September 26, 2014

USN confirms presence of Chinese spy ship off Guam

 
25 September 2014
    
A People's Liberation Army Navy (PLAN) Type 815 (Dongdiao)-class auxiliary general intelligence (AGI) vessel was detected in waters off Guam where a US military exercise was ongoing, a US Navy (USN) spokesperson confirmed to IHS Jane's on 22 September.

"I can confirm the presence of a Chinese AGI surveillance ship in the US Economic Exclusion Zone [EEZ] near Guam," Commander Steven Curry, a spokesman for US Pacific Fleet, told IHS Jane's . "The ship is not disrupting our 'Valiant Shield' exercise and is adhering to well-established international rules that military operations in international commons and outside of territorial waters and airspace is a fundamental right of all nations."

The vessel was detected as a number of US military assets participated in 'Valiant Shield', a biennial exercise that began on 15 September involving 18,000 US military personnel and more than 200 aircraft and 19 surface ships. These include two aircraft carriers, USS George Washington (CVN 73) and USS Carl Vinson (CVN 70).

While the ship was not operating inside the 12 n mile border that denotes US territorial seas, the AGI was sailing within the US EEZ, which extends 200 n miles from a nation's coast according to international maritime law.

Officials could not confirm that the AGI observed off Guam is the same vessel that was detected in international waters around Hawaii in July 2014 during the 'Rim of the Pacific 2014' ('RIMPAC 2014') naval exercise. That AGI's presence caught exercise planners by surprise as the PLAN was an invited participant in the multinational biennial drill - billed as the world's largest maritime training event.

Exercise officials told IHS Jane's that the AGI was monitored daily and confirmed that it was observed to be operating near the 'RIMPAC' flagship, the Nimitz-class aircraft carrier USS Ronald Reagan (CVN 76).

According to IHS Jane's Fighting Ships , the PLAN has a fleet of three AGIs, with the third vessel launched on 29 March. Each vessel is equipped with up to three radomes that have been described as "high-technology radio signal gathering and processing equipment" in literature provided by builders of the third AGI vessel, Hudong Zhonghua Shipbuilding Group. Little else is known on the capability of these sensors.

The 6,000-tonne vessels can attain a top speed of 20 kt and are armed with one manually operated 37 mm and two dual 14.5 mm cannons each.

During the 2012 iteration of 'RIMPAC', the PLAN also dispatched a similar surveillance vessel to the area.

COMMENT
China and the United States have differing interpretations of military operations in EEZs - a difference that was recently highlighted by a PLA Air Force Su-27's interception of a US Navy Boeing P-8 maritime patrol aircraft in the South China Sea. While there is nothing illegal in PLAN's latest dispatch of a spy ship to Guam, the move may undermine recent progress in naval bilateral relations between the two countries.

Such a manoeuvre would not have been surprising in the past, but the PLAN's latest dispatch of an AGI to spy on activities at 'Valiant Shield 2014' runs contrary to recent overtones by the Chinese that it is moving towards greater transparency with rival armed forces such as the USN by granting ship visits and facilitating personnel exchanges at Hawaii during 'RIMPAC 2014'.

Indian-Americans keen to watch Narendra Modi's address at Madison Square Garden


By PTI | 26 Sep, 2014, 12.52PM IST

READ MORE ON » Narendra Modi | Madison Square Garden |
 
NEW YORK: The Indian diaspora in the US is willing to go to any extent to watch Prime Minister Narendra Modi's address at Madison Square Garden here on Sunday with several people who were denied the most sought after ticket now willing to be volunteers.

 "I was not there at the time of Swami Vivekananda. I did not see Sardar Patel. I do not want to miss the chance of seeing or watching live the greatest leaders of India of our times," Palak Jain, an Atlanta-based software engineer who is among the thousands of Indian Americans who failed to get the ticket, said.

 "I wish, I get a glimpse of the Prime Minister, or else, I would watch it at the Times Square," said Jain who left India as a student some 15 years ago.

 The Indo-American Community Federation (IACF) which is organising the event said that every day it is receiving hundreds of emails, letters and phone calls from people across the US and even from Canada for a ticket to the most coveted event for the Indian diaspora.

 All the 18,000 tickets - 96 per cent of which have been provided free of cost after a computerised draw of lots - were booked weeks in advance.

 But people are still calling IACF for tickets and making different kinds of offers from giving several thousand dollars for a seat to doing voluntary service or to manage the crowd just for a ticket of the event scheduled to be held on September 28.

 According to IACF, Indian Americans from as many as 48 US States and five Canadian provinces would attend the event.

 A majority of them are young Indian Americans with a sizeable number of them being women which reflects the wide popularity he enjoys among the diaspora.

 "I have never seen such a craze for any Indian leader in the past several decades of my life," Dr Sambhu N Banik, an Indian American from Maryland who since early 80s was instrumental in organising public reception of several Indian Prime Ministers in Washington, including that of Indira Gandhi, P V Narasimha Rao and Atal Bihari Vajpayee, said.

 "He (Modi) is our rockstar. He has gained the status of a rockstar," Banik said.

 When the Indian community in Washington in early 80s held a reception for Gandhi, it asked for a donation of USD 2 from those attending.

 The entire cost for the Vajpayee's reception was a little over USD 10,000 all raised through "seed money" by the participating Indian American community organisations.

 Modi's event at MSG in midtown Manhattan is estimated to cost USD 1.5 million and the organisers have so far raised more than USD 2 million.

 When Modi addresses a record 18,000 crowd of Indian Americans, lawmakers and top corporate leaders at MSG - a venue usually reserved for rockstars and sports - it would be the first time in the US history that a foreign head of state attracted such a whopping crowd.

 The Dalai Lama, the Tibetan spiritual leader, is the only foreign leader but not a head of State to have addressed a house full MSG.

 "It's Modi's Magic working all the way. We are overwhelmed by the response," said Chandra Kant Patel, president of Overseas Friends of BJP and Chairman of IACF.

 "I'm really looking forward to hearing Modi speak. I've been really impressed thus far by what he has been prioritising, such as hygiene and sanitation and women's empowerment through holding men accountable.

 "I'm thrilled to have the opportunity to hear his next call to action in person," Kavita Pallod, a doctoral candidate at the Rutgers University in New Jersey, said.

 One Rakesh Gupta from South Carolina wrote to IACF that he and his wife are ready to be volunteers to get space.

 "We are ready to be in any section of volunteer preferably registration, cultural or anything which can enable me to participate in the Modi's event and even have a glimpse of him," he wrote.

 "The event at MSG organised by the IACF has 18,500 people attending and has been oversubscribed by more than 10,000 people. Last minute requests to attend the event are coming in at the rate of hundreds per day," Dr Bharat Barai, IACF president said.

 IACF spokesman Anand Shah said almost all of the states of India will be represented at the event with Gujaratis, Bengalis, Punjabis, Tamils, Andhras, Biharis, Keralites, Kashmiris all attending Modi's address.

 "The diaspora will be travelling from forty eight American states and five Canadian provinces to participate in the event," said Shah.

 "There will be small business owners, community organisers, doctors, engineers, scientists, academics, writers, chefs, artists and performers alongside entrepreneurs, media personalities, elected officials, lawyers, the young and the old, the traditional and the avant-garde," Shah said.

September 25, 2014

PM's clarion call to join the Swachh Bharat Mission

Dear Friends,

I am sure you have heard time and again that cleanlines is next to Godlines. Alas, things are often diferent when it comes to puting this into practice. 

On 2nd October we are launching Swach Bharat Mision, a masive mas movement, that seeks to create a Clean India. Cleanliness was very close to Mahatma Gandhi's heart. A clean India is the best tribute we can pay to Bapu when we celebrate his 150th birth anniversary in 2019. Mahatma Gandhi devoted his life so that India atains 'Swarajya'. Now the time has come to devote ourselves towards 

'Swachchata' (cleanlines) of our motherland. I urge every one of you to devote at least hundred hours every year, that is two hours every wek towards cleanlines. We can't let India remain unclean any longer. On 2nd October I myself wil set out with a brom and contribute towards this pious task. 

Today, I apeal to everyone, particularly politcal and religious leadership, mayors, sarpanchs and captains of industry to plan and wholeheartedly engage in the task of cleaning your homes, work places, vilages, cites and suroundings. I request your active suport and participation in our colective quest o make a Swach Bharat.

Yours,
Narendra Modi

The Islamic State and Obama’s Diabolical “Hidden Agenda”: Iraq, Syria and “Superpower Prerogatives”



By Jack A. Smith
 
  

There is a pronounced deceptive aura to the Obama Administration's disclosures about the new U.S. war in Iraq and Syria against the Islamic State (IS). The White House even says it is not a war but a simple counter-terrorism strategy, as in Yemen. This is intended to mislead Americans and to generate substantial support for the long war to come.

Every U.S military intervention in Muslim countries since the late 1970s has eventually resulted in "unintended" negative consequences, both for Washington and the target country. There is no reason to think that President Obama's latest Middle East military adventure will turn out differently — perhaps even worse because his objectives go far beyond what has been publicly announced.

In his speech to the nation on Sept. 10 Obama said the purpose of the mission was to "degrade and ultimately destroy" the Islamic State. He revealed, "I will not hesitate to take action against ISIL (IS) in Syria as well as Iraq," and emphasized there would be no U.S. ground troops. (The Iraqi government says it does not want more than a token number of U.S. soldiers on its territory.) The Pentagon and CIA will handle the jet fighters, bombers, and drones. Surveillance, communications, intelligence, training, financing and probably the concealed leadership of the ground war are on Uncle Sam's agenda as well.

