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Indo-US nuclear pact gets House approval

	September 29, 2008

To be inked during Condoleezza Rice’s Delhi visit



The Indo-US civilian nuclear deal moved into the last lap clearing a major hurdle when the US House of Representatives approved a legislation on it on Sept. 27. It will now go to the Senate before the two countries can implement the civil nuclear agreement.



After a lot of drama and suspense, the House passed the Bill on an unusual extra day of sitting on Saturday with bipartisan support but a considerable number of Democrats were still opposed to it. The deal now just needs the backing of the Senate which may vote this week on the issue. But, the Senate vote appears to be a formality given the fact that an identical Bill was approved by its Foreign Relations Committee earlier in the week. Once the Senate gives the nod, the nuclear agreement will be ready for signing between External Affairs Minister, Pranab Mukherjee and US Secretary of State Condoleezza Rice who is coming to New Delhi on October. 3.



President Bush was earlier hoping that the Bill would get the Congressional approval in time for Indian Prime Minister Manmohan Singh’s visit to New York. Bush had extended him an invitation to pay a brief visit to Washington when he hoped the agreement would be formally and finally signed. But procedural problems of Congress delayed its clearance.



Berman’s hurdles, Rice’s intervention

Earlier, pushing the nuclear deal case with the House of Representatives Speaker, Nancy Pelosi, Rice wrote a letter to her saying Congress has an “unprecedented and historic opportunity” before it to ensure that the USA and India “complete the journey, we began together three years ago”. Just hours after President Bush said the Administration was working hard to get the deal passed as quickly as possible, Rice dispatched a letter to the House Speaker saying that “for the USA, passage of this legislation will clear the way to deepen the strategic relationship with India”. She said the agreement will open significant opportunity for American firms, help meet India’s energy requirements in an environment-friendly manner and bring India into the global nuclear nonproliferation mainstream.



The House of Representatives took up the bill for discussion on Sept. 27 when Howard Berman, who heads the House Foreign Affairs Committee, introduced an approval bill identical to the one passed earlier by the Senate Foreign Relations Committee. While it did not have the language regarding Iran as feared by some supporters of the deal with India, it did add some requirements to the Senate version. It said the Agreement shall be subject to provisions of the Atomic Energy Act of 1954, the Henry Hyde Act of 2006 and any other applicable US law. It said in the event that Nuclear transfers to India are suspended (if India violates the Indo-US nuclear Agreement), the US would also seek to prevent the transfer to India of nuclear equipments , material or technology from other participating Governments in the NSG or from many other sources. The Bill urged India to sign and adhere to the additional protocol with the IAEA. It said the US President would keep the appropriate congressional committees fully informed about any proposed subsequent arrangements regarding reprocessing or any alterations in the arrangement and the reasons for entering into such proposed subsequent arrangement. It said, not later than six months after the date of the enactment of this Act and every six months thereafter, the President shall transmit to the appropriate congressional committee a report on efforts by the US pursuant to Article 16 (1) of the Agreement.



However after getting a call from Condoleezza Rice, Howard Berman decided to drop his own version of the Bill. He told his colleagues in the House that he agreed to introduce the Bill identical to the Senate version because Rice “made a personal commitment to me.” The commitment, he said, was that “in a change of policy – the US will make its highest priority of the November meeting of the NSG the achievement of a decision to prohibit the export of enriched and reprocessing equipment and technologies to States that are not signatories to the NPT. Berman, a known opponent of the deal, did a U-turn and supported the Senate version of the Bill saying the deal was a positive step as it would bring India into the non-proliferation regime. He said integrating India into a global non-proliferation regime is a positive step, adding that the Bush Administration assured him they would push for an NSG decision prohibiting the export of enrichment and reprocessing equipment and technologies to the States that are not party to the NPT. He said this legislation includes a number of provisions designed to improve congressional oversight of the India-nuclear cooperation agreement and help ensure that the agreement is interpreted in a manner consistent with the constraints of the Hyde Act.



Clearance by US Senate Committee with a rider

Earlier, the Indo-US nuclear agreement moved a step closer to approval by Congress when the powerful Senate Foreign Relations Committee voted on Sept. 24 to send it to full Senate. The 19-2 vote came soon after the arrival of Dr. Manmohan Singh in New York for the UN General Assembly session and a meeting with Bush.



However, in yet another twist to the controversy dogging the nuclear deal, the Senate Foreign Relations Committee approved and attached an enabling resolution with the 123 Agreement asking the US to prevent other Nuclear Suppliers Group (NSG) members from continuing nuclear cooperation with India in the event of a nuclear test. It seeks to prevent the sale of nuclear equipment, material and technology from other participating Governments in the NSG or from any other source.



