Radioactive reactions

There is nothing in the 123 agreement restricting India8217;s nuclear options

On Monday Prime Minister Manmohan Singh assured Parliament that the agreement between USA and India to operationalise the civilian nuclear deal would not affect India8217;s right to undertake future nuclear tests. He said, 8220;Let me hence reiterate once again that a decision to undertake future nuclear test would be our sovereign decision, one that rests solely with the government.8221; On Tuesday, the US State Department Spokesman Sean McCormack is supposed to have said, 8220;The proposed 123 agreement has provisions in it that in an event of a nuclear test by India, then all nuclear cooperation is terminated.8221; Supposed because the US State department site has no such quote from McCormack and all investigations so far by this analyst has failed to show up any person who has personal knowledge of any such quote or official statement from McCormack.

Even if McCormack did make such a statement, it would be plain to anyone who has read the Indo-US 123 agreement that McCormack is wrong, plain and simple, as there is nothing in that agreement that either mentions any 8220;test8221; or any circumstance under which 8220;all nuclear cooperation is terminated8221; automatically. Under Article 141 the agreement can be terminated only a year after a written notice to terminate the agreement is given by a party.

It is very likely that the story and the controversy built around it are a major element in the continuing disinformation campaign that has been mounted by the opponents of the Indo-US nuclear deal.

Nevertheless, the issue of India conducting a nuclear test and what happens after that is a matter that should be analysed in some detail.

What happens to nuclear transfers from US to India if India conducts a nuclear test? Under NPT, and US laws, India is a non-nuclear weapon state. According to Section 129 a1A of the Atomic Energy Act AEA: 8220;No nuclear materials and equipment or sensitive nuclear technology shall be exported to any non-nuclear-weapon state that is found by the President to have, at any time after the effective date of this section detonated a nuclear explosive device8230;8221;

But such a termination is not automatic. Such termination will not take place, according to Section 129a of the AEA, 8220;if the President determines that cessation of such exports would be seriously prejudicial to the achievement of United States non-proliferation objectives or otherwise jeopardize the common defense and security8221;.

Article 142 of the India-UA agreement explicitly acknowledges this prerogative of the President to waive termination by stating, 8220;The parties agree to consider carefully the circumstances which may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a party8217;s serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.8221;

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Therefore, a test by India in future would not automatically result in any termination of the 123 agreement.

As for that bogeyman of the Indian opponents of the deal, the Hyde Act, that Act in discussing termination of nuclear transfers to India Article 4d3 has no reference to termination on account of testing!

So does that mean India will not suffer any penalty if it conducts a test? No. It does not. There are other US laws that require US to sanction a nuclear test by a non-nuclear weapon state. In particular, Section 102 of the Arms Export Control Act AECA requires the President to impose a range of sanctions on such a country. India did experience such sanction between May 1998 and September 2001 after the Indian tests in May 1998. However, even under Section 102 of AECA, the President does have the authority to waive the sanctions even though such a waiver requires congressional approval.

The important fact that should be kept in mind is, however, the fact that no additional sanctions beyond those which are already mandated are required to be made as a result of the 123 agreement. On the other hand the agreement reinforces in an explicit manner the waiver authority already granted to the President in the imposition of sanctions against India if India were to conduct a test in future. There is no guarantee that the US President will not impose any sanctions on India in the event of a test. Much will depend on the circumstances that compel India to conduct a test in future. As for present all analysts, with a handful of exceptions, are in agreement that India need not conduct a test in the present environment.

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India, however, fully retains the right to conduct a test in future if it considers that the security environment has changed because of some action by an external power, most notably a test by a state India considers to be inimical to Indian security. In that case India will conduct a test. Depending on the circumstance the US may or may not impose any sanctions on India. But those are decisions for future leaders in both the countries to take. The only sure fact is that India has the right to conduct a test and it will do so taking into account all factors that contribute to its national security. There is absolutely no reason to believe that any of Indian rights have been conceded in the 123 agreement.

The writer is visiting fellow at IDSA and National Maritime Foundation