Obama's intention to bring his air war against IS to Syria may result in a serious violation of international law. The Damascus government has said it will allow the U.S. to act but Washington must first ask permission to bomb its territory. The White House indicated it has no desire to ask for authorization. In addition, the Russian government, which supports and supplies arms to both Iran and Syria, pointed out that any such strike against Syria would need backing from the UN Security Council. Otherwise, it "would constitute an act of aggression."

The White House is building a 40-nation coalition of mainly European and Middle Eastern allies to support the new war, but little activity is expected from most of the members. The U.S. has not invited either Iran or Syria to take part — a concession to the many anti-Shi'ite Sunni states in the coalition and, of course, to Congress and leaders of his own party. Both Iran and Syria criticized the decision to exclude them (though Iran may have rejected the invitation were it offered) and for supporting jihadist groups fighting in Syria. A senior Iranian official told Al-Monitor Sept. 11:

"The U.S. claims it's fighting terrorism while cooperating with those backing the terrorist groups. It's not only that; they want to arm other terrorist groups in Syria under the pretext they are moderate Islamists. Everyone knows who they are and what agenda they are serving."

As the global hegemon at a time of diminishing credibility, and with a profound interest in controlling the oil-soaked Middle East, the U.S. had little choice but to intervene militarily lest it appear to be weak and irresolute — a posture that surely would demean Washington's vaunted leadership.

In the process of keeping up superpower appearances by planning to crush the Islamic State — which deserves to be crushed, but primarily by the Iraqi and Syrian governments with support from Iran, not the imperial overlord  — President Obama has other goals in mind that have not been articulated.

Mainly it is to place the entire Middle East, not just most of it, as now, under U.S. control in order for Washington to concentrate far more attention on Asia and containing the rise of China.

There are only three countries in the Middle East that are not totally within the U.S. orbit — Iran, since the revolution of 1979; Syria, which has experienced rarely-on-and-mostly-off relations with Washington for decades, now presently off; and Iraq, a bombing target of four U.S. presidents, the object of two wars and years of killer sanctions, now primarily close to Iran with waning ties to its former occupier.

It so happens that these three countries are not only allies, but Iran and Iraq have majority Shi'ite populations, and Syria is led by an Alawite (Shi'ite derivative) government of President Bashar al-Assad. In addition, all three are backed by Russia, which the U.S. finds intolerable, and sometimes by China.

In addition, the principal contradiction within Middle Eastern Islam is between the Sunni and Shi'ite religious branches of Islam. The Shia comprise up to 13% of the Muslim world's 1.7 billion people; the rest are Sunni, with some small offshoots from both. Saudi Arabia and the Sunni majority of countries in the region are appalled by the increasing power of the Shia, especially since the downfall of the minority Sunni government in Baghdad as a consequence of the U.S. invasion, and the Shi'ite rise to power.

At this stage, the U.S. (geo-politically) and Saudi Arabia plus the regional Sunni countries (geo-religiously), are aligned in seeking to overthrow the Assad regime and break its ties with Iran. The Sunnis also back U.S. efforts to weaken Iranian influence in Iraq. And the U.S., the Sunni countries and Israel desire to weaken and isolate Iran.

It is hardly illogical for the White House to entertain the idea of using this crisis to attain longer-range objectives. It seems likely that at some point during this protracted engagement with IS the White House will unchain the dogs of war — the "moderate" opposition to Assad — in the direction of Damascus. Obama is already regaining some clout in Baghdad by virtue of his bombing campaign and other assistance to new Prime Minister Haider al-Abadi, who replaced the ousted Nuri Kamal al-Maliki, whom the U.S. blamed for alienating the Iraqi Sunnis. Weakening Iran is a much tougher project but U.S. sanctions have hurt the economy and the possible loss of its Syrian ally would certainly reduce Tehran's reach.

The abrupt materialization of IS (then called ISIS for Islamic State of Iraq and Syria) at the beginning of this year and its swift takeover of territory in Anbar Province was watched carefully by the U.S., but little action was taken for months. The Islamic State is a formidable enemy, far more sophisticated than earlier jihadist organizations. Here is how The Economist described its abilities Sept. 13:

 "What has characterized IS so far is its combination of strategic patience, the ability to design and direct complex military operations simultaneously in Syria and Iraq, and hybrid warfare that fuses terrorist and insurgent techniques with conventional fighting. Among the tactics it has developed is to soften targets with artillery, or open a breach with suicide bombings, and then attack with swarms of armored Humvees mounted with anti-aircraft guns coming from what seems like all directions at once. Its aggression, speed, firepower and readiness to take casualties, combined with the well-publicized savagery that awaits anyone taken captive, terrorizes defenders into flight…. Although air power may contain IS, it will take ground forces to push its fighters out of the Sunni cities it has taken — and keep them out."

The Islamic State was initially funded by Saudi Arabia and wealthy backers but now is earning about $3 million a day from selling Iraqi oil at discount prices in Turkey, smuggling, theft and extortion.

Washington acknowledged the seriousness of the IS advance in early June when it quickly captured Mosul, a city of 665,000, people and routed four divisions of the Iraqi army, capturing huge quantities of U.S. weapons and vehicles, emptying the banks and murdering military and civilian prisoners. IS then captured Tikrit, the hometown of former President Saddam Hussein. It was clear by then that a relatively large portion of the disaffected Sunni population of Iraq was giving support to IS. Since January IS has forced over a million Iraqis and Kurds from their homes. The number of dead civilians is not available.

Obama conveyed the impression for several weeks that he was reluctant to become involved in another conflict in Iraq but this was largely for show until the Pentagon decided on war plans, the State Department gathered preliminary pledges of support from key allies, and pressure on him to act mounted in Congress and among the American people. Obama remembered the contrived brouhaha that developed after the relatively small scale Benghazi, Libya, affair in 2012, and was determined to be "forced" to fight IS. The two beheadings of American journalists turned the tide into a flood of demands for action.

In his nationwide speech announcing the new strategy, President Obama several times stressed deceptively that the American people were "threatened" by IS. The U.S. is no more threatened by the IS than it was in 2002 when President George W. Bush began to convince Americans to fear Iraqi terrorism in the "homeland." According to a Wall St. Journal opinion survey in the days following the speech, 62% of voters supported Obama's call to action, "but nearly 70% saw low odds of success."

President Obama maintains no American soldiers will be sent to fight "on the ground" in Iraq and Syria, but 1,600 are already there as "advisers," and more will follow as the war continues over the next several years. Special Forces will operate as spotters for U.S. aircraft and other detachments will join Iraqi and Kurdish and troops in combat to provide guidance and leadership, only firing if fired upon, as inevitably occurs. Under certain circumstances larger numbers of American forces may be secretly inserted into Iraq under a government regulation that can legally deny the truth to the American people about clandestine military action by the Pentagon and CIA.

Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff paved the way for the eventual introduction of larger numbers of U.S. ground forces by indicating he would recommend precisely that if IS was able to withstand the American air war and allied ground troops. Dempsey also suggests that half the Iraqi army is not competent and the other half needs to be "rebuilt." This is an interesting tribute to the $25 billion U.S. investment in training the Iraqi military.

The Iraqi government does not want a large contingent of U.S. soldiers back on its soil. While voicing support for the American campaign against IS, Grand Ayatollah Ali al-Sistani declared Sept. 19:

"All political leaders of the country must be aware and awake to prevent the external assistance against the Islamic State from becoming an entrance to breach Iraq's independence…. Cooperation with the international effort shall not be taken as a pretext to impose foreign decisions on events in Iraq, especially military events."

Obama did not mention in his speech an intention to destroy the Assad government, which the U.S. has sought to accomplish for the last three years. Judging from his battle plans, this is precisely what he intends to do as well as attack IS.

Why else finance, arm and train fighters from Syria's anti-Assad "moderate" opposition to allegedly fight on the ground against IS in Syria?

Why would they join up unless the payoff was Assad's head? The initial goal is to train a special unit of over 5,000 of these moderates, expanding the number if the war demands. Some experts question whether there are even that many moderates in Syria's rebel ranks. Congress has already appropriated a half billion dollars for Obama to train and equip the so-called moderates. Whether they fight against IS is problematic, but they are clearly devoted to violently replacing Assad with a Sunni-led regime that — for most of the moderates and all of the extremists —eventually would impose fundamentalist Sharia law throughout the country.

The Obama Administration has never explained what it means by moderate opposition. There are over 1,500 groups involved in the fight to remove President Assad, according to James Clapper, director of national intelligence. Except for about two dozen organizations the rest are quite small. Nearly all the large opposition groups are composed of extreme Sunni fundamentalists. The Islamic State is the largest, followed the al-Nusra Front (al-Qaeda's affiliate in Syria). These two will be ruled out by the White House, but evidently not the so-called moderate groups that have coordinated their independent actions with IS or Nusra in the past. The other large fighting organizations are composed of various Sunni jihadist military groups and the secular Free Syrian Army (FSA) that has been supported by Washington since its inception, along with others, but is no longer a major force. Many members of this group and jihadist organizations have defected to the IS.

According to an editorial in the New York Times Sept. 13:

"Groups identified by Western intelligence agencies as the moderate opposition — those that might support democracy and respect human rights — have been weak, divided and without coherent plans or sustained command structures capable of toppling the Assad regime. Today, those so-called moderates are even weaker and more divided; in some cases, their best fighters are hard-line Islamists."

In terms of the FSA, journalist Robert Fisk wrote in CounterPunch Sept. 14:

"Then there's the reinvention of the 'moderate' Syrian opposition which was once called the Free Syrian Army, a force of deserters corrupted and betrayed by both the West and its Islamic allies — and which no longer exists. This ghost army is now going to be called the 'Syrian National Coalition' and be trained — of all places — in Saudi Arabia, whose citizens have given zillions of dollars to al-Qaeda in Iraq, ISIS and now IS, al-Nusra and sundry other bad guys."

Obama seems to entertain the questionable notion that all these "moderate" groups see themselves threatened by the IS juggernaut and can be bought off with money, heavy weapons and expert training to turn their guns on the religio-fascists. The fact is, however, that many of these jihadist fighters, and the FSA as well, recently signed a pact with IS not to fight each other but to cooperate in destroying the Damascus government.

The Obama Administration shares a large responsibility for the fact that Syria has been transformed into a breeding, training and killing ground for violent Sunni jihadist organizations. The U.S. demand to overthrow the Assad regime created an open season for such groups. Obama looked on passively as one fundamentalist fighting force after another entered the country to join the crusade over the last two years.

Yet another violent organization, "led by a shadowy figure who was once among Osama bin Laden's inner circle [that] posed a more direct threat [than IS] to America and Europe" has been discovered recently, according to the New York Times Sept 21, which continued: "American officials said that the group called Khorasan had emerged in the past year as the cell in Syria that may be the most intent on hitting the United States or its installations overseas with a terror attack. The officials said that the group is led by Muhsin al-Fadhli, a senior Qaeda operative who, according to the State Department, was so close to Bin Laden that he was among a small group of people who knew about the Sept. 11, 2001, attacks before they were launched."

All of the jihadist fighting groups have been subsidized by various Sunni governments in the Middle East and their wealthy citizens. Saudi Arabia is the major source of funding for most of the jihadist organizations but other Arab countries and non-Arab Turkey have also been heavy contributors to virtually all the fundamentalist opposition. Turkey as well has opened its gates to foreign jihadists traveling to Syria to join the fight. Aside from being the cheerleader for regime change, the U.S. has financed, armed or trained more secular and "moderate" groups.

It is of interest that Obama has chosen Saudi Arabia — the big funder of the Syrian jihadists — to train these forces in military skills and discipline. The Saudis now oppose IS, which they once supported, because they see it as a rival for Sunni leadership in the Middle East. At the same time their puritanical fundamentalist Islamic religious views — Wahhabism — are nearly identical to the jihadist Salafi movement that includes IS, al-Qaeda, and other groups in the anti-Assad campaign.

An insight into Saudi Arabia's plans was published Sept. 14 by Stratfor:

"Ideally, the [Saudi] kingdom would like to harness the power of a virulently anti-Shi'ite group such as the Islamic State to topple the Syrian regime and weaken the Shia in both Iraq and Lebanon, thus forcing the Iranians back into their Persian core [in Iran]. The problem is that the Saudis do not control the Islamic State.

"Moreover, Riyadh [the Saudi capital] is competing with groups like the Islamic State and al-Qaeda for a monopoly over the concepts of Salafism and jihad. This is why the Saudis have been putting together a coalition of Syrian rebels, many of whom are Salifist-jihadists who do not share the Islamic State's ambition to establish a caliphate and are willing to go only as far as the Saudis command them to. Saudi Arabia is thus hoping that U.S. military power will help neutralize the Islamic State and allow its proxies to take over the territories currently under the jihadist group's control [italics ours]. This way the transnational jihadist threat will be removed and the kingdom can make progress toward ousting al Assad."

The U.S. seeks a majority Sunni regime in Damascus for its own ambitions, but Obama will insist the jihadist component drop the demand for Sharia, at least for now, and support representation, not repression, for the 35% non-Sunni population and for secular Sunnis, a number of whom are fighting against Assad.

Washington wants a government in Damascus that offers an approximation of democracy, an absolute end to the country's close relationship with Shi'ite Iran, and expects to have its interests respected and advice sought. If the "moderates" (jihadists in most cases) cooperate they will be given a seat at the new government table — as were the Ukrainian fascists when they helped overthrow a pro-Russian president earlier this year.

The United States has been deeply involved since the late 1970s in manipulating the politics of selected Muslim governments to serve its own hegemonic interests. Often the tactic is regime change through direct military intervention, as in Iraq, Afghanistan and Libya, or efforts to overthrow governments by supplying money, arms and other incentives to opposition forces, as in Syria. One inevitable consequence of American interference, even when it appears to be successful, is that fundamentalist jihadi movements multiply in size and new trouble spots emerge.

It is doubtful al-Qaeda had more than several hundred full time operatives at the time of the Sept. 11, 2001, attacks on the United States. It was reported this week that the IS includes an estimated 30,000 to 45,000 effectives in its "state" located in northwest Iraq and northeast Syria and expanding. In early June when IS conquered Mosul, the Pentagon estimated it had 3,000 to 5,000 troops all told. Of the present higher number,

15,000 hold foreign passports, including over 2,000 Europeans and 100 Americans. Those who survive may come home one day, providing a justification for the U.S. and others to expand their already extensive surveillance capabilities.

At present conservative religious monarchies, dictators and authoritarian regimes govern nearly all countries in the Middle East. All of them, despite contempt toward the U.S. for its liberal democracy and overbearing hypocrisy, ultimately are in liege to the global hegemon in Washington that protects them, and supplies the weapons and intelligence to keep these regimes in power. Extreme Arab government repression backed by the White House crushed the Arab left as an alternative decades ago.

Religious fundamentalism and jihadism are today's alternative for many young Islamist men dissatisfied with their corrupt governments and infused with hatred toward the U.S. for its humiliating interventions, support for Israel, and overpowering violence. Many are now flocking to the black flag of IS in Syria and Iraq and to various other jihadist groups, including al-Qaeda offshoots in the Middle East, North Africa and now deeper into Africa and touching on Asia.

There of many millions of Muslims (Arabs, Kurds and Iranians) who will fight the Islamic State. They do not have to do so on behalf of the objectives of either the U.S., Saudi Arabia and their various hangers on who now control the region.

The Syrian army is a tough and experienced military force. Some 75,000 of its soldiers and militia members are reported to have been killed in the last three years — and yet it holds on. This is the force that should fight IS, not those under a U.S. command who are mainly being recruited to defeat the Syrian government.

Syria has an air force, as do Iraq and Iran. If the U.S. called off its dogs, ended its regime change mantra and worked with Syria, Iraq and Iran the days of IS would be numbered more quickly. In fact, those three countries, without the U.S., could do the job if they weren't being undermined and sanctioned.

The 350,000 member Iraqi army is suffering disgrace because of its failure in Mosul. But this defeat has many causes. The Bush Administration foolishly disbanded the existing Iraqi army two months after the 2003 invasion, putting 400,000 soldiers out of work in a wrecked economy that was not hiring new workers. The officer corps was jobless with a black mark on work records (and a number of leading Sunni officers, who were loyal to the pre-war regime, have lately turned up on the side of IS to show their opposition to the government).

The Mosul debacle was largely the product of bad leadership. Commanding officers are said to have fled, leaving the soldiers to fend for themselves. This force can be rebuilt by Iraqis, assisted by several experienced Shi'ite militias (under orders to treat Sunnis fairly), and backed in various ways by Iran. Patrick Cockburn wrote recently "the most potent fighting force on the [Iraqi] government side is the Shia militias, most though not all of which are led or advised by Iranian Revolutionary Guard officers. Iran is crucial for the defense of the Baghdad government."

The Iraqi army will take the field when the Baghdad government gets its act together, but it probably will be under the de facto direction of the United States.

Obama considers the Syrian army — the main bulwark against a jihadist takeover — his enemy because it defends an Iran-friendly government in Damascus. He wants to do what Bush did to the Iraqi military. He stubbornly will not call off his intention to overthrow Assad and will definitely not openly welcome Iran into the picture.

In addition to his geopolitical rationale, Obama fears heavy criticism from a reactionary Congress, from neocon leaders of his own party (such as Hillary Clinton), and from supporters of jihadism such as one of America's closest allies, the Kingdom of Saudi Arabia.

The Islamic State can be defeated, but it is difficult to grasp how the White House strategy as Obama explained things can do the job. There's certainly more to the plan than has been revealed, undoubtedly including ousting Assad. Regardless, the odds are that the U.S. will end up losing more than it gained, as in Afghanistan, Iraq and Libya.

Jack A. Smith is editor of the Activist Newsletter and is former editor of the (U.S.) Guardian Newsweekly. He may be reached at jacdon@earthlink.net or http://activistnewsletter.blogspot.com

Analysis: Expectations for deployment of fifth-generation fighters


Edward Hunt, IHS Senior Defence Consultant
23 September 2014
   

The entry into service of the US F-22 Raptor in 2005 marked the unofficial arrival of the era of the fifth-generation fighter. In the coming years, as the American F-35 Lightning II and foreign competitors such as the Sukhoi T-50 and Chengdu J-20 enter the market, the fifth-generation fighter will become an important element of the global fighter market. With revolutionary advancements such as reduction of radar and infrared visibility and supersonic cruise capability, fifth-generation combat aircraft will provide an impressive boost to any nation's air force.

However, according to analysis by IHS, the development and deployment of fifth-generation fighters is accompanied by various costs.

Between the significant procurement price and the particular set of missions for which such aircraft are suited, nations with limited budgets for defense spending should carefully think through their options before committing to purchase these next-generation aircraft.

As with most complex procurement decisions, a number of factors will define the market size and direction; in some cases, less expensive and older aircraft – including retrofitted models and unmanned aerial vehicles (UAVs) – may constitute a more sensible choice.

Already, expectations for purchases of fifth-generations have fallen. Original projections were for around 5,000 of these advanced planes to enter service. So far, only 430 – or less than one-tenth – of the expected total have been committed to or paid for by various countries. While many more are expected to be purchased in the coming years, demand has a long way to go before it fulfills the original projection.

