The nuclear deal cannot be reopened

Renegotiation is not desirable, even if it were an option. But the next government can always decide not to buy American reactors if it doesn’t like the terms on offer...

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The nuclear deal cannot be reopened

Renegotiation is not desirable, even if it were an option. But the next government can always decide not to buy American reactors if it doesn’t like the terms on offer.

Siddharth Varadarajan

In the course of the election campaign, several leaders from L.K. Advani and Yashwant Sinha of the Bharatiya Janata Party to Prakash Karat of the Communist Party of India (Marxist) and even Pranab Mukherji of the Congress have spoken of ''reworking'', ''not implementing'' or ''reexamining'' the nuclear deal with the United States.

In an interview last week to Sheela Bhatt of rediff.com, Mr. Sinha, a former external affairs minister, said, ''I believe we should not implement the nuclear deal at all… I am saying do not take those steps required to implement the deal like changing domestic laws''. His party’s prime ministerial candidate told the Indian Express that international agreements ''are normally not scrapped only because of a change of government''. But since the BJP “always regarded national
security as a prime consideration'', the party would ''review'' and ''examine'' the agreement to ensure it did not ''put constraints on our strategic autonomy'' if it were to form the next government.

As for the Left, Mr. Karat told Karan Thapar on CNN-IBN on May 11 that a government of which it was a part would seek to rework the nuclear deal. Despite the signs of indifference and even hostility on nuclear matters emanating these days from the White House and the Democratic party in general, the CPI(M) leader expressed his optimism about India extracting a better deal if the ‘123 agreement’ were to be reworked. ''I think with a Democratic administration, Obama administration, we can talk about reworking this deal''. The Left parties ''look with expectation to President Obama'', he said, adding that ''the understanding which was there with President Bush got this agreement through. I think there'll be no serious problems with the new administration if we can get things reworked… I think the Democratic
administration will be prepared to at least open up and discuss what we want done''.

On his part Mr. Mukherjee provided yet another straw in the wind. Asked by NDTV on May 7 whether a future Congress-led government might ''relook''' the nuclear deal if the Left insisted on such a step as a condition for support, he was noncommittal. ''I'm neither ruling out nor saying that it is possible'', he said.

The problem with the election-eve rhetoric on renegotiation is that the ''nuclear deal'' refers not to a single document or text but to a complex set of undertakings and commitments by India and the international community of which the bilateral agreement on civil nuclear cooperation with the U.S. is just one part.

Of these, the most important element is clearly the 45-nation Nuclear Suppliers Group’s decision last September to lift its export ban on India. Of course, that exemption would not have been possible without what preceded it: the July 2005 Indo-U.S. agreement, the Indian separation plan, the Hyde Act passed by the U.S. Congress in December 2006, the ‘123 agreement’ between New Delhi and Washington and, finally, the approval of the India-specific safeguards agreement by the International Atomic Energy Agency last August.

Some of these initial steps cannot be reversed without jeopardizing the NSG exemption but some are today quite irrelevant. If India were openly to renege on its separation plan, for example, and not offer up for safeguards in a phased manner the reactors it said would be designated civilian, this might prompt some members of the NSG to seek withdrawal of the exemption. An Indian nuclear test might also trigger such a move, though the 45 countries that make up the NSG’s membership would have to agree unanimously to terminate cooperation. But an Indian failure to purchase equipment from the U.S. under the ‘123 agreement’ will have no direct bearing on the wider edifice of nuclear cooperation that has been erected.

Even as far as India’s sovereign commitments go, it is not as if a future government will have no leeway other than abrogation or non-implementation. For example, the Indian safeguards agreement is very clear on the manner in which the separation plan is to be implemented. Only when lifetime fuel supply arrangements are concluded to India’s satisfaction will the individual civilian reactors be expected to go under safeguards. If such arrangements cannot be made for one reason or another, no additional reactor needs to be safeguarded. But the country could still buy fuel from abroad for those reactors which were safeguarded from before like Tarapur and
RAPS, something it was unable to do prior to last year’s NSG exemption.

The election rhetoric also obscures the fact that what is popularly called the “nuclear deal” is in fact several deals now – with the U.S., of course, but also with Russia, France and Kazakhstan. And that these deals do not come with a uniform set of rules. Individual supplier nations have their own laws, some less onerous than others, for the supply of nuclear equipment and material. And it is entirely up to India to decide where it wants to send its business. Reactor deals with France and Russia are already at an advanced stage of implementation. Uranium supplies have also been tied up with France, Russia and Kazakhstan. There is little sense in seeking to “rework” or “renegotiate” these agreements.

With the U.S., however, a considerable about of diplomatic, commercial and legislative legwork remains before bilateral nuclear cooperation can actually begin. Reprocessing arrangements have yet to be concluded and American companies want India’s liability laws amended. On reprocessing, it is highly unlikely that the Obama administration will accommodate Indian concerns and agree to dilute the unacceptable positions the Bush administration took. Even if a satisfactory text emerges, a future government in New Delhi might still have legitimate concerns about the differences in interpretation the two countries have on the meaning of key sections of the 123 agreement. Reworking these will be a political and diplomatic impossibility. A much easier option would be to simply resolve not to spend the Indian taxpayer’s money on American nuclear equipment.

This is the ultimate option for India if it has reservations about the final contours of bilateral civil nuclear commerce with the U.S. And the option is best exercised quietly, with dignity and decorum, rather than by seeking to renegotiate a deal whose wider geographical benefits India has no reason to complain about or compromise.