The NSG waiver indeed turns India's good-faith declarations into multilateral legalities and applies to New Delhi the nuclear-trade conditions set for non-nuclear-weapons states. Apart from being allowed to retain some nuclear facilities in the military realm, India will be treated, for all intents and purposes, as a non-nuclear weapons state by the NSG and thus subject to the non-proliferation conditions applicable to such a state -- a provision also built into the Hyde Act.
India thus will have to live up to all the non-proliferation commitments and abjure activities proscribed for non-nuclear-weapons states, including testing. What was a unilateral test moratorium is to become an enduring requirement for civil nuclear cooperation with all NSG members. Indeed, by linking exports to India to compliance with Part 1 and Part 2 of the NSG guidelines, the NSG has cast a wide non-proliferation net. These two documents are long and technical, with their rules applicable for exports to all non-nuclear-weapons states.
For example, paragraph 4(e) of Part 2 of the NSG Guidelines demands that a supplier-state first consider, before making any transfer, 'Whether governmental actions, statements, and policies of the recipient state are supportive of nuclear non-proliferation and whether the recipient state is in compliance with its international obligations in the field of non-proliferation'.
The waiver, coming as it does after the Hyde Act, the bilateral Indo-US 123 Agreement and the safeguards accord with the International Atomic Energy Agency, has opened the path to drafting India into the NPT as a de facto party. As host Austria said after the NSG meeting, 'The waiver for India meets with international nuclear nonproliferation architecture'. To secure relaxation of discriminatory civil nuclear export controls against it, New Delhi is embracing another set of discriminatory practices and standards.
In fact, the waiver for India is based on three-layered set of conditions: (i) New Delhi continuing to honour its July 18, 2005, commitments; (ii) the external affairs minister's September 5, 2008, statement pledging, inter alia, to continue the test moratorium, refrain from 'any arms race, including a nuclear arms race' and temper 'the exercise of our strategic autonomy with a sense of global responsibility'; and (iii) satisfying all provisions of Part 1 & 2 of the NSG Guidelines, except the 'full-scope' rule calling for international inspections on each and every nuclear facility. Exports, of course, will be made only to the 'IAEA safeguarded' facilities in India.
But just as the Hyde Act bars the transfer of civil reprocessing, enrichment and heavy-water technologies or equipment to India, except for a multinational or US-supervised facility, the NSG waiver is based on an understanding against exports of similar technologies to India. That is no surprise in view of the Hyde Act's Section 103(a)(5) asking the administration to do the following: 'Given the special sensitivity of equipment and technologies related to the enrichment of uranium, the reprocessing of spent nuclear fuel, and the production of heavy water, work with members of the NSG, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India'.
Such restrictions, however, flout the July 18, 2005, US commitment 'to adjust US laws and policies, and work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India'.
That the deal's original terms stand changed is beyond doubt. Today, there is not even the pretence that the deal offers 'full civil nuclear energy cooperation' or that India is to 'acquire the same benefits and advantages' as the US. But why blame the US? In his desperation to secure the deal, Prime Minister Manmohan Singh has repeatedly moved the goalpost.
For example, his following assurance to Parliament on August 17, 2006, stands breached: 'The removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy'. Lest there by any ambiguity, he had added: 'We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above'.
Dr Singh also has reneged on his July 29, 2005, promise in the Lok Sabha: 'We shall undertake the same responsibilities and obligations' and 'we expect the same rights and benefits' as the US. As is apparent, the NSG waiver is neither clean nor unconditional. If anything, it is messy. Yet Dr Singh was quick to hail it as 'a forward-looking and momentous decision', even claiming that 'It marks the end of India's decades-long isolation from the nuclear mainstream and of the technology-denial regime'.
In that welcoming statement, he again pegged his newfound interest in commercial nuclear power to 'environmentally sustainable economic growth' and to meeting 'the challenge of climate change', although one of the first things to be knocked out of the US-drafted waiver text at the earlier August 21-22 NSG meeting was Section 1(e), which read: 'recognize the world's need for clean and reliable sources of energy for sustained growth and prosperity'.
