The Nuclear Deal

[joey]

August 04, 2007
Press Statement issued by Shri Yashwant Sinha & Shri Arun Shourie on Indo-US nuclear deal

Preliminary comments of the BJP on the Agreement between the Government of India and the Government of the USA concerning peaceful uses of nuclear energy.

1. The BJP has been expressing its reservations regarding the Indo-US nuclear deal from the very beginning. When the Joint Statement was issued at the end of the visit of Prime Minister Manmohan Singh to Washington in July 2005, Shri Vajpayee issued a statement in which he expressed his reservations about the deal, specially with regard to its impact on our strategic nuclear programme. He had expressed his apprehension at the proposed separation plan of our nuclear facilities between civilian and military. Later, when the separation plan was presented to Parliament, we expressed our opposition to it. We warned the Government of India when the Senate Foreign Relations Committee and the House International Relations Committee of the US Congress adopted the draft bills for enabling this cooperation between the two countries. We protested strongly when the Hyde Act was passed by the US Congress. We have consistently opposed the deal in Parliament whenever discussions on this deal have taken place.

None of our fears and apprehensions was ever given serious consideration by the Government of India. No effort was ever made by it to evolve a national consensus on this vital issue of national concern before making commitments to the US.

The text of the bilateral 123 Agreement has been made public on Friday, August 3, 2007. We have looked at the text and our preliminary comments are as follows:

(i) Each party is required to implement this Agreement in accordance with its national laws and regulations and its licence requirements. There is no doubt, therefore, that the implementation of this Agreement shall be governed by the provisions of the Hyde Act of 2006, the US Atomic Energy Act of 1954, which are its national laws on this subject, and its licensing requirements relating to the supply of nuclear materials to India {article 2(1)}. The confidence with which US officials have asserted that the Agreement is Hyde act bound flows from this provision. Which act will India enforce on the US?

(ii) The Agreement is supposed to lead to full civil nuclear cooperation between the two countries yet article 2(2)(d) talks of cooperation relating to "aspects of the associated nuclear fuel cycle". Aspects mean parts and hence all aspects of the nuclear fuel cycle are not covered under this Agreement.

(iii) According to article 5(2) of the Agreement sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities and major critical components of such facilities can be transferred to India only after an amendment to this Agreement has been carried out. The provision for such transfer should have been included in this Agreement itself instead of leaving it to a future amendment. It is a peculiar arrangement.

Under the same provision, the US will retain the right of end-use verification of all its supplies. This will ensure that American inspectors will "roam around our nuclear installations", a fear which was completely discounted by the Prime Minister while replying to the Rajya Sabha debate on 17.8.2006.

(iv) As far as fuel supplies are concerned, the commitment of the US in the Agreement is vague and futuristic. "The US is committed to seeking agreement from the US Congress to amend its domestic laws". This assurance in article 5(6)(a) of the Agreement and the assurances contained in article 5(6)(b) of the Agreement is not only bad drafting but deliberately repeats an old assurance given by the US at the time of the separation plan and remains as evasive as it was then. According to article 5(6)(c), the India specific Safeguards Agreement with the IAEA is to be negotiated on the basis of these evasive assurances and requires India to place its civilian nuclear facilities under safeguards in perpetuity.

(v) India is required under this Agreement to establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards. If it is an agreement between two equal parties with reciprocal commitments, is the US accepting a similar provision for its reprocessing facilities? Is any such facility being created in any country belonging to the Nuclear Five?

(vi) Following the cessation of cooperation under this Agreement either party shall have the right to require the return by the other party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use. {article 14(4)} Thus, notwithstanding the sugar-coated language which has been used in the Agreement to soften the blow, the fact remains that the US retains the right to recall all the supplies that it has made to India under this Agreement. What is worse is that under article 16(3) despite the termination of this Agreement, the safeguards in perpetuity will continue to apply so long as any material or equipment or any of the by products thereof remain on Indian soil.

Clearly, therefore, with regard to fuel supplies, reprocessing rights and the right to recall the equipments supplied, the US has maintained its position as in the Hyde Act. India, on the other hand, has accepted legally enforceable commitments in perpetuity.

There is nothing in the Agreement regarding the reprocessing of the spent fuel of Tarapur which has accumulated over the last 33 years.

Nuclear testing has not been mentioned in the Agreement. According to the Government of India this is a matter of great comfort for us. This view is entirely untenable. When national laws apply, which includes the NPT, the provisions of the Atomic Energy Act of 1954 and the Hyde Act of 2006 which specifically forbid nuclear tests, where is the question of India having the freedom to test once we enter into this agreement? In other words, we are being forced to accept a bilateral CTBT with more stringent provisions than the multilateral CTBT.

