Guest Dr. Jai Maharaj Posted May 22, 2007 Share Posted May 22, 2007 U.S.-India Nuclear Negotiations Part I Stagecraft and Statecraft U.S.-India Nuclear Negotiations Part I Escape From Reality By Brahma Chellaney Asian Age Monday, May 14, 2007 Having made the nuclear deal the centrepiece of their warming ties, India and the United States are discovering the hard way that the commitments they made in July 2005 are difficult to reconcile and implement. If the world's most populous and most powerful democracies are not to be saddled with a political albatross, they will have to ensure that what they had hyped as a "historic deal" does not foster such lingering disputes as to set back bilateral relations. The latest discord centres on the terms of a follow-up bilateral accord to define the technical rules of civil nuclear commerce. Such an accord is required not by international law but by US law -- the Atomic Energy Act, Section 123 of which demands a congressionally ratified nuclear cooperation agreement (NCA) as a prerequisite. But unlike the existing Section 123 agreements with other countries, Indo-US civil nuclear cooperation will be uniquely governed by a special, India-specific US domestic law, the Hyde Act. The deal has become such a technical subject that it is easy to loose the bigger picture by focusing on the twists and turns in a never- ending saga or on the fine print of the NCA under negotiation. Despite its ostensible rationale to aid India's energy needs, the deal would have an important bearing on the autonomy and integrity of Indian foreign policy and security. Although the deal has been marketed as a major favour to India, it is America that is piling up pressure on New Delhi to yield further ground, as shown by the recent telephone calls by President George W. Bush and Secretary of State Condoleezza Rice to Prime Minister Manmohan Singh, as well as by the official statements in Washington expressing frustration over New Delhi's alleged narrow-mindedness. To rub in the point that a Section 123 agreement would emerge only if New Delhi gives in, Undersecretary Nicholas Burns claimed the US has "carried through on all its commitments" and now "the ball is in India's court." Contrast this truculence with the love-fest that greeted the signing of the deal. US pressure tactics in recent weeks have included shining renewed spotlight on New Delhi's legitimate relations with Tehran, and the April 2 indictment of an Indian national and a Singaporean for allegedly conspiring to illegally export to India some dual-use but outdated American memory chips and capacitors. This indictment not only appeared politically timed to step up pressure on New Delhi just when the NCA negotiations had hit a major snag, but it also conflicts with Washington's avowed objective to open high-tech commerce (with the US- India High-Technology Cooperation Group meeting since 2003). The deal constitutes a major diplomatic accomplishment for the US, opening the path to its influencing India's strategic policies. Naturally, Bush is eager to hold on to a deal that is one of his few second-term foreign policy successes. Bush knows that like him, Dr. Singh is coming under growing political siege at home. But while Bush has another 20 months in office left, Dr. Singh's political future is uncertain. So the haste to tie up a 123 agreement. As the White House put it bluntly last Thursday, "We are determined to make it happen." Another reason for such intense pressure is that once the 123 agreement is concluded, the deal would virtually go out of India's hands. It would be then up to the 35-nation IAEA board, the 45-state Nuclear Suppliers' Group and the US Congress -- in that order, according to the revised sequence the US has laid down -- to refine and expand the conditions applicable to cooperation with India. While peaceful nuclear cooperation would nicely dovetail with a US- India strategic partnership, the deal has evolved in such a way as to attenuate the obligations Bush undertook on July 18, 2005, while enlarging (and legalizing) Indian commitments through the means of the five-month-old Hyde Act. Not surprisingly, the US effort now is to ensure that a final 123 accord is in consonance with -- or at least not incompatible with -- this Act. In any event, as a subsidiary bilateral arrangement under US law, the 123 agreement cannot circumvent the Hyde Act, which has defined the "procedures and conditions" by which such an accord may be considered by Congress. In fact, to qualify for such consideration, the 123 agreement would have to be submitted to the appropriate congressional committees with the entire deal package, including "a completed IAEA- India safeguards agreement and other documents and Presidential determinations" in a report form. The "Presidential determinations" -- on 10 different conditions listed in the Act's Section 104©(2) -- would centre on New Delhi's compliance. They include extraneous conditions, such as binding India to the Proliferation Security Initiative, Australia Group and Wassenaar Arrangement, and securing its full participation in "efforts to dissuade, isolate, and, if necessary, sanction and contain Iran." That the Hyde Act represents a blend of the toughest elements from the Senate and House bills is apparent from a Congressional Research Service comparative assessment, in table form, by Sharon Squassoni and Jill Marie Parillo. The PM had assured Parliament last August 17 that, "If in their final form, the US legislation or the adopted NSG guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament." Yet, when the Hyde Act bristling with extraneous and mortifying conditions was passed, Dr. Singh paused only to admit that some of its provisions were "a cause for concern" before sanctioning negotiations on a 123 agreement. It has now become clear that if the 123 accord is to be in harmony with the Hyde Act and yet not rub salt on Indian wounds, there is only one way out -- semantic guile on the fine print. That is exactly what is on offer from the US side to break the current deadlock and seal the accord. The new formulations proffered by the US in the last round of talks in Washington early this month centre not on substance but on a semantic exercise that would take India round the mulberry bush and defer its day of reckoning to a time when it has no escape route. Yet Burns characterized these formulations as "extensive progress" and Foreign Secretary Shivshankar Menon hailed them as "considerable progress." In such hoopla, the principal fact is getting obscured -- that the grating conditions against India are in the Hyde Act, and even if they did not figure in the 123 agreement, New Delhi would still be bound by them. After all, it is only after India has complied with all the Hyde Act's preconditions that Congress would take up the final deal for approval. Indeed, even after such approval, the US is to hang the threat of re-imposition of civil nuclear sanctions to enforce India's continuous compliance with the Act's post-implementation conditions. Put simply, no semantic trickery over the fine print of the123 agreement can free India from the rigours of the Hyde Act. While New Delhi, of course, would not want to compound its burden by entering into an adverse 123 accord with the US, the devil is not so much in the details of such an agreement as in the Hyde Act -- a red rag to a bull. Yet New Delhi remains fixated on the terms of the 123 agreement, to the exclusion of the onerous conditions this Act already seeks to enforce. Such a blinkered focus also raises an important question: Whatever 123 accord were to emerge, will India be able to hold the US to its terms? In other words, will India be signing on to a legally enforceable agreement? India's bitter experience over an earlier 123 agreement with the US, signed in 1963, is a sobering guide to this question. That accord was protective of Indian interests and free of any Hyde Act-style overarching domestic-legal framework. Yet, when the US walked out midway through that 30-year accord -- cutting off fuel supply to the twin-reactor Tarapur power station, despite a guarantee to provide "timely" low-enriched uranium on demand -- New Delhi could do little more than sulk. With the accord not enjoying the status of a treaty in international law, India realized it was futile to keep claiming it had the "force" of a treaty. The truth is that the US has maintained a consistent legal position that because it enters into a 123 agreement to meet a requirement of its own internal law, it follows logically that such an accord cannot supersede American law. Indeed, the Carter administration used that very contention to rationalize the 1978 US action in changing domestic law in such a way as to unilaterally rewrite American obligations under the 1963 accord with India. A 123 agreement, in effect, will legally bind India but not America. Nothing better illustrates this than the manner New Delhi still adheres to the terms of the 1963 agreement, despite America's material breach long ago and the accord having itself expired in 1993. New Delhi has continued to exacerbate its spent-fuel problem at Tarapur by granting the US a right it didn't have even if it had honoured the 123 agreement -- a veto on India reprocessing the discharged reactor fuel. Nor has India ever sought compensation from the US for the large costs it continues to incur to store the highly radioactive spent fuel. When New Delhi signed the 2005 deal, it could have asked the US to show its sincerity by beginning immediate cooperation to facilitate the reprocessing of the Tarapur spent fuel, a source of continuing storage and safety concern. Instead, even as key issues from the earlier 123 accord remain outstanding, India is seeking to enter into a new 123 agreement. (To be continued) U.S.