Dateline Vienna: Thirty words that saved the day

An inside account of the roller-coaster ride and extreme mood swings at Vienna... With the NSG waiver creating rights for both India and its critics, diplomacy and power hold key to implementation.

9 September 2008
The Hindu

Thirty words that saved the day

With the NSG waiver creating rights for both India and its critics, diplomacy and power hold key to implementation.

Siddharth Varadarajan

Vienna: Only in the arcane world of diplomacy do the most implacable and bitter of disputes get settled with the addition and subtraction of a word here or a phrase there. At Vienna, the fate of the entire waiver for India from the export rules of the Nuclear Suppliers Group revolved around the use of some thirty odd words. That, plus some late-hour pinch hitting by the United States — which knew full well the disastrous consequences of failure — finally brought the NSG around to its momentous decision Saturday lifting a 16-year-old ban on nuclear sales to India.

Late on Thursday night, after the first round of discussions within the Nuclear Suppliers Group, so negative was the report sent by the United States about the level of opposition to the proposed draft waiver that the Indian delegation here was bracing itself for another battle over revisions to the text.

Barely six days earlier, a small band of Indian officials in Delhi had withstood “the heat of a pressure cooker” to ensure the second version of the draft waiver had none of the killer amendments the U.S. was insisting on following the debacle of the first NSG meeting on August 21 and 22.

But when this correspondent caught up with senior members of the delegation close to midnight, the sense of gloom and foreboding was palpable. The going was tough to impossible, they had been told by the U.S., and suggestions were made to be ready to compromise. “If this gets out of hand, our only option will be to do a ‘Kamal Nath’,” a senior Indian official told The Hindu, making a reference to the Indian commerce Minister’s dramatic rejection of American proposals at the World Trade Organisation meeting in Geneva in July.

September 4 began on a sour note for the Indians as the shockwaves from the ‘Berman bombshell,’ which had exploded in Washington and Delhi two days, made their way to Vienna. Several countries demanding strict conditions in the draft waiver latched on to the State Department’s answers to the questions posed by the House Foreign Relations Committee on the parameters of America’s own policy on nuclear cooperation with India.

“Why should the NSG settle for anything else?” was the question several countries, including New Zealand and Ireland, posed when the plenary got under way that morning. At the same time, a growing number of other states said they now wanted the text adopted. Germany, in particular, as the chair of the NSG, offered constructive support. And it was a suggestion by Berlin which India accepted that provided the meeting with its crucial turning point.

German role

For at least a month, Germany had been asking India to issue a statement or declaration outlining the country’s positions on non-proliferation. It is our assessment, a senior German official told The Hindu before the first NSG meeting, that such a reiteration of India’s positive views and record would be widely welcomed.

The idea originated with Viktor Elbling in the Foreign Ministry and was seen as helpful by both the Indian embassy in Berlin as well as the Ministry of External Affairs. In mid-August, German Foreign Minister Frank-Walter Steinmeier spoke to External Affairs Minister Pranab Mukherjee and reiterated the suggestion.

India, which was wary of establishing linkages or conditionality, tested the waters in late August with a letter to Mr. Steinmeier. This letter, say German officials, made a deep impression on their government and they reverted to Delhi with the suggestion: a similar letter to all 45 members of the NSG would go a long way towards assuaging lingering concerns about the waiver.

Foreign Secretary Shiv Shankar Menon worked on a draft and by Friday a statement on India’s stand on disarmament and non-proliferation was issued in the name of Mr. Mukherjee and sent to the NSG. Though the statement made the NSG context clear, India also sent word that it had reservations about the document being appended to the draft waiver. Despite this caveat, the effect was dramatic, if not electric. NSG members saw this as a last chance to break the impasse. When the plenary adjourned, the sense of optimism was obvious. This has generated new momentum, John D. Rood, the acting U.S. Under Secretary for Non-proliferation, told reporters.

The statement itself was used by India to advance a number of other goals, officials said, apart from reiterating the moratorium on testing. Thus, a major reference was made to India’s working paper on nuclear disarmament at the U.N. which calls, inter alia, for conventions banning the production, stockpiling and use of nuclear weapons and their timebound, non-discriminatory and verifiable elimination as well.

And in the sphere of nuclear energy, it said India was interested in “participating as a supplier nation, particularly for thorium-based fuel and in the establishment of international fuel banks, which also benefit India.” Giving a sense of India’s thinking on the usefulness of this approach, an official said, “Tomorrow if some NSG member questions our adherence to the commitments referred to in the waiver, we can just as easily turn around and ask why they are not supporting our move at the U.N. for the timebound elimination of nuclear weapons.”