In his very first statement in 2005, Shri Vajpayee had raised the issue of the financial cost of separation of our facilities between civilian and military. The Government of India has kept mum on this. To this cost has now been added the cost of setting up a dedicated reprocessing facility, the cost of holding strategic fuel supplies for the life time of all our future reactors and the cost of mammoth and intrusive IAEA inspections.

In the separation plan prepared under the surveillance of the US, two thirds of our reactors will be put in the civilian category under safeguards. The recently refurbished CYRUS reactor will be shut down. In course of time, 90% of our reactors will be in the civilian category. In the ongoing negotiations in the Committee of Disarmament in Geneva, we have agreed to work together with the US for the early conclusion of the FMCT. We appear to have given up our insistence on international verification and all countries complying. All these, along with the intrusive provisions of the Hyde Act are bound to have a stultifying effect on our strategic nuclear programme.

The BJP is of the clear view that this Agreement is an assault on our nuclear sovereignty and our foreign policy options. We are, therefore, unable to accept this Agreement as finalised.

We demand that a Joint Parliamentary Committee be set up to examine the text in detail; that, after it has submitted its report, parliamentary approval be secured before this deal is signed; and that all further action on it should be suspended until this sequence is completed.

The manner in which this agreement has been pushed through, leads us to further demand that appropriate amendments be made in the Constitution and laws to ensure that all agreements which affect the country's sovereignty, territorial integrity and national security shall be ratified by Parliament.

(Shyam Jaju)
Office Incharge

 

[Contrarian]

Pact packs ammo to disarm critics
- Barring a tag, India has its way


New Delhi, Aug. 3: The sound and fury over selling out to the US on the nuclear deal seem to have collapsed in a whimper on the day the draft was released in Delhi and Washington.

But neither the Left nor the BJP, which had virtually put the Manmohan Singh government on notice as it publicly opposed every step in the tortuous negotiation, had any significant criticism today, indicating that they were unable to find a worthy Brahmastra at first glance.

The 22-page text, put on the website of the external affairs ministry this morning, was a testimony to the government’s self-confidence over the deal.

According to the text, the pact will remain in force for 40 years — till 2048 — and for 10-year periods thereafter.

Although the formal signing still remains, the availability of the text brings the curtains down on dramatic two-year-long negotiations, during which the government often appeared to be at war with the atomic energy department.

The final product has incorporated most Indian demands, including the right to reprocess spent fuel, uninterrupted supply of fuel for India’s 14 safeguarded civilian reactors (and many more India hopes will be built) as well as a strategic fuel reserve.

Most important, this deal is only about the “civilian’’ nuclear relationship between the two countries. The agreement completely omits any reference to India’s military programme, allowing it to carry on producing fissile material and making bombs from the eight nuclear reactors that are not open to international inspection.

Possibly the only major compromise on Delhi’s part is that the text does not name India as a nuclear weapons state, preferring the much milder “cooperation between two parties possessing advanced nuclear technology”.

But the text makes no mention of any “test’’ that India may want to carry out in the future. However, there is considerable, delicately worded language on the consequences of “cessation of cooperation”. This could be interpreted to suggest the US has conceded that India retains the right to carry out a nuclear test if it wishes to do so.

Analysts said India had not seen any reason to test even once after the 1998 tests at Pokhran. However, the Left and the BJP had insisted India should not relinquish the right of a “voluntary’’ moratorium.

Briefing a BJP delegation last week, external affairs minister Pranab Mukherjee said if India, indeed, wanted to test, all it had to do was to give notice a year before and “walk out of the agreement”.

However, if Delhi does test and the US stops fuel supplies, America has promised to convene, along with India, “a group of friendly supplier countries, (including) Russia, France and the UK, to pursue such measures as would restore fuel supplies to India”. China is absent from the list of “friendly countries”.

The text almost warns against the invocation of the “right to return’’ clause, saying it will have “profound implications” on the relationship. It goes on to point to the “negative consequences’’ of termination on ongoing contracts and projects between the two countries.

Still, “consent to reprocess” is in conjunction with India’s decision to establish a national reprocessing facility that will be additionally safeguarded by the International Atomic Energy Agency.

It was this offer of double safeguards — the fuel for the nuclear reactors is safeguarded in the first place, and reprocessing it will attract the second set of safeguards — surprisingly by the atomic energy department that cracked the nuclear impasse.
http://www.telegraphindia.com/1070804/asp/nation/story_8148473.asp

 

[Contrarian]

India gains, US doesn’t lose
C. Raja Mohan

The full text of the 123 Agreement confirms that Prime Minister Manmohan Singh has kept the promises he made to Parliament

1

Right to test: Does India have the freedom to conduct a nuclear test in the future?

Yes. Under the 123 Agreement, India has neither given up its right to test nor agreed to sign the Comprehensive Test Ban Treaty, which prohibits all nuclear testing. To be sure, the US law demands a suspension of nuclear cooperation in the event of an Indian test.

