Journalist | Writer | Analyst
The State Department letter is proof that America has been negotiating in bad faith.
Even if the NSG grants India a clean and unconditional waiver, the country would be foolish to buy any U.S. nuclear supplies…
6 September 2008
The Bush-Berman bombshell and the ghosts of Tarapur
Whatever the American strategic or political objectives might have been, the Indian origins of the Indo-U.S. nuclear agreement lay in an atomic power station named Tarapur. If that United States-supplied reactor marked the origin of India’s quest for a commercially viable civilian nuclear programme, the subsequent denials of low-enriched uranium and reprocessing consent for the accumulated spent fuel from TAPS are also an essential part of the foundational narrative of our nuclear industry. Following the Pokhran-I detonation in 1974, the U.S. unilaterally abrogated its nuclear agreement with India, leading to the denial of fuel for the reactor. Thanks to France and Russia, last-minute supply solutions to the Tarapur crisis were always found but it was out of a burning desire to get out of this hand-to-mouth existence and end the fuel uncertainty once and for all that the United Progressive Alliance government of Prime Minister Manmohan Singh first began engaging Washington in discussions about a nuclear agreement.
The text which emerged on July 18, 2005, eventually went beyond merely envisaging LEU for Tarapur. On that day, the U.S. committed itself to lifting the global ban on fresh fuel and nuclear equipment sales to India. As the deal moved through each subsequent stage, the one challenge which Indian negotiators always sought to address has been to find ways of insulating the country from a repeat of the Tarapur experience. Tarapur happened because of a nuclear detonation. Their brief was to make sure there could be no repeat. After all, if billions of dollars are to be invested in the construction of new reactors in India, the country has to insulate itself from the possibility of fuel supply disruptions no matter what the cause. From the March 2006 separation plan onwards, therefore, fuel supply assurances have been a pivotal part of the agreement. Regardless of what the American side believed or wished, neither the separation plan nor the 123 Agreement of July 2007 qualified the circumstances under which these multiple layers of fuel supply assurances would kick in.
These layers of protection consist, inter alia, of U.S. support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors, and action by the U.S. in tandem with Russia, France and Britain to “pursue such measures as would restore fuel supply to India” in the event of disruption. The last layer of protection explicitly provided for by the agreement is India’s right to take “corrective measures” when all else fails.
These measures were agreed to by U.S. President George W. Bush in a joint statement with Prime Minister Singh on March 2, 2006. And they formed an essential building block of what was to follow, including the 123 agreement and the safeguards agreement with the International Atomic Energy Agency with its provisions for “perpetuity”.
It is significant that paragraph 5.6 of the 123 agreement – which repeats verbatim the March 2006 fuel supply assurances — provides no scope for derogation from these legally binding commitments by either party, even after termination of the agreement. Just as Washington expects India’s commitment to safeguard U.S. origin or obligated equipment and fuel to outlive termination of the agreement, the U.S. commitment on fuel supply assurances is linked to the lifetime of the reactors and not the agreement and does not lapse upon termination for whatever reason.
Just as there is no derogation, there is no qualification either. Subsection (b) of the paragraph actually begins with the sentence: “To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps”. Note the word ‘any’, whose meaning is unambiguous. Thus, it is clear that the agreement covers all disruptions regardless of cause. It certainly does not speak of different types of disruptions, let alone rule out disruptions caused by specific actions by India such as a nuclear detonation, a phrase which does not figure anywhere in the text of the 123.
The most shocking aspect of the Bush administration’s answers to the House Foreign Relations Committee (HFRC) questions is not its unambiguous and oft-repeated stand on termination of cooperation in the event of a test but the unilateral repudiation of the U.S. commitment to these fuel supply assurances. These answers were provided to the HFRC in January this year and deliberately kept under wraps all these months at the request of the State Department. The reason for this secrecy lies in the contents, which make it clear that the U.S. has no intention of honouring the agreement, is unilaterally pushing for changes in it and had actually negotiated the 123 text in manifest bad faith.
