Does India have the right to test a nuclear weapon?

WASHINGTON: The United States claims that the proposed bilateral accord to implement the landmark civil nuclear deal with India provides for its termination in the event of New Delhi conducting a weapons test. India asserts otherwise.

Who is right? The truth as always lies in between. The implementing draft 123 agreement finalised here last month is in fact a delicate balancing act taking care of the concerns of either side - India's right to conduct a test and US laws on non-proliferation.

Even as Prime Minister Manmohan Singh assured India's parliament that "the agreement does not in any way affect India's right to undertake future nuclear tests, if it is necessary," state department spokesman Sean McCormack on Tuesday added fuel to the fire in New Delhi over the controversial deal by suggesting that such an event would lead to scrapping of the deal.

"The proposed 123 Agreement has provisions in it that in an event of a nuclear test by India, then all nuclear cooperation is terminated, as well as there is provision for return of all materials, including reprocessed material covered by the agreement," he told a couple of agency reporters after his regular briefing.

But in fact there is no reference to a test in the draft agreement though it does speak of the either country's right of return of nuclear materials in the event of a termination of the agreement for its violation.

As Washington's chief interlocutor Nicholas Burns pointed out at his briefings after the accord that the agreement makes no such reference as the agreement was about civil nuclear cooperation with India's March 2, 2006 separation plan to designate 14 of its 22 nuclear facilities as civil forming "fundamental basis of the entire project".

As Article 2.4 of the accord says it "shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes".

But as Burns said, "The fact is that American law insists that the right of return be preserved, and we have preserved that in this 123 Agreement with India. The fact is also that we hope and trust that it won't be necessary for India to test in the future." However, the exercise of the right is not automatic.

Article 14.2 in fact provides for prompt "consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination" and to "consider carefully the circumstances that 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 Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security."

Additionally Article 4.6 conveys the US "commitment to the reliable supply of fuel to India. Consistent with the July 18, 2005, Joint Statement, the United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors."

As a further guarantee, it also offers assurances to "support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors" and promises to "create conditions" for India's "assured and full access" to the international fuel market.

Article 5.6 (b) (iv) of the agreement states that "If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India."

Analysts suggest that once the 45-nation Nuclear Suppliers Groups that regulates world nuclear trade agrees to change the rules of the game for India, New Delhi could well turn to any other willing vendor for its fuel needs if US feels compelled to terminate the deal despite all these assurances.

So the bottom line appears to be that India can conduct a test with a calculated risk. Similarly US can indeed terminate the agreement if it cannot buy India's argument for any reason. At the end of the day all deals are based on trust and either country hopes that things would not come to such a pass.