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A Statement of Intent

Reviewing Mr. Modi’s visit to the U.S. and U.S.-India security cooperation.

To say that Mr. Modi’s first visit to the U.S. as prime minister attracted considerable attention from India’s media would be the understatement of the year.  New York City and Washington, D.C. were abound with media personalities, politicians, and supporters and protesters alike.  In his four-day visit to the U.S., Mr. Modi attended and addressed the United Nations General Assembly, met with business and political leaders, addressed a large rally at New York’s historic Madison Square Garden, co-authored an opinion piece in the Washington Post with U.S. President Barack Obama, and held formal consultations with Mr. Obama and members of his administration.

However, despite the pomp and circumstance, formal consultations between Mr. Modi’s contingent and the Obama administration did not yield substantive results in defense and security.  The India-U.S. Defence Framework, which is due to expire in 2015, is still in the process of being negotiated between the two governments and has not yet been renewed.  The U.S.-India Joint Statement merely signaled a general desire to renew the framework, while also committing to expand political-military dialog to include defense licensing and cooperation.

No new defense deals were signed during the visit.  Although the sale of Chinook heavy-lift helicopters and Apache attack helicopters are being discussed between India and the U.S., the negotiations are clearly not a point where the deal could be signed.  Further, surprisingly little was mentioned on U.S.-India cooperation in a post-2014 Afghanistan, even as the U.S. and NATO concluded security agreements on force levels with the new unity government in Kabul.

The departure of U.S. troops from Afghanistan is a cause for concern for India and has direct national security implications.  India’s previous government shied away from arming and equipping Afghanistan’s armed forces, but positions of old need not preclude the new government from working with the U.S. to identify areas where India can substantively contribute to securing Afghanistan.

None of this necessarily means that Mr. Modi’s visit was a failure.  It is clear that Mr. Modi views relations with the U.S. as being vital to India’s security and progress and that he has a vision for future cooperation between the two countries.  However, Mr. Modi has only been in office for four months; it will take him and his government time to translate vision into action.  But if the India-U.S. Joint Declaration is anything to go by, it serves as positive statement of intent for future cooperation between the U.S. and India.

The statement reaffirms the commitment to fully implement the U.S.-India civil nuclear agreement, and specifically addresses the need for further dialog on the issue of supplier-side liability — where India is a victim of its own self-inflicted wounds — paving the way for U.S.-built nuclear plants in India.

The renewed commitment to cooperate on disrupting terrorist groups is also a positive.  Contrary to some media reports, this was not the first India-U.S. joint statement signaling an intent to cooperate against terror groups (including Lashkar-e-Taiba), nor was it the first joint statement to call on Pakistan to bring those responsible for 26/11 to justice.  Indeed previous joint statements by Dr. Manmohan Singh and Mr. Obama articulated similar objectives.

This was, however, the first time that other criminal and terrorist groups – ISIL, al-Qaeda, Jaish-e-Mohammad, D-Company and the Haqqani Network – were specifically called out.  It bodes well for future India-U.S. anti-terrorism cooperation that the U.S. Department of Treasury today announced further sanctions against Fazl ur-Rehman, leader of the Harakat ul-Mujahideen, and against two Pakistani individuals for providing financial support to Lashkar-e-Taiba.

While previous joint statements had quite generally alluded to the need to promote freedom of navigation in accordance with UNCLOS, this was the first time that the South China Sea was specifically referenced, as were the calls to resolve territorial and maritime disputes through “peaceful means.”  A less-hesitant articulation on the part of India is welcome, since China doesn’t seem particularly placated by the weak and deliberately-vague positions of old anyway.

India is also faced with tremendous human security challenges as the U.S. and its Middle Eastern allies target ISIL positions in Syria and Iraq.  Indeed, despite the thousands evacuated earlier this year, many Indian citizens still continue to reside in Iraq (including some potentially illegally) and are vulnerable to being trapped in areas of active conflict or held hostage by ISIL.  In this regard, the stated intention to cooperate on responding to the needs of those stranded in conflict zones is encouraging.

The U.S.-India joint statement was also unusually strong on Iran, calling on it to comply with UNSC-imposed obligations and cooperate fully with the IAEA.  One wonders what the Iranians make of the language in the joint statement and Mr. Modi’s meeting with Prime Minister Netanyahu on Sunday.  Perhaps some quiet diplomacy is needed with the Iranians.

Ultimately, the joint statement augurs well for U.S.-India ties, but operationalizing many of the commitments outlined in the statement will require sustained political stewardship at the highest levels of government in New Delhi and Washington, D.C.  It should serve as a warning to both governments that similarly visionary statements left much unrealized as a result of both the Obama administration’s preoccupation with domestic issues as well as the UPA’s feckless and ineffectual leadership.