Fifth-Generation Features

It is useful to define the core characteristics of a fifth-generation fighter that distinguish it from predecessor generations. IHS Jane's All the World's Aircraft: Development & Production analysts highlight five key features that typically characterize a fifth-generation aircraft:

> A reduced radar cross section, and reduced visibility to infrared sensors

> Sensor fusion with scanned array radar

> Linked electronics to share data with other aircraft

> Supersonic cruise capability

> Advanced avionics and engines

These new capabilities, when combined together in one platform, provide a significant improvement in establishing and maintaining air supremacy in the early stages of a conflict. Fifth-generation aircraft are therefore considered invaluable to a leading power like the United States and its primary allies – as well as other states such as Russia and China – that require the ability to establish air dominance against peer competitors.

According to the most recent IHS forecast, the United States alone is projected to purchase 2,616 fifth-generation aircraft; a mixture of F-22s to be used by the Air Force and F-35 variants for the Air Force, Marines and Navy. NATO allies, specifically the United Kingdom, the Netherlands, Denmark, Norway, Italy, Turkey and Canada, are forecast to purchase more than 600 of these advanced planes. Other U.S. allies such as Japan, South Korea and Australia are also on track to procure approximately 300 such planes.

Rounding out the likely future purchases, Russia, China and India are expected to acquire more than 1,500 fifth-generation aircraft, intended to replace the Su-27, Su-30 and MiG-29 models, along with other indigenous aircraft.

Diminished Expectations

It is striking to compare these updated projections with older outlooks because the forecasts for purchases of fifth-generation aircraft have declined in recent years. Several years ago, the United States was projected to purchase around 3,200 fifth-generation aircraft, but controversies over F-35 production and an escalating unit cost have led the Obama administration to reduce these orders by more than 500 planes.

Similarly, non-NATO allies at one time were projected to purchase around 350 fifth-generation aircraft, but the forecast now stands at 304, an approximate reduction of 15 percent.

Fifth-Generation Expectations Fall to Earth

Despite the tremendous capabilities a fifth-generation combat aircraft brings to the table, IHS assesses that the threat environment facing the majority of nations for the foreseeable future may not justify the risk and considerable expense of procuring a fifth-generation-model aircraft. There are three main reasons for this.

First, the number of nations operating extensive air defense networks requiring a sophisticated capability to penetrate and establish air dominion will not significantly expand beyond existing levels. Accordingly, it is unlikely that many nations will find themselves in a position where they will be required to operate their aircraft at the high end of the operational spectrum.

Second, the majority of missions most combat aircraft will fly in future exigencies will involve lower-order operational requirements, facing limited air defense networks and using existing munitions and targeting capabilities.

Third, despite claims from industry, the prevailing view is that fifth-generation fighters will prove significantly more expensive to operate per hour than previously estimated. Those nations that choose to devote a significant share of their procurement budgets to fifth-generation aircraft may find that these planes have been specially designed for missions that, in most cases, they may never be required to carry out, introducing a significant opportunity cost.

The Fifth Element

This surplus of capability will matter less to some states than others. The United States, NATO and major non-NATO allies as well as Russia, and China, are all likely to hedge on the side of excess, even if it significantly raises their procurement costs. These leading powers cannot afford to be choosy when it comes to falling behind in the airpower race.

Although the odds of a great power conflict involving significant air-to-air combat may not be high, the downside of failure to invest in the appropriate capabilities and being caught shorthanded in the early stages of a crisis are too significant for a leading power like the United States or Russia to risk. These states will proceed with purchases of fifth-generation aircraft, even though they too are not immune from cost concerns, leading to reduced order numbers when compared with older forecasts and legacy fighter fleets.

To further complicate such procurement calculations, the smaller number of fifth generation fighters ordered, the higher the likely unit and operating costs.

Fourth Generation Option

Other, smaller states face a different proposition. Excess capabilities relative to their likely requirements in future conflicts will not be viewed as a necessary hedge, but instead as an unwarranted luxury when equally viable but lower-cost replacements are available elsewhere.

In particular, fourth-generation aircraft, including F-16s and Typhoons, can serve as equally reliable stand-ins, especially when they can be purchased at significantly lower prices.

When the most common operational requirements for multirole fighters, as assessed by IHS, include such missions as ISTAR, combat air patrol, and short-range strike missions, the cutting-edge capabilities offered by fifth-generation aircraft offer limited benefits over older designs, particularly when contrasted against the greater acquisition and operating costs. This particularly applies for missions pursued in the context of asymmetric warfare, an increasingly common form of conflict.

Finally, in those instances where a state must turn to airpower to strike at enemy bases or troops in the face of basic air defenses, a fourth-generation aircraft — or an advanced UAV — can successfully undertake most combat operations almost as well as a fifth-generation model.

This overmatch of fifth-generation capabilities against likely operational threats is likely to raise significant questions among lower-tier would-be operators, for whom this opportunity cost will be the highest. The funds devoted from limited defense budgets to the procurement and support of fifth-generation combat aircraft could instead be used to purchase ships for coastal patrols, invested instead in the necessary modernization of tanks and armored vehicles, or be plowed into enhanced training and professional development for troops.

Paying for an aircraft that is rarely used for the missions that it was intended is a very expensive approach to defense planning and is unsustainable in the long run.

US Heavyweight

How do these disparate sets of needs and requirements impact individual forecasts for the expected procurement of fifth-generation aircraft on a nation-by-nation basis? As noted earlier, the United States will remain the heavyweight in the global market, driving the long-term upgrade and production of F-22s (all now delivered) and F-35s with a steady procurement of the latter over the next decade and beyond, ultimately totaling more than 2,500 orders of both aircraft.

Crucially, this also means that, unlike the F-16 and Typhoon, the F-35 will probably remain in production into the late 2030s and beyond. By this point, few fourth-generation or forth-plus generation aircraft such as the Korean KF-X or Turkey's TF-X or are likely to be available.

Select NATO allies are expected to procure more than 600 such aircraft, which is in fact a very slight increase over original forecasts. At the same time, the Chinese are likely to invest in two models—an approximate buy of 200 to 300 J-20 units along with more than 400 J-31 fifth-generation aircraft.

The Russians, for their part, will proceed with investing in approximately 200 PAK FA and over 300 LMS aircraft that are envisaged to replace the MiG-29 fleet. Meanwhile, the Chinese J-20 (which appears to incorporate some illicit elements from Lockheed Martin's development work), may be purchased in a strength of several hundred alongside the newer J-31 aircraft that has been revealed recently.

Among other states, it is notable to highlight India's work on an indigenous [possibly] fifth-generation aircraft, while cooperating with Russia on the T-50. Finally, Japan is proceeding with the development of the Mitsubishi ATD-X while preparing to purchase almost 50 F-35 aircraft.

History lesson

It is useful to remember that expectations of the future course of military conflicts and the related utility of specific weapons systems never unfurl in the anticipated manner. During the period between World War I and World War II, many touted the continued advantages of biplanes, which offered certain advantages in climb and maneuver over monoplanes. Yet as World War II unfolded, biplanes were mostly shot out of the air and the advantages of the monoplane became quickly apparent.

A similar dynamic played out during the Vietnam War, when advanced U.S. aircraft with air-to-air missile capability failed to exert significant superiority over smaller and lighter aircraft.

There are a large number of such honest but erroneous assumptions about the 'future' of aerial warfare that were disproved in a subsequent conflict and therefore it is likely that some of our own predictions from will be similarly found wanting. The simple fact is that we do not know the specific contours of the next aerial conflict, or which capabilities will ultimately be required.

Some states, particularly major military powers, believe that they cannot afford to do anything but hedge against all risks, and will thus invest in fifth-generation aircraft.

Other states, with more constrained defense budgets, will likely have to pick and choose, recognizing that the unique mission capabilities attributed to fifth-generation aircraft may prove costly and unnecessary for the actual operational requirements that they face.

This delicate balancing act will define the near-term future of the fifth-generation aircraft and the extent of its penetration of the global markets.

Edward Hunt is a Senior Defence Consultant at IHS Aerospace, Defense & Security, and contributes insight on aerospace and airborne defense and security matters for IHS Quarterly.

IHS Jane's All the World's Aircraft: Development & Production draws specialist air platforms data and information from the IHS Jane's Defence Equipment & Technology Intelligence Centre.

September 24, 2014

PLA sub's Sri Lanka visit suggests China projecting power into Indian Ocean

A Song-class submarine. (Internet photo)
A Song-class submarine. (Internet photo)
Staff Reporter 2014-09-25 09:13 (GMT+8)
 http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20140925000020&cid=1101

The Changzheng 2, a Type 091 Han-class nuclear-powered submarine has become the first Chinese submarine to visit Colombo Harbor in Sri Lanka according to the website of state-run Sri Lanka News on Sept. 15.

The Chinese submarine arrived at Colombo Harbor one day before Chinese president Xi Jinping began his visit to the country on Sept. 16. In addition to the Changzheng 2, there were two other People's Liberation Army Navy warships in the harbour.

The Changzheng 2 is currently under the command of the PLA Navy's North Sea Fleet. Equipped with C-801 anti-ship missiles, it is capable of attacking targets 80 kilometers away.

Duowei News, a media outlet operated by overseas Chinese, cited photos published by the Sri Lankan state news organization, suggesting that the Changzheng 2 is no longer in the service of the PLA Navy. Duowei News stated that the submarine that visited Colombo Harbor on Sept. 15 was in fact a Type 039 Song-class conventional submarine. The North Sea Fleet's Changxingdao submarine salvage vessel was also there to accompany the submarine.

Duowei said that this is the first time that a Chinese submarine has visited a nation in the Indian Ocean openly. Xi Jinping is the first Chinese leader to visit Sri Lanka in 28 years even though he was only there for one day. Taken together with the joint naval exercises with Iran launched Wednesday, this seems to suggest China's ambitions to project its military power into the Indian Ocean, according to Duowei.

