Waive the Hyde Act

Waive the Hyde Act


US Secretary of State Rice’s recent assertion that the 123 Agreement signed with India will certainly be subject to their Hyde Act, flies in the face of the assurances given by the UPA Government that it would not. Coming in the midst of our negotiations with the International Atomic Energy Authority (IAEA), and in the face of considerable learned debate in India, this should give us pause.

The strong objections to the nuclear deal spelt out by the Left , others in the UPA, the Opposition NDA and some commentators, seem justified after all. In context, the constant “now or never” urgings from the US Ambassador to India to accept the agreement, as is, and without demur, because India is unlikely to be offered a better deal in future, is not convincing. US Undersecretary Nicholas Burns also points out that a general election is looming large and further delay will render US legislative ratification of the deal impossible.

Meanwhile, Ambassador Mulford glosses over the difficulties occasioned by the subordination of the 123 Agreement to the Hyde Act. He points out a Machiavellian subterfuge. He says that even though the US is legally bound to cease nuclear cooperation if any provision of the Hyde Act is breached, India could still transact with others in the forty-five member Nuclear Suppliers Group (NSG). In the real world, this suggestion seems far-fetched, when these very countries, France, Russia, China, Australia, are on record that they are unable to go ahead with any operational cooperation with India in nuclear or “dual-use” technology, without America’s explicit nod.

But is the snail’s pace just a matter of India going slow? If so, why have the parleys with the IAEA gone into five rounds? The Indian negotiators, it appears, are having a difficult time on the crucial issue of guaranteed and uninterrupted nuclear fuel supplies. The United States has overweening influence over the IAEA, but is obviously not using it to get a rubber stamping done in India’s favour. So how can India afford to gloss over the imperative of uninterrupted nuclear fuel supplies? We’ve been there before with the Tarapur facility starved of fuel and parts with the unilateral abrogation of the 1963 Indo-US bilateral Agreement straight after we carried out our first nuclear tests in 1974. They didn’t even wait to enact replacement legislation which came only in 1978 in the form of the Nuclear Non-proliferation Act (NNPA).

In 2008, there is indeed a de facto acceptance of India as a nuclear weapons state. But this is not tantamount to parity. The reasons for this are manifold, and not all of them are limited to India. Nevertheless, this may be the root problem. India has been granted an “exceptional” status and gains marks for non-proliferation. But she still can’t be trusted to conduct herself unsupervised!

India may have negotiated a separation of her civil and military nuclear programmes, both existing and projected, with only the civil ones subject to IAEA inspection. But there is a great deal being left to future interpretation. And the main sticking point always boils down to the threat of fuel supplies, technology, spares and so forth being cut off. There is a sword of Damocles quality to the fine print and ongoing negotiations that suggests loss of sovereignty, being forced to participate in future US hegemony, and curbs on our nuclear weapons programme by the back door.

So what is the way out? Who will cut the Gordian knot? Because, despite all the thunder and lightning, a nuclear deal with the US and friends, will probably be concluded in the end. This likelihood is because India has been identified as a strategic and geo-political necessity in the global balance of power. Perhaps, in the light of this compulsion of realpolitik, the time has come for India to negotiate harder, to “negotiate without fear”, and negotiate, taking the greatest care not to compromise our future freedom of action and manoeuvre for the sake of “honorary” gains.

At home, we must strive for unanimous all-party backing to the final form this nuclear cooperation takes. Foreign Minister Pranab Mukherjee is right to want to end our “isolation”, but inclusion should not be bought at the price of a one-sided commercial exploitation compounded by loss of sovereignty.

India needs to be truly treated as an exception to the rule. But for this to happen, the United States has to ensure an equitable safeguards agreement at the IAEA, an unconditional waiver at the NSG and follow through with a special waiver from the provisions of the Hyde Act as well. There may not be enough time to do this in the remaining tenure of the present US government. But, the new US government, post November 2008, could, theoretically speaking, do so.

If India is needed by the international order for its merits and geo-political advantages, she should be welcomed by treaties that do not seek to subjugate her with neo-imperialism, discrimination and neo-colonialism. If we cannot have a proper nuclear deal that guarantees an honourable future, then it may be best to take recourse to our own R&D and the considerable reserves of Thorium we possess. It will take us years longer, but we are well used to it.

(875 words)
By Gautam Mukherjee
Sunday 17th February 2008