Nuclear update: 123 @ Senate

The Senate Foreign Relations Committee has marked the 123 agreement up to the Senate but done so in a way that India does not like. As I predicted, implementation of the 123 -- as conceived by the 'United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act' -- 'is to be strictly in conformity with the Hyde Act, its fuel supply assurances are not to be legally binding and the U.S. administration is asked actively to scuttle India nuclear supplies from elsewhere in the event of America terminating cooperation with India.

The redoubtable Aziz Haniffa of India Abroad has the gory details...

N-deal: India finds 'change in language' unacceptable

Aziz Haniffa in Washington, DC | September 24, 2008 11:15 IST

Even as Prime Minister Manmohan Singh [Images] arrived in the United States, the powerful US Senate Foreign Relations Committee under a revised schedule on Tuesday, formally put the US-India civilian nuclear agreement on its agenda and approved it by a margin of 19-2.

But apparently India finds it unacceptable because of a change in language from the 123 Agreement it negotiated with the US and also a more punitive measure if it tests, which was not contained even in the Hyde Act.

The Bush Administration officials, however, said privately that they can live with the compromise language and the Indian-American community leaders and activists who had been lobbying for the deal for years were elated and were hoping that there would be floor action soon in the Senate and House so that the deal could be consummated before the Congress adjourns for the year.

Indian Ambassador Ronen Sen immediately after the Committee's approval of its bill, called leading Indian-American activists -- and it is understood also the Government of India's lobbyists -- expressed India's misgivings about the bill that was passed and said it would be difficult for India to accept the change of language and spoke of the significant issues it raised.

Compromise in this regard was also obviously going to be untenable, particularly since Prime Minister Manmohan Singh himself had drawn a line in the sand and asserted on arrival in Frankfurt en route to the US that the 123 Agreement was non-negotiable.

The parts of the bill, which the Committee titled the 'United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act,' that India found unpalatable were in particular that it had to be in strict conformity with the Hyde Act, and also that in the event India tests, the US would not simply 'discourage' other Nuclear Supplier Group members to deny India nuclear equipment, materials and technology to India but work to 'prevent' such transfers. Also, that the commitments regarding fuel supplies are indeed political and not legally binding.

In Section 101, titled Approval of Agreement, and sub-section (b) with regard to Applicability of Atomic Energy Act of 1954, Hyde Act, and other provisions of Law, the legislation approved by the Committee said, "The Agreement shall be subject to the provisions of the Atomic Energy Act of 1954, the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, and any other applicable United States law."

In Section 102 of the bill titled, Declarations of Policy; Certification Requirement; Rule of Construction, and the sub-section which dealt with Declarations of Policy Relating to Meaning and Legal Effect of Agreement, the legislation clearly laid out that "Congress declares that it is the understanding of the United States that the provisions of the United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy have the meanings conveyed in the authoritative representations provided by the President and his representatives to the Congress and its committees prior to September 20, 2008, regarding the meaning and legal effect of the Agreement."

Senior Bush Administration officials, led by William Burns, Under Secretary of State for Political Affairs, who testified before the Committee last week, under intense questioning by the Acting Chairman of the panel Senator Chris Dodd and others, if the 123 Agreement commitment regarding fuel supplies were only political commitments and not legally binding, in the event that India tested, acknowledged they were the former.

And, subsection (b) of Section 102, titled Declarations of Policy Relating to Transfer of Nuclear Equipment, Materials, and Technology to India, which Sen had made clear was most offensive to India said, "Pursuant to section 103(a)(6) of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, in the event that nuclear transfers to India are suspended or terminated pursuant to title I of such Act, the Atomic Energy Act of 1954, or any other United States law, it is the policy of the United States to seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group or from any other source."

The word 'prevent,' had replaced the earlier 'discourage,' hence adding on a more punitive component in the case of India testing.

Sub-section (2) also eliminated India being the beneficiary of any additional material, when it stated that "pursuant to section 103(b)(10) of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, any nuclear power reactor fuel reserve provided to the Government of India in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements."

