Testing 1, 2, 3...

123 as countdown to CTBT by the backdoor

Siddharth Varadarajan

No matter how it is cushioned or phrased, the U.S. insistence on a "right to require the return" of exported material if India conducts a nuclear test will convert India's voluntary moratorium into a bilateral, and eventually multilateral, undertaking with legal consequences.

THE INDO-U.S. agreement on civil nuclear cooperation is built around a core bargain but as the moment of final implementation draws nearer, it is evident the United States does not intend to uphold its end of that trade-off. On July 18, 2005, the U.S. agreed that "as a responsible state with advanced nuclear technology, India should acquire the same benefits and advantages as other such states." Accordingly, the American President undertook to "seek agreement from Congress to adjust U.S. laws and policies" and "work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India." In return, India said it "would reciprocally agree that it would be ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States."

Behind this word play was a simple proposition: in exchange for India assuming a number of costly "responsibilities and practices" in the nuclear field, the U.S. was saying it would (1) no longer treat India as a non-nuclear weapons state in political or legal terms; and (2) adjust its domestic statute and the guidelines of the Nuclear Suppliers Group to allow nuclear commerce with New Delhi in line with the new reality.

The joint statement enumerated exactly what the "responsibilities and practices" of other leading countries with advanced nuclear technology consisted of. It is in this context - and only in this context - that the continuation of India's moratorium on nuclear testing is mentioned. India was, inter alia, giving a political commitment that it would not end its moratorium. But it is clear from the preambular reference to the responsibilities and practices of "other leading countries with advanced nuclear technology" that this commitment was reciprocal to the commitment of others not to test. Thus, if the U.S. were to detonate a nuclear device in the future, or if any other leading country with advanced nuclear capability were to deviate from its responsibilities, the Indian commitment would become infructuous.

Had the July 2005 statement been truly reciprocal, India's moratorium would have also been linked to an American commitment not to develop new, "usable" nuclear weapons. After all, the immediate danger confronting the world is not nuclear testing, per se, but the U.S. drive to design new and "better" nuclear weapons such as robust nuclear earth penetrators and the so-called `reliable replacement warhead,' or RRW. Indeed, the reason the Comprehensive Test Ban Treaty is a flawed treaty is that it seeks to block only one end of the nuclear weapon technology spectrum - testing - leaving countries like the U.S. plenty of room to refine and build deadly new nuclear weapons without violating the treaty.

The irony is that even though the CTBT privileges `advanced' nuclear weapons states, the Bush administration is opposed to the treaty's ratification since it wants the U.S. to have the option of testing for at least the next two decades. This option is crucial because as the U.S. nuclear arsenal - under the Complex 2030 programme - switches gradually from its existing stockpile of proven but allegedly ageing `legacy' warheads to greater reliance on the untested RRW, political and military pressure to test the new warhead will increase. In other words, if one were to identify the one "leading country with advanced nuclear technology" most likely to break the testing moratorium in the next decade, that would be the U.S., and not India, Russia or China.

It is important to bear this background in mind in considering the tug-of-war currently under way between India and the U.S. over the bilateral nuclear cooperation - or `123' - agreement.

Not satisfied with New Delhi's political commitment to continue its moratorium, the U.S. wants India to give that commitment a bilateral legal character by accepting that any future Indian test would have adverse consequences for New Delhi. But this is something India cannot and should not accept. It is not that India is seriously bothered by the prospect of having to ship back to the U.S. any imported nuclear equipment or material in the event of a test. Rather, it is the principle of not being forced to concede something that was not part of the July 2005 agreement. Besides, if conceded, this bilateral legality would inevitably get converted into a multilateral one at the NSG and India would find itself effectively saddled with a CTBT in all but name.

The reason testing has emerged as a stumbling block is because Washington is simply not willing to stop treating India as a non-nuclear weapons state (NNWS). That is why the Bush administration did not seek all the necessary adjustments to domestic law in line with India's actual status and is now insisting that certain legal riders applicable to NNWS as defined by the Nuclear Non-Proliferation Treaty (NPT) be made a part of the 123 agreement with India.

