It is being reported that the United States will not supply nuclear reactors and technologies to India unless the liability issue is resolved. This cannot be done in isolation since the legislation enabling India to enter global nuclear trade is only 10 years old and none of the Acts have been put to test for justice, equity and fairness. The Hyde Act came into operation on December 18, 2006, with great applause in the US Congress whereas the Indo-US 123 Agreement was passed in the Indian parliament with a thin majority in a turbulent atmosphere. Such events reflected India’s apprehensions about US dominance and interference in India’s sovereignty and foreign and domestic policies leading to mutual distrust which still persists. The nuclear liability issue must therefore be discussed taking into consideration all the relevant facts, Acts and agreements.
India exploded five indigenously developed nuclear devices in May 1998 despite a long global isolation and soon thereafter it declared voluntary moratorium on further testing. India also pledged no-first-use of its nuclear weapons and gained recognition as a responsible state possessing advanced nuclear technology. Yet, the sanctions against it continued.
Facing denial of fuel for its nuclear reactors, India turned in April 1999 to negotiate the decade old India-Iran natural gas project. In June 1999, US deputy secretary of state Strobe Talbot met India’s foreign minister Jaswant Singh in New Delhi and offered nuclear power in lieu of the Iran gas. During the next 15 months they met 14 times. There were two objectives: implementation of the Iran and Libya Sanction Act 1995 and huge employment for US nuclear specialists if India’s market opened. On July 18, 2005, India’s prime minister and the US president signed a joint statement for bilateral cooperation in civilian nuclear energy. India agreed to segregate its defence-oriented nuclear facilities from civilian ones that were to be placed under IAEA safeguards. This arrangement facilitated India to develop its minimum credible deterrence along with civilian nuclear power programme. It was a “win-win” situation but serious legal hurdles remained.
To deal with India, a non-signatory to the Nuclear Non-Proliferation Treaty, the US is restricted by its Atomic Energy Act 1954. The Hyde Act 2006, an enabling legislation, provided the way to overcome the restriction. It defines US policy to Southeast Asia in general and provides very clauses specifically applicable to India. Several of these are hurtful to India’s long-term business interest while some are hurtful to Indian sovereignty and are intrusive.
For instance, the Hyde Act states the US policy “(to) achieve at the earliest possible date, the conclusion and implementation of a treaty banning the production of fissile material for nuclear weapons to which the US and India become parties’’. To this issue the Indian Parliament was informed that India is willing to join only a non-discriminatory, multilaterally negotiated and internationally verifiable fissile material cut-off treaty, as and when it is concluded in the Conference on Disarmament and provided our security interests are fully addressed.
The Hyde Act specifies that the US policy is “to secure India’s full cooperation in Proliferation Security Initiative (PSI)”. To this, the Indian prime minister told Parliament PSI is an extraneous issue and India cannot accept it as a condition for implementing the July statement.
The US president is required to secure India’s full and active participation in US efforts to dissuade, isolate and if necessary, sanction and contain Iran, etc. If India is assessed not fully and actively participating in such efforts, the president should give a description of the measures the US government has taken to secure India’s participation and India’s response to the measures. The US government must also describe the future plans and measures to secure India’s full and active participation. This reflects a latent threat to India’s sovereignty and a blatant interference in India’s foreign policy. India cannot accept introduction of extraneous issues on foreign policy. Interestingly, the Hyde Act was passed and it is not known how forcefully India’s concerns were conveyed to the US law-makers.
The US president is also required to annually submit to the Congress all significant nuclear activities in India including construction of nuclear facility, an estimate of: the amount of uranium mined and milled in India; the amount of such uranium that has been used or allocated for the production of nuclear explosive devices, the rate of production in India of fissile material for nuclear explosive devices, significant changes in production by India of nuclear weapons or in the types or amounts of fissile material produced and changes in the purpose or operational status of any un-safeguarded nuclear fuel cycle activity. The prime minister said in the Rajya Sabha: “We have made it clear to the United States our opposition to these provisions, even if they are projected as non-binding on India, as being contrary to the letter and spirit of the July statement. We have told the US administration that the effect of such certification will be to diminish a permanent waiver authority into an annual one. This would introduce an element of uncertainty regarding future cooperation and is not acceptable to us.” It isn’t known with what seriousness and vigour India has lobbied with the US lawmakers on this issue. Otherwise, how did India go ahead and sign the further commitments while this provision existed in the Hyde Act?
Most significantly, Section 106 of the Hyde Act says any waiver under Section 104 shall cease to be effective if the president determines India has detonated a nuclear explosive after the date of its enactment. The Indian PM responded on August 17, 2006, that India’s position is unambiguous and the US has been intimated that reference to nuclear detonation in the India-US Bilateral Agreement is not acceptable to India, that India is not prepared to go beyond a unilateral voluntary moratorium on nuclear testing.
All the above assurances are meaningless and even self-deceptive because the Hyde Act is the basic foundation of Indo-US Civil Nuclear Cooperation from the US. Violation of any provision will negate all other agreements, concessions and commitments. Surprisingly, the prime minister has given assurances on issues over which India has no authority or jurisdiction. While ways and means must be explored to resolve the nuclear liability impasse, the US administration ought to reconsider parts of the Hyde Act that hurt India’s sovereignty and self-respect and/or interfere with its domestic and foreign affairs.
The author is a practising lawyer and a retired scientist formerly with BARC, Mumbai, and IAEA, Vienna.
Email:drbbsingh2010@gmail.com
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