In its replies to the HFRC, the State Departments undermines the sanctity of the fuel supply assurances in six vital ways. First, in Question 14, it refuses to consider the assurances as contained in the March 2006 to be of a binding legal character, preferring instead to call them “important Presidential commitments” that the U.S. will uphold only to the extent they are “consistent with U.S. law”.
Secondly, in Question 15, it arbitrarily restricts the meaning of “disruption of supply”. It says the U.S. understanding of the phrase “disruption of fuel supplies” in Article 5.6 of the 123 Agreement “is meant to refer to disruptions in supply to India that may result through no fault of its own. Examples of such a disruption include (but are not limited to): a trade war resulting in the cut-off of supply; market disruptions in the global supply of fuel; and the potential failure of an American company to fulfill any fuel supply contracts it may have signed with India.”
Thirdly, it adds insult to injury by falsely asserting in the same answer: “We believe the Indian government shares our understanding of this provision”. It is surprising that this assertion has gone unchallenged by the Indian government.
Fourthly, in answer to Question 16 about the status of fuel supply assurances in the event of a nuclear test, the State Department unilaterally asserts that a nuclear detonation by India would give the U.S. the right to terminate the agreement on a year’s notice and that in case of termination, “the commitments in Article 5.6 would no longer apply”.
Fifthly, in Questions 17 and 18, the U.S. is serving notice of its intention to implement the so-called ‘non-binding’ clause of the Hyde Act (Section 103(a)(6)), which says it shall be U.S. policy to seek to prevent the transfer of nuclear material to India from other sources should American nuclear transfers be suspended or terminated. In the event of a fuel disruption following a nuclear detonation by India, therefore, the U.S. will not help arrange fuel from elsewhere but will actively work to deny access.
Sixthly and finally, although the State Department acknowledges the 123 agreement does not establish a minimum or maximum quantity of nuclear fuel to be placed in India’s strategic reserve, it warns that the parameters of the reserve “will be developed over time”. It also says it is “premature to conclude that the strategic reserve will develop in a manner inconsistent with the Hyde Act”, which specifies a reserve based only on the “reasonable operating requirements” of Indian reactors.
Taken together, it is clear that while India is seeking to establish clear rights and legally binding obligations as far as future fuel supplies are concerned, the U.S. emphasises the political contingency of the arrangement. Indeed, in its answer to Question 17, it says the fuel commitments are not legally binding but based on the U.S.-India initiative’s “political underpinnings”.
Far from slaying the ghosts of Tarapur, the spectre of fuel denial and arbitrary abrogation of commitments has already raised its ugly head. This time around, the situation is potentially far worse because India is thinking of importing billions of dollars worth of equipment and the conditions under which the U.S. can terminate the agreement are totally open-ended. In one stroke, the U.S. is seeking to slash away all the layers of fuel protection India has built and reduce it to just one: the strategic reserve. And even on that, one feels one has yet to hear the final word.
As for that other ghost of Tarapur – denial of reprocessing and the accumulation of toxic spent fuel – the State Department’s letter warns that the reprocessing consent rights contained in the 123 will not be “permanent” and can also be terminated by the U.S. It asserts that a provision to this effect will be incorporated in the yet-to-be negotiated “arrangements and procedures”. Leaving aside the fact that Article 14(9) requires both parties to define the “exceptional circumstances” under which consent rights can be suspended, and this has not yet been done, the answer is another warning that India needs to take seriously.
Was the releasing of the State Department’s answers on the eve of the NSG meeting an act of unilateral disclosure by the HFRC’s Howard Berman (a known critic of the India-US agreement) or a bilateral provocation by Berman and nonproliferationists in the State Department to ensure the NSG does not approve terms more favourable than what the US has accorded to India? Certainly, the State Department had known for two weeks that its letter was going to be made public on that day. But the sin lies not in the timing of the disclosure but in the contents of the letter. The answers and clarifications show there is such a huge gap between the Indian and American perception of the 123’s provisions that no rational decision maker in India can afford to buy a farthing’s worth of nuclear equipment from the United States without first resolving these differences.
