India had signed two earlier End User Agreements

(Photos: Nehru and Vijaya Laxmi Pandit with President Eisenhower in the United States. Two End User Monitoring (EUM) Agreements were signed in the 1950s between India and the US)

 

by Ajai Shukla
Business Standard, 29th July 09

The furore over the recently announced End User Monitoring (EUM) Agreement between and the United States provides the reason why EUM agreements have always been kept out of public view. The text of this one remains secret. Business Standard has learned that it was the US State Department that insisted on secrecy.

This agreement is the third “standard” US-India EUM Agreement, which will apply to all defence equipment sourced from the US. The first was concluded in 1951, followed by a second in 1958. Both of those were formalised through an exchange of secret diplomatic notes. This time, too, there is no signed agreement, only an exchange of diplomatic notes in which India accepts and confirms the agreement.

The first EUM Agreement was finalised in 1951, when the US considered India a useful ally against communism, particularly that emanating from China. India needed weaponry; the US agreed to supply it under the Mutual Defense Assistance Agreement of 1949.

On 7th March 1951, the US State Department wrote to Vijaya Laxmi Pandit, then India’s ambassador to Washington, seeking confirmation that US permission would be obtained before transferring US equipment to a third party, and also “retaining the privilege of diverting items of equipment or of not completing services undertaken if such action is dictated by considerations of United States national interest.”

The State Department letter noted that “A reply to the effect that these understandings are correct will be considered as constituting an agreement between the Government of the United States of America and the Government of India, which shall come into force on the date of the note in reply from the Government of India.”

Nine days later, on 16th March 1951, Vijaya Laxmi Pandit confirmed that India was “in agreement with the terms, conditions and assurances proposed.”

The second EUM Agreement followed a similar process, after a new channel for American military aid, the Mutual Defense Agreement of 1954, superseded the earlier Mutual Defense Assistance Agreement, 1949. On 16th April 1958, America’s officiating ambassador in New Delhi, Winthrop Brown, wrote to Jawaharlal Nehru (who was Foreign Minister as well as PM) proposing that the agreements signed by Vijaya Laxmi Pandit be extended to this pact. On 17th December 1958, Foreign Secretary, S Dutt, wrote to the US ambassador conveying India’s acceptance.

Like both those EUMs, the current agreement too exists only in the form of an exchange of notes between India and the US. But the Indian negotiators of the latest agreement have apparently managed to strike off the earlier draconian provisions.

Senior government officials who were party to the negotiations recount that the biggest hurdle was India’s insistence on “verification” of US equipment, rather than “physical verification”. This would allow India to present photos or videos of the equipment, instead of the equipment itself. Washington, however, refused to accept anything less than “physical verification”, which US law mandated. The deal was struck when the US conceded that physical verification need not take place in forward operational locations, and that the date and time would be mutually settled.

During the negotiations, the US argued forcefully that it would never be asking India for inspections anyway. Indian MoD officials pointed to the intrusive inspections the US regularly carries out in Peshawar of night vision equipment supplied to the Pakistan Army. But the US negotiators responded, “This is not what we do with democracies. We trust democracies”.

The final stumbling block was over the phrase “legitimate self-defence”, which is the only circumstance in which India can use US-supplied weaponry. Indian negotiators were concerned that, if India used US-supplied C-130J aircraft to drop paratroopers into another country, in a Maldives-type operation, would it qualify as “legitimate self-defence”? The US side pointed out that it was using aircraft in Afghanistan and Iraq in what it considers legitimate self-defence.

Indian officials are triumphant at having removed a clause in the draft that would have applied future US legislation to sales made to India. The 1958 agreement, for example, applied to, “the Mutual Security Act of 1954, that Act as amended from time to time, and such other applicable United States laws as may come into effect.” This time around, retrospective applicability will not apply.