The nonexistent “right to test”

The BJP is mad, and the communists downright insane, when they talk about the Indo-US nuclear deal restricting India’s “right to test” a nuclear device because – no such right exists. In fact, India could test its bomb tomorrow if it wants to – the deal is not yet operative – thereby ending the voluntary moratorium put in place by the Vajpayee government of 1998. And then it will have to face the consequences – sanctions. But, if the “right” these parties refer to a position wherein India can test the bomb whenever it wants to without having to face sanctions from the international community, they are building castles in the air; the BJP might probably be naive enough to hold such views (as far as I am concerned, their opposition is a case of sour grapes and nothing else), but the communists definitely are not, and the only thing they desperately want is the end of the deal, particularly if it places India in a strategic embrace with the US. The only way India can test the bomb, without facing a major backlash, is if someone in the neighborhood does it first. And the 123 agreement takes care of this when its article 14(2) says–

Before this Agreement is terminated pursuant to paragraph 1 of this Article, the Parties shall consider the relevant circumstances and promptly hold consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination. The Party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations. The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party’s serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.

And the only reason India would want to test is if China does it (I am not too sure if we would do it in response to a Pakistani test).

Further, I don’t know why everyone is doing the headless chicken act when it comes to the “secret letter” (US ASLA’s letter to Lantos on the Indian 123 Agreement (pdf). Got it from the India Today article. Also available from The Hindu). Anyone who follows the news knows that the existence of the letter has been known for just under four months now as also the theory that public disclosure of its contents “would torpedo the deal.” There is nothing in the letter that is earth shattering – the answers to questions 14 – 18 are perfectly valid. In fact Q16 – “Would any of these commitments continue to apply if India detonated a nuclear explosive device? If so, under what circumstances?” has only been answered partially. The answer to this question is as follows-

As outlined in Article 14 of the 123 Agreement, should India detonate a nuclear explosive device, the United States has the right to cease all nuclear cooperation with India immediately, including the supply of fuel, as well as to request the return of any items transferred from the United States, including fresh fuel. In addition, the United States has the right to terminate the agreement on one year’s written notice. (Notice of termination has to precede cessation of cooperation pursuant to Article 14). In case of termination, the commitments in Article 5.6 would no longer apply.

So while the US is not compelled to cease cooperation, it has the right to do so if India tests unilaterally like in 1998. And the answer repeatedly refers to the 123 Agreement. Let one thing be clear – international treaties cannot be overruled by any domestic law, unless the treaty itself allows the countries limited rights to do so. Consider any Double Taxation Avoidance Agreement and you will know what I am referring to. Countries cannot unilaterally change their laws after signing an agreement and then claim that domestic laws overrule such an agreement. Theoretically, they can, particularly the US, but that is a violation of international convention. In any case, if relations between India and the US sour, we have better things to worry about than returning nuclear fuel imported for the purpose of generating power.

Coming to the question of non-proliferation and NSG members as well as think tanks who make an issue out of it, Kimball from the Arms Control Association, who finds a mention in the above Washington Post report has written an article on how the NSG should force India to accede to certain conditions before allowing nuclear trade with it-

Although acknowledging India’s legitimate interest in diversifying its energy options, like-minded countries, including Austria, Ireland, Japan, the Netherlands, New Zealand, Norway, and Switzerland, correctly recognize that the Bush approach is deeply flawed and would effectively end the NSG as a meaningful entity. It is vital that these and other responsible states stand their ground.

Why? Any India-specific exemption from NSG guidelines would erode the credibility of NSG efforts to ensure that access to peaceful nuclear trade and technology is available only to those states that meet global nuclear nonproliferation and disarmament standards.

Contrary to the Orwellian claims of its proponents, the deal would not bring India into the nonproliferation mainstream. Unlike 179 other countries, India has not signed the Comprehensive Test Ban Treaty. It continues to produce fissile material and expand its nuclear arsenal. As one of only three states never to have signed the nuclear Nonproliferation Treaty (NPT), it has not made a legally binding commitment to achieve nuclear disarmament.

Those who dream about universal disarmament should understand one thing – the only reason the world is safe today is because most countries have nuclear weapons – the US knocked Japan out of WWII by nuking Hiroshima and Nagasaki; the cold war remained a cold one because the US and the USSR combined had enough bombs to kill every person on the planet hundred times over. While this does not mean that nuclear technology should be distributed like sweetmeats in a fair, at least take a look at who you are talking about. Does Manmohan Singh look or act like Kim Jong Il? Or is India distributing nuclear tech to every one who is ready to pay for it – like Pakistan did? New Zealand, Austria and the like can sit comfortably in the NSG and pass judgment on India, but these countries don’t exactly lie in China’s backyard (countries that do, are protected by the United States). I am sure they will change their mind when that happens.

Come November, the democrats are going to move into the White House, and regardless of what Obama and Biden think about India, things will get increasingly difficult. The Indo-US deal has never been about electricity but about advancing India’s strategic ties with the US; its going to be a long while before India is in a position to generate a significant percentage of its power requirements from nuclear reactors. Hence, if the deal falls through, it will probably be the biggest foreign policy disaster in the history of independent India. That is not something we can afford.