'US nuclear assurances political not legal'

WASHINGTON: A US Congressional report has added a new twist to the stalled India-US civil nuclear deal by suggesting that Washington's nuclear fuel-supply assurances to India are "political, rather than legal, obligations".

The US State Department apparently told lawmakers about the "political" nature of its assurances to India in a balancing act aimed at assuring them that the bilateral 123 agreement finalised last July to implement the nuclear deal is consistent with the enabling US law, the Hyde Act.

The State Department did so in unclassified responses to over 40 questions from the House Committee on Foreign Affairs about the 123 agreement, according to a recent press release from four knowledgeable non-proliferation experts.

However, the State Department has not allowed the committee to make its responses available to the public lest it may affect the passage of the deal, which must come up before the US Congress for final approval.

US officials have assured India that only the "123 agreement is the deal" between the two sides with President George Bush declaring some of the prescriptive provisions of the Hyde Act as only "advisory". At the same time the Bush administration has assured lawmakers that the 123 agreement is in conformity with the Hyde Act.

A Congressional Research Service report prepared for members of the Congress and its committees on "US Nuclear Cooperation with India: Issues for Congress" says of the agreement's four assurances regarding India's future nuclear fuel supply two are "particularly controversial".

Under these provisions "the United States will 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 "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".

The report prepared by Paul K. Kerr, analyst in Non-proliferation, Foreign Affairs, Defence, and Trade Division, says these "two provisions are particularly controversial because they could potentially provide India a way to mitigate the effects of a US cessation of nuclear exports (in the event that, for example, India tests a nuclear weapon)."

"However, the State Department characterises the agreement's fuel-supply assurances as political, rather than legal, obligations," the report says.  "Additionally, the US commitments under the fuel-supply provisions are unclear."

"For example, the agreement does not define what it means to 'support an Indian effort to develop a strategic reserve.' And the United States has not sought commitments from any other country to supply fuel to India," it says.

Before the nuclear deal goes to the US Congress for final approval, India needs to sign a safeguards agreement with the International Atomic Energy Agency (IAEA) and persuade the 45- member Nuclear Suppliers Group (NSG) that controls global nuclear commerce to change its guidelines for India.

India has finalised a safeguards agreement with the IAEA, but has not yet signed it. The Left parties, which are opposed to the Indo-US nuclear deal, had allowed the government to negotiate the treaty text with the IAEA but prevented it from signing it without their approval.

Noting that it may be some time before all the requirements are met for the Bush administration to bring a final agreement before Congress again, the report says: "When that happens, Congress will have another opportunity to consider the specific parameters of cooperation."

In addition to meeting the requirements set out in Hyde Act, Congress may want to assess how well the actual agreement meets the other non-proliferation requirements of the Atomic Energy Act (other than full-scope safeguards), it says.

Some substantive questions could include whether the Indian safeguards agreement meets the US requirements for perpetuity; whether US assistance could benefit India's nuclear weapons programme and whether India's Non-proliferation record, as described in the Nuclear Non-proliferation Assessment Statement, contains anything that causes concern for members, or would have a negative impact on US national security.

Although joint resolutions of approval for nuclear cooperation agreements receive expedited consideration, significant concerns about the agreement could result in the passage of a joint resolution of approval with conditions, as happened in the case of the 1985 US nuclear cooperation agreement with China, the report noted.

Several US officials have warned that Congress will not have time to approve the agreement by the end of 2008 if it does not receive it in the coming months. In that event, the next administration will need to resubmit the agreement to Congress, it said.

The next regular meeting of the IAEA Board of Governors, which must approve the safeguards agreement, is scheduled to begin June 2 - after the May plenary of the NSG. This sequence is potentially problematic because the NSG plenary must issue a final decision on whether to exempt India from the group's export guidelines.

Moreover, the NSG will not formally consider the matter until the IAEA board has approved a safeguards agreement. Both the IAEA Board and the NSG, however, could convene extraordinary meetings to consider India's case, the Congressional report said.