The only insurance still left in India’s hand if the Americans push ahead with their interpretation on fuel supply assurances is to build a strategic reserve (of non-American fuel) to guard against supply disruptions caused by U.S.-led sanctions. Even if the NSG were to approve a waiver for India in a form the country finds acceptable, it is clear that the bilateral aspect of the U.S.-India nuclear agreement is more or less dead. Pouring billions of dollars into American reactors whose fuel supply may be uncertain and whose spent fuel India may find itself eventually barred from reprocessing would be folly of the highest magnitude. India does not need to conduct a nuclear test and should not do so either. But these are decisions a sovereign people must take in an atmosphere that is free from pressure and the threat of sanctions.
Mr. Varadarajan,>>I have been following your impressive presentation of the Indo-US nuclear deal for a while. Perhaps you should be a foreign policy adviser to the (impending) truly democratic people’s government of India. >>I want to make a couple of points. One of the commentators said “The US State Department deceit knows no bounds.” But is the Anglo-Saxon betrayal and treachery really news? Have we not been enslaved by the same Anglo-Saxon tribe for hundreds of years? The fault lies in the suplicating Indians, rather than the known defaulters. >>The Anglo knows how to bribe Indians, and they have done this for hundreds of years. Take a low self-esteemed person like Manmohan Singh, and give him a pseudo recognition. That is what happened when Manmohan Singh recieved a doctorate at Oxford, for which he is ready to sell his country and mother. Singh’s daughter is a lawyer in New York, and apparently works closely with the Bush attorneys. Perhaps money also changed hands in the U.S. What bothers me is that they could make more bribe money in India by collecting mamool from the lorry drivers at checkposts; why they sell the country for a few dollars is beyond my understanding. >>In order to sell the country to the Anglos, Congress party bought votes in Parliament with cash. And the BJP is worried that it will lose the opportunity to sell India to the Anglos if the Congress party does it before it could have a chance to sell the country. >>I would suggest a simple solution for the fuel problem, which is ratified by the international law in light of the recent events. India should occupy one of the countries with vast nuclear fuel resources (yellow cake) and do the same thing the Europeans did when they needed fuel resources. That is what Bush did with Iraq, and that is what is behind the Baku-Tbilisi-Ceyhan pipeline. >>The Anglos’ Great Game is to control Iran and stifle China and possibly Japan, who get their fuel from the Straits of Hormuz and Malacca. They want to use Indian bodies as sepoys (coolies with guns) while using Anglo Americans to bomb from 50,000 feet above in their war against China. That is the “strategic partnership” for which the Sardar wants to sell India. >>Finally, my bete-noire CPM, the treacherous bunch that betrayed its core principles (and the immense good will and sacrifice of the workers of India) more than two generations ago. I don’t know why Karat took up the nuclear deal as his pet project, but if he is sincere (even as a nationalist), he should leave CPM. I don’t think the CPM has the right to push the popular interest in India, one has to acknowledge that (albeit for their own selfish reasons) they did pull out of the government. But then again, even the CPM should have known how treacherous Congress party is; and yet they combined with them for several years to get perquisites of power. >>The people of India are watching Congress party’s abject surrender to the Anglo once again. This time history will teach them a lesson that will resonate for the next millennium.
Reprocessing and enrichment technologies are going to big business areas in which all major players in the nuclear industry are going to put their hand. For e.g. consider hot topic of < HREF="http://features.csmonitor.com/innovation/2008/08/27/will-lasers-brighten-nuclears-future/" REL="nofollow">laser enrichment<>. Reprocessing is inevitable since there cannot be any renaissance of nuclear energy (as envisaged by US’s GNEP program) unless the waste issue is taken care of. Even US and France recognize the problem of waste.>Now even if foreign reprocessing technologies are denied for whatever reason,India will be shooting itself in the foot, if it cannot reprocess the spent safeguarded fuel as a means of disposal of accumulating waste with indigenous technology.
Right of return should be tied to the right to get our money back.>Hope this is explicitly mentioned in the deal.
Wonderful analysis. One point you missed highlighting in your reasoning to not to trade with the US: Answer to Question 14 says, “should India detonate a nuclear explosive device, the United States has the right to cease all nuclear cooperation with India immediately, including the supply of fuel, as well as to request the return of any items transferred from the United States, including fresh fuel”. What India must return is not well defined. May be it needs to return the reactors too! In such an event, would the GEs and Westinghouses take old stuff back and return the money? What is the guarantee this won’t become an episode like the Pakistan’s F-16s. Pakistan paid money and Lockheed built the planes. But the US law prohibited them from being delivered. Lockheed never returned the money since its obligation to build the planes was fulfilled.