In order to overcome the possibility of a relapse, Richard Fontaine’s policy brief for the Center for a New American Society recommends that each government designate a “high-level relationship owner,” suggesting that the U.S. vice president or a senior cabinet-level official for the U.S., and the National Security Advisor for India could play such a role.  It is a recommendation worthy of consideration in New Delhi and D.C.

 

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Getting India’s priorities right

Does it matter if Foreign Secretary-level talks with Pakistan are called off?

The government of India has cancelled the proposed Foreign Secretary-level talks with Pakistan as a result of Pakistan’s High Commissioner to India, Abdul Basit, meeting with Hurriyat leaders.  The meetings took place apparently despite Indian warnings to Mr. Basit that Pakistan could choose to engage in dialog with either India or the separatists, but not with both.  It is possible that new red lines are being drawn on what India considers unacceptable engagement by Pakistani politicians and diplomats.  Reaction to India’s response has been mixed; some have called it an overreaction, while others believe India’s response was justified.

But whether India’s decision was an overreaction or a justified response is of no real relevance.  India and Pakistan hold such divergent and irreconcilable positions on Kashmir that a resolution seems almost next to impossible as things stand today.  For India this matters little, as a status-quoist state in a position of advantage in every area of contention vis-à-vis Pakistan on Kashmir.

Pakistan, on the other hand, has a problem.  As Christine Fair rightly notes in her book Fighting to the End: The Pakistan Army’s Way of War, Pakistan is “revisionist, or anti-status quo, in that it desires to bring all of the disputed territory of Kashmir under its control, including the portion currently governed by India.”  Pakistan’s problem though, is that there exists a significant and ever-increasing disparity between its ends and means.  Its military campaigns to wrest Jammu and Kashmir from India have failed with increasing decisiveness in each successive attempt.  India has also successfully thwarted – though at a significant cost – Pakistan’s sub-conventional war in Jammu & Kashmir.

In short, Pakistan’s attempts at resolving the Kashmir dispute through violent means have failed.  Pakistan is therefore left with the only option of negotiation through diplomacy.  But Pakistan’s leaders, present and past, have built a narrative around J&K that allows no scope for nuance, negotiation or compromise.  The resulting public sentiment in Pakistan is that it is unlikely to be satisfied with anything short of India handing Kashmir over to Pakistan on a silver platter.  And that is hardly going to happen.

It doesn’t matter how many whitepapers and non-papers are written and circulated about potential solutions to J&K.  Optimism about their viability isn’t shared by many beyond the confines of Track-II moots in which they are enthusiastically presented.  Ultimately, Pakistan cannot demand anything less than a total surrender of Jammu & Kashmir and India cannot (and will not) give Pakistan what it wants.

This is not at all to advocate a total cessation of dialog with Pakistan.  There is benefit to be derived from continued dialog on ancillary issues such as liberalizing trade and visa regimes.  As far as one can tell, India has only cancelled FS-level talks scheduled for August 25 in Islamabad, not shut the door on future opportunities for talks between the two governments.

Indeed, even as news of the cancelled August 25 talks hogged the limelight, state-run gas utilities from India and Pakistan appear to be in advanced talks for exporting gas from India to Pakistan via a pipeline from Jalandhar to Lahore.  Operationalizing such a project would be significant, considering our troubled histories.  India can continue to pursue these and other pragmatic initiatives with Pakistan, but there are more pressing foreign policy matters that demand India’s attention than its western neighbor.

For India, Pakistan is not a foreign policy priority but a national security threat, given its continued use of terrorism against the Indian homeland and Indian interests abroad.  Dealing with such a threat requires a different set of objectives, actors and intended outcomes.  Currently, those actors do not reside in the Ministry of External Affairs, but in other ministries and agencies of the Indian government.  If India is to expend significant time and effort on Pakistan, it will be better served if they are spent in the pursuit of means to mitigate the threats to India’s national security emanating from that country.

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Stepping up on Afghanistan

India must use its good offices to ensure that the U.S. and Afghanistan sign a bilateral security agreement.

If the world was in need of a preview of things to come in a post-2014 Afghanistan, it got one on Friday.  A Taliban attack on a popular Lebanese restaurant in Kabul claimed 21 lives. Those killed included the International Monetary Fund’s chief for Afghanistan, a senior political official at the UN and a British candidate in the upcoming elections for the European parliament.