This insistence stems from Section 123(a)(4) of the U.S. Atomic Energy Act, which declares that except in the case of agreements with nuclear-weapon states, all 123 agreements must allow America the right to require the return of "any nuclear materials and equipment transferred" if the recipient country "detonates a nuclear explosive device." Needless to say, the U.S. 123 agreement with China does not include such a clause, nor does its 123 with Euratom as far as cooperation with Britain and France are concerned. The only stipulation is that these countries will not detonate a nuclear device using U.S. material. This is precisely the undertaking India says it is willing to abide by.

Since the U.S. agreed not to treat India as an NNWS anymore, the Bush administration should have either included a waiver to Section 123(a)(4) in the Hyde Act, which was passed last December or amended the definition of a nuclear weapon state in its domestic statute to remove the tight linkage with the NPT. But it did neither. And now, it is citing the constraints of domestic law as the reason why India must agree to convert its voluntary moratorium into a formal undertaking with legal penalties in case of violation.

One of the formulas now being studied by both sides is whether the "right of return" can be "cushioned" by stretching out the process of its implementation. Indian negotiators are also examining the merits of making the cost associated with any return of equipment and material prohibitive to the U.S. in monetary and environmental terms. But all of these proposals revolve around India conceding a legally binding aspect to its political, voluntary commitment not to test.

The only flexibility the U.S. side has indicated it might show is to exempt from the agreement's ambit any Indian test conducted after a future Chinese or Pakistani test. Senator Joe Biden, for example, has openly endorsed this line of thinking. For India, however, such a formulation would be even worse since it would repeat the diplomatic blunder the erstwhile Vajpayee government committed in blaming the 1998 Pokhran tests on the `China threat.'

India has every intention of standing by the political commitment of continuing its unilateral moratorium and has little interest in being the first to break the prevailing international moratorium on testing. Indeed, one could even argue that if an initial Indian test were to serve as a rationale for
further tests by Pakistan, China and, eventually, the U.S. and others, the military "gains" from perfecting a new Indian weapon design would be more than offset by similar gains others might enjoy as a result of their new round of tests. But even though there is zero probability of India testing first, the

U.S. would also like to rule out the prospect of an Indian test as part of any domino effect triggered by a future American test. When the RRW is eventually tested, the Chinese would be tempted to validate their attempts at manufacturing miniaturised warheads; and, given the unstable logic of deterrence, it is only natural that pressure inside India for further tests would increase.

The only way to break this chain of insecurity is for the U.S. to move away from nuclear weapons. For as long as it continues to privilege this genocidal currency of power it is unreasonable to expect powers like China, Russia or India to accept binding unilateral restraints.

Can the Indo-U.S. nuclear deal be salvaged if the U.S. insists on retaining a `right of return' clause in the 123 agreement? Or indeed any termination clause that might potentially penalise India for not toeing a particular line? My guess is that it cannot. Since 1947, India has always avoided entering into agreements that might restrict its future freedom of action. Even at times of economic vulnerability, the Indian leadership somehow managed to avoid getting pushed into a strategic corner. It would be highly unnatural for the country to agree to be boxed in at precisely the same moment that the entire world is heralding its arrival.

There are only two ways around the offensive clause. India can live with a restraint on testing if the U.S. agrees to scrap its new weapons work, including the RRW. But the U.S. can never live with such a restraint. This leaves only one option: President George W. Bush must invoke the waiver authority he already enjoys under Section 123 and seek the necessary legislative approval for waiving the right of return clause when the 123 agreement with India is submitted to Congress. If Mr. Bush does not have the political capital to push a waiver through, or if Congress were to disapprove it, the agreement would not meet the yardstick held out in July 2005. And there would then be no more deal. Not because India is being "greedy" or "pushy" but because the U.S. failed to live up to its promises.