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The U.S.-Indian Nuclear Deal: An Unequal Colonial Treaty


Analytical Monthly Review, published in Kharagpur, West Bengal, India, is a sister edition of Monthly Review.  Its Summer 2007 issue features the following editorial. — Ed.

Prior to the Friday, August 3rd, 2007 release of the agreed text of the U.S.-Indian nuclear agreement, the media build-up in favor of civilian nuclear technology “transfer” and “trade” between the U.S. and India was so systematic and thorough as to make the actual terms of the agreement seem an unnecessary afterthought; all sensible readers of the national press would have made up their minds already.  On reviewing the text, the necessity for this tactic is clear.  It is an unequal colonial treaty that openly subjects a potentially significant share of India’s energy generating potential to future U.S. blackmail.  And while giving a carte blanche for U.S. action that would suspend all its obligations under the treaty (even to seizing back the nuclear fuel already transferred), the agreement by its terms binds only India in perpetuity to a control regime demanded by the U.S.

Though inequality lies behind the language of the entire document, it becomes explicit, for example, in Article 10, Sections 2 and 3, which read in relevant part:

2 . . .India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement . . . shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA . . . [emphasis added]

3 . . .Nuclear material and equipment transferred to the United States of America pursuant to this Agreement . . . shall be subject to the Agreement between the United States of America and the IAEA. . . .

While this may appear relatively minor, insofar as transfer of nuclear material to the United States is hardly the aim of the deal, it actually goes to the heart of the matter.  Even as to minor matters the U.S. is unwilling to bind itself but requires that India be bound.  Again and again the United States is required to implement the agreement only insofar as it accords with what its national laws and regulations now or in the future may require (see, e.g., Article 2, Section 1; Article 3 Section 3; Article 5 Section 2).  Indeed a key section of Article 5 permits the United States unilaterally to disrupt future fuel supplies to India:

6 (b) (iv) . . . if despite these arrangements, a disruption of fuel supplies to India occurs [“friendly supplier countries . . . such as Russia, France and the United Kingdom” would be asked to a meeting “to pursue such measures as would restore” India’s fuel supplies]

The passive voice (“a disruption of fuel supplies to India occurs”) is a transparent fraud.  The only fuel supplied to India referenced by the agreement is that from the United States.  If a “disruption occurs” it can only occur because some future U.S. legislative or executive act is the cause.  And the only consequence for the U.S. under this unequal agreement is that . . . it will convene a meeting!  Yet the very next subsection of Article 5 again subjects India to a very different standard:

6(c) . . . India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.

Having granted the U.S. a unilateral right to void the agreement by “disrupting” fuel supplies, the agreement then proceeds in Article 14 to grant the U.S. a unilateral right at will (“on or before the date of termination of this Agreement”):

4 . . . to require the return by the other Party of any nuclear material, equipment, non-nuclear material of components transferred under this Agreement and any special fissionable materials produced through their use. . . .

The “right of return” section even goes so far as to reference “the removal from the territory or from the control of the other Party” of this equipment and materials rather than the return. At this stage of history can any honest observer doubt that the U.S. — once satisfied as to military feasibility — would interpret this as authorizing a physical intervention in India?

Limitation of U.S. obligations under the treaty to its present and future domestic law is a travesty of international law.  International treaty obligations cannot be avoided by reference to domestic law.  Yet comparison with Article 2.1 of the parallel agreement the United States negotiated with China in 1985 reveals that this is exactly the intention of those who have negotiated this agreement.  The China-U.S. agreement Article 2.1 states:

The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement.  Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes.  The parties recognize, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

The U.S.-Indian agreement contains the identical language in its Article 2.1, except that the italicized sentence does not appear.  Chinese insistence on this language is no accident.  The United States Supreme Court has held that as a matter of U.S. law, a subsequent legislative act overrides a treaty (see Chae Chan Ping v. U.S., 130 U.S. 581, citing Whitney v. Robertson, 124 U.S. 190, 195):

A treaty . . . is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect.  Such legislation will be open to future repeal or amendment.  If the treaty operates by its own force, and relates to a subject within the powers of Congress, it can be deemed, in that particular, only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress.  Congress may, as with an ordinary statue, modify its provisions, or supersede them altogether.  In either case, the last expression of the sovereign will must control. . . .