-India Nuclear Negotiations Part II 123 Semantic Subterfuges By Brahma Chellaney Asian Age Tuesday, May 15, 2007 The wheel has come full circle. America broke its 1963 agreement with India by enacting a new domestic law -- the 1978 Nuclear Non- Proliferation Act (NNPA) -- which in turn amended its 1954 Atomic Energy Act (AEC). Now New Delhi is negotiating a new Section 123 bilateral accord under the very US legal provisions that were devised to discipline India for its 1974 detonation and to deter any other state from emulating its example. One expected New Delhi to know those clauses better than any other state. Yet, it seems caught by surprise by the US insistence that the new 123 accord incorporate an explicit American right to secure the return of transferred nuclear items and materials if India (to quote the AEC Section 123a proviso) "detonates a nuclear-explosive device or terminates or abrogates an agreement providing for IAEA safeguards." The "right to return" is just one of nine conditions under the amended AEC Section 123a that a bilateral agreement is required to meet. In the legislative process that led to the Hyde Act, the four versions -- the official bill, the House bill, the Senate bill and the final product -- had only one common element: none exempted any Section 123a criteria other than the requirement for "full-scope" or comprehensive IAEA inspections on all nuclear facilities. Among the eight not-exempted criteria include the right-to-return rider and a veto-empowering condition -- "no enrichment or reprocessing by the recipient state without prior approval." The Hyde Act not only classifies India as a non-nuclear-weapons state (NNWS), but also authorizes the president to waive sanctions on Indian activities, inconsistent with the AEC Section 129 non-proliferation conditions, that occurred only prior to July 18, 2005. For all subsequent activities since that date, India is to be held to various NPT-style prohibitions for an NNWS as defined by Section 129 except one -- the possession of nuclear-explosive devices. In the ongoing 123-agreement negotiations, the newly submitted US formulations seek to allay India's misgivings through semantic rather than policy shifts. Where differences are irreconcilable, the formulations equivocate or even omit a direct reference to an issue. The US wordsmiths have fashioned a revised draft that beats about the bush on issues of primary concern to India. Armed with the overarching Hyde Act and the long-term India trap it sets, the US has little to lose through some dissemblance in the 123 accord. Let us examine what is on offer. Reprocessing of spent fuel. Having branded India as an NNWS in its new law, the US is willing to offer not the advance-consent right it now provides its European partner-states and Japan but an assurance of the type it has given to a single nuclear-weapons state (NWS) -- that it would hold joint consultations on any reprocessing request and attempt to reach agreement within a finite timeframe. That assurance is in the 1985 US-China agreement. Article 5(2) of that agreement says that although neither party "has any plans" to reprocess, "in the event that a party would like at some future time to undertake such activities, the parties will promptly hold consultations to agree on a mutually acceptable arrangement." It then goes on to say that "the parties will consult immediately and will seek agreement within six months on long-term arrangements for such activities ... If such an arrangement is not agreed upon within that period of time, the parties will promptly consult for the purpose of agreeing on measures ... to undertake such activities on an interim basis." It is odd that the US wishes to offer New Delhi the 1985 assurance it gave China -- which is unencumbered by any of the constraints being enforced on India -- rather than the post-1985 reprocessing arrangements it has worked out with its NNWS partners, including Japan and the European Atomic Energy Community (EURATOM), eight of whose 15 member-nations have power reactors. To get around the NNPA (and AEC) condition for US prior consent, the US has granted its non-nuclear partners long-term "advance programmatic approval" to reprocess and recycle US-origin plutonium. For example, just over a decade ago, EURATOM states were given advance rights, with inbuilt safeguards against arbitrary revocation by the US. Without at least a similar advance right, India would get into a much bigger mess than Tarapur. Even though the US did not have any prior- consent veto in the 1963 agreement, it still breached its terms by continuously refusing to either exercise its first option to buy Tarapur spent fuel in excess of India's needs or to carry out a safeguards-related "joint determination" with India of the reprocessing facility. In the new 123 accord, the US has staked claim to an explicit double veto: India cannot ship back spent fuel to America without its prior consent, as decreed by the Hyde Act Section 103(b)(6); nor can India start any reprocessing activity sans prior US consent. This dual right to doubly squeeze India is to hold even if the US were to unilaterally terminate or suspend all cooperation. A US assurance to India like that to China would be meaningless. First, the 123 agreement with China openly encourages collaboration on reprocessing, in sharp contrast to the way the US Congress has beforehand sought to dissuade reprocessing cooperation with India. Second, seen against the US bad faith in rebuffing India for decades on a "joint determination" on Tarapur, the new formulation merely proposes "joint consultations" within a timeframe without any assurance that the US would actually allow India to reprocess. Third, while India has agreed to permanent, legally irrevocable IAEA inspections on its entire civilian programme, the Sino-American agreement stands out for not applying even voluntary, revocable IAEA safeguards on US nuclear exports. It is so lax that Article 8(2) declares that even "bilateral safeguards are not required," although Beijing agreed more than a decade later to some loose end-use checks under US congressional pressure. China has taken on no irreversible commitment and can easily walk out from the agreement, but India will not be able to free itself from grating legal obligations even if the US rejected its reprocessing request after joint consultations. And fourth, the US-China arrangement grants Washington no leverage to deny Beijing reprocessing permission. It was only recently that Beijing signed up to buy its first US-origin power reactors -- that too from the Japanese-owned Westinghouse company -- after Westinghouse agreed to transfer substantial technology and expend 50 per cent of the value of the contract on goods and services produced in China. Because its 123 agreement permits Beijing to terminate cooperation at will and yet keep its spent fuel outside IAEA inspections, it did not need a permanent or advance consent right. In the years ahead, when the Westinghouse reactors are commissioned and produce sufficient spent fuel for reprocessing, Beijing would simply notify Washington of its plan and, if the latter didn't cooperate, unilaterally begin to reprocess after six months and/or terminate all cooperation. In contrast, the Indo-US deal stacks the deck against India. The reason why the US takes a dim view of Indian reprocessing is that it would allow India, as part of its long-term energy security plans, to expand its plutonium economy and develop its fast-breeder and thorium capabilities. That conflicts with the US aim to constrict India from further developing its independent fuel-cycle capabilities even under IAEA safeguards. No wonder US negotiators today are offering India a deceptive formulation on reprocessing, not the long-term "advance consent" concept that America pioneered in the early 1980s in agreements with Sweden and Norway. That concept comes with objective criteria for revocation of any US advance consent so that a future American administration does not arbitrarily withdraw it. US negotiators today disingenuously cite the NNPA restriction. The fact is that ever since 1984, when a federal district court dismissed a suit by non-proliferation activists challenging long-term consents as violating the NNPA, American courts have consistently held that the NNPA's interpretation is a political matter inappropriate for judicial resolution. More importantly, the US Congress has not prohibited or limited the use of advance consents. Indeed, the Senate defeated a 1988 resolution to reject a 123 agreement with Japan because of its advance-consent provision. And in 1996, a new 123 agreement with EURATOM took effect after the US not only granted advance consent, but also proclaimed "no interference" in fuel-cycle decisions of that Community's member- states. Bush has the executive authority to "exempt" India from or otherwise skirt the prior-consent requirement. Congress has anyway spurned his plea that the new 123 accord automatically take effect unless a disapproval resolution was passed with a two-thirds vote. Instead, it will treat the accord as making an "exemption," thus requiring a joint resolution of approval within 90 days. Bush's problem, if any, is the Hyde Act, which implicitly treats nuclear India's status as being even less than that of America's NNWS allies. Right to return. This claimed right is founded on a one-sided concept that the supplier is at liberty to terminate cooperation retroactively. America's new proposal is to formulate an intricate, drawn-out process to give effect to an explicit US right to an