 pact

Congressman Howard Berman, a known opponent of Indo-US nuclear deal and Chairman of the House of Representatives Foreign Relations Committee has released the answers furnished by the State Department to his predecessor Tom Lantos on the questionnaire Lantos had sent to the State Department.

The reply was sent in January 2008. Though it was not a classified document, the recipient was asked to keep it confidential in view of the sensitive nature of the replies. Obviously, this was a reference to the debate in India on the Indo-US nuclear deal and the strong emotions it had generated.

Now Berman has deliberately released it in the hope it will complicate the issue at the Nuclear Suppliers Group (NSG) meeting in Vienna on September 4 and 5.

As expected by the opponents of the deal in the US, the release of the letter has generated the expected reactions in India from the BJP leadership and the Left. Demands have been made for a special session of Parliament and even for the resignation of the government on moral grounds.

The charge is that the government, particularly the Prime Minister, misled the House. But for an impartial and apolitical observer, such a charge appears totally untenable.

It is said that the State Department document makes it clear that in case of India conducting a test, the US will cease all nuclear cooperation and demand to take back its equipment and fuel. This is held as inhibiting India's right to test. No. It does not take away India's right to test which is inherent in India's sovereignty.

But there will be consequences if India conducts a test as there were in 1998. Any future Prime Minister who wants to test will take into account all possible consequences before ordering it.

Neither the Indo-US deal nor the proposed NSG waiver binds India in a multilateral commitment not to test. India will continue to have its sovereign right to test.

Article 14 of the 123 Agreement lays down the procedure for cessation of cooperation in case India carries out a test. It will not be automatic but will involve consultations and consideration whether the Indian test was due to changed security environment or similar action by other powers.

Therefore, there is an implied acceptance that there may be circumstances in which India may be justified to test. This is the only international treaty that recognises contingent possibilities of India testing.

The US document makes it clear that the US will cease all supply of fuel in case of a test. The opponents to the deal point out that this will come in the way of India having assured fuel supplies. Surely, India will not think of testing without building up a strategic fuel reserve.

The strategic fuel reserve will not necessarily be built on US supplies only. Once the NSG waiver is obtained, India will be in a position to enter into commerce with other countries which are in a position to supply fuel.

It is highlighted that the State Department document points out that the US administration is bound by the Hyde Act. It will be bound by the Hyde Act till the Congress approves the 123 Agreement which will supercede the provisions of the Act as it is an international treaty and also it is passed later.

The US Supreme court has held that international treaties override local laws. It is also a well known principle in law that if there is a contradiction between an earlier and later laws, the later law will prevail. So when the US Congress passes the 123 Agreement that will supercede the Hyde Act

The third issue is the assertion in the State Department replies that the US has no plans to transfer to India sophisticated enrichment and reprocessing technologies. The US does not transfer such technologies to any country in the world, including its closest allies.

But the 123 Agreement leaves a possibility of a future amendment for the purpose. However, India hopes that with the NSG waiver, the country will be able to get such technologies from other nuclear powers.

The US, Russia and the UK are the framers of the Non-Proliferation Treaty and founders of the London Suppliers Club, the predecessor of the NSG. Today those powers are moving to incorporate India in the non-proliferation regime to make it near universal leaving only Pakistan out of it.

All but three nations of the world are members of the NPT. The three stay-outs are Israel, India and Pakistan. Israel is not interested in civil nuclear commerce. Pakistan, as President Gerorge W. Bush pointed out, has a different history as a proliferator.

India is a country with advanced nuclear technology and has an impeccable non-proliferation record. Therefore, the major nuclear powers are interested in making India a stakeholder in the near universal non-proliferation regime, though they cannot admit India as a weapon power in the NPT without amending the Treaty. They are afraid of amending the Treaty lest the whole treaty should unravel. Therefore, this device of unique waiver for India!

The Left as well as those still conditioned by the Cold War are unable to come to terms with the radical changes in the international system. They are still looking upon India as a victim of US pressure and strategic manipulation.

In today's world, India has considerable leverage and it is respected in the international community.



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