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.

Trackbacks are closed, but you can post a comment.

Comments

  • senthilkumaran  On September 4, 2008 at 11:46 pm

    It seems that this deal is vehmently pursued by the US nuclear industry lobby than the USA Govt. Because, if the deal is so important to the US Govt, then it would never let the secret letter go publicised. It is not an agreement between two partners but like a contract before joining a job(viz between a employer and a new employee). In the agreement there are so many conditions imposed on our part in case of breach of deal by us whereas the deal doesnot impose any conditions or remedial action in case of breach by the US. US has a well known history of breaking every rules and deals to suit its geopolitical interests. So the nuke testing wont necessarily be the only reason for USA to stop the fuel supply in future. As of now those reactors covered in the deal could not be sold or supplied to anyone other than India. We maytake into consideration of the recent press reports that India had purchased a submarine from US just by seeing photos leave alone the blueprint or physical inspection. So it seems that the obsolete technology / reactors are sold to india to restrict India from acquiring and mastering new technology on which India is capable and having sufficient expertise and material.

  • aristotlethegeek  On September 5, 2008 at 1:00 am

    The letter was leaked by Howard Berman (Congressman – Democrat), the chairman of the Foreign Affairs Committee of the US Congress, and not by the US government. The US government had in fact “gagged” the Congress, as the Washington Post discovered in May 2008.

    It might very well be that the US nuclear industry lobby is behind the deal, and that they are looking at what they can gain from it (incidentally the first question that was asked and answered was “What is the Administration’s expectation regarding the likely economic benefits of this partnership, including India’s purchase of US nuclear fuel, reactors, and technology?”). Their industry has been a victim of too much environmental activism and are in fact banking on orders from India so that they can improve themselves. But if India has to source its reactors, other than a couple of orders to the US, the bulk of our reactors must be sourced from the French, and probably the Russiansadvanced nuclear power reactors available.

    We can either sign the deal and be part of the global nuclear trade or be shut out of the same and struggle with our own program. Everyone keeps chanting about thorium and fast breeder reactors but I have no idea when the first commercially viable thorium based power plant capable of supplying in excess of 1000 MW of electricity will be available – in 25 years time probably.

  • yet_another_hindu_infidel  On September 5, 2008 at 2:36 am

    was watching devils advocate today – kapil sibal. “off course not” seems to be his famous lines. i don’t understand what point kapil makes when thapar asks him a question and kapil answers it exactly the same by just re-phrasing the question.

    one thing i can say for sure is that if america doesn’t want to sell fuel to us or terminates things then others would do the same. it doesn’t matter what agreement were bind’ed too like kapil keeps saying. no one would want to upset big brother.

    the deal maybe a win-win situation like karkodkar says though one thing that bugs me is what if the deal goes through in the future and india installs like 50 nuke plants and nuke energy becomes some kind of a bloodline but all of a sudden the neighbours test (pakistan will do it i swear to play foul) which will in turn compels india to test.

    so india has a dilemma to test and dig it’s own economic grave or watch helplessly. no way can india ask permission to big brother to test and if it does test then NSG will go berserk for sure and the whole question of offering india nukes tech will be in question and who knows what demons it’ll unleash.

    i say the deal is good for economic india but this also makes the future very uncertain. anything india does in contrary to the agreement – it’s aftermath remains a “probability”. maybe they’ll terminate or maybe not.

    did the US make this loophole intentionally for india to get out of in any such event or will the US bite is the question.

  • aristotlethegeek  On September 5, 2008 at 3:13 am

    I prefer Times Now for national security related news (hate their other programming), and the channel had Mahroof Raza on one of the shows. He said that we need the bomb, the delivery mechanism and a command and control mechanism, if we are to use the bomb – and we already have enough capability on the nuclear bomb side to blow up anyone. So, even if we give up testing, we can continue to improve our missiles (longer range ICBMs for example) as well as the CC mechanism.

    I maintain that article 14(2) is the “loophole” – the “changed circumstances” that may necessitate a test. The deal is good for us, and we should go for it. Pity the BJP does not understand the fact that a deal that China and Pakistan are unhappy with cannot be a “sellout”.

  • you12  On March 10, 2010 at 2:01 am

    Sorry to reopen a buried post but I just find this distressing.

    “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? ”

    I don’t think the ends justify the means here. There is no way of predicting that the war would have continued beyond a c.p.o.t if H&N didn’t happen.

    “…If terrorism is the massacre of innocents to break the will of rulers, were not Hiroshima and Nagasaki, terrorism on a colossal scale?…

    “Hiroshima, Nagasaki & Christian Morality – Patrick J. Buchanan, August 2005

    • Aristotle The Geek  On March 10, 2010 at 2:13 am

      # “I don’t think the ends justify the means here. There is no way of predicting that the war would have continued beyond a c.p.o.t if H&N didn’t happen.”
      Why not? The only question here is, did the US have the right to punish Japan? If yes, see this.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: