The Letter Controversy: Allegations and Reality

The release of a State Department letter to the House Foreign Affairs Committee has supposedly embarrassed the Indian government causing it trouble no end or so goes the top headline in much of the media today. Yet, amazingly, I am yet to see anything all that new in this latest letter (BJP members have been referring to this Washington Post article). It spells out what has been said before by various US government officials. NDTV's grouse was this: 'While much of the letter is similar in substance to the arguments one has heard but the tone and tenor is what is riling the Indians'. Now, what is that supposed to mean? A punch packed in polite language is fine but to call a spade a spade is not? If style is supposed to matter more than substance, that speaks volumes of what the focus of our media has become - an emotional and impetuous bunch, more interested in rabblerousing than in any thoughtful or reasoned comment.

The only article where I found where the implications of this letter mentioned in some detail was in Rediff by Brahma Chellaney. Yet on closer examination none of his assertions stand up to scrutiny. Below are his points and my comments on each of them.

The US has given no binding fuel-supply assurance to India. The prime minister told the Lok Sabha on August 13, 2007 that 'detailed fuel supply assurances' by the US for 'the uninterrupted operation of our nuclear reactors' are 'reflected in full' in the 123 Agreement. But the Bush administration has denied this. Its letter to the House Committee states that the US will render help only in situations where 'disruptions in supply to India... result through no fault of its own,' such as a trade war or market disruptions. 'The fuel supply assurances are not, however, meant to insulate India against the consequences of a nuclear explosive test or a violation of nonproliferation commitments,' the letter said. The letter also reveals that the US has given no legally binding fuel-supply assurance of any kind.

The PM's words (you can find his speech here) ought to be understood to mean that the fuel supply assurances hold so long as the agreement remains which is what one expects to happen in the ordinary course. The letter says that a nuclear test will lead to termination of the agreement in which case, whatever is contained in it will also be voided. In other words, no agreement, no fuel supply. These words of the PM cannot be construed to have addressed a post-nuclear test scenario; the PM was only talking of a situation where the agreement remains but the fuel supplies are interrupted notwithstanding these provisions - that is exactly the kind of situation in which the US would help us restore the supply.

No US consent to India's stockpiling of lifetime fuel reserves for safeguarded power reactors. The prime minister had told the Lok Sabha on August 13, 2007 that, 'This Agreement envisages, in consonance with the Separation Plan, US support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply for the lifetime of India's reactors.' But the Bush administration's letter to the House Committee makes clear that India will not be allowed to build such stocks as to undercut US leverage to re-impose sanctions.

The US has not said that it will not allow India to build a strategic reserve - the exact words in the letter are 'The parameters of the proposed 'strategic reserve' and of India's capacity to acquire nuclear fuel for its reactors will be developed over time.' His claim that India will not be allowed to build such stocks as to undercut US leverage to re-impose sanctions is therefore premature.

US civil nuclear cooperation is explicitly conditioned to India not testing ever again. The prime minister told the Lok Sabha as recently as July 22, 2008 that, 'I confirm that there is nothing in these agreements which prevents us from further nuclear tests if warranted by our national security concerns. All that we are committed to is a voluntary moratorium on further testing.'

Last year, he had told Parliament that, 'There is nothing in the Agreement that would tie the hands of a future Government or legally constrain its options to protect India's security and defence needs.' The Bush administration, however, has told the House Committee that India has been left in no doubt that all cooperation will cease immediately if New Delhi [Images] conducted a test.

There is nothing in this letter that contradicts the PM's position. India has not committed anywhere in the 123 agreement to a moratorium on future testing. He mistakes the right to conduct a test with the cost of doing so. For example, we all have the right to smoke but that does not mean all of us will simply because we are also aware that availing of it also brings with it costs that we may not be willing to pay. Likewise, we are free to test provided we are willing to live with the loss of this agreement and all the advantages it brings with it along with a host of other losses that will follow from international sanctions. With increasing international trade and greater integration into the global system, the cost of defying the US-led international order is undoubtedly going to rise. In that sense, he is absolutely right - testing in 2009 or beyond will be a much more expensive decision for India than what it was in 1998.

The US has retained the right to suspend or terminate supplies at its own discretion. The Bush administration letter plainly contradicts the prime minister's assertion in Parliament on August 13, 2007 that, 'An elaborate multi-layered consultation process has been included with regard to any future events that may be cited as a reason by either Party to seek cessation of cooperation or termination of the (123) Agreement.' The letter states that the US right to suspend all supplies forthwith is unfettered.