all-encompassing return of transferred nuclear items and materials if it terminates cooperation on grounds that its continuation would jeopardize its supreme national interests. By making the actual implementation of the "right to return" problematic, the proposal aims to calm India. However, such semantic subterfuge in the draft 123 accord seeks to obscure the key point: any acknowledgement of the American right to seek return on account of a US-determined Indian non-compliance with non-proliferation conditions would turn India's voluntary test moratorium into a binding, irrevocable prohibition through a double instrument -- a bilateral agreement atop the Hyde Act. The "right-to-return" demand and the Hyde Act Section 106 prohibition on further testing are part of the same design that has prompted the Bush administration to propose an NSG exemption for India tied to a test ban. India is being dragged through the backdoor into the Comprehensive Test Ban Treaty, rejected by the Senate in 1999. By going beyond the CTBT and technically quantifying a nuclear-explosive test, the Hyde Act actually seeks to hold India to CTBT-plus obligations. Full cooperation. To escape from its obligation to open "full civil nuclear cooperation and trade" with India, the US wants the 123- agreement text to be neutral on that subject. The intent is to use such undefined scope of cooperation to create an illusion in India that full cooperation has not been ruled out, while allowing the US to stay faithful to the Hyde Act's bar on civil enrichment, reprocessing and heavy-water cooperation with New Delhi. Where the replication of a provision from the US-China agreement will be worthless in relation to India, Washington eagerly offers it. But where a provision is indeed worth replicating -- such as Article 3, which provides for unrestricted fuel-cycle cooperation -- it looks the other way. Lifetime fuel reserves. While India wants to build "lifetime" strategic fuel reserves for civilian reactors as an insurance against supply cut-off, the US offers only assured fuel shipments. The Hyde Act precludes "lifetime" fuel stockpiling by allowing stocks only for "reasonable" operating needs, with reasonableness defined by the US. And while India wants the right to take "corrective measures" if supplies were disrupted, the US is willing to permit such action if it meant convening a meeting of "friendly" supplier-states, not the lifting of IAEA inspections. Given that the Hyde Act forbids India from breaking out of its obligations even if supplies are discontinued, correction can only be toothless. There are other core disagreements, too. All are rooted in three factors. The first is America's failure to fully discharge its pledge to "adjust US laws and policies ... to achieve full civil nuclear energy cooperation with India." There has also been a breach of the deal's underlying principle that such adjustments would not hold India to an NNWS status. And finally, while India is ready to be a friend and partner of the US, America insists it become its ally. Friendship or partnership is based on parity, reciprocity and mutual respect, while an alliance has a leader that dictates terms. The nuclear deal, in principle, offered India parity and reciprocity but, in practice, the US still insists on setting the terms. (Concluded) More at: http://chellaney.spaces.live.com/ Jai Maharaj http://tinyurl.com/yhjyp5 http://www.mantra.com/jai http://www.mantra.com/jyotish Om Shanti Hindu Holocaust Museum http://www.mantra.com/holocaust Hindu life, principles, spirituality and philosophy http://www.hindu.org http://www.hindunet.org The truth about Islam and Muslims http://www.flex.com/~jai/satyamevajayate o Not for commercial use. Solely to be fairly used for the educational purposes of research and open discussion. The contents of this post may not have been authored by, and do not necessarily represent the opinion of the poster. 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Guest harmony Posted May 22, 2007 Share Posted May 22, 2007 i have heard of an indian giver, but the american giver takes the cake. <usenet@mantra.comHqMf85J and/or http://www.mantra.com/jai (Dr. Jai Maharaj)> wrote in message news:20070521EeSC0ZHqMf85JsWyYc8qtA9@ELofD... > U.S.-India Nuclear Negotiations Part I > > Stagecraft and Statecraft > > U.S.-India Nuclear Negotiations Part I > Escape From Reality > > By Brahma Chellaney > Asian Age > Monday, May 14, 2007 > > Having made the nuclear deal the centrepiece of their warming ties, > India and the United States are discovering the hard way that the > commitments they made in July 2005 are difficult to reconcile and > implement. If the world's most populous and most powerful democracies > are not to be saddled with a political albatross, they will have to > ensure that what they had hyped as a "historic deal" does not foster > such lingering disputes as to set back bilateral relations. > > The latest discord centres on the terms of a follow-up bilateral accord > to define the technical rules of civil nuclear commerce. Such an accord > is required not by international law but by US law -- the Atomic Energy > Act, Section 123 of which demands a congressionally ratified nuclear > cooperation agreement (NCA) as a prerequisite. But unlike the existing > Section 123 agreements with other countries, Indo-US civil nuclear > cooperation will be uniquely governed by a special, India-specific US > domestic law, the Hyde Act. > > The deal has become such a technical subject that it is easy to loose > the bigger picture by focusing on the twists and turns in a never- > ending saga or on the fine print of the NCA under negotiation. Despite > its ostensible rationale to aid India's energy needs, the deal would > have an important bearing on the autonomy and integrity of Indian > foreign policy and security. > > Although the deal has been marketed as a major favour to India, it is > America that is piling up pressure on New Delhi to yield further > ground, as shown by the recent telephone calls by President George W. > Bush and Secretary of State Condoleezza Rice to Prime Minister Manmohan > Singh, as well as by the official statements in Washington expressing > frustration over New Delhi's alleged narrow-mindedness. To rub in the > point that a Section 123 agreement would emerge only if New Delhi gives > in, Undersecretary Nicholas Burns claimed the US has "carried through > on all its commitments" and now "the ball is in India's court." > Contrast this truculence with the love-fest that greeted the signing of > the deal. > > US pressure tactics in recent weeks have included shining renewed > spotlight on New Delhi's legitimate relations with Tehran, and the > April 2 indictment of an Indian national and a Singaporean for > allegedly conspiring to illegally export to India some dual-use but > outdated American memory chips and capacitors. This indictment not only > appeared politically timed to step up pressure on New Delhi just when > the NCA negotiations had hit a major snag, but it also conflicts with > Washington's avowed objective to open high-tech commerce (with the US- > India High-Technology Cooperation Group meeting since 2003). > > The deal constitutes a major diplomatic accomplishment for the US, > opening the path to its influencing India's strategic policies. > Naturally, Bush is eager to hold on to a deal that is one of his few > second-term foreign policy successes. Bush knows that like him, Dr. > Singh is coming under growing political siege at home. But while Bush > has another 20 months in office left, Dr. Singh's political future is > uncertain. So the haste to tie up a 123 agreement. As the White House > put it bluntly last Thursday, "We are determined to make it happen." > > Another reason for such intense pressure is that once the 123 agreement > is concluded, the deal would virtually go out of India's hands. It > would be then up to the 35-nation IAEA board, the 45-state Nuclear > Suppliers' Group and the US Congress -- in that order, according to the > revised sequence the US has laid down -- to refine and expand the > conditions applicable to cooperation with India. > > While peaceful nuclear cooperation would nicely dovetail with a US- > India strategic partnership, the deal has evolved in such a way as to > attenuate the obligations Bush undertook on July 18, 2005, while > enlarging (and legalizing) Indian commitments through the means of the > five-month-old Hyde Act. Not surprisingly, the US effort now is to > ensure that a final 123 accord is in consonance with -- or at least not > incompatible with -- this Act. > > In any event, as a subsidiary bilateral arrangement under US law, the > 123 agreement cannot circumvent the Hyde Act, which has defined the > "procedures and conditions" by which such an accord may be considered > by Congress. In fact, to qualify for such consideration, the 123 > agreement would have to be submitted to the appropriate congressional > committees with the entire deal package, including "a completed IAEA- > India safeguards agreement and other documents and Presidential > determinations" in a report form. > > The "Presidential determinations" -- on 10 different conditions listed > in the Act's Section 104©(2) -- would centre on New Delhi's > compliance. They include extraneous conditions, such as binding India > to the Proliferation Security Initiative, Australia Group and Wassenaar > Arrangement, and securing its full participation in "efforts to > dissuade, isolate, and, if necessary, sanction and contain Iran." That > the Hyde Act represents a blend of the toughest elements from the > Senate and House bills is apparent from a Congressional Research > Service comparative assessment, in