If anything, the document merely calls into question the contention of the Indian spokesmen that the Hyde Act is not applicable to India, that the deal does not prohibit future nuclear tests and that a clean and unconditional exemption is possible. These were always mere play on words by India, knowing fully well that the contentions were wrong.
There will be no deal if India tests, the 123 Agreement is based on the Hyde Act and there is no such thing as a clean and unconditional waiver. The letter declares these unequivocally as a clarification by the legal specialist of the State Department. This has given the opponents of the deal in India to attack the claims of the government once again.
As the Indian external affairs minister stated finally on September 3, 2008, India's moratorium on testing is part of the Joint Statement of 2005. This means exactly what the State Department letter says, viz, the 123 agreement is contingent upon the moratorium. Once the moratorium goes, the deal goes with it. This was never in doubt, as has been stated repeatedly in these columns. To say in this context that we have the right to test is irrelevant. We have the right to test even if we sign the Comprehensive Test Ban Treaty, but it will be in pursuit of supreme national interest.
Deal or no deal, any test in the future will have international consequences, not just from the United States. The sanctions under the Glenn Amendment came in 1998 when there was no nuclear deal.
Again, as stated in these columns before, it is incorrect to say that the Hyde Act does not apply to the deal. Any US government official is legally and morally bound to act within the boundaries of any Congressional legislation. India had made a judgment that the Hyde Act was not detrimental to India's interests and, therefore, actively supported it. Then why do we go out of our way to condemn it?
The onus of implementing the Hyde Act is of the US administration and it is merely claiming that it has done its job in negotiating with India. Let the administration and the US Congress fight this issue. As far as India is concerned, the 123 Agreement
Let us not, for God's sake, keep saying that the Hyde act is not applicable. It is not binding on India, but there can be no 123 without the Hyde Act.
The third point that the letter clarifies is that there is no such thing as a clean and unconditional waiver. The waiver is being sought against the backdrop of the Joint Declaration, which outlines the conditions of the deal, the separation plan, the Hyde act, the draft 123 Agreement and the IAEA safeguards agreement. Then what is clean and unconditional about the waiver? It will be riddled with conditions we have already accepted. The right thing to say is 'no new conditions.'
Why India insists on an unconditional waiver and provokes the Nuclear Suppliers Group is indeed a mystery. In fact, the NSG countries will impose sanctions against India if India tests again.
On these three issues, It is India which has been tying itself in knots. The recollection by the external affairs minister that the moratorium is a part of the 2005 Joint Statement is a good way to begin applying the correctives. He did not say this time that India has the right to test.
The other points in the January letter of the State Department are interpretative and hypothetical. It merely assures the US Congress that matters like perpetuity of supplies, stockpiling of fuel, inspection etc will be governed by the commercial and non-proliferation interests of the United States. It is premature to begin a discussion at this stage when we have not signed the 123 Agreement as yet. Moreover, no one in India has criticised the 123 Agreement.
Every international treaty is open to interpretation and there is a machinery to deal with these problems. As long as the prime minister's assurances are embodied in the 123 Agreement, we do not need to quarrel with an internal document of the United States. The State Department is, as someone said, dancing around certain provisions of the 123 Agreement. As for reprocessing, we know well that it has to be negotiated and agreed in the future.
The publication of the State Department just before the NSG meeting may be a blessing, because it may allay some fears among the NSG countries, generated by Indian statements on testing, the Hyde Act and an unconditional waiver. China, having failed to use the proxies effectively, has now come out in the open with its opposition to the deal. The stage is now set for the NSG to take a decision and if it clears the waiver, we can go ahead with greater clarity to operationalise the deal. If not, the deal has to go to the drawing board again with all its attendant risks.
T P Sreenivasan is a former Indian ambassador to the United Nations, Vienna, and a former governor for India, International Atomic Energy Agency, Vienna.