The geopolitical context of India-US ties


By Kamna Arora | Last Updated: Tuesday, September 23, 2014 - 19:02
 http://zeenews.india.com/exclusive/the-geopolitical-context-of-india-us-ties_1474021.html

From Jawaharlal Nehru’s visit in 1949 to Narendra Modi’s upcoming trip in September 2014, a number of leaders of the world’s largest democracy have been hosted by the world’s oldest democracy. In fact, a momentous political alteration in international relations in recent years is the evolvement of engagement between India and the United States of America.

However, the relation shared by the two has been both intriguing as well as complex, marked by different sources of conflict. In the words of Dennis Kux, a retired US Foreign Service officer, India and the US are “estranged democracies”. Former US secretary of state Madeleine K Albright, in 2000, had cited a former Indian Ambassador to the US as saying that Indo-US ties exhibited "a pattern of misunderstanding, miscalculations, and missed opportunities”. Henry Kissinger's mention of “the never-never land of India-US relations” described the discomfort shared by the two countries in the past.

After a number of dialogues, the New Delhi-Washington agenda today involve a number of issues, ranging from India purchasing C-130s from the Unite Sates to the US Centres for Disease Control and Prevention assisting its Indian counterpart to launch Epidemic Intelligence Service program. Not only this, the US is India’s largest trading partner and bilateral defence trade between the two is also on the rise.

Both New Delhi and Washington have viewed their national interests with respect to the world at large. Though political ties shared by the two countries in the post-Cold War era are less thorny, areas of difference do exist. The ups and downs in India-US ties have largely been due to Washington preferring its global strategic interests and priorities over the regional security interests and priorities of India.

India-US ties vis-à-vis Pakistan

After the Cold War ended, the US continued to keep Pakistan as its ally to meet its strategic objectives vis-à-vis Iran in particular, the Gulf region, and Central Asia. The appeasement policy of the US towards Pakistan has always been a concern for India. This is also worth noting that whenever Washington inches closer to New Delhi, Islamabad becomes querulous.

"You don't love us as much as you love India," was the high-pitched complaint Pakistan's National Security Advisor Sartaj Aziz made earlier this year during his country’s resumed "strategic" dialogue with the United States. India’s increasing influence in Afghanistan has always troubled Pakistan. Islamabad wants the US to curb India’s expansion into Afghanistan in order to maintain its strategic ties with the United States.

But India wants the US to realise the legitimacy of its regional security concerns. Terrorism emanating from Pakistan’s soil is a core concern for New Delhi. The US will have to acknowledge that providing Pakistan with arms and military aid goes against peace and security interests of India.

In this scenario, normalisation of military-to-military ties between Washington and Islamabad, after the killing of al Qaeda’s Osama bin Laden by US forces in Abbottabad in May 2011, is a serious concern for India.

According to publicly available documents, the Pentagon reported that total Foreign Military Sales (FMS) agreements with Pakistan were worth about USD 5.2 billion for the period between FY2002 and FY2012. The Congress has appropriated over USD 3 billion in Foreign Military Financing for Pakistan since 2001, more than USD 2 billion of which has been disbursed.

China

The United States, India and China are the most important stakeholders in the Indian Ocean Region. The trio not only faces similar security challenges but also share common interests in the region.

A number of analysts opine that the US is keen on forging stronger ties with India in a bid to check China's influence in Asia, albeit New Delhi has ruled out being a part of any US containment strategy toward Beijing. Some experts argue that India wants closer ties with the US to better its regional standing, and to reinforce its security position against China and Pakistan. And China, which is allergic to US-led activities and alliances, is suspicious of Washington-New Delhi intentions.

New Delhi shares a unique relationship with Beijing. India sees China as a major strategic threat, expresses concern about border dispute, but at the same time inches closer to it to increase trade. The wish for better economic growth has been pushing India and China, two of the largest, fastest-growing energy consumers in the world, to maintain better bilateral ties.

According to Sumit Ganguly, the professor of Political Science, Indiana University, India suffers from "status anxiety" in relation to its northern neighbour, and is "constantly peering over the Himalayas at China, trying to catch up”. The US also sees China as an emerging competitor.

As per a study by the world's leading statistical agencies, China is set to overtake the US as the world's number one economy.

India and China, the multi-ethnic democracies, are striving to become the major political and economic force in Asia. China’s rise is inevitable and India's rise, economically as well as strategically (recently an Indian warship exercised with the Vietnamese Navy in the South China Sea), will re-align the balance of power in Asia.

It is pertinent to note here that during his first term as prime minister, in 2006-2007, Japanese PM Shinzo Abe had initiated a Quadrilateral Security Dialogue (QSD) among Asia’s maritime democracies - Australia, India, Japan, and the US. Sensing its consequences, Beijing had protested against the spectre of an “Asian NATO”. The thought that such an alliance could jeopardise his country's ties with China had pushed the then Australian prime minister Kevin Rudd to pull out of the QSD. If revived, the QSD could potentially pit China against the Asian democracies.

Terrorism

After the 2008 Mumbai terrorist attacks, the United States and India had expanded their counter-terrorism and security cooperation. India and the US have joined hands to meet the evolving security challenges of the 21st century. Not only the duo want to tackle terrorism in their own territories, but also share common interests in ensuring a stable Afghanistan.

However, despite wide-ranging anti-terrorism cooperation, a trust deficit mars India-US relationship. There are a number of instances in the US’ history that reveal how the country uses terrorism when it suits its interests, and fight against it when its territory or citizens come under attack. This is why for the US there are “good terrorists” and “bad terrorists”. In the past, India has been disappointed by contradictory statements made by the US vis-a-vis Pakistan-based terrorist threat to India. According to Polly Nayak, the South Asia expert, Indian officials believe that the US has kept back information on al Qaeda terrorist operatives suspected of having ties to Kashmiri militants.

The Indian government has often accused Lashkar-e-Toiba of terrorist attacks, including the one that took place in Mumbai. According to experts, LeT receives backing from Pakistan's Inter-Services Intelligence Directorate (ISI) to fight in Kashmir. The group, founded by ISI darling Hafiz Muhammad Saeed, operates freely inside Pakistan. US officials, who earlier dismissed LeT as a regional problem and concentrated its operation against al Qaeda (the group behind 26/11 attacks), are now persuaded that the terror outfit has not only limited its campaign of jihad against India but also extended it against the United States, Europe, and the US troops in Afghanistan.

Recently, al Qaeda leader Ayman al-Zawahiri announced the creation of a South Asian branch of his outfit to "raise the flag of jihad" in the Indian subcontinent. According to experts al Qaeda launched the wing to counter the global attention being enjoyed by the Islamic State in Iraq and the Levant.

“Zawahiri has longstanding links" to LeT and to its leader Hafeez Saeed, Bruce Riedel, a former CIA analyst and National Security Council official for South Asia, had recently noted in his column.

"In short, the Pakistani Army and its ISI spies are once again playing with fire - with India, the LeT and Kashmir - in order to secure domestic gains against their civilian leaders," Riedel had rightly added. He further urged the US to keep a check on Pakistan.

Notably, India has informed the US that LeT and another Pakistan-based terror group, Jaish-e-Mohammed, are sending recruits to Syria and Iraq through Saudi Arabia and Turkey to join the Islamic State in Iraq. LeT militants and ISIS share the puritan Salafi ideology.

Reports suggest that these Pakistan-based groups could not only help the ISIS target expatriate Indians but also give training its cadres to target the Indian Army. While Saudi Arabia has given an assurance to India that it will not let its territory to be used by Pakistani groups to reach Iraq or Syria, the US and UK intelligence have heard out the Indian request without any response, reports an Indian daily.

Middle East

Over the past two decades, India has skillfully managed to develop ties with diverse Middle Eastern countries, such as Iran, Israel, Palestine, and Saudi Arabia. India's relationship with the Middle East is quite different today than it was between 1947 and 1986. Earlier, India's policy was too driven by pro-Palestinian ideology, but today New Delhi is developing its new strategy - especially around Iran, Saudi Arabia, and Israel - to pursue its regional interests.

Two decades ago, India-Israel ties were not cosy, so much so that India had refused to maintain an embassy in Israel. However, the bilateral relationship between the two countries became better since the two countries opened diplomatic ties in 1992. Albeit India had recently supported a call for a United Nations Human Rights Council probe into Israel’s offensive in Gaza (the US was the only country which opposed it), it was just a symbolic vote. However, at home, the Indian government blocked parliamentary votes to express disapproval of Israeli actions.

According to Sadanand Dhume, a fellow at the conservative American Enterprise Institute: “New Delhi appears ready to suggest publicly what many officials already acknowledge privately: A burgeoning strategic partnership with Israel matters more to India than reflexive solidarity with the Palestinian cause."

Until the end of the Cold War, India had extended steady support to Palestinians. In fact, in 1974, India became the first non-Arab state to recognise the Palestine Liberation Organization (PLO) as the official representative of Palestinians. International impact of the collapse of the Soviet Union led to a change in India’s foreign policy vis-à-vis Israel. Today, India and Israel, an old ally of the US, engage on matters such as agriculture, commerce, military, and science. The US had consistently pushed Israel to develop strategic relationship between India and Israel. Notably, the single-biggest buyer of Israel's defence products now is India.

As far as Iran is concerned, the West has been obsessed with India-Iran ties, so much so that New Delhi was earlier asked to prove its loyalty to the US by backing it at the International Atomic Energy Agency with regards to Iran's nuclear program. According to experts, the US sees Indian-Iranian ties as having a potentially damaging impact on its interests in Southwest Asia and the Middle East. However, India cannot ignore its energy needs.

