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'Clear waiver at NSG is a fantasy'
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Text: The India-specific IAEA safeguards agreement

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August 06, 2008
Daryl Kimball, executive director of the Washington, DC-based Arms Control Association, believes India's expectation of a 'clean exemption' at the Nuclear Suppliers Group meeting scheduled for August 21 is "a fantasy" and is also convinced that even if the US-India civilian nuclear deal is approved by the 45-nation NSG, there is no way the US Congress will have the time on its calendar to give the 123 Agreement its imprimatur.

In an interview with India Abroad Managing Editor Aziz Haniffa, Kimball said for all the confidence of the Bush administration that it can achieve a consensus on the deal at the NSG and get it back to US Congress when it reconvenes on September 8 was wishful thinking because the US State Department was yet to circulate the draft proposal to the NSG members.

Kimball's remarks come in the wake of US Ambassador to India David Mulford telling Delhi-based correspondents on Tuesday night that India should not demand a "unconditional waiver" from the NSG as it was "somewhat a provocative word to be used "ahead of the scheduled August 21 meeting.

How disappointed were you by the International Atomic Energy Agency's unanimous decision to approve the India safeguards agreement and also Director General Mohamed El Baradei's strong endorsement of it?

The IAEA board of governors decision has never been considered to be the tough part of the process. This was a technical agreement and so it was not surprising that the agreement was approved by the board of governors.

But, what is important and notable are two things. One is, in response to our questions and concerns about India's assertions that the agreement would allow it to withdraw facilities and materials from safeguards if fuel supplies are interrupted, El Baradei did make clear that the India-IAEA safeguards agreement made the safeguards permanent and the termination of the safeguards are governed by the section of the agreement that specifically talks about termination. So, in a certain way, we helped clarify one of the most troubling parts of this technical agreement.

Was it a victory of sorts, in terms of getting a clarification on this area of concern?

I would interpret it as a clarification and I do not believe the Government of India can now assert that the preamble section combined with the operative paragraph give it the legal right to unilaterally withdraw facilities and materials from the safeguards agreement if fuel supplies are interrupted. So, that can be useful.

The other thing is, several States made it clear that the approval of the agreement by the board of governors was not the final stamp of approval on the overall deal and that they would bring up their concerns in the context of the Nuclear Suppliers Group, which we have been predicting they would do. I still expect that the NSG countries are going to insist upon some commonsense restrictions on nuclear trade with India and conditions that are roughly similar to the major requirements set forth in the Hyde Act.

As you know, India's Atomic Energy Agency chairman Dr Anil Kakodkar and other officials have said that India expects a clear and unconditional waiver from the NSG and expects the US to deliver on this so that there are no new conditions that would nullify the safeguards?

That's Kakodkar's going-in position. I think that it is a fantasy, however, that the NSG is going to grant India a clean exemption and it would be a folly for the NSG countries, including the United States, to give India a totally clean exemption from all NSG guidelines. And, if that is India's expectation, then I think the Government of India will be disappointed.

The end game really begins at the NSG, not in US Congress?

Absolutely. No one expected the board of governors' discussion about the safeguards agreement to be the place in which this overall proposal was going to be debated, or won or lost. It was always known the NSG is the key -- and we've been saying this for a long time.

I believe some of the small countries in the NSG like Austria, New Zealand [Images], Netherlands, Norway, Switzerland [Images], and others who have qualms have made it clear that they intend to bring up their concerns when the NSG convenes on August 21, but in the final analysis, the betting seems to be that none of these countries would want to antagonise India, and more importantly, the US, both of which they want good relations with, particularly in trade.

Former Assistant Secretary of State for Nonproliferation Bob Einhorn has acknowledged that even if these countries express their concerns in private, publicly they would be part of the consensus endorsing the agreement?

With all due respect to Bob, the way this works is that the chair, which is Germany [Images], it is their task to canvas all of the NSG countries to understand what each country's concern is and to understand whether these countries are comfortable with the proposal that the United States puts forward.

Germany has not circulated a draft to the full set of NSG countries. They have circulated some ideas to a few NSG countries and to the Indian government. So, at this point the Germans are operating with less than a full deck. They don't know what it is they can go off and ask the countries to respond to.