table form, by Sharon Squassoni and > Jill Marie Parillo. > > The PM had assured Parliament last August 17 that, "If in their final > form, the US legislation or the adopted NSG guidelines impose > extraneous conditions on India, the government will draw the necessary > conclusions, consistent with the commitments I have made to > Parliament." Yet, when the Hyde Act bristling with extraneous and > mortifying conditions was passed, Dr. Singh paused only to admit that > some of its provisions were "a cause for concern" before sanctioning > negotiations on a 123 agreement. > > It has now become clear that if the 123 accord is to be in harmony with > the Hyde Act and yet not rub salt on Indian wounds, there is only one > way out -- semantic guile on the fine print. That is exactly what is on > offer from the US side to break the current deadlock and seal the > accord. > > The new formulations proffered by the US in the last round of talks in > Washington early this month centre not on substance but on a semantic > exercise that would take India round the mulberry bush and defer its > day of reckoning to a time when it has no escape route. Yet Burns > characterized these formulations as "extensive progress" and Foreign > Secretary Shivshankar Menon hailed them as "considerable progress." > > In such hoopla, the principal fact is getting obscured -- that the > grating conditions against India are in the Hyde Act, and even if they > did not figure in the 123 agreement, New Delhi would still be bound by > them. After all, it is only after India has complied with all the Hyde > Act's preconditions that Congress would take up the final deal for > approval. Indeed, even after such approval, the US is to hang the > threat of re-imposition of civil nuclear sanctions to enforce India's > continuous compliance with the Act's post-implementation conditions. > > Put simply, no semantic trickery over the fine print of the123 > agreement can free India from the rigours of the Hyde Act. While New > Delhi, of course, would not want to compound its burden by entering > into an adverse 123 accord with the US, the devil is not so much in the > details of such an agreement as in the Hyde Act -- a red rag to a bull. > > > Yet New Delhi remains fixated on the terms of the 123 agreement, to the > exclusion of the onerous conditions this Act already seeks to enforce. > Such a blinkered focus also raises an important question: Whatever 123 > accord were to emerge, will India be able to hold the US to its terms? > In other words, will India be signing on to a legally enforceable > agreement? > > India's bitter experience over an earlier 123 agreement with the US, > signed in 1963, is a sobering guide to this question. That accord was > protective of Indian interests and free of any Hyde Act-style > overarching domestic-legal framework. Yet, when the US walked out > midway through that 30-year accord -- cutting off fuel supply to the > twin-reactor Tarapur power station, despite a guarantee to provide > "timely" low-enriched uranium on demand -- New Delhi could do little > more than sulk. With the accord not enjoying the status of a treaty in > international law, India realized it was futile to keep claiming it had > the "force" of a treaty. > > The truth is that the US has maintained a consistent legal position > that because it enters into a 123 agreement to meet a requirement of > its own internal law, it follows logically that such an accord cannot > supersede American law. Indeed, the Carter administration used that > very contention to rationalize the 1978 US action in changing domestic > law in such a way as to unilaterally rewrite American obligations under > the 1963 accord with India. > > A 123 agreement, in effect, will legally bind India but not America. > Nothing better illustrates this than the manner New Delhi still adheres > to the terms of the 1963 agreement, despite America's material breach > long ago and the accord having itself expired in 1993. New Delhi has > continued to exacerbate its spent-fuel problem at Tarapur by granting > the US a right it didn't have even if it had honoured the 123 agreement > -- a veto on India reprocessing the discharged reactor fuel. Nor has > India ever sought compensation from the US for the large costs it > continues to incur to store the highly radioactive spent fuel. > > When New Delhi signed the 2005 deal, it could have asked the US to show > its sincerity by beginning immediate cooperation to facilitate the > reprocessing of the Tarapur spent fuel, a source of continuing storage > and safety concern. Instead, even as key issues from the earlier 123 > accord remain outstanding, India is seeking to enter into a new 123 > agreement. > > (To be continued) > > > U.S.-India Nuclear Negotiations Part II > > 123 Semantic Subterfuges > > By Brahma Chellaney > Asian Age > Tuesday, May 15, 2007 > > The wheel has come full circle. America broke its 1963 agreement with > India by enacting a new domestic law -- the 1978 Nuclear Non- > Proliferation Act (NNPA) -- which in turn amended its 1954 Atomic > Energy Act (AEC). Now New Delhi is negotiating a new Section 123 > bilateral accord under the very US legal provisions that were devised > to discipline India for its 1974 detonation and to deter any other > state from emulating its example. > > One expected New Delhi to know those clauses better than any other > state. Yet, it seems caught by surprise by the US insistence that the > new 123 accord incorporate an explicit American right to secure the > return of transferred nuclear items and materials if India (to quote > the AEC Section 123a proviso) "detonates a nuclear-explosive device or > terminates or abrogates an agreement providing for IAEA safeguards." > > The "right to return" is just one of nine conditions under the amended > AEC Section 123a that a bilateral agreement is required to meet. In the > legislative process that led to the Hyde Act, the four versions -- the > official bill, the House bill, the Senate bill and the final product -- > had only one common element: none exempted any Section 123a criteria > other than the requirement for "full-scope" or comprehensive IAEA > inspections on all nuclear facilities. Among the eight not-exempted > criteria include the right-to-return rider and a veto-empowering > condition -- "no enrichment or reprocessing by the recipient state > without prior approval." > > The Hyde Act not only classifies India as a non-nuclear-weapons state > (NNWS), but also authorizes the president to waive sanctions on Indian > activities, inconsistent with the AEC Section 129 non-proliferation > conditions, that occurred only prior to July 18, 2005. For all > subsequent activities since that date, India is to be held to various > NPT-style prohibitions for an NNWS as defined by Section 129 except one > -- the possession of nuclear-explosive devices. > > In the ongoing 123-agreement negotiations, the newly submitted US > formulations seek to allay India's misgivings through semantic rather > than policy shifts. Where differences are irreconcilable, the > formulations equivocate or even omit a direct reference to an issue. > The US wordsmiths have fashioned a revised draft that beats about the > bush on issues of primary concern to India. Armed with the overarching > Hyde Act and the long-term India trap it sets, the US has little to > lose through some dissemblance in the 123 accord. > > Let us examine what is on offer. > > Reprocessing of spent fuel. Having branded India as an NNWS in its new > law, the US is willing to offer not the advance-consent right it now > provides its European partner-states and Japan but an assurance of the > type it has given to a single nuclear-weapons state (NWS) -- that it > would hold joint consultations on any reprocessing request and attempt > to reach agreement within a finite timeframe. > > That assurance is in the 1985 US-China agreement. Article 5(2) of that > agreement says that although neither party "has any plans" to > reprocess, "in the event that a party would like at some future time to > undertake such activities, the parties will promptly hold consultations > to agree on a mutually acceptable arrangement." > > It then goes on to say that "the parties will consult immediately and > will seek agreement within six months on long-term arrangements for > such activities ... If such an arrangement is not agreed upon within > that period of time, the parties will promptly consult for the purpose > of agreeing on measures ... to undertake such activities on an interim > basis." > > It is odd that the US wishes to offer New Delhi the 1985 assurance it > gave China -- which is unencumbered by any of the constraints being > enforced on India -- rather than the post-1985 reprocessing > arrangements it has worked out with its NNWS partners, including Japan > and the European Atomic Energy Community (EURATOM), eight of whose 15 > member-nations have power reactors. > > To get around the NNPA (and AEC) condition for US prior consent, the US > has granted its non-nuclear partners long-term "advance programmatic > approval" to reprocess and recycle US-origin plutonium. For example, > just over a decade ago, EURATOM states were given advance rights, with > inbuilt safeguards against arbitrary revocation by the US. > > Without at least a similar advance right, India would get into a much > bigger mess than Tarapur. Even though the US did not have any prior- > consent veto in the 1963 agreement, it still breached its terms by > continuously refusing to either exercise its first option to buy > Tarapur spent fuel in excess of India's needs or to carry out a > safeguards-related "joint determination" with India of the reprocessing > facility. > > In the new 123 accord, the US has staked claim to an explicit double > veto: India cannot ship back spent fuel to America without its prior > consent, as decreed by the Hyde Act Section 103(b)(6); nor can India > start any reprocessing activity sans prior US consent. This dual right > to doubly squeeze India is to hold even if the US were to unilaterally > terminate or suspend all cooperation. > > A US assurance to India like that to China would be meaningless. First, > the 123 agreement with China openly encourages collaboration on > reprocessing, in sharp contrast to the way the US Congress has > beforehand sought to dissuade reprocessing cooperation with India. > Second, seen against the US bad faith in rebuffing India for decades on > a "joint determination" on Tarapur, the new formulation merely proposes > "joint consultations" within a timeframe without any assurance that the > US would actually allow India to reprocess. > > Third, while India has agreed to permanent, legally irrevocable IAEA > inspections on its entire civilian programme, the Sino-American > agreement stands out for not applying even voluntary, revocable IAEA > safeguards on US nuclear exports. It is so lax that Article 8(2) > declares that even "bilateral safeguards are not required," although > Beijing agreed more than a decade later to some loose end-use checks > under US congressional pressure. China has taken on no irreversible > commitment and can easily walk out from the agreement, but India will > not be able to free itself from grating legal obligations even if the > US rejected its reprocessing request after joint consultations. > > And fourth, the US-China arrangement grants Washington no leverage to > deny Beijing reprocessing permission. It was only recently that Beijing > signed up to buy its first US-origin power reactors -- that too from > the Japanese-owned Westinghouse company -- after Westinghouse agreed to > transfer substantial technology and expend 50 per cent of the value of > the contract on goods and services produced in China. > > Because its 123 agreement permits Beijing to terminate cooperation at > will and yet keep its spent fuel outside IAEA inspections, it did not > need a permanent or advance consent right. In the years ahead, when the > Westinghouse reactors are commissioned and produce sufficient spent > fuel for reprocessing, Beijing would simply notify Washington of its > plan and, if the latter didn't cooperate, unilaterally begin to > reprocess after six months and/or terminate all cooperation. In > contrast, the Indo-US deal stacks the deck against India. > > The reason why the US takes a dim view of Indian reprocessing is that > it would allow India, as part of its long-term energy security plans, > to expand its plutonium economy and develop its fast-breeder and > thorium capabilities. That conflicts with the US aim to constrict India > from further developing its independent fuel-cycle capabilities even > under IAEA safeguards. > > No wonder US negotiators today are offering India a deceptive > formulation on reprocessing, not the long-term "advance consent" > concept that America pioneered in the early 1980s in agreements with > Sweden and Norway. That concept comes with objective criteria for > revocation of any US advance consent so that a future American > administration does not arbitrarily withdraw it. > > US negotiators today disingenuously cite the NNPA restriction. The fact > is that ever since 1984, when a federal district court dismissed a suit > by non-proliferation activists challenging long-term consents as > violating the NNPA, American courts have consistently held that the > NNPA's interpretation is a political matter inappropriate for judicial > resolution. > > More importantly, the US Congress has not prohibited or limited the use > of advance consents. Indeed, the Senate defeated a 1988 resolution to > reject a 123 agreement with Japan because of its advance-consent > provision. And in 1996, a new 123 agreement with EURATOM took effect > after the US not only granted advance consent, but also proclaimed "no > interference" in fuel-cycle decisions of that Community's member- > states. > > Bush has the executive authority to "exempt" India from or otherwise > skirt the prior-consent requirement. Congress has anyway spurned his > plea that the new 123 accord automatically take effect unless a > disapproval resolution was passed with a two-thirds vote. Instead, it > will treat the accord as making an "exemption," thus requiring a joint > resolution of approval within 90 days. Bush's problem, if any, is the > Hyde Act, which implicitly treats nuclear India's status as being even > less than that of America's NNWS allies. > > Right to return. This claimed right is founded on a one-sided concept > that the supplier is at liberty to terminate cooperation retroactively. > America's new proposal is to formulate an intricate, drawn-out process > to give effect to an explicit US right to an all-encompassing return of > transferred nuclear items and materials if it terminates cooperation on > grounds that its continuation would jeopardize its supreme national > interests. By making the actual implementation of the "right to return" > problematic, the proposal aims to calm India. > > However, such semantic subterfuge in the draft 123 accord seeks to > obscure the key point: any acknowledgement of the American right to > seek return on account of a US-determined Indian non-compliance with > non-proliferation conditions would turn India's voluntary test > moratorium into a binding, irrevocable prohibition through a double > instrument -- a bilateral agreement atop the Hyde Act. > > The "right-to-return" demand and the Hyde Act Section 106 prohibition > on further testing are part of the same design that has prompted the > Bush administration to propose an NSG exemption for India tied to a > test ban. India is being dragged through the backdoor into the > Comprehensive Test Ban Treaty, rejected by the Senate in 1999. By going > beyond the CTBT and technically quantifying a nuclear-explosive test, > the Hyde Act actually seeks to hold India to CTBT-plus obligations. > > Full cooperation. To escape from its obligation to open "full civil > nuclear cooperation and trade" with India, the US wants the 123- > agreement text to be neutral on that subject. The intent is to use such > undefined scope of cooperation to create an illusion in India that full > cooperation has not been ruled out, while allowing the US to stay > faithful to the Hyde Act's bar on civil enrichment, reprocessing and > heavy-water cooperation with New Delhi. > > Where the replication of a provision from the US-China agreement will > be worthless in relation to India, Washington eagerly offers it. But > where a provision is indeed worth replicating -- such as Article 3, > which provides for unrestricted fuel-cycle cooperation -- it looks the > other way. > > Lifetime fuel reserves. While India wants to build "lifetime" > strategic fuel reserves for civilian reactors as an insurance against > supply cut-off, the US offers only assured fuel shipments. The Hyde Act > precludes "lifetime" fuel stockpiling by allowing stocks only for > "reasonable" operating needs, with reasonableness defined by the US. > > And while India wants the right to take "corrective measures" if > supplies were disrupted, the US is willing to permit such action if it > meant convening a meeting of "friendly" supplier-states, not the > lifting of IAEA inspections. Given that the Hyde Act forbids India from > breaking out of its obligations even if supplies are discontinued, > correction can only be toothless. > > There are other core disagreements, too. All are rooted in three > factors. The first is America's failure to fully discharge its pledge > to "adjust US laws and policies ... to achieve full civil nuclear > energy cooperation with India." There has also been a breach of the > deal's underlying principle that such adjustments would not hold India > to an NNWS status. > > And finally, while India is ready to be a friend and partner of the US, > America insists it become its ally. Friendship or partnership is based > on parity, reciprocity and mutual respect, while an alliance has a > leader that dictates terms. The nuclear deal, in principle, offered > India parity and reciprocity but, in practice, the US still insists on > setting the terms. > > (Concluded) > > More at: > http://chellaney.spaces.live.com/ > > Jai Maharaj > http://tinyurl.com/yhjyp5 > http://www.mantra.com/jai > http://www.mantra.com/jyotish > Om Shanti > > Hindu Holocaust Museum > http://www.mantra.com/holocaust > > Hindu life, principles, spirituality and philosophy > http://www.hindu.org > http://www.hindunet.org > > The truth about Islam and Muslims > http://www.flex.com/~jai/satyamevajayate > > o Not for commercial use. Solely to be fairly used for the > educational > purposes of research and open discussion. The contents of this post may > not > have been authored by, and do not necessarily represent the opinion of the > poster. The contents are protected by copyright law and the exemption for > fair use of copyrighted works. > o If you send private e-mail to me, it will likely not be read, > considered or answered if it does not contain your full legal name, > current > e-mail and postal addresses, and live-voice telephone number. > o Posted for information and discussion. Views expressed by others > are > not necessarily those of the poster who may or may not have read the > article. > > FAIR USE NOTICE: This article may contain copyrighted material the use of > which may or may not have been specifically authorized by the copyright > owner. This material is being made available in efforts to advance the > understanding of environmental, political, human rights, economic, > democratic, scientific, social, and cultural, etc., issues. It is believed > that this constitutes a 'fair use' of any such copyrighted material as > provided for in section 107 of the US Copyright Law. In accordance with > Title > 17 U.S.C. Section 107, the material on this site is distributed without > profit to those who have expressed a prior interest in receiving the > included > information for research, comment, discussion and educational purposes by > subscribing to USENET newsgroups or visiting web sites. For more > information > go to: http://www.law.cornell.edu/uscode/17/107.shtml > If you wish to use copyrighted material from this article for purposes of > your own that go beyond 'fair use', you must obtain permission from the > copyright owner. Quote Link to comment Share on other sites More sharing options...