The South Asian country is the fourth largest consumer of energy in the world. Also, Indian companies, especially state-owned ones, have investments or interest in the Iranian energy sector. India is also all the time more looking abroad for natural gas. The Iranians have revived dialogue of deep-sea pipelines to India after the failure of the Iran-Pakistan-India pipeline. Earlier this year, a report had claimed that the new plan offers to transport oil and natural gas through deep sea pipelines via Oman. With the help of this process, Iran, Turkmenistan and Azerbaijan energy could feed the pipeline for the Indian market.

Meanwhile, reports suggest that the United States is expected to seek cooperation from Iran and Syria to counter ISIL, which is wreaking havoc in Iraq. India can prove to be an efficient negotiator in the case.

Conclusion

There have been geopolitical tensions where India and the US stand on opposite sides. India and America diverge on many issues. Over the past two years, differences ranging from the arrest of Indian diplomat Devyani Khobragade to India’s nuclear liability law, and intellectual property regime to India’s decision not to ratify WTO's Trade Facilitation Agreement, the alleged snooping by the US National Security Agency to a proposed US immigration bill that targets Indian IT firms, have hit New Delhi-Washington ties. In regards to the crisis in Ukraine, India backed Russia, disappointing the US.

Both India and US are pluralistic societies, largest democracies, economic growth-oriented. The two have moved way forward from the time when US president Richard M Nixon had dispatched the Seventh Fleet into the Bay of Bengal to threaten India. The upcoming visit of Prime Minister Narendra Modi to Washington could write a new chapter in the history of two of the world’s largest and most diverse democracies.

Xi’s visit and the boundary issues


R. S. Kalha
http://www.idsa.in/idsacomments/XIsvisitandtheboundaryissues_rskalha_240914.html
September 24, 2014

Whenever a high level visit takes place between India and China expectations are raised that with a Midas like touch the two leaders would resolve the boundary question and that the two billion plus people of India and China would together shape a new Asia. Such hyperbole remains constant, since few are aware of what Chinese policies actually are. President Xi Jinping reportedly issued a five point directive at the conclusion of a high level Work Forum in October 2013 on China’s policies towards peripheral countries; that while enhancing political ‘goodwill’ and deepening economic integration with them, the peripheral countries would have to respect China’s ‘core’ interests and ‘validate’ China’s efforts to enforce sovereignty and territorial claims.1. If this is indeed the theoretical line that President Xi is pursuing, then there is little chance of any forward movement in settling Sino-Indian boundary issues.

The Chinese, generally speaking, are aware of the Indian fascination for concluding high sounding declarations, statements, principles etc. and therefore have little hesitation in indulging them; knowing full well that if the situation so demands these can easily be flouted. The 1954 Five Principles of Peaceful Co-Existence [Panchsheel] Agreement and the 2005 Political Parameters and Guiding Principles Agreement, particularly Article VII, are prime such examples. The first was easily overturned in the conflict in 1962 and the second in May 2007 when the Chinese Foreign Minister [Yang Jiechi] told the Indian Foreign Minister [Mukerjee] in Hamburg that their understanding of Article VII [‘in reaching a border settlement the two sides shall safeguard due interests of their settled populations in border areas’] did not mean that Chinese claims [Southern Tibet] were affected!

There is no other state in the world that has longer contiguous land frontiers than China; a total of about 22,000 kilometers of which about nearly 19,000 kilometers traverse China’s minority areas.2. At present China has a land border with 14 states. Of the 14 states, 12 have conclusively settled their border disputes with the People’s Republic. 3. India and Bhutan remain the only states that have continuing land border disputes with China [emphasis added]. As regards Bhutan, China alleges that it is still under India’s ‘firm control’ and that India will not allow it to ‘…solve the border issue.’4.

It is indeed an anomaly as to why there is no settlement with India when all other similar boundary disputes with other states have been settled. While assessing the prevailing reality along the Sino-Indian border three factors need to be kept in mind. First, in the western sector the Chinese are in possession of the ‘disputed’ territory. Second, India is in no position to evict them physically. Third, although India is in possession of territory in the middle and eastern sectors, yet the Chinese have never given up their claims. Maybe these are negotiating tactics, but the Chinese even prevaricate on the demarcation of a mutually determined ‘line of actual control’ all along the Sino-Indian border, primarily to keep India off-balance.

In the Chinese mind the settlement of the border issue with India cannot be divorced from regional, political and larger strategic issues. In fact if the regional, political and strategic issues with India were amicably resolved; a boundary settlement would inevitably follow. The position taken by India on the boundary issue has steadily come closer to the stated Chinese position. In the early fifties, Nehru took the position that there was no boundary dispute and all that was needed were small rectifications of the line. This position was overturned by the 1962 conflict and thereafter India took the line that till the boundary issue is settled; no further normalization of relations could take place. This line too was abandoned when PM Rajiv Gandhi visited China in 1988 and the new position was that while negotiations on the boundary issue continued, normalization in all other areas could take place. Finally PM Vajpayee further agreed to conduct boundary negotiations based on ‘political parameters’ and conceded to the Chinese position to settle the boundary in a ‘package.’

The question therefore is why do the Chinese not settle on the basis of a ‘package’ as they had insisted all along? The answer lies in the fact that ever since the boundary issue came to the fore and even at present; this dispute is utilized by China for trying to coerce foreign policy changes by India that often have nothing to do with the dispute itself [emphasis added]. China has used the threat of intrusions across the LAC, as a part of its coercive diplomacy. It is too valuable a coercive diplomatic asset to give up.

From the Chinese point of view the issue of Tibet remains the most significant factor. Although India has officially accepted that Tibet is an autonomous region of China, yet doubts about India’s intentions linger. Even the Chinese military action in 1962 was attributed not to the legality or otherwise of the McMahon Line, but as Mao Zedung told a Nepalese delegation in 1964 that ‘in the opinion of the Indian government, Tibet is theirs.’ The decision by the Indian Army to raise a new strike corps has done nothing to lessen Chinese apprehensions.

Despite enormous efforts, China has still not been able to subdue Tibetan aspirations. China has tried everything from brutal crackdowns to economic sops. Yet the Tibetan yearning for independence just does not die down to China’s utter exasperation. China faces a crisis of credibility in Tibet even after a half century of so-called ‘democratic reforms.’5. Sometimes even Chinese officials, in candid moments, admit that although their economic strategies have been a success, yet their political strategy for ensuring stability has been a dismal failure.6.

China has played a central role in helping Pakistan become a nuclear weapons state. China is helping Pakistan to fuel the fastest growing nuclear arsenal in the world.7. China is also the main military weapons supplier to the Pakistan Army. According to SIPRI nearly 55 per cent of China’s arms exports go to Pakistan. China’s arms exports world- wide rose by an unprecedented 162 per cent for the period 2008-2012.8. The aim is to ensure that India remains occupied in South Asia.

Strategic analysts sitting in Beijing realize that in any Sino-Indian stand-off, the role of the US would be crucial. China watched with some anxiety the US urge India to play a greater role in the Indo-Pacific region. As US Deputy Secretary of State, Burns put it ‘India’s strong presence in the Indian and Pacific Oceans is a source of comfort and affirms its potential as a net security provider in the maritime domain.’9. Therefore, the way Indo-US relations develop is of great strategic significance for China.

The Chinese are aware that PM Modi is visiting Washington shortly. In the Modi-Obama talks, like Banquo’s ghost, the shadow of China will be ever present. The central message therefore is that should India gravitate too closely towards the US inspired ‘rebalance’ to Asia, or move closer to Japan, Australia and Vietnam; it would have to contend with renewed pressure on the boundary. The Chumar standoff is the physical demonstration of the Chinese message.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India

1. Timothy Heath. “Diplomacy Work Forum: Xi Steps Up Efforts to Shape a China-Centered Regional Order” China Brief Vol. 13, No22, 7November 2013.

2. Judge Xue Hanqin [International Court of Justice]. “China and International Law: 60 Years in Review,” Chatham House, 8 March 2013.

3. Ibid.

4. Liu Zhongyi. The Global Times, 4 August 2013.

5. Dr. Dibyesh Anand. Interview to Zee Television (Delhi: Zee.com), 19 November 2011.

6. Andrew M Fischer. “The Geopolitics of Politico-Religious Protest in Eastern Tibet,” Field-Spots, Cultural Anthropology-on-Line, 8 April 2012.

7. Bruce Riedel. “JFK Overshadowed,” National Interest.org. See also Bruce Riedel. “Divided They Stand,” Indian Express, 28 October 2013, p. 10.

8. SIPRI estimates quoted in the Hindustan Times, 19 March 2013.

9. William Burns, US Deputy Secretary of State address to students of Pune University on 19 December 2011.(Rediff.com)

A primer on the Indian Civil Liability for Nuclear Damage Act, 2010

http://www.idsa.in/backgrounder/IndianCivilLiabilityt_gbalachandran_240914.html
G. Balachandran

September 23, 2014

During Prime Minister Modi’s forthcoming visit to US, one of the topics that is likely to be high on the agenda will be the still incomplete US-India nuclear cooperation by way of sales of nuclear reactors to India because of the Indian Civil Liability for Nuclear Damage Act, 2010 (CLNDA).

However, the provisions of the CLNDA have stalled not only sales of nuclear reactors from US to India but from other major nuclear suppliers – Russia and France – as well. Even though the NSG exemption for nuclear commerce was granted more than six years ago, and India had signed the nuclear cooperation agreements with these countries nearly six years ago, it has not been able to finalise even a single commercial contract for the import of a reactors from any of these countries. The only nuclear cooperation that India has been able to conclude with any of the countries with whom it has nuclear cooperation agreements is in respect of nuclear fuel which would not have any implication for  application of CLNDA.

However, it is a fact that India, because of the CLNDA, has had to either default on its obligations under the various international agreements or attempt, unsuccessfully so far, to dilute its provisions.