Not many NSG members buy the spiel that nuclear energy can help reduce global CO² emissions or be a cost-effective answer to the growing electricity demands. The path to energy and climate security lies through carbon-free renewable energy, which by harnessing nature frees a nation from reliance on external sources of fuel supply. Yet such is the nuclear power hype that few Indians know that their country today generates much more wind power than nuclear energy.
Under the deal, India is to unilaterally adhere to the guidelines of a cartel that won't admit it as a member -- a cartel that was formed secretly in June 1974 to punish India for its test a month earlier. Today, as the external affairs minister's September 5 statement highlighted, India has presented itself as a supplicant before the NSG, which it had for years denounced as a syndicate operating outside the purview of the United Nations.
If this cartel were to change its guidelines in the future to impose new conditions, India will find itself at the receiving end, after having invested billions of dollars in imported, foreign fuel-dependent reactors. Without giving India an actual say in the decision-making, the waiver provides for the NSG chair to consult with India future amendments and inform the plenary the outcome of such 'dialogue' with India. As the Washington Post has reported, 'The suppliers group did not give India access to enrichment and reprocessing technology and has refused its request to participate in decisions about guidelines'.
Following the NSG approval, several states issued national statements, including Austria, China, Germany, Ireland, Japan, the Netherlands, New Zealand, Norway and Switzerland. These statements, which were made part of the NSG record, spell out the restrictions or conditions attached to civil nuclear cooperation with India, including:
1. The cartel's exemption does not permit 'full' civil nuclear cooperation with India. Barring transfers of enrichment, reprocessing and heavy-water technologies or equipment to India was one of the first issues to be resolved at the NSG's September meeting.
2. If India tests, the NSG would terminate all nuclear trade with India, so India has to indefinitely maintain its moratorium. Japan, for example, has noted in its national statement that waiver was based on the condition that India would observe its test moratorium, and that if it resumed testing, 'the logical consequence is to terminate trade'.
3. India's commitments extend beyond the test moratorium to an array of non-proliferation pledges. In the event that one or more NSG members consider that circumstances have arisen from Indian non-compliance, an extraordinary meeting will be called and the cartel will act in accordance with Paragraph 16 of its Guidelines. That paragraph calls for 'an appropriate response and possible action, which could include the termination of nuclear transfers to that recipient' in case of 'a violation of a supplier-recipient understanding'.
4. India's compliance with its non-proliferation pledges will be reviewed on a regular basis. In its statement, Germany stated that the cartel expects India, now that it is part of the non-proliferation regime, to take further non-proliferation measures, including 'entry into force of the CTBT and a termination of fissile-material production for weapons'. The waiver states that the NSG chair would confer and consult with India on its commitments and keep the cartel's plenary informed of these consultations. The Hyde Act, for its part, demands that 'the President shall keep the appropriate congressional committees fully and currently informed of the facts and implications of any significant nuclear activities of India', including 'significant changes in the 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 unsafeguarded nuclear fuel cycle activities in India'.
That Act also demands annual estimates from the administration on 'the amount of uranium mined and milled in India during the previous year', 'the amount of such uranium that has likely been used or allocated for the production of nuclear-explosive devices', and 'the rate of production in India' of both fissile material and actual nuclear-explosive devices. Put simply, India's nuclear programme will come under intense international scrutiny.
In India, the line between fact and fiction, sadly, has become so blurred that little room has been left for an informed debate on a deal fraught with serious long-term implications. With even the monsoon session of Parliament not being held, official spinmeisters are having a field day.
As if the controversy the deal has raked up in and outside India was not enough, its provisions come loaded with potential to generate ever greater controversy and disputes in the future. India is courting serious problems. But its present leadership, more interested in promoting short-term partisan interests, is not bothered because it won't be there to face them. But history will not forgive the partisan, non-transparent manner this deal has been pursued.
Brahma Chellaney, a professor of strategic studies at the Centre for Policy Research in New Delhi, is the author, among others, of Nuclear Proliferation: The US-India Conflict