The resolution further said that such a contingency would crop up if nuclear commerce between India and the US is suspended or terminated as per provisions of the Hyde Act, the Atomic Energy Act or any other US law. This basically means that if India were to test or other circumstances were to crop up violating US laws, the US would actively engage other NSG countries to stop nuclear commerce with India. Even though the contents of the resolution further reveal glaring discrepancies between the American and Indian reading of key issues related to the deal, the Indian Government is likely to stick to the stand that the resolution is not part of the 123 Agreement and that India will solely be guided by provisions of the bilateral agreement. But the latest addition to the nuclear deal package is set to create political problems for the Government and increase opposition to the nuclear deal.



Another addition to the package is an assertion that the nuclear deal would be subject to provisions of the Hyde Act, Atomic Energy Act and other US laws. Under the Rule of Construction, the Bill said that nothing in the agreement shall be construed to supersede the legal requirements of the Hyde Act or the Atomic Energy Act of 1954. This again flies in the face of the Government’s repeated assertions that the 123 Agreement supersedes the Hyde Act. The Bill further said that the President shall certify to Congress that the implementation of the agreement is consistent with the obligations of the US under various non-proliferation treaties. It also requires Congress to urge the Indian Government to sign an “Additional Protocol” with the IAEA as soon as possible.



As the Bush Administration goes about the process of getting Congressional approval, the Government has been on the defensive, trying to explain away discrepancies on key issues like fuel supply guarantees and nuclear testing. It started with a U S State Department note to the House Foreign Affairs Committee that said fuel supplies would stop immediately if India conducts a nuclear test. This was followed by Bush’s assertions to Congress that fuel supply guarantees were not legally binding on the US and that the 123 Agreement was a political framework agreement and not a legally binding document.



Indian reservations

India has privately expressed its reservations about the Bill approved by the Senate, stating that it would be difficult for New Delhi to accept the change of language. Foreign Secretary Shiv Shankar Menon, asked to comment on the change of language, said he would not like to get into the internal political processes of the US. “We have the right to test, they have the right to read,” he added.



The controversial Indo-US nuclear deal stitched together by them was the main item on the agenda when Dr. Singh and Bush held talks at the Oval Office for what may be the last meeting between them before the latter demits office.



President Bush said his Administration is “working hard” to get the Indo-US nuclear deal approved “as quickly as possible”, ending hopes of the agreement being signed to coincide with Dr. Singh’s visit to Washington in the absence of Congressional approval. The deal is now expected to be signed during a visit to India by Condoleezza Rice, possibly next month. “We want the (123) Agreement to satisfy you and get it out of our Congress. And so we’re working hard to get it passed as quickly as possible,” Bush told reporters at the Oval Office in the White House after a 40-minute meeting with Dr. Singh.



Bonanza of nuclear contracts

Whether as bait or actual commitment, the UPA Government has promised the United States that India will acquire 10,000 MW worth of nuclear power generating capacity from American firms – more than what it is currently negotiating to buy from Russia and France combined.



This startling figure lay buried in the testimony of William Burns, US Under Secretary for Political Affairs, before the Senate Foreign Relations Committee in Washington on September 18. “The Indian Government,” said Burns, “has provided the United States with a strong Letter of Intent, stating its intention to purchase reactors with at least 10,000 Mega Watts (Mwe) worth of new power generation capacity from US firms.” India, he added, “has committed to devote at least two sites to US firms.” Until recently official US expectations of contracts in the nuclear arena were pegged much lower. In testimony to Congress in 2006, Secretary of State Condoleezza Rice had spoken of the US building only one or two reactors.



In its January 16, 2008 replies to Congress, the US State Department said India indicated that it planned to import at least eight 1000 MW reactors by 2012 from international sources. In a cautious vein, the State Department spoke of the employment spin-offs “if American vendors win just two of these reactor contracts.” But some time between January and September, India appeared to have sweetened the deal by sending across a “strong Letter of Intent” for the purchase of at least 10 US reactors over an undefined time period.



Under the current plans of 20,000 MW worth of nuclear power by 2020, half that amount is supposed to come from India’s indigenous pressurized heavy water reactors, 2,000 MW from its fast breeder reactors, and 80,000 MW from imported LWRs. With Russia already building two 1,000 MW reactors at Koodankulam, that leaves 6,000 Mw of capacity to be apportioned between Russia, France and the US. “But, if the target is being hiked to 30,000 MW or higher, then obviously the share of imported LWRs is also being scaled up.”



In a recent speech, Atomic Energy Commission Chairman Anil Kakodkar spoke of India importing up to 40,000 MW of LWRs by 2020. Even so, officials are surprised by the scale of the promise, India appears to have made to the US. “Even if the number of imported LWRs increases dramatically, the fact is the Americans are in the third position in terms of technology,” said an official expressing surprise that US companies like GE and Westinghouse – which lag far behind their Russian and French counterparts in technological terms and have not built new reactors in America for decades – could eventually get such a large order.