I agree with OP’s post. Main objective for India is un-interrupted supply of fuel – including the indirect supply using enrichment/reprocessing. India can not accept any terms that can break this supply due to impact of India testing for any reason. Everything else should be fair game for India – including indian exports restrictions, separation, safeguards for civil and reprocessing facility. I am surprised why India has not offered to NSG the promise of the dedicated reprocessing facility under safeguards as they have offered to US earlier…
India cannot stop perodic testing and mantain nuclear deterrent. No nuclear country can mantain reliable weapons without extensive testing underground or in copmuter simulations. India does not have copmuter simulations ability , also computer testing draws data from all past live tests. So moratorium on testing is just temporary at best.
Even if India does not import nuclear from US, it may still import defence equipoments in billions if NSG goes through. That may be the real allure for US and India may be in agreement with US on this. This will server both – Indian Nuclear and US commercial interests.
Indian nuclear deterrent is non-negotiable and periodic testing with whatever else activities is a vital part of it to remain so. Some reactors were separated and classified for military use just for that reason. Any deals must agree in clear and open manner to that very fact or anything else in the deal becomes just irrelevant.
There is nothing either shocking or unusual in anything the letter says. Art. 14(1) of the 123 agreement clearly allows both sides to unilaterally abrogate the agreement. The assurances of 5.6 only apply so long as the agreement holds; the moment, notice of termination is given, its provisions fail to have any value. The State Department’s letter simply clarifies what was known all along – no agreement, no fuel. Surely India was not so naïve as to seek assurances from the US administration or to expect this agreement to somehow be interpreted and implemented in a manner that is contrary to their own domestic laws. I fail to see the bad faith in any of this.>>The same thing is true for ‘disruption of supply’. The definition only includes those situations where the agreement stands but the fuel supply does not (again no agreement, no fuel). In answer to question 17, the reply makes clear that ceasing cooperation would be a ‘serious step’(akin to the words ‘exceptional circumstances’ in art. .14(9)), i.e., something that will not happen in the ordinary course owing to the usual political disagreements but only because of major events such as another nuclear test. >>I fail to see why the assertion that the Indian government understands this position is false. Nothing in the PM’s assurances to the Lok Sabha contradicts this fact.>>The same thing holds true on the fourth and fifth points – once the agreement is gone (which will imply a substantial souring of relations), the US is free to act contrary to its obligations under this agreement. On the sixth point, it is still premature to comment before we know what the US is willing to offer towards developing a strategic reserve. >>All your points would be valid concerns if India is actually planning another nuclear test – the right to test while still available, the cost of doing so may well be extremely high. But having already announced a moratorium on testing, there is no reason to think that we intend to do so anytime in the foreseeable future. Barring this situation, there is no other reason that I can construe of that will lead to fuel disruption. >>Your view that as a sovereign nation, we ought to have the unfettered freedom to test a weapon is not only unrealistic in an increasingly interdependent world but is a recipe for isolation. It is like asking someone not to have a serious relationship because he/she might end up getting hurt because of the inevitable break-up that will result in the improbable event that the partner’s red lines are crossed! Our non-nuclear trade with foreign countries too has expanded significantly since 1998 and is only expected to grow further – by that same line of reasoning, this too needs to be curtailed because it is going to hurt more to lose what we have than what we do not. >Siddharth,>>Finally, the question of whether we decide to buy from the Americans or not must be answered based on what other countries are able to offer us. Until we have talked to everyone willing and able to sell us the stuff we need (as well as reliable), it is premature to shut our doors on the Americans.