Guest Dr. Jai Maharaj Posted May 24, 2007 Share Posted May 24, 2007 The American giver takes the cake and eats it too, in this instance. Jai Maharaj http://tinyurl.com/yhjyp5 http://www.mantra.com/jai http://www.mantra.com/jyotish Om Shanti In article <OyE4i.109420$NK5.79098@newsfe23.lga>, "harmony" <aka@hotmail.com> posted: > > i have heard of an indian giver, but the american giver takes the cake. > > > http://www.mantra.com/jai (Dr. Jai Maharaj) posted: > > > U.S.-India Nuclear Negotiations Part I > > > > Stagecraft and Statecraft > > > > U.S.-India Nuclear Negotiations Part I > > Escape From Reality > > > > By Brahma Chellaney > > Asian Age > > Monday, May 14, 2007 > > > > Having made the nuclear deal the centrepiece of their warming ties, > > India and the United States are discovering the hard way that the > > commitments they made in July 2005 are difficult to reconcile and > > implement. If the world's most populous and most powerful democracies > > are not to be saddled with a political albatross, they will have to > > ensure that what they had hyped as a "historic deal" does not foster > > such lingering disputes as to set back bilateral relations. > > > > The latest discord centres on the terms of a follow-up bilateral accord > > to define the technical rules of civil nuclear commerce. Such an accord > > is required not by international law but by US law -- the Atomic Energy > > Act, Section 123 of which demands a congressionally ratified nuclear > > cooperation agreement (NCA) as a prerequisite. But unlike the existing > > Section 123 agreements with other countries, Indo-US civil nuclear > > cooperation will be uniquely governed by a special, India-specific US > > domestic law, the Hyde Act. > > > > The deal has become such a technical subject that it is easy to loose > > the bigger picture by focusing on the twists and turns in a never- > > ending saga or on the fine print of the NCA under negotiation. Despite > > its ostensible rationale to aid India's energy needs, the deal would > > have an important bearing on the autonomy and integrity of Indian > > foreign policy and security. > > > > Although the deal has been marketed as a major favour to India, it is > > America that is piling up pressure on New Delhi to yield further > > ground, as shown by the recent telephone calls by President George W. > > Bush and Secretary of State Condoleezza Rice to Prime Minister Manmohan > > Singh, as well as by the official statements in Washington expressing > > frustration over New Delhi's alleged narrow-mindedness. To rub in the > > point that a Section 123 agreement would emerge only if New Delhi gives > > in, Undersecretary Nicholas Burns claimed the US has "carried through > > on all its commitments" and now "the ball is in India's court." > > Contrast this truculence with the love-fest that greeted the signing of > > the deal. > > > > US pressure tactics in recent weeks have included shining renewed > > spotlight on New Delhi's legitimate relations with Tehran, and the > > April 2 indictment of an Indian national and a Singaporean for > > allegedly conspiring to illegally export to India some dual-use but > > outdated American memory chips and capacitors. This indictment not only > > appeared politically timed to step up pressure on New Delhi just when > > the NCA negotiations had hit a major snag, but it also conflicts with > > Washington's avowed objective to open high-tech commerce (with the US- > > India High-Technology Cooperation Group meeting since 2003). > > > > The deal constitutes a major diplomatic accomplishment for the US, > > opening the path to its influencing India's strategic policies. > > Naturally, Bush is eager to hold on to a deal that is one of his few > > second-term foreign policy successes. Bush knows that like him, Dr. > > Singh is coming under growing political siege at home. But while Bush > > has another 20 months in office left, Dr. Singh's political future is > > uncertain. So the haste to tie up a 123 agreement. As the White House > > put it bluntly last Thursday, "We are determined to make it happen." > > > > Another reason for such intense pressure is that once the 123 agreement > > is concluded, the deal would virtually go out of India's hands. It > > would be then up to the 35-nation IAEA board, the 45-state Nuclear > > Suppliers' Group and the US Congress -- in that order, according to the > > revised sequence the US has laid down -- to refine and expand the > > conditions applicable to cooperation with India. > > > > While peaceful nuclear cooperation would nicely dovetail with a US- > > India strategic partnership, the deal has evolved in such a way as to > > attenuate the obligations Bush undertook on July 18, 2005, while > > enlarging (and legalizing) Indian commitments through the means of the > > five-month-old Hyde Act. Not surprisingly, the US effort now is to > > ensure that a final 123 accord is in consonance with -- or at least not > > incompatible with -- this Act. > > > > In any event, as a subsidiary bilateral arrangement under US law, the > > 123 agreement cannot circumvent the Hyde Act, which has defined the > > "procedures and conditions" by which such an accord may be considered > > by Congress. In fact, to qualify for such consideration, the 123 > > agreement would have to be submitted to the appropriate congressional > > committees with the entire deal package, including "a completed IAEA- > > India safeguards agreement and other documents and Presidential > > determinations" in a report form. > > > > The "Presidential determinations" -- on 10 different conditions listed > > in the Act's Section 104©(2) -- would centre on New Delhi's > > compliance. They include extraneous conditions, such as binding India > > to the Proliferation Security Initiative, Australia Group and Wassenaar > > Arrangement, and securing its full participation in "efforts to > > dissuade, isolate, and, if necessary, sanction and contain Iran." That > > the Hyde Act represents a blend of the toughest elements from the > > Senate and House bills is apparent from a Congressional Research > > Service comparative assessment, in table form, by Sharon Squassoni and > > Jill Marie Parillo. > > > > The PM had assured Parliament last August 17 that, "If in their final > > form, the US legislation or the adopted NSG guidelines impose > > extraneous conditions on India, the government will draw the necessary > > conclusions, consistent with the commitments I have made to > > Parliament." Yet, when the Hyde Act bristling with extraneous and > > mortifying conditions was passed, Dr. Singh paused only to admit that > > some of its provisions were "a cause for concern" before sanctioning > > negotiations on a 123 agreement. > > > > It has now become clear that if the 123 accord is to be in harmony with > > the Hyde Act and yet not rub salt on Indian wounds, there is only one > > way out -- semantic guile on the fine print. That is exactly what is on > > offer from the US side to break the current deadlock and seal the > > accord. > > > > The new formulations proffered by the US in the last round of talks in > > Washington early this month centre not on substance but on a semantic > > exercise that would take India round the mulberry bush and defer its > > day of reckoning to a time when it has no escape route. Yet Burns > > characterized these formulations as "extensive progress" and Foreign > > Secretary Shivshankar Menon hailed them as "considerable progress." > > > > In such hoopla, the principal fact is getting obscured -- that the > > grating conditions against India are in the Hyde Act, and even if they > > did not figure in the 123 agreement, New Delhi would still be bound by > > them. After all, it is only after India has complied with all the Hyde > > Act's preconditions that Congress would take up the final deal for > > approval. Indeed, even after such approval, the US is to hang the > > threat of re-imposition of civil nuclear sanctions to enforce India's > > continuous compliance with the Act's post-implementation conditions. > > > > Put simply, no semantic trickery over the fine print of the123 > > agreement can free India from the rigours of the Hyde Act. While New > > Delhi, of course, would not want to compound its burden by entering > > into an adverse 123 accord with the US, the devil is not so much in the > > details of such an agreement as in the Hyde Act -- a red rag to a bull. > > > > > > Yet New Delhi remains fixated on the terms of the 123 agreement, to the > > exclusion of the onerous conditions this Act already seeks to enforce. > > Such a blinkered focus also raises an important question: Whatever 123 > > accord were to emerge, will India be able to hold the US to its terms? > > In other words, will India