The text of the 123 agreement (Article 14.2), however, offers immediate bilateral consultations in the event of an Indian test and commits the two sides “to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about a changed security environment or as a response to similar actions by other states which could impact national security”.

Put another way, India reserves the right to test if other countries do the same. The formulations of the 123 Agreement on India’s right to test are far superior to those of the NDA government, which had imposed a unilateral moratorium and agreed to bring the CTBT into force.

The BJP leader and NDA’s foreign minister Yashwant Sinha’s protestations are just too hypocritical.

2

Fuel supply assurances: Does India have credible assurances on uninterrupted fuel supply under all conditions?

Yes. After its bitter experience with the Tarapur nuclear power station, when Washington cut off fuel supplies after the 1974 test, New Delhi has insisted on getting iron-clad guarantees on fuel supplies. It has successfully got them written into the 123 Agreement.

Sections 2.2 (e), 4.1, 5.6, 14.5, and 14.8 deal with various dimensions of fuel supply guarantees. They fully commit the US to help India develop a “strategic reserve” of nuclear fuel for the entire lifetime of the reactors. The US also promises to “create conditions” for India’s “assured and full access” to the international fuel market.

Unlike the non-binding provisions of the Hyde Act, which urges Washington to limit India’s access to fuel supplies from other countries in the event of a termination of the bilateral agreement, the 123 Agreement places no such restrictions.

It also ensures that the US commitment to facilitate fuel supplies is absolute and is not defined by the circumstances of the termination of the bilateral agreement.

Section 5.6 (b) (iv) of the 123 Agreement states: “If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.”

No bilateral agreement in recent memory has so many layers of redundancy written into it. If all fails, an extreme contingency, India will also have the right for “corrective measures” under Article 5.6 (c).

3

Right to reprocess spent fuel: Is India permitted to reprocess the waste material from imported reactors and convert it into fuel for fast breeder reactors?

Yes. Section 6 (iii) of the Agreement concedes New Delhi’s unambiguous right to reprocess spent fuel — a key element of India’s three-stage civilian nuclear programme.

This right will come into effect when India builds a dedicated reprocessing facility that meets the current standard of IAEA safeguards. Once India is ready to reprocess, the two sides will begin consultations on the arrangements for reprocessing within six months and complete them in one year.

This two-step process has been criticised by some as inadequate. This, however, is a significant improvement over the Tarapur agreement which had no time lines for a decision on reprocessing. The central consideration for India has been to get an upfront programmatic consent and define credible procedures for subsequent arrangements.

4

Right of return: How will the two countries deal with the “right to return” of US supplied equipment and material in the event of an Indian nuclear test?

With reasonable pragmatism. The 123 Agreement acknowledges the “right to return” and goes on to lay out the potential problems involved. As Article 14.4 points out, both sides “recognise that exercising the right to return would have profound consequences for their relations”.

It calls for consultations in the event the US seeks to exercise this right and suggests that both sides “shall take into account the potential negative consequences of such termination on the on-going projects and contracts”. And Article 14.5 calls for “prompt compensation” in the event the US exercises the right to return. Some have expressed the concern that the right of return might be attached to the 45 nations NSG’s approval of the Indo-US nuclear accord. These fears are entirely misplaced for Article 14.8 insists that the right of return does not “derogate” from India’s right for assured fuel supplies from the international community under Article 5.6.

5

Fallback safeguards: Would the US inspectors roam around the Indian nuclear facilities, in the event of an unlikely end to the IAEA safeguards arrangements?

No. The 123 Agreement offers no role for any party other than the IAEA in the verification of India’s commitments for peaceful use of imported technology. From the launch of its nuclear programme many decades ago, India always accepted safeguards on imported nuclear equipment and material.

Under the 123 Agreement, India is committed to IAEA safeguards “in perpetuity” in return for “assured fuel supplies”. In the unlikely event of a breakdown of this arrangement with the IAEA, Article 10.4 offers consultations to arrive at “appropriate verification measures”. Apprehensions about a special US role in safeguarding India’s civilian nuclear programme seem entirely misplaced.

6

Full Civil Cooperation: Is India entitled to all nuclear cooperation it needs from the United States?

Yes. Article 2.2 defines the scope of the 123 Agreement as including a range of areas from nuclear research to safety to “full civil nuclear cooperation activities covering nuclear reactors and aspects of the associated nuclear fuel cycle including technology transfer on an industrial or commercial scale”.

Some critics have cited the Hyde Act to say “full” cooperation does not include transfers of uranium enrichment, reprocessing and heavy water production technologies. It is indeed the policy of the United States not to export these technologies to any nation, even its closest allies or even other nuclear weapon states.

The practical question for India, however, is, should it demand technologies just because they are not on offer? If India is an exporter of heavy water and has been reprocessing for four decades why would it want to get these technologies from the United States, that too under very intrusive conditions? Why would the Indian government want to demoralise the scientific community by importing these sensitive technologies?

