Given the riders that accompanied the passage of the U.S.-India Nuclear Cooperation Agreement through Capitol Hill, there is no reason for the United Progressive Alliance government to feel euphoric about Wednesday evening’s 86-13 vote in the Senate. The 123 Agreement was always going to be subordinate to the Hyde Act and it was disingenuous of the government to argue the contrary. What made the text somewhat defensible was the balance of rights and obligations it co uld claim to strike within. That balance has been fatally disturbed by the White House and Congress entering reservations derogating from a number of its provisions. Those who argue that the bilateral deal is unaffected and that India cannot be bound by anything it does not sign miss the fundamental point: the U.S. has posted advance notice of its refusal to be bound by what it is about to sign. This means India must carry the burden of its obligations while being denied the clear rights the agreement gives it with respect to fuel supply commitments and the permanence of reprocessing consent rights. Implementation of the 123 was always going to be difficult given differing interpretations of the provisions on the termination of nuclear cooperation and implementation of ‘the right of return.’ But with the new issues opened up first by the Bush administration and then by Congress, it will be irresponsible on the part of the Indian government to operationalise the agreement — and use it as the basis to import 10,000 MWe worth of nuclear reactors from the U.S.
No doubt President George Bush will attempt to assuage Indian concerns by making a signing statement setting aside some of Congress’s riders. But the bare essence of what the American legislature has done is to incorporate what Mr. Bush conveyed to it last month. Will it be proper for New Delhi to sign an agreement whose basic provisions Washington says it has no intention of treating as a legal commitment? Even if the Indian government places on record its disagreement with the U.S. position, the 123 is destined to remain a dead letter for the foreseeable future. Satisfactory fuel supply arrangements can conceivably be struck with other countries but no U.S. reactor can be bought without permanent arrangements for reprocessing its spent fuel firmly in place. For India, the Nuclear Suppliers Group waiver seemed the high point of the drama because, in principle, it opened the doors of the world to it. But like a deviant son who appears in the closing stages to claim his inheritance, the 123 has become the plot spoiler. The UPA government must urgently take Parliament into confidence on what has happened. It must make it clear to the people of India and to the U.S. that bilateral nuclear commerce will not be possible given the refusal of Washington to accept the binding nature of the commitments it is entering into.