be signing on to a legally enforceable > > agreement? > > > > India's bitter experience over an earlier 123 agreement with the US, > > signed in 1963, is a sobering guide to this question. That accord was > > protective of Indian interests and free of any Hyde Act-style > > overarching domestic-legal framework. Yet, when the US walked out > > midway through that 30-year accord -- cutting off fuel supply to the > > twin-reactor Tarapur power station, despite a guarantee to provide > > "timely" low-enriched uranium on demand -- New Delhi could do little > > more than sulk. With the accord not enjoying the status of a treaty in > > international law, India realized it was futile to keep claiming it had > > the "force" of a treaty. > > > > The truth is that the US has maintained a consistent legal position > > that because it enters into a 123 agreement to meet a requirement of > > its own internal law, it follows logically that such an accord cannot > > supersede American law. Indeed, the Carter administration used that > > very contention to rationalize the 1978 US action in changing domestic > > law in such a way as to unilaterally rewrite American obligations under > > the 1963 accord with India. > > > > A 123 agreement, in effect, will legally bind India but not America. > > Nothing better illustrates this than the manner New Delhi still adheres > > to the terms of the 1963 agreement, despite America's material breach > > long ago and the accord having itself expired in 1993. New Delhi has > > continued to exacerbate its spent-fuel problem at Tarapur by granting > > the US a right it didn't have even if it had honoured the 123 agreement > > -- a veto on India reprocessing the discharged reactor fuel. Nor has > > India ever sought compensation from the US for the large costs it > > continues to incur to store the highly radioactive spent fuel. > > > > When New Delhi signed the 2005 deal, it could have asked the US to show > > its sincerity by beginning immediate cooperation to facilitate the > > reprocessing of the Tarapur spent fuel, a source of continuing storage > > and safety concern. Instead, even as key issues from the earlier 123 > > accord remain outstanding, India is seeking to enter into a new 123 > > agreement. > > > > (To be continued) > > > > > > U.S.-India Nuclear Negotiations Part II > > > > 123 Semantic Subterfuges > > > > By Brahma Chellaney > > Asian Age > > Tuesday, May 15, 2007 > > > > The wheel has come full circle. America broke its 1963 agreement with > > India by enacting a new domestic law -- the 1978 Nuclear Non- > > Proliferation Act (NNPA) -- which in turn amended its 1954 Atomic > > Energy Act (AEC). Now New Delhi is negotiating a new Section 123 > > bilateral accord under the very US legal provisions that were devised > > to discipline India for its 1974 detonation and to deter any other > > state from emulating its example. > > > > One expected New Delhi to know those clauses better than any other > > state. Yet, it seems caught by surprise by the US insistence that the > > new 123 accord incorporate an explicit American right to secure the > > return of transferred nuclear items and materials if India (to quote > > the AEC Section 123a proviso) "detonates a nuclear-explosive device or > > terminates or abrogates an agreement providing for IAEA safeguards." > > > > The "right to return" is just one of nine conditions under the amended > > AEC Section 123a that a bilateral agreement is required to meet. In the > > legislative process that led to the Hyde Act, the four versions -- the > > official bill, the House bill, the Senate bill and the final product -- > > had only one common element: none exempted any Section 123a criteria > > other than the requirement for "full-scope" or comprehensive IAEA > > inspections on all nuclear facilities. Among the eight not-exempted > > criteria include the right-to-return rider and a veto-empowering > > condition -- "no enrichment or reprocessing by the recipient state > > without prior approval." > > > > The Hyde Act not only classifies India as a non-nuclear-weapons state > > (NNWS), but also authorizes the president to waive sanctions on Indian > > activities, inconsistent with the AEC Section 129 non-proliferation > > conditions, that occurred only prior to July 18, 2005. For all > > subsequent activities since that date, India is to be held to various > > NPT-style prohibitions for an NNWS as defined by Section 129 except one > > -- the possession of nuclear-explosive devices. > > > > In the ongoing 123-agreement negotiations, the newly submitted US > > formulations seek to allay India's misgivings through semantic rather > > than policy shifts. Where differences are irreconcilable, the > > formulations equivocate or even omit a direct reference to an issue. > > The US wordsmiths have fashioned a revised draft that beats about the > > bush on issues of primary concern to India. Armed with the overarching > > Hyde Act and the long-term India trap it sets, the US has little to > > lose through some dissemblance in the 123 accord. > > > > Let us examine what is on offer. > > > > Reprocessing of spent fuel. Having branded India as an NNWS in its new > > law, the US is willing to offer not the advance-consent right it now > > provides its European partner-states and Japan but an assurance of the > > type it has given to a single nuclear-weapons state (NWS) -- that it > > would hold joint consultations on any reprocessing request and attempt > > to reach agreement within a finite timeframe. > > > > That assurance is in the 1985 US-China agreement. Article 5(2) of that > > agreement says that although neither party "has any plans" to > > reprocess, "in the event that a party would like at some future time to > > undertake such activities, the parties will promptly hold consultations > > to agree on a mutually acceptable arrangement." > > > > It then goes on to say that "the parties will consult immediately and > > will seek agreement within six months on long-term arrangements for > > such activities ... If such an arrangement is not agreed upon within > > that period of time, the parties will promptly consult for the purpose > > of agreeing on measures ... to undertake such activities on an interim > > basis." > > > > It is odd that the US wishes to offer New Delhi the 1985 assurance it > > gave China -- which is unencumbered by any of the constraints being > > enforced on India -- rather than the post-1985 reprocessing > > arrangements it has worked out with its NNWS partners, including Japan > > and the European Atomic Energy Community (EURATOM), eight of whose 15 > > member-nations have power reactors. > > > > To get around the NNPA (and AEC) condition for US prior consent, the US > > has granted its non-nuclear partners long-term "advance programmatic > > approval" to reprocess and recycle US-origin plutonium. For example, > > just over a decade ago, EURATOM states were given advance rights, with > > inbuilt safeguards against arbitrary revocation by the US. > > > > Without at least a similar advance right, India would get into a much > > bigger mess than Tarapur. Even though the US did not have any prior- > > consent veto in the 1963 agreement, it still breached its terms by > > continuously refusing to either exercise its first option to buy > > Tarapur spent fuel in excess of India's needs or to carry out a > > safeguards-related "joint determination" with India of the reprocessing > > facility. > > > > In the new 123 accord, the US has staked claim to an explicit double > > veto: India cannot ship back spent fuel to America without its prior > > consent, as decreed by the Hyde Act Section 103(b)(6); nor can India > > start any reprocessing activity sans prior US consent. This dual right > > to doubly squeeze India is to hold even if the US were to unilaterally > > terminate or suspend all cooperation. > > > > A US assurance to India like that to China would be meaningless. First, > > the 123 agreement with China openly encourages collaboration on > > reprocessing, in sharp contrast to the way the US Congress has > > beforehand sought to dissuade reprocessing cooperation with India. > > Second, seen against the US bad faith in rebuffing India for decades on > > a "joint determination" on Tarapur, the new formulation merely proposes > > "joint consultations" within a timeframe without any assurance that the > > US would actually allow India to reprocess. > > > > Third, while India has agreed to permanent, legally irrevocable IAEA > > inspections on its entire civilian programme, the Sino-American > > agreement stands out for not applying even voluntary, revocable IAEA > > safeguards on US nuclear exports. It is so lax that Article 8(2) > > declares that even "bilateral safeguards are not required," although > > Beijing agreed more than a decade later to some loose end-use checks > > under US congressional pressure. China has taken on no irreversible > > commitment and can easily walk out from the agreement, but India will > > not be able to free itself from grating legal obligations even if the > > US rejected its reprocessing request after joint consultations. > > > > And fourth, the US-China arrangement grants Washington no leverage to > > deny Beijing reprocessing permission. It was only recently that Beijing > > signed up to buy its first US-origin power reactors -- that too from > > the Japanese-owned Westinghouse company -- after Westinghouse agreed to > > transfer substantial technology and expend 50 per cent of the value of > > the contract on goods and services produced in China. > > > > Because its 123 agreement permits Beijing to terminate cooperation at > > will and yet keep its spent fuel outside IAEA inspections, it