The way it works is that the chair has to figure out if there's consensus around a specific proposal and this is not a public process in the sense that these countries can communicate their concerns privately to the chair.

This is a multi-dimensional negotiation. It is not a public discussion -- this is not a debate in parliament; if countries have concerns, they have ways of expressing them and holding up the process.

What you are saying is that it's not as if the NSG meets on August 21 and gives the green light by consensus for the Bush Administration to run with the agreement to US Congress to seek ratification?

This is also a fantasy. What are they reaching a consensus about? The American government has not transmitted its proposed changes to NSG guidelines as of today (August 5). Most of these NSG countries' diplomats are on vacation. So, it is terribly difficult for the Germans as chair and the State Department to understand what these countries think about this American proposal that has not been put forward. These discussions that will take place on August 21-22 is likely to be an opening discussion about the US proposal.

The issue will not be decided in one meeting of the NSG, and they are already scheduling a second meeting of the NSG some time in early September in Vienna [Images] on the margins of the IAEA board of governors. Even if all this happens, there still will be no time left for the United States Congress to consider the US-Indian bilateral nuclear cooperation agreement -- the 123 -- I am quite certain of it.

Then what's all this talk by the Administration that they hope to deliver it to Congress on September 8 when Congress reconvenes after its summer recess?

In my view, I don't see what the rush is. The political calendar is being driven by the Bush Administration's exit dates and a possible or even likely election in India at the very end of this year or early 2009 because the current coalition is very fragile and could fall apart at any time. Those are the realities and the strategy of the Government of India and the State Department is to try to communicate through the Indian press -- which I must say is very accommodating to the official stand of the government -- that they are certain that this is going to go through on a fast schedule. A lot of that is bluster and it's not connected to the realities of the NSG deliberations.

There have been allegations that the Bush Administration is using arm-twisting tactics with some of the smaller states -- who are members of the NSG -- who had expressed qualms at the IAEA board of governors meeting, in order to make sure they vote in favour of this deal at the NSG?

Sure, the Bush Administration is desperate. They are desperate in a negative way. They will stop at nothing to get this done. They don't seem to care about the quality of the decision at the NSG. They just want it to be done so that they can leave office claiming a foreign policy victory which in the Bush Administration has maybe one of two foreign policy victories out of a 100.

What's the strategy of the nonproliferation coalition vis-�-vis the NSG now that the end-game has begun?

We are going to do what we've been doing for over a year-and-a-half, which is to communicate directly with the NSG countries about the adverse implications of an India-specific exemption from the NSG rules. We are going to be putting forward specific ideas for restrictions and conditions and we are doing this with direct communications to these governments' foreign ministers and experts in these NSG countries. We are doing some things that will culminate in a couple of weeks before the first NSG meeting.

What makes you guys convinced and so sure that there's no way the deal can be ratified by Congress before it adjourns for the year and signed into law by President Bush?

The only way it can go through the Congress is if the NSG makes the India-specific exemption at this August 21 meeting or a meeting in the first week of September and if the US Congress -- the House and the Senate -- agree to suspend the procedural rules established in the Hyde Act for consideration of the 123.

Many people have already written that it is not going to happen in part because it doesn't take too many House members or Senators to block that from happening and you got to have the support of Senator Joe Biden (chairman of the Senate Foreign Relations Committee), Senator Richard Lugar(the ranking Republican on the committee), Congressman Howard Berman (the chairman of the House Foreign Affairs Committee), Congresswoman Ileana Ros-Lehtinen (the ranking Republican on the Committee), Senate Majority Leader Harry Reid, and House Speaker Nancy Pelosi.

That's an extremely tall order and I can tell you that at least some of these people are in no mood to suspend the procedural guidelines that the Hyde Act established for considering the 123. So, the agreement has to lie before the House and the Senate for 30 days, the President has to complete the determinations that are listed in the Hyde Act and hearings have to be held. These guys want to get out of Washington by the end of September and go campaign (besides the presidential elections, Congressional elections for all 435 House seats and several Senate seats are also up for grabs in November).

And, there's not going to be a lame-duck session either. So, I don't understand how it could happen, and, this is not just because I don't want it to be considered this fall -- these are the facts.

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