Some of the opponents to the 123 Agreement between India and US have asked whether India can conduct a Pokharan III nuclear test as it did Pokharan I and II. This analysis is offered on the assumption that this is a question posed in all sincerity and not one of the Pontius Pilate category where the poser turns away after the question without waiting for an answer. The answer is a categorical yes, with a caveat. It depends on who is the Indian prime minister at the time and under what circumstances this decision is taken. This answer is implicit in the sovereignty of India; casting doubts on our ability to test is to entertain reservations on India’s sovereignty.

Today there is an informal test ban in operation. Of the five nuclear weapon powers, Britain and France have no testing sites on their own soil. They have both signed and ratified the CTBT. Only the US, Russia and China have test sites. Of these three, Russia has signed and ratified the CTBT. The US and China have signed but not ratified the treaty. According to the Vienna Convention on Treaties, a country is bound by the spirit of the treaty it has signed but not ratified. In that sense, US and China also have an obligation not to test. So, none of the five can test without breaking the spirit of a treaty obligation.

Opponents of the 123 Agreement who fear that India would be trapped into a no-testing obligation are not able to cite any language in the 123 Agreement that binds India not to test. They argue that the Hyde Act provides for punitive measures if India were to test after becoming a recipient of US nuclear reactors and technology. The Hyde Act serves two purposes. One, it exempts India from a ban on nuclear cooperation though India has not acceded to the NPT and will continue to possess nuclear weapons. It specifically exempts India from the requirement of full scope safeguards. Two, it lays down conditions for nuclear technology cooperation and supply of reactors to India. At the present moment, India is concerned only with the first provision that exempts India from the prohibition of nuclear cooperation and requirement of full scope safeguards, since that exemption is a prerequisite for getting a waiver from the 45-member Nuclear Suppliers Group. The second implication of the Hyde Act will be of relevance only when India buys reactors from US or imports various nuclear technologies. That bridge is quite some distance away. Yet, unfortunately, the opponents of the 123 Agreement highlight that provision without focussing on the primary provision of getting exemption for India from the Atomic Energy Act of 1954. Getting that exemption does not stipulate that India should not conduct a nuclear test. No other nuclear power/nuclear supplier country has any such stipulation.

... contd.