From:>>http://www.armscontrolwonk.com/2023/state-department-answers-on-india#comment>>>#>>Let’s suppose that everything went without a hitch at the August NSG meeting for the US-India deal from India’s point of view.>>A “clean and unconditional” NSG waiver would have been done —- rammed through by the US in the final days of the Bush Administration.>>As their reward, officials from the Bush Administration then can expect cushy jobs as lobbyists for the Government of India as soon as they leave their jobs in January.>>The deal then goes to Congress, where it is inevitable that the State Department Document would be made public, thus, stymieing the deal in the US.>>Congress would then be left with the option of either amending / overriding the Hyde Act to give India what they got – courtesy of the Bush administration – at the NSG, or in the alternative, see the American Nuclear Industry cut out of the Indian market.>>While this probably could not be done in 30 sitting days, there is no question that immense pressure can be brought to Congress by lobbyists working for the Government of India over the next year. Rather than to expend capital lobbying Washington again, the GOI of India double cross the United States using the NSG waiver.>>India goes off and concludes bilateral deals with Russia, France, Australia, etc. that secure their supply of uranium and also acquire as much technology and equipment under the NSG waiver. Delivery of these items happens over the next 2 or 3 years or as quickly as possible.>>At that point India comes back to the US and basically bargains for what few pieces they have not been able to acquire except from the US from a position of strength.>>If the US declines and Congress cannot be persuaded even by high priced lobbyists, India walks away.>>Shortly thereafter (within 5 years of today), India resumes testing but with a much stronger hand including a stockpile of uranium and all the non-US nuclear technology they bought.>>From this angle, going for a “clean and unconditional” NSG waiver even when the Government of India knew the US hands are tied by the Hyde Act and the bilateral US-India deal will probably die in Congress makes perfect sense.>>Divide the NSG members, and conquer them individually was the Indian game plan all along. Then get as much as India can without the US, and resume nuclear testing.>>I think it is called double crossing the US. And double crossing the NSG members.>>So…. back to wonky issues:>>Can someone on this blog provide us with a good faith estimate of how much it would cost for any country to:>>A) Build an enhanced nuclear deterrent with extensive penetration aids and other features to get through India’s ABM system so as to maintain the credibility of a nuclear deterrent against India?>>This would probably, of necessity, require increasing the number of warheads targeted at India and also the number of launch platforms.>>B) Create and deploy an anti-Ballistic Missile system to deal with the threat of Indian nuclear Intercontinental Ballistic Missiles?>>India has under development ICBMs with ranges up to 20,000km, putting virtually every country in the world “in range”. That includes Washington and New York.>>C) How do the cost of (A) and (B) compare with the “benefits” and profits earned from selling India nuclear materials and technology?>>Had India got their way, the Australians would be thinking very hard about getting a contingency plan to walk away from the NPT and field a nuclear deterrent 10 years down the road once India resumed testing and started fielding nuclear tipped missiles (perhaps on an SSBN or SSN) that can reach Australia.>>Just imagine hitting Australian taxpayers with the bill for a fleet of 6 or more SSNs needed to keep track of the Indian SSBNs.>>Australia is going to need every penny they make from selling India uranium to fund this!>>— Lao Tao Ren · Sep 3, 09:26 PM ·>>>>#>>The US State Department deceit knows no bounds. Senior officials such as Burns were tasked by President Bush to get India on board a strategic alliance that would facilitate a strategic Bloc in Asia to support American strategic policies. However, I had already analysed (see AGNI September – December 2005 Issue what Washington’s strategy would entail. Bob Joseph’s testimony to Congress vis-à-vis his interaction with the NSG members was extremely illuminating – as was Condi Rice’s testimony before Congress a few months ago. The disclosure of these 45 questions and answers came as no surprise to the Indians (other than the PMO) and, therefore the tremendous political opposition to the Indo-US ‘Nuclear Deal’. Unfortunately the Indian Government was gullible and queered our pitch with Iran – thank goodness not irreparably. While scams of all kinds prevail in India, these shenanigans by the State Department are the Grand Daddy of All Scams. Fortunately all has been exposed before the second meeting of the NSG. India’s indigenous potential is slow but good enough for it to continue its national civil and military nuclear policies without getting involved in disingenuous geopolitical shenanigans. We can now walk away from the deal honourably and continue with the premier national policy – SELF RELIANCE without compromising our sovereign autonomy.>>— Magoo Nair · Sep 4, 02:25 AM ·