This backgrounder will proceed in the following manner:

First the section of CLNDA standing in the way of reactors transfers will be discussed.

Second, the provisions dealing with nuclear liability in the various relevant cooperation agreements that India has signed with other countries as well as Indian suppliers of nuclear equipment to the indigenous PHWR program will be analysed. It will also discuss the manner in which India has either not acted upon the agreement or is attempting to dilute its provisions will be discussed.

Finally, various alternatives for resolving this contentious issue with or without amendment to CLNDA will be discussed.

The Civil Liability for Nuclear Damage Act, 2010.
The bill was introduced in the Parliament on May 7, 2010 and passed by Lok Sabha on August 25, 2010, the Rajya Sabha on August 30, 2010 and received the president’s assent on September 21, 2010.

The provision of this Act which has so far stood in the way of reactor transfers from abroad, and reportedly hesitation on the part of the Indian supplier to the indigenous nuclear program, has been the section on Right of Recourse (Section 17 of the Act) and in particular Sec. 17(b) according to which,

“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-the nuclear incident has resulted is 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.”
This section has been held to be against the letter and spirit of the three major international conventions on nuclear liability- the Paris Convention, the Vienna Convention, and the Convention on Supplementary Compensation (CSC) in addition to being not part of any other country’s nuclear liability laws- as also against the provisions of the various bilateral agreements.

The various bilateral agreements with liability provisions

Russia.
There are two relevant agreements with the Russian federation on nuclear cooperation.

The first is the “Agreement Between The Government of The Republic of India and The Government of The Russian Federation on Cooperation in the Construction of Additional Nuclear Power Plants at Kudankulam Site as well in the Construction of Russian Designed Nuclear Power Plants at New Sites in the Republic of India” which was signed on December 5, 2008.
According to Section 13.1 of this Agreement,

“The Indian Side and its authorized organization at any time and at all stages of the    construction and operation of the NPP power units to be constructed under the present Agreement shall be the Operator of power units of the NPP at Kudankulam Site and be fully responsible for any damage both within and outside the territory of the Republic of India caused to any person and property as a result of a nuclear incident occurring at NPP and also in relation with a nuclear incident during the transportation, handling or storage outside the NPPs of nuclear fuel and any contaminated materials or any part of NPP equipment both within and outside the territory of the Republic of India.”

And according to Section 15 of the Agreement,

“In case of termination of the present Agreement, the terms and provisions contained in this Agreement  applicable to the implementation, completion and lifetime operation of units' 3-4-5-6, including in particular the supply obligations stipulated in Article 4 of the present Agreement shall remain in force except in case of material violation of Article 12 of the present Agreement.”

The second agreement is “Agreement between the Government of the Republic of India and the Government of the Russian Federation on Cooperation in the Use of Atomic Energy for Peaceful Purposes.” which was signed on March 12, 2010 and ratified on September 20, 2010.
According to Article 3.2 of this Agreement,

“Cooperation in areas under this Agreement shall be implemented by the Partíes through development and execution of programs and projects, and conclusion of contracts between the Indian and the Russian organizations, authorized by the Parties' competent authorities. The      scope of agreed cooperation, rights and obligations of the participants of the agreements (contracts), financial and other terms and conditions shall be specified in contracts in accordance with respective legislations of the Republic of India and the Russian Federation.” and Further according to Article 8,
“Liability for nuclear damage that may arise from the implementation of cooperation under the Agreement shall be determined in appropriate agreements (contracts) concluded in accordance with paragraph 3.2 of the Agreement and international commitments and legislation of the Republic of India or the Russian Federation as the case may be.”


Thus in case of Russia, India had explicitly absolved the Russian supplier of any liability whatsoever in case of a nuclear incident at any site hosting a Russian reactor. Not only that even if the 2008 agreement was terminated the assurance of no liability was promised in case of the four additional reactors at Kudankulam. However, recent reports indicate that India would like Russia to accept the application of the Indian CLNDA in case of Kudankulam 3 and 4, which is one of the reasons why no contract has been signed by NPCIL for further reactors at Kudankulam. It is ironical that India would like to apply retrospectively a law passed after an agreement was signed when in earlier times, India had objected strongly to an retrospective application of an US law in mid-70s when US stopped supplying nuclear fuel for Tarapur after India’s peaceful nuclear test in 1974, even though the India-US agreement on Tarapur had no clause even referencing a nuclear test by India.

France
India had signed civil nuclear cooperation, “Cooperation Agreement between the Government of the Republic of India and the Government of the French Republic on the Development of the Peaceful Uses of Nuclear Energy” with France on September 30, 2008 soon after the NSG had given an exemption to India on September 6, 2008.

Article VIII of this agreement dealt with nuclear liability, which stated inter-alia

1. The Parties or persons designated by the Parties with implementing this Agreement shall deal with liability issues, including civil nuclear liability, in specific agreements.
The Parties agree that, for the purpose of compensating for damage caused by a nuclear incident involving material, nuclear material, nuclear equipment, facilities and technology referred to in Article IX each Party shall create a civil nuclear liability regime based upon established international principles.
The Right of recourse clause present in CLNDA is not present in either any of the international conventions or any of the other nuclear liability laws in countries not signatory to any of the three conventions-Paris, Vienna or CSC. It is also not in line with the recommendations for a nuclear liability law suggested by the IAEA (Chapter 11, Handbook of Nuclear Law, IAEA, 2003) either. Hence the CLNDA is not a “civil nuclear liability regime based upon established international principles’ as required by the India-France agreement on civil nuclear cooperation.

USA
The India-US “AGREEMENT FOR COOPERA TION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF INDIA CONCERNING PEACEFUL USES OF NUCLEAR ENERGY” which was signed on October 10, 2008 does not have any explicit reference to civil nuclear liability. However, through exchanges of bilateral assurances and Joint statements by the respective heads of governments, India committed itself to a set of principles in civil nuclear liability.

On September 10, 2008 in a letter to Mr. Burns, the then US Under Secretary of State, Mr. Shivshankar Menon, the then Indian Foreign Secretary, wrote “India also recognizes the importance of establishing an adequate nuclear liability regime and it is the intention of the Indian Government to take all steps necessary to adhere to the Convention on Supplementary Compensation for Nuclear Damage prior to the commencement of international civil nuclear cooperation under the Agreement.”

Subsequently in a Joint Statement issued November 8, 2010 during the visit to India by President Obama the President and Prime Minister Manmohan Singh said “They noted that both countries had enacted domestic legislations and were also signatories to the Convention on Supplementary Compensation. They further noted that India intends to ratify the Convention on Supplementary Compensation within the coming year” Although nearly four (4) years have passed since that Joint Statement, India has still not ratified the CSC.

It is clear, therefore, that both in letter and spirit India has not adhered to its obligations due as result of the international agreements it has signed.

Indian suppliers of nuclear equipment
Not only did the CLNDA went against the foreign suppliers and agreements, it was also contrary  to agreements that NPCIL had till then with its suppliers in respect of nuclear liability. As per the    standard General Conditions of Contract for Supply of Indigenous Stores (General Conditions of Contract (FORM NO. GCC/Supply-1/Rev.1)),,

“6.7.7 The Purchaser shall indemnify and hold harmless the Contractor in respect of Third Party life and Property damage claims arising out of nuclear event at Purchaser’s Site.”
Way out
So what are the options available to get out from these constraints? The objections of suppliers to Sec. 17(b) are not difficult to comprehend. Nuclear reactors have long operating life- 40 years or more- and while nuclear incidents of very severe nature are rare, and in incidents like that of Fukushima can result in damages amounting to US $ 1 billion or more, commercial firms would be loath to agree to compensate for unspecified- and unlimited- damages extending over an unspecified period of time. Any proposed, and acceptable, solution to all parties must exclude such an option.

The obvious way out would be to amend the CLNDA to remove Sec. 17(b). However, this is likely to be difficult since, the present ruling party BJP was one of the prime and major initiator and supporter of this section during the very contentious debate that took place in Lok Sabha during the debate preceding the enactment of the Act. In addition, the debate in the parliament was influenced very strongly by the verdict on the Bhopal gas Tragedy that was delivered during the course of the progress of the CLNDA bill. With the Bhopal gas tragedy still in public mind and with BJP now commanding a majority in Lok Sabha, it is extremely unlikely that any amendment proposing deletion of Sec. 17(b) would be able to get past the house.
So any proposed solution will have to take into account the presence of Sec. 17(b) in the CLNDA.

The government realizing the difficulties with the CLNDA in its present form and taking into account the possible concerns of suppliers both foreign and domestics, formulated the rules for implementing the CLNDA in manner which addressed some of the major concerns of the suppliers and in particular, reduced substantially both the suppliers liability and the time period through which such a Right of Recourse can be enforced. The Civil Liability for Nuclear Damage Rules 2011 came into force on November 11, 2011. According to Section 24 of the Rules which dealt with the Right of Recourse,

“24. Right of recourse- (1) A contract referred to in clause (a) of section 17 of the Act shall include a provision a for right of recourse for not less than the extent of the operator's liability    under sub-section(2) of section 6 of the Act or the value of the contract itself whichever Ìs less
(2) The provision for right of recourse referred to in sub-rule (1) shall be for the duration of initial license issued under the Atomic Energy (Radiation Protection) Rules, 2004 or the product liability period, whichever is longer
Explanation 1 – For the purposes of this rule, the expressions,-

"product liability period" means the period for which the supplier has undertaken liability for patent or latent defects or substandard services under a contract;

"supplier” shall include a person who-
manufactures and supplies either directly or through an agent a system, equipment or component or builds a structure on the basis of functional specification; or
provides build to print or detailed design specifications to a vendor for manufacturing a system, equipment or component or building a structure and, is responsible to the operator for design and quality assurance; or
provides quality assurance or design services.
Explanation 2.- For the removal of doubts it  is clarified that an operator's claim under this rule shall in no case exceed the actual amount of compensation paid by him up to the date of filing such claim.”