While Mr. Mukherjee’s statement was widely welcomed by all, including Ireland, New Zealand, Austria, the Netherlands, Switzerland and Norway, the ‘Group of Six’ continued to insist on conditional linkage between the waiver and India’s commitments.

Draft changes

Of their various proposals, automatic termination of supplies in the event of an Indian nuclear test was seen as a killer, not only by India but by Russia and France which did not want such a major decision forced on them by committee. As the six dug their heels in, the mood in the Indian camp turned gloomy again. This is when the Norwegians, Dutch and others suggested making a reference to the Indian statement in the chapeau of paragraph 3. India responded warily at first but was able to eventually agree on language with the U.S. and the six holdouts. The chapeau, which establishes a link between India’s commitments in paragraph 2 of the waiver and the NSG’s decisions as enumerated in paragraph 3, finally ended up stating: “Based on the commitments and actions mentioned above, as reiterated by India on September 5, 2008, and without prejudice to national positions thereon, Participating Governments have adopted and will implement the following policy on civil nuclear cooperation … [with India]”.

The italicized words were all new compared to the earlier draft. If the Indians felt this reference did not create any additional commitment or linkage for India, the formulation also came with an unexpected bonus. Thanks to Argentina and Brazil, which were defending their own policy in favour of access to enrichment and reprocessing (ENR) technology, the reference to “without prejudice to national positions thereon” was inserted.

Indian officials feel this creates additional space for NSG members to exercise their independent national judgment in the event that one or more countries ever try to demand termination of supplies to India in line with paragraph 3(e) of the waiver and paragraph 16 of the NSG’s existing guidelines. Either way, supplies can only be terminated by a consensus decision.

But the reference to Mr. Mukherjee’ statement was not the only change that was made in the final waiver text. Para 3(e), which spells out what the NSG could do in the event of India violating its commitments, was strengthened in three minor but important ways.

First, the reference to intra-NSG consultation on implementation of the waiver — which was in a separate paragraph in the second draft — was merged with the paragraph envisaging termination action in accordance with paragraph 16 of the guidelines. Second, the scope of consultation has been explicitly mentioned as including the implementation of “all aspects” of the waiver. And third, the convening of a meeting to discuss any Indian violation has become obligatory even if any action which results from such a meeting will still have to be taken by consensus.

Thus, the waiver says: “In the event that one or more Participating Governments (PGs) consider that circumstances have arisen which require consultations, [PGs] will meet, and then act in accordance with paragraph 16 of the Guidelines”. (new text in italics)Other minor changes include substitution of the phrase ‘partnership with India’ by ‘cooperation with India’ in the paragraph 3(d) reference to the intensification of dialogue between the NSG and New Delhi. This change was made at the urging of the G-6, which did not want to acknowledge India as a ‘partner’ of the NSG so long as it continues to remain outside the Nuclear Non-proliferation Treaty.

The Indian side had no serious objection to this, nor did they have any problem with the ‘compromise’ effected to resolve the objection some states had to the transfer of enrichment and reprocessing technology and equipment to India. Since a ban was not acceptable to India and many other states, the final draft simply reiterates paragraphs 6 and 7 of the NSG’s existing Guidelines urging members to exercise restraint in their transfer to any country.

Finally, paragraph 4, which in the very first version in August, gave India extensive rights of consultation prior to the adoption of future Guideline changes by the NSG, stands further diluted by enlarging the scope of the NSG chair’s consultation with India to cover “changes to and implementation of the Guidelines”. However, the savings clause tying India’s effective implementation of the changed guidelines to its prior consultation survived a determined attempt to have it deleted.

As these changes were accepted by India, the ranks of the opponents gradually thinned. But even this, say Indian officials, required a series of “fairly real time demarches” by Washington to ensure the withdrawal of objections. After spending the better part of two weeks feeling frustrated and even angered by the contradictory manner in which the U.S. was handling the NSG issue, the Indians were finally able to see, in the game’s closing hours, the full weight of the American diplomatic machine swinging into action. At 2 a.m. on Saturday, the Gang of Four – New Zealand, Ireland, Austria and China – were still undecided. By the time the plenary reconvened at 11 a.m., each had come around.

But India’s sense of awe at Washingon’s midnight diplomacy comes tinged with the recognition that the same effective machine could just as easily be deployed again to get the waiver revoked should political circumstances change. The NSG’s decision meets the criteria of ‘clean and unconditional’ but it has done so by creating rights for both India and its critics within the NSG. Even without the textual changes introduced, NSG members were free to push for termination. Making sure such a push never succeeds will have to be a major goal of Indian diplomacy.