7

The integrity of India’s nuclear programme: Are India’s nuclear weapons programme and the indigenous civilian programme constrained by the US?

No. Even the most paranoid elements in India will find it difficult to argue that our military and civilian nuclear programmes are compromised under the 123 Agreement. Article 2.4 affirms that the agreement “will be implemented in a manner so as not to hinder or otherwise interfere with any other activities” involving material and technology, military or civilian, acquired “independent of this agreement”.

8

Foreign policy autonomy: Is there a secret unwritten agenda in the 123 Agreement, as some Left leaders have alleged?

Not by a long shot. It is a long political tradition in India to look for secret clauses in bilateral agreements. When Prime Minister Indira Gandhi signed the Peace and Friendship Treaty with the Soviet Union in 1971, the Jan Sangh, the earlier incarnation of the BJP, insisted for years that there were secret clauses in the agreement. Now it is the turn of the CPM to argue the same about the agreement with the United States.

Further, unlike the non-binding provisions of the Hyde Act, there is no reference to Iran or other foreign policy issues in the 123 Agreement.

The principal question here is whether civilian nuclear cooperation with the US is subject to either American caprice or unilateral decision. The 123 Agreement makes it quite clear that the determination on “material breach” under the 123 Agreement will not be a unilateral US decision; it will have to be taken by the IAEA Board of Governors (Article 14.3).

The 123 Agreement is likely to go down as one of the finest achievements of Indian diplomacy. India’s gain, however, is not a loss for the United States. It is a triumph for both Prime Minister Manmohan Singh and President George W. Bush for accomplishing the impossible task of bridging India’s nuclear interests with the global non-proliferation regime.

The writer is a professor at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore
http://www.indianexpress.com/story/208517-2.html

 

[Neo]

Thanks for explaining Joey!

 

[Neo]

BJP vows to review India-US nuke deal on coming to power​

NEW DELHI: Rejecting the text of the Indo-US nuclear agreement that was unveiled on Friday, India’s main opposition Bhartiya Janata Party (BJP) on Saturday vowed to “review” the deal, once it came to power. The party also asked the government to suspend all further actions on the agreement and to only sign the civilian nuclear deal with the United States after a joint parliamentary committee (JPC) examined the agreement’s text and parliament approved it.

The agreement is “an assault on our nuclear sovereignty and our foreign policy options”, which is unacceptable to the BJP, former external affairs minister Yashwant Sinha told a crowded press conference.

Instead of giving India a country’s status, the US was trying to clamp down all kinds of restrictions meant for non-nuclear nations and circumscribe India’s nuclear programme, Sinha said, giving 8-page “preliminary comments” by the BJP on the agreement text made public simultaneously by India and the United States.

Number of nukes: Commenting on the agreement’s effect on the number of nuclear bombs India could possess, Shourie said there could not be a fixed number of bombs as it depended on the minimum credible deterrence and Sinha chipped in that this had to be reviewed from time to time according to threat perceptions. “Give me what threat perceptions will be in 2020 and I will give you the number of bombs,” Sinha said. “Though the agreement provides for consultations before termination of the agreement, the final decision will ultimately be dependent on the US president’s judgment and not on India’s threat perceptions,” Sinha said.

He pointed out that a clause in the agreement draft required both sides to implement it in accordance with the national laws and regulations and their licence requirements, which left no doubt that its implementation would be governed by the Hyde Act 2006 as well as by the US Atomic Energy Act 1954 and licensing requirements relating to supply of nuclear materials. “The confidence with which US officials have asserted that the agreement is Hyde Act-bound flows from this provision,” Sinha said in the note on the BJP’s preliminary comments and asked, “Which act will India enforce on the US?”

The note said that the provision for transfer of sensitive nuclear components and heavy water technology had been left for future amendment instead of incorporating them in the agreement. India had been legally bound by US “futuristic” commitments, it said.

Under the same provisions, the note said, the US would retain the right of end-use verification of all its supplies. This will ensure that American inspectors will “roam around our nuclear installations” - a fear which was completely discounted by the prime minister while replying to a Rajya Sabha debate on August 17 last year.

Costs still untold: Sinha said the agreement was also silent on the accumulated fuel used by the Tarapur plant for the past 33 years, which India did not reprocess as it did not want to violate the agreement.

He also challenged the government to tell the nation the cost of the separation plan (that would give access to international inspectors to civilian reactors and not those used by the military), the cost of dedicated reprocessing agreed upon in the latest deal and the cost of holding fuel for the full cycle of the reactors that will be upward of 30 years. iftikhar gilani

http://www.dailytimes.com.pk/default.asp?page=2007\08\05\story_5-8-2007_pg7_29

 

[Neo]

Nuclear tests India’s ‘sovereign right’: Burns​

WASHINGTON: The US has said that India retains the “sovereign right” to explode a nuclear device but it hopes such a situation will not arise, Nicholas Burns, US undersecretary of state, was quoted as saying. Burns gave a special briefing on Friday to a group of Indian correspondents based here to mark the release of the text of the Indian-American nuclear cooperation agreement.