The key word is 'consultation', not concurrence or capitulation. When you say you will consult, it means you will be willing to consider the opposite side's perspective without giving up your own prerogative to do as you please. That is exactly the position here - if India conducts a nuclear test, both sides will talk but that does not mean the US cannot walk away from the deal if it so desires. The letter also only talks of the US' right to cease all nuclear cooperation with India immediately while also noting that the agreement can only be terminated on one year's written notice and 'notice of cessation has to precede cessation of cooperation...' Again there is absolutely nothing in it to suggest that the US intends to abrogate the understanding prematurely.

The letter makes clear that the 123 Agreement has granted India no right to take corrective measures in case of any fuel-supply disruption. Rather, India's obligations are legally irrevocable. It further indicates there is no link between perpetual safeguards and perpetual fuel supply. Contrast this with what the prime minister claimed in Parliament on August 13, 2007: 'India's right to take "corrective measures" will be maintained even after the termination of the Agreement.' Or the prime minister's repeated assurances to Parliament since March 2006 that India's acceptance of perpetual international inspections will be tied to perpetual fuel supply.

The point about the lack of any link between perpetual safeguards and perpetual fuel supply has been mentioned over and over in this debate. This is not a new concern and the answer depends again on what the phrase 'corrective measures' means. So long as no one has defined it (which is still very much the case), it is hard to definitely answer one way or the other. Chellaney's guess is therefore as good (or bad) as any.

The Bush administration's letter states that the 123 Agreement fully conforms to the Hyde Act provisions. In a press release recently, the Prime Minister's Office made the following claim on July 2, 2008: 'he 123 Agreement clearly overrides the Hyde Act and this position would be clear to anyone who goes through the provisions.'

I have stated in previous posts my own discomfort with this assertion by the government. The word 'override', as I understand it, is generally used only when there is a conflict between two things - in that sense, the government's claim is false because the US has repeatedly stressed 'conformity' with the Hyde Act. Even M.K.Narayanan initially said that the agreement had been drafted in such a way as to ensure consistency. Only when allegations of capitulation to the foreign policy goals laid down in the Hyde Act began to surface, the Manmohan Singh government changed tack and insisted on making this dubious claim.

The US Supreme Court ruled a long time ago in Whitney v. Robertson that in the event of a conflict between an Act of Congress and a treaty with a foreign country, that which is later in date will prevail. That position remains the law to this day. So the argument appears to be that once the NSG waiver is obtained and the agreement is formally adopted by Congress, the Hyde Act will no longer be relevant. However, this argument too does not hold a lot of water for two reasons: if the agreement is written in a way as to ensure consistency with the Hyde Act, a legal dispute will not arise at all in the first place. Secondly, before one can be said to override the other, the first impulse of any legal authority will be to endeavor to construe the two legislations in such a way as to give them both effect (this point has also been emphasized by the US Supreme Court). Thus, on both of these grounds, the government's claim is questionable. Moreover, as I mentioned before, such questions pertaining to foreign policy are usually political decisions and such legal technicalities are often secondary. If the President decides to penalize India, none of this legal quibbling is likely to matter much to our case.The point here is however that this letter does not change any of this.

The letter assures Congress that the 'US government will not assist India in the design, construction or operation of sensitive nuclear technologies.' That rules out not only the transfer of civil reprocessing and enrichment equipment or technologies to India even under safeguards, but also casts a shadow over the US granting India operational consent to reprocess spent fuel with indigenous technology. Under the 123 Agreement, India has agreed to forego reprocessing until it has, in the indeterminate future, won a separate, congressionally vetted agreement.On one issue, the 123 Agreement had held out hope for India in the future by stating in its Article 5(2) that, 'Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement.' But the Bush administration's letter to Congress states that the US government had no plan to seek to amend the deal to allow any sensitive transfers.

Contrast this with what the prime minister said in Parliament on August 17, 2006 -- that India wanted the 'removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy, ranging from nuclear fuel, nuclear reactors, to reprocessing spent fuel.' Lest there be any ambiguity regarding this benchmark, he added: 'We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above.' Earlier, on August 3, 2005, he told the Lok Sabha that he had received 'an explicit commitment from the United States that India should get the same benefits of civilian cooperation as (an) advanced country like the United States enjoys.'

This point too has been debated extensively in the past. This fact that the US may not be able to provide us the technologies we seek was well known. The argument has been that once this waiver is concluded, we will be able to attempt to buy from other sources what the US may not be willing to give us. Again, there is nothing in the letter to alter any aspect of this issue.