The insurgency in Afghanistan has claimed the lives of many of its citizens as well as those of NATO’s security forces.  But as the New York Times notes, attacks against foreign soft targets have been relatively less frequent.  The Kabul Hotel Inter-Continental was attacked in 2011; U.S. and Indian embassies have been hit in Kabul and in other parts of Afghanistan.  The more recent attacks have involved operations with the use of suicide bombers to breach perimeter security followed by commando-style assaults with the use of RPGs and assault rifles.

The Taliban have historically relied on suicide attacks against Western military targets, but the use of commando-style assaults in and around Kabul may point to a collaboration with Pakistan-sponsored groups like the Haqqani network and Lashkar-e-Taiba, loosely referred to as the “Kabul Attack Network.”

The goal, ultimately, is to weaken the will of the West to remain in Afghanistan after 2014.  The U.S. and NATO winding down operations in Afghanistan will undoubtedly create a perilous security situation in that country.  Afghan president Hamid Karzai has refused to enter into a status of forces agreement with the U.S., even as the Afghan National Army remains ill-equipped to deal with a raging insurgency coupled with terrorist assaults on the capital.

Mr. Karzai is throwing caution to the wind by tying the signing of a Bilateral Security Agreement (BSA) to the U.S. facilitating “peace talks” with the Taliban.  He may get neither.  The U.S.’s ability to facilitate a negotiation with the Taliban remains in question, particularly when the Taliban and their sponsors in Pakistan have been working towards the goal of ensuring a total exit of U.S. and allied forces from Afghanistan all along.  Mr. Karzai, whose presidency ends in April 2014, may have little to lose, but the burdens of his action or inaction will be borne by Afghanistan’s future governments.

Meanwhile, anyone in New Delhi still under the delusion that events in Afghanistan have no bearing on the security of India would do well to reach for their history books.  It is precisely the sort of Pakistan-supported, Taliban-operated environment that could prevail in a post-2014 Afghanistan that allowed for India’s surrender of Maulana Masood Azhar (who was languishing in an Indian jail) in Kandahar in exchange for passengers hijacked onboard IC-814 in 1999.

As a result of our capitulation, Azhar returned to Pakistan to regroup members of the terrorist group Harkat ul-Mujahideen (HuM) and formed the Jaish-e-Mohammed (JeM) in 2000.  A year later, JeM attacked the Indian parliament, killing 12 civilians.  Our members of parliament, rather miraculously, escaped unharmed.

A similar situation may present itself when the U.S. departs Afghanistan.  Although many of us have called for India to deploy hard power in Afghanistan, or at least play a more active role in training and supplying weapons to Afghan security forces, New Delhi has chosen to only limit its involvement to economy and institution-building.  Laudable endeavors undoubtedly, but insufficient to ensure the security of India and her interests in that country.

India has already rebuffed Mr. Karzai’s request for weaponry during his December 2013 visit.  But if India is disinclined to deploy hard power in Afghanistan, it must, at the very least, ensure that a U.S. security presence remains in the country to prevent it from being engulfed in yet another civil war that could render twelve years of development and progress to naught.

Indeed, India is most uniquely positioned — as a friend to both the U.S. and Afghanistan — to use its good offices to ensure that a version of the BSA agreeable to both Afghanistan and the U.S. is signed.  Almost every other country is viewed with suspicion by either DC or Kabul.  Last week, U.S. Deputy Special Representative for Afghanistan-Pakistan visited India to discuss the furture of Afghanistan.  U.S. intelligence officials also met an Indian delegation led by Joint Intelligence Chief Ajit Lal to urge India’s influence with Mr. Karzai to conclude the BSA.

There is no doubt that India is in the midst of domestic political upheaval.  The economy is sagging and political stewardship is found wanting in almost every aspect of governance.  However, facilitating a status of forces agreement between Afghanistan and the U.S. must become a national security priority for India.

A U.S.-Afghanistan BSA cannot prevent attacks such as the one this past Friday, but it may stave off a total collapse of the state to the Taliban.  Ultimately, it is simply not in India’s interests to see Afghanistan relapse into the laboratory of terrorism that it once was under Pakistan’s influence. (And on a separate note, New Delhi’s assistance in facilitating a BSA could also demonstrate that both India and the U.S. are committed to putting the very unseemly squabble over Devyani Khobragade behind them).

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Winning the small nuclear battles

Dr. Singh and Mr. Obama must move forward on nuclear trade when they meet this week.

Some newspapers and political parties would have us believe that the PM is in New York with the express intention of selling India’s soul to America.