As a consequence of these rules, the liability of the suppliers, irrespective of total damage, was limited to the maximum liability of the operator, namely rupees one thousand five hundred (1500) crores (equivalent to US $ 250 million) under Sec. 6(2) of CLNDA, although this section does provide for enhancement of the maximum liability. Thus there is no issue of unlimited liability.

As for the period through which this Right of recourse can be exercised, according to Section 9 of the Atomic Energy (radiation Protection) Rules, 2004,

“9. Period of validity of Licence:- Every licence issued under rule 3 shall, unless otherwise specified, be valid for a period of five years from the date of issue of such licence.”
Thus the burden on the supplier, in terms of both the monetary obligation and the time period, was reduced substantially by the government, making it easier to enable both the supplier and the operator to enter into commercial contracts.

What then are the options available under these rules?

Since both the liability and the time period have been reduced substantially and the chances of a major incident in a new nuclear plant in the period of five years immediately following the commissioning of the plant has never happened so far in more than tens of thousands of years of reactor operation worldwide, suppliers can with a high degree of confidence can enter into a reactors sales contract. If they still feel uneasy, they can front load the maximum liability on the contract price, which may add about ten (10 %) to nuclear power plant price of about $ 2.5 billion for a 1000 MWe plant. Or the operator and supplier can split the amount of liability, adding only US $ 125 to the power plant cost.

Another option would be for the operator to forego the Right of Recourse in the contract. This option can be examined under two situations. The first is with respect to a contract with Russia and the second with respect to all parties, domestic and foreign.

In reply to a question in Rajya Sabha on December 13, 2012, the Government had replied that “As regards Russia, Atomstroyexport (ASE), the authorised organisation of Russian Federation, in their commercial offer to Nuclear Power Corporation of India Limited (NPCIL) in respect of Kudankulam Units 3&4 had stated that NPCIL being operator is fully responsible for any damage caused to any person and property as a result of a nuclear incident occurring at NPP. Further, ASE had mentioned that their plea was based on the principle of continuity of cooperation in construction of KKNPP in accordance with the agreement between the USSR and Republic of India dated 20th November 1988, supplement thereto dated 21st June, 1998 and in line with the provisions of Intergovernmental Agreement dated 5th December, 2008.”

According to reports, the Centre, had sought the AG's (Attorney General) opinion on legality of a MEA (ministry of External Affairs) proposal before the Cabinet Committee on Security, which read, "Authorize Nuclear Power Corporation of India Ltd not to exercise operators' right to recourse under Section 17 of the Civil Liability for Nuclear Damages Act, 2010." The MES in its note is reported to have stated that “We consider the section 17 of CLNDA is a kind of enabling provision; it gives a specific right to operator but does not place any mandatory obligation or requirement to exercise the right of recourse against supplier. In the absence of a mandatory obligatory, the operator could choose not to exercise that right. It is a statutory right and not a fundamental right under the Constitution.”

In giving his opinion, the then AG, the late Mr. Vahanvati has said that "The views of the MEA cannot be said to be legally wrong but a question may arise about the advisability of such a waiver, particularly when NPCIL is a public sector undertaking and the failure to provide for and have recourse against supplier would ultimately impact public funds."  And also that “I am formulating an answer to this question purely from the point of view of legality and not a policy issue. To approach this point of view of law, legality and not policy it appears that as a matter of legal permissibility, it can be done.”

However, Mr. Vahanvati had raised a question about the advisability of such a waiver especially when NPCIL is a PSU, since "Non-recourse or limited recourse may entail a burden on the tax payer, particularly when the nuclear programme is being implemented through a PSU and having regard to the provisions of Section 7, where the ultimate liability is that of the central government."

Now coming to the issue of waiving the Right of Recourse with respect to countries other tha Russia, the government had reportedly asked, "Would it be prudent to waive the right to recourse in regard to Russia only when Section 17 is applicable to all nuclear installations, keeping in view the provisions of Inter-Governmental Agreement with Russia? No such provision exists in the existing IGA with other countries." To which the AG had replied that “this again is not an issue of law but one of propriety and prudence. The ultimate test would be whether there is no choice available commercially and whether there is no option to agree to waiver, as demanded. As far as the other countries are concerned, I do not agree with the MEA view that there could be no objection to the international law angle and a third state cannot be demanding similar rights as a matter of right. The fact is that no other bilateral agreement has such a provision.”

It would appear, therefore, that according to one official legal opinion there should be no bar to NPCIL agreeing to forego the Right of Recourse but not the others. It should, however, be mentioned that some other eminent jurists have suggested that it would not be consistent with the CLNDA.

A fourth option would be for the operator not only to take an insurance or financial security required under section 8 of CLNDA for the amount of the liability of the operator as specified in section 6(2) of CLNDA but also a similar cover on behalf of the supplier. In such a case, if and when, a nuclear incident places a demand for damages on the operator which is covered by the insurance taken by the operator, if the Right of recourse is exercised by the operator on the supplier, the supplier can meet such demand from this insurance cover it also has. Such an insurance cover taken by the operator on behalf of the supplier, for a limited period (of maximum duration) would hardly make a difference to the final cost of the NPP purchased by the operator. This option may, however, may not be suitable in case of Indian suppliers, since there are numerous indigenous suppliers of nuclear equipment, systems and services to NPCIL, whereas in case of foreign suppliers of NPPs, the contract will be only with one party.
A fifth solution is suggested by the remark of the AG in discussing the waiver of Right of Recourse by NPCIL namely that NPCIL is a PSU and the waiver of Right of Recourse by NPCIL would entail a burden on the tax payer and especially when the ultimate liability is that of the Central government according to provisions of section 7 of CLNDA. This handicap would be absent when the operator is not a PSU but a private entity. There is involvement of public funds when a private entity is required to pay for the damages as a result of a nuclear incident and therefore, there is no bar on a private entity waiving the Right of Recourse. Therefore, the government should seriously consider the issue of allowing private ownership of nuclear NPPs, even allowing for the possibility of allowing FDI.
The sixth solution would be to factor in (i) the limits placed on exercise of Right of Recourse in  Civil Liability for Nuclear Damage Rules 2011  and (ii) the extremely low probability of any nuclear incident in the first few years of the life on nuclear power plant by having a clause on nuclear liability in the techno-commercial contract which states that ““Liability for nuclear damage that may arise from the implementation of cooperation under the Agreement shall be determined in accordance with the national legislation of the two countries and their international agreements and commitments. In case of any dispute arising from the interpretation of this clause, the matter will be resolved through international arbitration the arbitrators being assigned either by the Director General of IAEA or the International Court of Justice” or something similar to it. The Russian and French Agreements for cooperation would sustain their case for the non-application of the Right of Recourse.
As for US, India’s accession to CSC would automatically protect the US suppliers from any liability. US is also a party to CSC and the US legislation for the implementation of CSC specifically states that it does not provide for an operator of a nuclear installation covered by CSC any right of recourse under the CSC. This implies that even if the operator has a written contractual provision with the supplier explicitly providing for such a right of recourse, it would not be admissible under US laws!

It has been held by some Indian commentators that while under the CSC and the proposed Indian law, victims of a nuclear accident in India would not have the right to approach an American court or even an Indian court directly, a claim against a U.S. supplier under the right of recourse can be pressed by the operator before an Indian judge and that Article XIII.6 of the CSC, to which the U.S. is now a party, says the judgment of a court in the country where the accident occurs shall be legally enforceable by any other contracting party “as if it were a judgment of a court” of its own. Thus, if an Indian court were to accept that a particular nuclear accident were caused by negligence on the part of an American supplier, the U.S. authorities would be obligated to help the operator recover the money already paid out in compensation to the victims from the U.S. companies concerned. Unfortunately the above reasoning is only partly true since Art. XIII.5 of CSC also states that “A judgment that is no longer subject to ordinary forms of review entered by a court of a Contracting Party having jurisdiction shall be recognized except: (c) where the judgment is contrary to the public policy of the Contracting Party within the territory of which recognition is sought, or is not in accord with fundamental standards of justice.” And as the US CSC implementing legislation states that as a matter of law, and hence public policy, there is no provision for the operator for any right of recourse, even if an Indian operator were to get a favourable judgment it cannot be enforced in the US under the CSC.

The last option would be for the CLNDA to be declared unconstitutional by the Indian Supreme Court. There is pending at the moment, two suits before the Supreme Court challenging the constitutional validity of the CLNDA. In May 2013, while disposing of Civil Appeal 4440 of 2013 along with Civil Appeal Nos. 4441/4442/4443 of 2013, the Court observed “ The constitutional validity of the said Act is under challenge before this Court in Writ Petition (Civil) No. 464 of 2011. Various prayers have been made in the above mentioned writ petition, but this Court issued the notice only with regard to the prayer clause no. (e), i.e. to declare the act as unconstitutional and void ab initio.” That writ petition has not yet been decided. It is quite possible, that till the constitutionality of the CLNDA is decided, there can be no final agreement on either the liability or the Right of Recourse, none of the solutions mentioned above except, perhaps, the sixth one, can really be a workable option which bypasses section 17(2) of the CLNDA. Indeed, declaration by Supreme Court that the CLNDA is unconstitutional may be the best option. In such a case, without any CLNDAS in place, status quo ante will prevail. NPCIL can enter into contracts with Indian suppliers, as it has been doing for so many years, absolving them of any liability for civil damage. They can probably enter into such contracts with foreign suppliers as well. In the absence of a domestic CLNDA, India can accede to the Vienna Convention and hence CSC. That will solve everybody’s problem!