This rule was spelled out in what is known as the Chinese Exclusion Act cases.  In 1888 the U.S. Congress excluded all Chinese immigration, followed by the Deportation Act of 1892 affecting Chinese within the United States.  The Supreme Court conceded that these Acts were in violation of express stipulations of existing U.S. treaties with China, but that the courts would not call in question the validity or wisdom of Congressional action.  If China objects to the legislation, the U.S. Supreme Court said that it may take such measures as it may deem advisable for its interests, even to a declaration of war (see Henry St. George Tucker, Limitations on the Treaty-Making Power Under the Constitution of the United States, Boston, 1915, p.25).  These Acts remained U.S. law for half a century, until repealed in 1943.  The China of 1985 knew well this humiliating history, but was by then an independent nation no longer subject to imperial diktat.  The failure of the Indian negotiators to obtain recognition of the elementary international law principle that U.S. obligations under the treaty cannot be superseded by U.S. domestic legislation speaks only to a colonial lack of self-respect.

Let us be clear then as to what this agreement entails: the U.S. openly gains the power to threaten to deny ongoing fuel supplies (and even the forcible removal of supplies previously given) in order to control future Indian policy.  Is this a remote speculation?  We must recall that in the 1970s the U.S. unilaterally cut off all fuel supply to Tarapur, in material violation of the previous “123” agreement between the U.S. and India of 1963.

But this is only one aspect of a larger issue.  This deal is a part of an ongoing project to absorb India into the U.S. imperial sphere of influence as a “strategic” junior partner.  Joseph Cirincione of the Nuclear Non-Proliferation Project of the Carnegie Endowment for International Peace summed this up: “The crux of the announcement [of the initial U.S.-Indian nuclear negotiations] is what it tells us of the U.S. grand strategy, and that behind whatever else is going on here the U.S. is preparing for a grand conflict with China and constructing an anti-China coalition. . . .  In that scenario, India is even more valuable as a nuclear power, rather than as a non-nuclear country” (The Christian Science Monitor, July 20, 2005).  India -United States joint military exercises are becoming common.  The recent case of the nuclear powered aircraft carrier Nimitz anchoring in Chennai port was first presented as an isolated instance, but that was not the case.  Joint U.S. -Indian naval exercises are now announced for the upcoming months in the Bay of Bengal.  The basic U.S. strategy was set out in a 2002 Pentagon study entitled Indo-US Military Relations: Expectations and Perceptions.  In this report a U.S. major general summed up the hoped-for relationship: “The Indians will laud the relationship as a success if they obtain the technology that they want from the United States.  We [the US military] will view the relationship as a success if we are able to build a constructive military cooperation programme that enables us to jointly operate with the Indians in the future.”  The report is candid that the goal is U.S. access to Indian bases and military infrastructure.

The Manmohan Singh government is deeply committed to this role for India as a junior partner in the neoliberal imperium of the United States.  But it can be neither open nor honest about its programme.  U.S. figures are under no such constraints.  Nicholas Burns, Under Secretary of State, said of the agreement that “it had been an easy “strategic” choice for Washington when faced with the question — should we isolate India for the next 35 years or bring it in partially now [under inspection and control] and nearly totally in the future.”  For Secretary of State Candoleezza Rice, non-alignment has now “lost its meaning,” and India must be brought into alignment with the U.S.: “how can we not afford to join each other, on a global scale, to support opportunity and prosperity and justice and dignity and health and education and freedom and democracy,” she said. (PTI, June 28, 2007).  Let us then contemplate the “justice and dignity and health and freedom” of Guantanamo, Abu Ghraib, Fallujah, Baghdad, and the CIA’s worldwide chain of secret torture prisons.

Step by step the Manmohan Singh regime strengthens the U.S. grip on India, turning it into a client and satellite.  Alongside proceeds the stepwise extension of neoliberal measures, continuing the New Economic Policy introduced in 1991.  Despite verbal fireworks in parliament, these conjoined paths have been followed both by the regimes dominated by the BJP and by Congress.  Left parliamentary resistance has, at best, slowed the process.  The time has come to build up an all-out opposition from below, and for the Indian left to call a halt to this descent into a new type of overt colonial subservience.  The announced “123” nuclear agreement must be resolutely opposed by every anti-imperialist.

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