did not > > need a permanent or advance consent right. In the years ahead, when the > > Westinghouse reactors are commissioned and produce sufficient spent > > fuel for reprocessing, Beijing would simply notify Washington of its > > plan and, if the latter didn't cooperate, unilaterally begin to > > reprocess after six months and/or terminate all cooperation. In > > contrast, the Indo-US deal stacks the deck against India. > > > > The reason why the US takes a dim view of Indian reprocessing is that > > it would allow India, as part of its long-term energy security plans, > > to expand its plutonium economy and develop its fast-breeder and > > thorium capabilities. That conflicts with the US aim to constrict India > > from further developing its independent fuel-cycle capabilities even > > under IAEA safeguards. > > > > No wonder US negotiators today are offering India a deceptive > > formulation on reprocessing, not the long-term "advance consent" > > concept that America pioneered in the early 1980s in agreements with > > Sweden and Norway. That concept comes with objective criteria for > > revocation of any US advance consent so that a future American > > administration does not arbitrarily withdraw it. > > > > US negotiators today disingenuously cite the NNPA restriction. The fact > > is that ever since 1984, when a federal district court dismissed a suit > > by non-proliferation activists challenging long-term consents as > > violating the NNPA, American courts have consistently held that the > > NNPA's interpretation is a political matter inappropriate for judicial > > resolution. > > > > More importantly, the US Congress has not prohibited or limited the use > > of advance consents. Indeed, the Senate defeated a 1988 resolution to > > reject a 123 agreement with Japan because of its advance-consent > > provision. And in 1996, a new 123 agreement with EURATOM took effect > > after the US not only granted advance consent, but also proclaimed "no > > interference" in fuel-cycle decisions of that Community's member- > > states. > > > > Bush has the executive authority to "exempt" India from or otherwise > > skirt the prior-consent requirement. Congress has anyway spurned his > > plea that the new 123 accord automatically take effect unless a > > disapproval resolution was passed with a two-thirds vote. Instead, it > > will treat the accord as making an "exemption," thus requiring a joint > > resolution of approval within 90 days. Bush's problem, if any, is the > > Hyde Act, which implicitly treats nuclear India's status as being even > > less than that of America's NNWS allies. > > > > Right to return. This claimed right is founded on a one-sided concept > > that the supplier is at liberty to terminate cooperation retroactively. > > America's new proposal is to formulate an intricate, drawn-out process > > to give effect to an explicit US right to an all-encompassing return of > > transferred nuclear items and materials if it terminates cooperation on > > grounds that its continuation would jeopardize its supreme national > > interests. By making the actual implementation of the "right to return" > > problematic, the proposal aims to calm India. > > > > However, such semantic subterfuge in the draft 123 accord seeks to > > obscure the key point: any acknowledgement of the American right to > > seek return on account of a US-determined Indian non-compliance with > > non-proliferation conditions would turn India's voluntary test > > moratorium into a binding, irrevocable prohibition through a double > > instrument -- a bilateral agreement atop the Hyde Act. > > > > The "right-to-return" demand and the Hyde Act Section 106 prohibition > > on further testing are part of the same design that has prompted the > > Bush administration to propose an NSG exemption for India tied to a > > test ban. India is being dragged through the backdoor into the > > Comprehensive Test Ban Treaty, rejected by the Senate in 1999. By going > > beyond the CTBT and technically quantifying a nuclear-explosive test, > > the Hyde Act actually seeks to hold India to CTBT-plus obligations. > > > > Full cooperation. To escape from its obligation to open "full civil > > nuclear cooperation and trade" with India, the US wants the 123- > > agreement text to be neutral on that subject. The intent is to use such > > undefined scope of cooperation to create an illusion in India that full > > cooperation has not been ruled out, while allowing the US to stay > > faithful to the Hyde Act's bar on civil enrichment, reprocessing and > > heavy-water cooperation with New Delhi. > > > > Where the replication of a provision from the US-China agreement will > > be worthless in relation to India, Washington eagerly offers it. But > > where a provision is indeed worth replicating -- such as Article 3, > > which provides for unrestricted fuel-cycle cooperation -- it looks the > > other way. > > > > Lifetime fuel reserves. While India wants to build "lifetime" > > strategic fuel reserves for civilian reactors as an insurance against > > supply cut-off, the US offers only assured fuel shipments. The Hyde Act > > precludes "lifetime" fuel stockpiling by allowing stocks only for > > "reasonable" operating needs, with reasonableness defined by the US. > > > > And while India wants the right to take "corrective measures" if > > supplies were disrupted, the US is willing to permit such action if it > > meant convening a meeting of "friendly" supplier-states, not the > > lifting of IAEA inspections. Given that the Hyde Act forbids India from > > breaking out of its obligations even if supplies are discontinued, > > correction can only be toothless. > > > > There are other core disagreements, too. All are rooted in three > > factors. The first is America's failure to fully discharge its pledge > > to "adjust US laws and policies ... to achieve full civil nuclear > > energy cooperation with India." There has also been a breach of the > > deal's underlying principle that such adjustments would not hold India > > to an NNWS status. > > > > And finally, while India is ready to be a friend and partner of the US, > > America insists it become its ally. Friendship or partnership is based > > on parity, reciprocity and mutual respect, while an alliance has a > > leader that dictates terms. The nuclear deal, in principle, offered > > India parity and reciprocity but, in practice, the US still insists on > > setting the terms. > > > > (Concluded) > > > > More at: > > http://chellaney.spaces.live.com/ > > > > Jai Maharaj > > http://tinyurl.com/yhjyp5 > > http://www.mantra.com/jai > > http://www.mantra.com/jyotish > > Om Shanti > > > > Hindu Holocaust Museum > > http://www.mantra.com/holocaust > > > > Hindu life, principles, spirituality and philosophy > > http://www.hindu.org > > http://www.hindunet.org > > > > The truth about Islam and Muslims > > http://www.flex.com/~jai/satyamevajayate > > > > o Not for commercial use. Solely to be fairly used for the > > educational > > purposes of research and open discussion. The contents of this post may > > not > > have been authored by, and do not necessarily represent the opinion of the > > poster. The contents are protected by copyright law and the exemption for > > fair use of copyrighted works. > > o If you send private e-mail to me, it will likely not be read, > > considered or answered if it does not contain your full legal name, > > current > > e-mail and postal addresses, and live-voice telephone number. > > o Posted for information and discussion. Views expressed by others > > are > > not necessarily those of the poster who may or may not have read the > > article. > > > > FAIR USE NOTICE: This article may contain copyrighted material the use of > > which may or may not have been specifically authorized by the copyright > > owner. This material is being made available in efforts to advance the > > understanding of environmental, political, human rights, economic, > > democratic, scientific, social, and cultural, etc., issues. It is believed > > that this constitutes a 'fair use' of any such copyrighted material as > > provided for in section 107 of the US Copyright Law. In accordance with > > Title > > 17 U.S.C. Section 107, the material on this site is distributed without > > profit to those who have expressed a prior interest in receiving the > > included > > information for research, comment, discussion and educational purposes by > > subscribing to USENET newsgroups or visiting web sites. For more > > information > > go to: http://www.law.cornell.edu/uscode/17/107.shtml > > If you wish to use copyrighted material from this article for purposes of > > your own that go beyond 'fair use', you must obtain permission from the > > copyright owner. > > Quote Link to comment Share on other sites More sharing options...
Guest Baba Blacksheep Posted May 24, 2007 Share Posted May 24, 2007 Jai Maharaj <usenet@mantra.com> and/or http://www.mantra.com/ jai wrote: > The American giver takes the cake and eats it too, in this instance. The expression, Jay, is "has the cake and eats it too". Nevertheless, why is India unable to process nuclear ores from it's own territory? Surely there must be some left over from the days when your ancestors branded natives with electric brands powered by the electricity generated from nuclear power plants? It is the existence of lunatics like yourself within reach of political power in India that gives rise to western misgivings about trusting India on the nuclear issue. Perhaps if you lot engaged in mass suicide "for God and country" and paved the way for trust.............. Quote Link to comment Share on other sites More sharing options...
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