“India retains its sovereign rights, but the US retains its legal rights as well,” he said when asked if India has the right to test. He pointed out that the agreement takes into account the “worst case” scenario, “but we hope very much that it won’t be necessary because we hope that conditions that prompt” it “will not materialise”. Burns said larger nuclear powers have abstained from conducting nuclear tests and he expected India to follow suit. He said the US retains the “legal right” to recall fuel and technology it supplies to India but that would be the “choice” of the president of the day and it would not be “automatic”.

“If you look ahead and you try to envision what would constitute a discontinuity of supply, how would that happen, there are four or five or six ways that could happen and only one of them has to do with a nuclear test,” the Press Trust of India quoted Burns as saying. “If somehow supplies for environmental reasons, for political reasons are (sic) discontinued to India, then of course India has the benefit of working with the US and other countries in construction of a strategic fuel supply reserve that could help it, if there is discontinuity,” he added. khalid hasan

http://www.dailytimes.com.pk/default.asp?page=2007\08\05\story_5-8-2007_pg7_2

 

[BanglaBhoot]

123: text and context

By Brahma Chellaney

New Delhi, Aug. 3: The released text of the 123 agreement on civil nuclear cooperation reveals that the United States, besides upholding the primacy of its laws, has gained two absolute rights — the right to unilaterally terminate cooperation with India at will (without arranging alternative suppliers), and the right to take back all supplied items and materials.

In withholding the text for two long weeks, the US and Indian governments sought to spin reality to suit political ends. Now the facts need to be separated not just from spin, but also from wishful thinking.

This proposed bilateral agreement has at least 12 important facets:

1. It confers on the US an unfettered and uninfringeable right to terminate cooperation with India at will. Article 14(2) states: "The party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations." That would put India at the mercy of the supplier, holding all the leverage.

Even though termination is to take effect at the end of a one-year notice period, the agreement explicitly empowers the US to forthwith suspend all cooperation without much ado. The only requirement is that a "party giving notice of termination shall provide the reasons for seeking such termination".

In light of the one-sided dependency the agreement would create, such a US right will not only help bind India to the non-proliferation conditions set by the US Congress through the Hyde Act, but it also goes against the purported assurances of uninterrupted supply of fuel and spare parts. Significantly, Article 14 on termination does not enjoin the withdrawing party to make alternate arrangements for supplies to the other side before it ceases all cooperation.

2. In a departure from a standard clause found in America’s 123 agreements with other states, this accord does not uphold a core principle of international law — that failure to perform a treaty or agreement cannot be justified by invoking the provisions of a domestic law. Rather, this agreement is unambiguously anchored in the supremacy of national laws and regulations (which means US laws like the Hyde Act, because there is no Indian law governing nuclear cooperation with the US or any other specific country).

Contrast this accord with the 1985 US-China 123 agreement, which in its Article 2 (1) states: "The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement. Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes. The parties recognise, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

The third sentence about the non-invocation of domestic laws is tellingly missing from this agreement, even as the first two sentences find mention. This omission is because of one simple fact: Never before in US legislative history has a law been enacted imposing such numerous and onerous conditions on an avowed strategic partner to permit cooperation in just one area as the Hyde Act does.

That is why even the agreement’s Article 15, titled "Settlement of Disputes", is toothless, making no reference to the applicability of the principles of international law. It reads: "Any dispute concerning the interpretation or implementation of the provisions of this agreement shall be promptly negotiated by the parties with a view to resolving that dispute." That means the recipient state will have to listen to the supplier.

Both the US and Indian sides have publicly acknowledged that the agreement is within the legal framework of the India-specific Hyde Act, which reigns supreme in this arrangement.

3. While there is no explicit reference to nuclear testing, a test prohibition against India has been unequivocally built into the agreement’s provisions through the incorporation of the US’ right to demand the return of all supplied materials and items. India’s unilateral moratorium is being stripped of its voluntary character and turned into a bilateral legality in this manner. Through the US "right of return", the 123 agreement explicitly hangs the Damocles’ sword over India’s head.

While the Hyde Act’s Section 106 openly bans Indian testing, the 123 agreement reinforces that test ban both by upholding the applicability of national laws to govern cooperation and by incorporating the US’ "right of return".

As part of the same design to enforce permanent Indian compliance with the Comprehensive Test Ban Treaty — a pact the US Senate soundly rejected in 1999 — Washington has already recommended that the Nuclear Suppliers’ Group (NSG) link its proposed exemption for India to a similar test ban. The NSG exemption could even come with a "right of return" being conferred on all supplier states. In other words, the test ban under the 123 agreement is to be converted into a multilateral legality through the NSG.