They contend that India’s Nuclear Liability Act (NLA), which allows for costs to be imposed on the supplier in the event of a nuclear disaster in India, is about to be sold down the river by the PM in order to remove impediments to the participation of U.S. firms in civil nuclear trade with India.  There was furor when it emerged that the Attorney General had issued an opinion indicating that the Nuclear Power Corporation (NPCIL) had the right to waive the liability provision, if provided for in a contract.

Outraged opposition parties and left-leaning media outlets argued that India was bypassing its own law to please the U.S.  A few observations on the subject:

The language in the NLA appears to be fairly clear on the applicability of supplier liability.  Clause 17 reads:

The operator of the nuclear installation, after paying the compensation for nuclear
damage in accordance with section 6, shall have a right of recourse where-

(a)    such right is expressly provided for in a contract in writing;
(b)    the nuclear incident has resulted as a consequence of an act of supplier or his
employee, which includes supply of equipment or material with patent or latent defects
or sub-standard services;
(c)    the nuclear incident has resulted from the act of commission or omission of
an individual done with the intent to cause nuclear damage.  [THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010]

We’ll leave matters relating to the legal interpretation of the language in the Act to the experts on the subject, but if our admittedly untrained legal interpretation is correct, clause 17(a) does allow for supplier-side liability if “expressly provided for” in a contract between the operator (in most cases, GoI) and the supplier.

If this is indeed true, then the question of “bypassing” Indian law simply doesn’t arise.  The law itself does not make supplier-side liability mandatory.  Further, it the begs question of what the opposition — which was out screaming blue murder this past month — was doing when the bill was being debated in 2010.  Even assuming their very busy schedule of staging walkouts in Parliament got in the way of them expressing an opinion when the bill was being debated, what have they been doing the past two years since its enactment?

The NLA in its current state is simply incompatible with the IAEA Convention on Supplementary Compensation (CSC), which India undertook a commitment to accede to.  Contingent on these incompatibilities, India has signed the CSC but not ratified it, as ratification would require a change in our liability laws.  It is strange then that we appear so eager to be brought into the mainstream of the global framework for civil nuclear commerce and yet not want to be bound by its rules.

The issues pertaining to supplier-side liability are not U.S.-specific.  The truth is that no one is willing to do business with India given the costs imposed by the NLA on suppliers.  The Russians have refused to bring Kudankulam 3 and 4 under the ambit of the NLA.  The French company Areva has also made it clear that it will not be able to move forward, given the language in the NLA. The Canadians have expressed reservations.  Potential Indian suppliers themselves appear to be uneasy with supplier-side liability with FICCI warning that the NLA “threatens to completely undo the government’s efforts to accelerate nuclear power generation…”

The AG’s interpretation that the operator had the ability to contractually invoke or exclude supplier-side liability actually dates back to October 2012, when his legal opinion was provided during negotiations on Kudamkulam with the Russians.  There was not so much as a whimper in the left-leaning media then, but apparently now this interpretation causes a “dilution” in our liability laws to allow the prime minister to carry as a “gift” to the U.S.

The Cold War ended two decades ago, folks.  There is no benefit in India pretending to be more soviet than the Soviet Union in 2013.

Many in India are yet to appreciate the impact the NLA has had on the general mood towards India in DC.  This was about more than just nuclear commerce.  Presidents of the U.S. do not make phone calls to their Chinese counterparts asking them to drop their opposition to a third country’s bid for an NSG waiver merely at the prospect of being able to sell few nuclear reactors.  India would have most likely remained a nuclear paraih were it not for the efforts of the Bush administration.

Since obtaining an NSG waiver, the UPA has bungled like only it can.  Debates on nuclear liability were emotive rather than pragmatic, drawing wrong lessons from the Bhopal tragedy.  While the NLA automatically precluded the possibility of the participation of U.S. companies in civil nuclear commerce with India, companies in Russia and France, which were initially underwritten by their governments, were able to enter into exploratory discussions with India.  With Russia and France no longer willing to abide by the NLA, the prime minister arrives in the U.S. attempting to salvage a relationship and an economy.

Realistically, neither the U.S. nor India have each other on their list of top priorities at the moment. The Obama administration is faced with a precarious situation in Syria and is battling opposition on healthcare reform and budget disputes.  Meanwhile, with India heading to polls in May 2014, the UPA is effectively in a holding pattern with very little political capital at its disposal for brave new ideas.

Under the circumstances, if a pre-early works agreement can indeed be concluded between NPCIL and Westinghouse, it might help arrest the doom and gloom and allow both sides to reevaluate positions sometime next year.  This is about as much as we can hope for when Dr. Singh and Mr. Obama meet on Friday.

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