And, in reinforcing the Agreement's conformity with the Hyde Act, the legislation stated in sub-section (d) titled Rule of Construction, that "nothing in the Agreement shall be construed to supersede the legal requirements of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 or the Atomic Energy Act of 1954."

Section 103, titled Additional Protocol Between India and the IAEA (International Atomic Energy Agency) stated, "Congress urges the Government of India to sign and adhere to an Additional Protocol with the IAEA, consistent with IAEA principles, practices, and policies, at the earliest possible date."

Senator Richard Lugar, the ranking Republican on the Committee and a fierce nonproliferation advocate, who co-sponsored the legislation with Dodd, with extensive involvement by the chairman of the Committee Senator Joe Biden -- who is on the campaign trail as Democratic Presidential nominee Senator Barack Obama's [Images] running mate-- said, "Today's approval is an important step for the United States and India to seize an important strategic opportunity."

He said, "This cooperation and agreement has been developed through extensive public hearings and public record that answers hundreds of questions. This has resulted in overwhelmingly favorable Congressional votes at each step of the process."

Lugar predicted that "I am confident that we have cooperation from the Bush Administration and a strong bipartisan team in Congress to complete action on the bill this year."

Senior Congressional sources told rediff.com that Congressman Howard Berman, chairman of the House Foreign Affairs Committee, also had considerable input into the Senate Committee's legislation with his staffers and the Senate panel staffers working in concert to craft a bill that could possibly be cloned in the House for floor action.

The two dissenting voters were Senators Russell Feingold and Barbara Boxer, Democrats from Wisconsin and California. Biden and Obama, while not present, voted yes by proxy. Earlier, a killer amendment by Feingold was rejected by 15-4. The amendment sought to require the US to work with other NSG members for a ban on the transfer of enrichment and reprocessing technology to any country that is not a signatory to the Nuclear Nonproliferation Treaty and it was obviously targeted toward India.

Congressman Gary Ackerman, New York Democrat, who chairs the House Foreign Affairs Subcommittee on South Asia and has one of the staunch supporters of the deal, told of India's significant issues with the Senate Committee's legislation, while acknowledging that the were some changes from the original 123 Agreement and the Hyde Act, said, all of this was "a political issue."

He told rediff.com, "The issue of testing is there -- that the deal is off if there's testing. So, then you can have a challenge from the Left politically in India, saying that India gave in to this or that or the other thing. But that's a political question because India says it's not going to test anyway."

"So, if it's not going to test, it's only a psychological barrier," Ackerman argued, and said, "My view is get the darn thing done and we'll worry about the politics there, the politics here later. That's what politicking is -- who gets blamed, who gets the credit."

He reiterated, "Let's get it done. That the main issue -- keep the eye on the ball. That's the prize."

Swadesh Chatterjee, coordinator of the US-India Friendship Council, an umbrella group of Indian American political, community and professional organization, that was formed solely to push through the deal, and which had an Advocacy Day on behalf of the deal on Capitol Hill Tuesday, said, "There has to be a compromise because we have to get it done because there will either be this bill or no bill and we can't let it go for next year because next year, you don't know how many changes there could be."

He told rediff.com, "The changes in this bill from the original 123 Agreement could be insignificant compared to what could be tagged next year and so that it why it is so important to get it done. So, I think we have to live with it and see how it goes. The Senate is trying to make a compromise and it makes sense, because there cannot be two bills--one in the House, one in the Senate. The Senate bill has been okayed by the State Department."

Chatterjee predicted that when Dr Singh meets with President Bush they would reach a compromise which would facilitate the bill going forward "so that hopefully we can complete it in this year's Congressional session."

One senior Administration source told rediff.com that if India rejects the Senate Committee bill, "It wouldn't be just looking a gift horse in the mouth --particularly when timing is of the essence -- it will be kicking it in the mouth."