4. The US has an unencumbered right under the 123 agreement to terminate cooperation not only in response to an Indian test but also if India, in Washington’s judgment, fell short of the "full compliance" required of it by the Hyde Act with regard to other prescribed non-proliferation conditions. The 123 agreement does not in any way rein in the US right to unilaterally terminate cooperation.

Implicit in this agreement is India’s readiness to honour the US-set non-proliferation conditions.

5. By conceding that the US has a right to unilaterally terminate cooperate and demand the return of all equipment and fuel supplied in the past, New Delhi has lent legitimacy to what is a dubious concept in international law — that the supplier is at liberty to terminate cooperation retroactively.

The agreement states that before invoking the right of return, the concerned party would "undertake consultations with the other party". But that is nothing but public relations because such consultations would be of no consequence. The supplier-state, however, would "compensate promptly that party for the fair market value" of the items and materials it takes back.

6. While the US has the right to terminate cooperation at will and withdraw from all obligations, India has been denied the right to withdraw from all its obligations, even if the agreement was terminated at America’s instance. The agreement more than once cites the permanent nature of India’s obligation to accept international inspections on its entire civil nuclear programme, including the indigenously built facilities it is voluntarily opening to external scrutiny.

In a hypothetical situation, if the US were to terminate all cooperation and suspend all fuel and equipment transfers, India would be stuck both with everlasting IAEA inspections on its entire civil programme and with lack of access to an alternate supplier.

7. The US has also reserved its right in the 123 agreement to unilaterally suspend the reprocessing-related "arrangements and procedures" it intends to work out with New Delhi in the years ahead, once India has built a new reprocessing facility under IAEA safeguards. National security adviser M.K. Narayanan has already warned that "spoilers" may nit-pick on the facility’s design and cause delays.

The text clearly shows that the US has granted India the right to reprocess only in principle. The grant of actual right would take many years, with the US retaining a veto on Indian reprocessing until then. It will take at least five years to build the new facility, after the construction of which, the agreement says, "the parties will agree on arrangements and procedures" for reprocessing "in this new facility". It goes on to say that consultations on such arrangements and procedures "will begin within six months of a request by either party and will be concluded within one year". Thereafter, the reprocessing agreement would go to the US Congress for vetting.

This entire process — from the start of work on the facility to congressional approval — would be a long haul. Yet, once in place, the US could terminate the reprocessing-related "arrangements and procedures" in yet-to-be-defined "exceptional circumstances".

8. The sugar-coated provisions in the agreement relating to "consultations" and uninterrupted fuel supply appear more to help India save face than to set out enforceable obligations. Although "consultations" are referred to repeatedly in the text, in no context does the agreement provide for consultations to achieve a mutually acceptable outcome. At best, it provides for consultations within a specified time frame in one context.

In all the specified circumstances, consultations are to be toothless and, in any event, subsidiary to the central requirement that the agreement be in accord with the provisions of national laws. The agreement gives India little say.

9. The agreement plays cleverly on words to fashion an illusion at times. For example, Article 5(4) states: "The quantity of nuclear material transferred under this Agreement shall be consistent with any of the following purposes: use in reactor experiments or the loading of reactors, the efficient and continuous conduct of such reactor experiments or operation of reactors for their lifetime, use as samples, standards, detectors, and targets, and the accomplishment of other purposes as may be agreed by the parties."

Note this provision does not allow India to build up lifetime reserves, as the Prime Minister had pledged in Parliament. It only permits fuel supply consistent with the efficient and continuous operation of reactors for their lifetime. This is just one example of how an optical illusion is sought to be created.

In fact, nowhere does the agreement specifically permit India to accumulate lifetime fuel reserves. The agreement is so cleverly worded that it refers to strategic fuel reserves in its aims and objectives, and then in Article 5(6)(a) it states that "the United States is committed to seeking agreement from the US Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers’ Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations". In other words, the agreement admits that the US has yet to make the necessary adjustments in its laws that it promised in July 2005.

Then, in the very next subsection (b) of Article 5(6), it is stated as follows: "To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps: i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral US-India agreement on peaceful uses of nuclear energy under Section 123 of the US Atomic Energy Act, which would be submitted to the US Congress." But this is the agreement under Section 123, and there is no such ironclad assurance.

10. The agreement brings out starkly that India has accepted terms that fall short of the promised "full cooperation".

In keeping with the Hyde Act’s prohibition on transfers of equipment and technology in certain areas, the 123 agreement offers this palliative in Article 5(2): "Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the parties’ respective applicable laws, regulations and license policies."

11. In accepting this clause, India has not only acquiesced to restrictive cooperation, but also gone one step beyond its current policy to align with US policy on an important point — that any enrichment, reprocessing or heavy-water activity, even when occurring under stringent IAEA inspections, is "dual-use" in nature and thus liable to be restricted.

