A Good Deal Walks on Two Legs

Byline by M.J. Akbar: A Good Deal Walks on Two Legs

Much to my regret, I cannot change my nose into one of the Seven Wonders of the World by calling it a pyramid. Spin, make-up or clever photography might disguise its excesses, but in the loneliness of the morning mirror, I have to admit that it is nothing more than a slightly protuberant outcrop on a fairly arid base. The Principle of the Nose extends to the text of agreements. The manipulation of words, or their contrived omission, does not deny fundamental facts.

There is still some way to go before the proposed nuclear deal between India and the United States becomes operational, but it is very clear that the two negotiating teams, and their governments, have agreed on one thing: that they will sell different narratives on home turf, even when the narratives contradict each other.

Delhi, to give the most obvious instance, is massaging the media and trumpeting the absence of any reference to the consequences of a new nuclear test by India as a triumph. Delhi is treating this as de facto American recognition of India’s right to resume testing if it so decides.
The 123 Agreement was announced on Friday 27 July. On 2 August, just six days later, Nicholas Burns, undersecretary of state and chief American negotiator was asked by a journalist, Robert McMahon, in a recorded interview, "Some say that under the deal, if India holds a nuclear weapons test, the US would delay its own nuclear fuel supplies to India but the US would help India find other sources of fuel, which violates the spirit of the Hyde Act. What do you say to those concerns?"

Burns replied: "That’s absolutely false. I negotiated the agreement and we preserved intact the responsibility of the President (of the United States) under the Atomic Energy Act of 1954 that if India or any other country conducts a nuclear test, the President — he or she at that time in the future — will have the right to ask for the return of the nuclear fuel or nuclear technologies that have been transferred by American firms. We’re releasing the agreement on our website on Friday afternoon (3 August 2007) and people will see that when they cite the text."
The answer could not be more categorical: "absolutely false". That is the American position, and it is being enunciated for the record, without any ambiguity. The message is clear, and it is loud. America will demand fuel and technology back, and probably not return the still-uncounted billions of dollars we paid for it either.

Delhi is pretending as if the Hyde Act does not exist, or at least is not binding upon India. But it is, as Burns has repeatedly and publicly insisted, binding on Washington.

Why is this a vital fact? Because of the nature of the agreement. This is not a two-way deal. India is not selling something of critical interest to America in return for nuclear fuel or nuclear technology. India is a buyer. It is a one-way transaction. America can sell only if India is in compliance with the conditions imposed by the Hyde legislation, which was specifically designed for this deal, and which makes no bones about its intention to place Indian nuclear activity as well as Indian foreign policy on watch. This is why Burns added, "…we hope very much that India will not conclude any long-term oil and gas agreements with Iran. The Indians, as you know, have voted with us at the International Atomic Energy Agency board of governors against Iran on two occasions". This is nothing to do with his personal views; he is enjoined, as a public servant, to place these issues on public record.

India has formally accepted this obligation in the 123 Agreement, a point that seems to have escaped the notice of some, but certainly not all, instant analysts. Article 2.1 says very specifically: "Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes."

The Hyde Act is the national law of the United States, and any perceived violation would give any "future President" — he or she, as Burns wisely pointed out — cause to declare the agreement null and void and demand American fuel and technology back.
I suppose we could retaliate by banning the export of mangoes to America, but there would not be much else that we could do.

The question is a simple one. America is the supplier; has it made India a supplicant?
Only a very foolish person advocates enmity as a national objective. It is utterly stupid to seek the hostility of America, a genuine great power, not because of its military might (which it is squandering in Iraq) but because it is the true fountainhead of technology, education, economics and democracy. India has exactly the same passions, and no two modern nations are better designed for true friendship. America became, in my view, the oldest country of the modern world because its democratic Constitution is the template on which nations must find their future in an age of liberal freedoms. India is the ideological leader of the post-colonial world, because our Constitution is proof that independence is the birthright of a nation, and freedom is the birthright of the people. But a sustainable friendship can only be built between equals. One might be tempted to wink one’s way past potentially conflicting interpretations of clauses, but this would at the very least sour relations between India and the United States.
Prime Minister Manmohan Singh, architect of the nuclear deal, made a small but perhaps significant mistake when trying to persuade us of its merits. He suggested that it would be unpatriotic to oppose it. I believe that the mistake was unintentional, for I cannot doubt his sincerity or his excellent manners. Perhaps the problem is that language can sometimes be an impediment to understanding. He probably wanted to suggest that it was in the national interest to accept this pact.

There is a way of ensuring national support: by making this a national, rather than merely a government’s, decision. How?

For a start, the pace of implementation must slow down. There is no reason why this agreement should be signed within four weeks. What is the hurry? The text will not change. America will wait until we have concluded a safeguards agreement with the IAEA and convince the 45 Nuclear Suppliers Group members to give it acceptable terms in civil nuclear trade. When India’s Parliament convenes the Prime Minister should take the initiative to set up an all-party committee that would be tasked to take evidence from experts, examine the implications of each clause and arrive at its recommendations by the end of the year. It will be a bipartisan process without rancour and politics, and each section of the House will be co-owner of the consensus. So far, the whole process has been handled by a small group around the Prime Minister, consisting primarily of bureaucrats.

This decision will influence Indian policy for the next half century, and must have the legs to walk for fifty years. A partisan approach would give this decision but a single leg, and how far can you travel with a crutch? The American administration has taken care to use the House of Representatives and the Senate to make it a bipartisan decision, compromising with the likes of Senator Hyde when it had to. Prime Minister Manmohan Singh can afford to do no less. You cannot run a marathon at the speed of a hundred-metre dash; there could be a grievous injury en route.

It is in the national interest to make the Indo-US nuclear deal a national decision.