Implementation “Hona Chahiye!”
(Remarks at a Roundtable at the Brookings Institution on August 8, 2012)
I did not know enough Hindi to think up a bilingual title for this talk, the first such title I have ever used. It must be Steve Cohen who coined it, with his knowledge of India and Hindi. I found the title very fascinating and decided to accept it. Coming to think of it, implementation of existing agreements, rather than negotiating new ones, has turned out to be harder in international relations, as in private lives. Reaching of agreements often happens out of idealism and optimism or even romance, but when it comes to implementation, the imponderable impediments spring up and implementation often falls short of expectations. The test lies in the ability of the partners to stick as much as possible to the sentiments that originally engendered the agreements and implement them in good faith. Implementation “hona chahiye”, and I would even add, “zaroor.”
However, the story has another side. Agreements have a certain historical context and compulsion and it may not be possible or even desirable to implement them in letter. It may become necessary to implement them in spirit and set aside some elements of the written word to suit the new context and compulsion. History is full of agreements, which served a purpose at the time they were signed and approved, but much imagination and flexibility became necessary to sidetrack some details and proceed with the purposes and principles of the original document. Bringing the agreements in line with the implementation may be so hazardous that it will be better to let the anomalies lie. This is demonstrated in the mother of all agreements, the UN Charter itself. Nobody asks for the implementation of the “enemy clause” or the original composition of the permanent members of the Security Council as recorded in the Charter.
Coming to the specifics of the agreements between the US and India, the general situation I just laid out, holds good in diverse ways. The single instance of the US-India Nuclear Deal is sufficient to study the dynamics of agreements and their implementation. In the first place, we have to remember that what was attempted was nothing short of a miracle. The bottom lines of the two countries were so diametrically opposite that a meeting of minds was unlikely. I am referring to India’s rocky determination not to sign the NPT and the abiding faith of the US in NPT as a cornerstone of its global non-proliferation policy. It was such irreconcilable positions that the deal sought to bridge. Inevitably, the pressures of contemporary history pushed both the countries to an agreement, but the differences in perception persisted till the end. What enabled the two nations to reach an agreement was the willingness of the two to keep their own respective understandings to themselves.
In their effort to convince their own constituencies, both sides issued declarations and passed legislations to show that they had not reneged on the fundamental positions they held. But each of these steps made the implementation complicated. The most celebrated of these was the declaration of the Indian side that there was nothing in the deal that would prohibit India from testing again and the declaration on the side of the US that the deal could be annulled if a test took place. The provisions in the deal itself were ambiguous on the issue, but both had its respective interpretations. Similarly, many provisions of the Hyde Act were anathema to India, but it was explained that these were unilateral US assumptions to which India was not party. The US side clarified time and again that the Act was part of the deal and was binding. Even the meaning of “full nuclear cooperation” and the “clean waiver” given by the NSG left many lose ends. But the agreement was signed because of the political compulsions rather than practical considerations. The fact that it has not been fully implemented should not detract from its significance as a milestone in US-India relationship.
I wrote an article in 2009, when I was a Fellow at Brookings, entitled, “The US may have no nuclear trade with India” which sent shock waves among strategic thinkers and the nuclear industry in the US and in India. I received phone calls from major US companies. My logic was that the US, while it had enabled India to enter the nuclear mainstream, it had no intention to contribute even remotely to India’s nuclear capability. This was not lust my own surmise. Someone who ought to know told this to me. I could see the logic of the argument. First of all, the US had no significant new technology to share with India. The political purpose of the deal was fulfilled when the NSG clearance was given. US nuclear trade could not be resumed just with the 123 Agreement. There were more conditions built into the system. I concluded that the US would find it hard to provide nuclear technology or material to India.
India should not have been disappointed that US supplies might not materialize. Many people had opposed the deal in India because it was being signed with the US. An agreement with France or Russia would have been more acceptable. It was the indication of an assurance given to the US that India would have significant nuclear trade with it, which caused a major controversy. Many argued that we should confine our dealings with France and Russia now that the obstacles had been removed. My US interlocutor told me that India’s wish would be fulfilled and it should rejoice at the outcome. The US would benefit more from the goodwill generated by the deal and the expected defence contracts than from the nuclear trade envisaged under the deal.
The liability issue and the controversy over enrichment and reprocessing technology, which arose subsequently, have delayed the full implementation of the deal. Both these are legal and sentimental issues, which did not alter the spirit of the deal. The Government of India had no intention to include the liability of the suppliers in the bill as it was aware of the international practice in this regard and there were sufficient provisions in the Indian legal system to deal with criminal negligence by anyone involved in the transactions. A sentimental debate on the Bhopal tragedy gave the opposition an opportunity to amend the bill, knowing fully well that it would block nuclear trade with the United States, which involves private companies. What they could not accomplish during the debates on the deal was achieved through the mechanism of the liability act. The French and Russian positions on the liability law was not different, but since the companies involved were state entities, the law did not affect the supplies, which were already in the pipeline. Both the US and India are engaged in finding a way to remove the legal impediments imposed by the liability law and the MOU signed between NPCIL and Westinghouse in June this year indicates some movement. But both sides may not be unhappy by the turn of events, if my contention in my 2009 article turns out to be right.
The reiteration in 2011 by the major suppliers that ENR technology would not be available to India should not have come as a surprise to India. But India insists on the principle of “full nuclear cooperation” and the “clean waiver”, knowing full well that India will not get it. India has the necessary technology and the agreement is specifically about the establishment of reprocessing facilities, not technology. No tears need be shed on account of restrictions on ENR technology, though it has become a “Holy Grail” for India when the implementation of the deal is considered.
The totally unexpected Fukushima disaster has also cast a shadow on the implementation of the deal. Though the Government of India is determined to pursue the path of developing nuclear power for its energy needs, as originally planned, there is sizeable popular opposition to the establishment of new nuclear reactors, as was demonstrated in Kudankulam. The sites allotted to the US are in Gujarat and Andhra Pradesh, where regional predisposition is towards industrialization, but popular sentiment against nuclear power could be ignited anywhere. This new factor must also be taken into account in the implementation of the deal.
After all is said and done, what matters is the political will. The Obama Administration, and for that matter, the second UPA Government, have been ambivalent about the strategic partnership between the two countries. The promises made at the time of the Presidential visit have not been fulfilled as yet. The proposal for India to be admitted to the NSG, MTCR, the Australis Group and the Wassenar arrangement has been sacrificed at the altar of the NPT. The support for India’s permanent membership of the UN Security Council, voiced in vague terms by President Obama in the Indian Parliament, was not followed up by any concrete action. On the Indian side, the search for strategic autonomy resulted in its positions in the Security Council, not purchasing fighters from the US and not being helpful on Iran.
The winds, however, seem to change, with the US decision to rebalance its forces in Asia Pacific and defense cooperation with India becoming the linchpin in this context. This should explain the new spring in strategic cooperation that emerged in the latest round of strategic talks. Several issues, which had remained dormant, came up for favourable consideration, including some relating to the nuclear deal. That, however, is another subject I would like to deal with in another talk tomorrow on Asia Pacific.
Suffice it to say today that we can expect a greater degree of implementation of the agreements and understandings as the new realities of the global situation unfold. But implementation should be measured against the context of the agreements and the changing perceptions of their current relevance, rather than on the implementation of every clause. It is the spirit that should be implemented and not the letter.