This is the very thrust of the US case against Iran, with Tehran being asked to forego all IAEA-safeguarded enrichment or reprocessing activity, despite Iran’s insistence that it is its lawful right to pursue such fuel cycle-related work under the provisions of the NPT. In seeking to forge an arbitrary new regime dividing the world into fuel-cycle possessors and fuel-cycle abstainers, the US has dubbed even IAEA-safeguarded enrichment and reprocessing activity as "dual use".

In addition to ensuring IAEA inspections on all aspects of India’s civilian nuclear programme, the US had staked an unparalleled double prerogative: the right to statutorily establish its own end-use monitoring, as called for in the Hyde Act Section 104(d)(5)(B)(i); and the right to institute "fallback safeguards" in case of "budget or personnel strains in the IAEA". The fallback option, stipulated in Hyde Act’s Section 104 (d)(5)(B)(iii), is to ensure that India is subject to intrusive, challenge inspections of the type the IAEA applies in non-nuclear states.

In the 123 agreement, the US has succeeded in subtly asserting its prerogatives on both fronts.

The provision for fallback safeguards finds mention in the agreement’s Article 10(4), which states, "If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures." That complies with the Hyde Act stipulation.

End-use US monitoring (to which India is committed through an earlier bilateral agreement on high-tech imports) is reflected in the agreement’s Article 12(3): "When execution of an agreement or contract pursuant to this Agreement between Indian and United States organisations requires exchanges of experts, the parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices".

12. While the US has managed to fully uphold all its laws, including the India-targeting Hyde Act, with New Delhi’s own admitted support, it is manifest from the released text that the Indian government has been unable to fully uphold even the Prime Minister’s solemn assurances to Parliament.

History is repeating itself. Ignoring the egregious way America cut off all fuel supply for Tarapur in the 1970s in material breach of the 123 agreement it signed in 1963, India is entering into new arrangements with its wings clipped (like on nuclear testing) as well as ambiguity or uncertainty on key issues. Even the actual grant of and continuation of the reprocessing right is to be contingent on India’s good behaviour.

Creating a US-monitored energy dependency through imported reactors dependent on imported fuel through a fresh 123 agreement loaded in favour of the supplier-state is to ask for trouble, especially when the new 123 accord is not half as protective of Indian interests as the 1963 agreement.

(Brahma Chellaney, a strategic-affairs expert, is the author of Nuclear Proliferation: The US-India Conflict.)

 

[BanglaBhoot]

Will Iran spoil the Indo-US party?

Guest Column by Rajiv Sikri

SAAG – August 7, 2007

It has been said that a diplomat is an honest man sent abroad to lie for his country. Diplomats do frequently indulge in dissimulation with their foreign interlocutors. But they are expected to be honest to their own countrymen.

The 123 negotiations on the Indo-US nuclear deal are over. On the Indian side, outside the handful of people actually involved, no one really knows what has been going on in these negotiations for two years. They have been shrouded in unprecedented secrecy, unusual for a deal that is ostensibly only about civil nuclear energy cooperation, as our Government soothingly and self-righteously, but unconvincingly, seeks to assure us.

The text of the 123 Agreement has just been made public. Not that it matters very much. It only confirms, in Article 2, the very first operative Article of the Agreement, what we have known all along viz. that the Hyde Act and other US laws will always prevail. What has happened to the “extraneous and prescriptive” provisions of the Hyde Act that we had found so objectionable last year?

The nation is being fed on terse official statements that conceal more than they reveal, supplemented by background briefings and selective leaks by shadowy “sources.” Occasionally, one gets an authoritative glimmer of the actual discussions, mostly from the US side, which has been far more open and honest in stating to its own Congress and people what the deal is really about.

There is no reason to disbelieve chief negotiator Nick Burns when he unambiguously states that the deal is about advancing the US non-proliferation agenda. That makes sense. It is hardly likely that the US Administration would be attaching so much importance to this deal if it were only about India’s energy needs. Burns was very clear about this in his press briefing last week. The US, he said “cannot aid in the development of India’s strategic programme.” In an interview to the Council on Foreign Relations on August 2, he was emphatic in stating that the 123 Agreement will bring India into the non-proliferation system “in such a way that doesn’t strengthen its military arsenal.” He has also said, in both the above-mentioned statements, that all future breeder reactors will be under safeguards with the result that in 25 years 90-95 per cent of India’s nuclear establishment will be safeguarded. Burns’ statements directly contradict the assurances of Indian leaders to Parliament that it would be up to India to decide which of our reactors would be put under safeguards.

Furthermore, there are indications that India will sign the Fissile Materials Cut-off Treaty, as envisaged in the July 18, 2005 statement. This would freeze India’s military nuclear capabilities at the current level. So if the Bush Administration has been exerting so much effort on Capitol Hill, and will presumably do so in the Nuclear Supplies Group too, on behalf of India, it is because they are jubilant at the prospect of capping India’s nuclear weapons programme, something they have not been able to do so far.

