In the coming weeks, non-proliferation hawks in both US Congress and outside it can be expected to confront the Bush Administration with queries if it had ensured that the elaborate non-roliferation provisions in the Hyde Act were fully reflected in the final draft text of the Indo-US 123 agreement.

The hawks have already indicated their intention, what with US Under Secretary of State and chief negotiator of the deal Nicholas Burns asserting in Washington since the release of the text of the 123 agreement on Friday that the Administration was committed to the Hyde Act provisions regarding American non-proliferation goals. President George Bush’s top aides would have to hardsell the deal to skeptical Congressmen, as it is mandatory for the two Houses of the Congress to ratify the 123 agreement before it can come into force. Convincing the Congressional leaders can’t be taken for granted.

The Hyde Act, passed by the Congress last December, has made it clear that the civil nuclear energy cooperation with India would cease to operate if India conducted nuclear tests in future. The Act also requires the US Administration to ensure that India’s nuclear weaponisation programme would not get an indirect boost from the bilateral civil nuclear cooperation and the Administration is specifically required to submit an annual assessment report to Congress in this regard.

In other words, the Hyde Act is anchored in the firm understanding that the US would not weaken its commitment to global non-proliferation goals.

Concerns in India
Understandably, in the wake of the Hyde Act adoption, there have been widespread concerns in India, including in the Manmnohan Singh Government, that the proposed cooperation could weaken India’s nuclear weapons programme.

However, the text of the 123 agreement has come as a reassurance to India. Indeed, in the agreement, the US has virtually shifted the goalpost as regards American non-proliferation commitments.

The agreement, in a way, is anchored in the larger strategic partnership framework, which the two countries have accepted for building their future ties.

Article 3(3) makes it very clear that India would never have to account for what it does in its military nuclear facilities. “This Agreement does not require the transfer of any information regarding matters outside of this Agreement, or information that the Parties are not permitted under their respective treaties, national laws, or regulations to transfers.” So the US Administration cannot seek any information from India on military facilities that it may require to submit to the US Congress in annual reports as envisaged under the Hyde Act.

More significantly, while there are provisions in the agreement that grant the US the power to terminate the operation of the agreement and seek return of all nuclear equipment supplied by it in the event India conducted a nuclear test, this provision will not be automatically applied.

Crucial provisions
Two crucial provisions under Article 14(2) and 14(5) make it clear that the termination of the agreement and application of the “right to return” fuel and materials should be avoided, as it would have “profound implications for their relations.”

If India conducts a test which may as such warrant the termination of the agreement, the US has undertaken that it would consult India to find out the reasons for the test. If the test is in response of to “a changed security environment or as a response to similar actions by other States which could impact (India’s) national security,” it might be reason enough for the US to find a way out to salvage the cooperation. Much would, however, depend on the state of overall Indo-US ties at the global stage. So the Bush Administration has a job on hand to sell the deal to its domestic critics. The Manmohan Singh Government can sit back in satisfaction though it can also lobby hard in the coming weeks to soften resistance in the US to these aspects of the 123 agreement.