Another key US objective, which the Bush Administration and the Congress share, is to make Indian foreign policy “congruent” to US interests. In his briefing last week, Burns categorically stated that “the first and most important strategic benefit” of this agreement is that it would bring the two countries much closer together, which Americans consider in their national interest “not only today but for the decades to come.” This has been the refrain of President George Bush and Secretary of State Condi Rice as well. Non-alignment, Rice advised us a few weeks ago, is irrelevant. Thankfully, External Affairs Minister Pranab Mukherjee gave a swift and befitting riposte to this gratuitous and misplaced remark.

Yet the Indian Government is reluctant to openly admit that there is a strategic purpose behind the deal. In a recent press interview, National Security Adviser M. K. Narayanan conceded that this was possible, but quickly reassured us that during the negotiations there was never any suggestion by the US to this effect. One must assume that the Government is not naïve. Nor are those outside the Government wet behind the ears. The Government is entering into a larger and long-term strategic relationship with the US with its eyes open, but wants to pull the wool over the eyes of the Indian public. The Prime Minister expects “patriotic” Indians to endorse the deal. Why?

The real question that the country should be vigorously debating is whether an Indo-US strategic partnership is in India’s interest. Is there a sufficient convergence of long-term interests between India and the US? In the same interview referred to earlier, India’s National Security Adviser categorically stated that the US is not a benign power. Why then is the Government stealthily trying to steer India into a strategic relationship with the US?
Let us rewind to September 2005 when the IAEA was deliberating whether to send Iran’s dossier to the UN Security Council. Why did the US coerce India to vote for such a referral by the IAEA, although it knew perfectly well that even if India had abstained, this would have made no difference to the eventual outcome? Simple. The US wanted proof that India would be willing to adjust its foreign policy to converge with the US global agenda before it could be sure that India would be a reliable long-term strategic partner. India’s vote confirmed to the US that India is a soft state that can be arm-twisted even when it concerns India’s vital interests in its own neighbourhood.

India’s vote on the Iran issue in the IAEA was a foreign policy disaster. It polarized political and public opinion in India and destroyed the traditional foreign policy consensus in India. It generated resentment and mistrust towards India in Iran, derailed the already-concluded LNG contract between India and Iran, and showed up India as an unreliable strategic partner. India should have known that the different aspects of its relations with Iran are interlinked, and that if India were to be insensitive to Iran’s vital national interests, it was unrealistic to expect Iran to show any special favours to India.

The rest of the world also drew appropriate lessons from this episode. China would have understandably concluded that India is weak-willed, which may explain why China has hardened its stance on the boundary negotiations with India. It no doubt encouraged Pakistan in its traditional belief that the US can be counted upon to put effective pressure on India whenever required. It has also dented India’s image among the developing countries and created doubts whether India would be able and willing to protect their interests if it were to ever become a Permanent Member of the UN Security Council.

Iran matters greatly to India from a strategic perspective. It was in recognition of this reality that Iranian President Khatami was given the honour of being invited as Chief Guest for India’s Republic Day celebrations in 2003. It makes eminent strategic sense for India to have a good understanding with Iran, which is Pakistan’s neighbour and a very influential actor in the Gulf, where India has enormous stakes. Iran is the key country for India’s access to strategically important Afghanistan and Central Asia. After the destruction of Iraq, Iran is the only country to India’s west that stands in the way of complete US domination of the region from South Asia to the Mediterranean. It bears reflection that Iran was included in Bush’s ‘axis of evil’ because it is a fiercely proud and independent country.

Iran is important for India’s long-term energy security too since it holds the world’s second largest oil and gas reserves. Energy supplies from Iran will always remain much more critical for India’s energy security than civil nuclear energy ever will be. That is why India has taken the significant step of de-linking the Iran-Pakistan-India gas pipeline project from the overall relationship with Pakistan.

The Iran issue will not go away. No amount of self-deluding sophistry about so-called ‘non-binding’ provisions can airbrush this problem out of the Hyde Act. In his press briefing last week, Burns said that the India-US nuclear deal would make India less dependent on energy imports from countries like Iran, which he described as an “outlaw state” that should be isolated. America, he said, does not want to see a strong relationship between any country and Iran. Just in case the message had not registered, a couple of days later US Ambassador David Mulford candidly warned that India’s relations with Iran will be “carefully reviewed and scrutinized by members of the US Congress as they approach the final vote.” Burns was even more explicit in his August 2 interview. “We very much hope,” he said, “that India will not conclude any long-term oil and gas agreements with Iran.”

Iran is firmly in the US sights and, as in September 2005, India will be expected to stand up and be counted when the time comes. Given the relentless US pressure on India over Iran, it will be a formidable challenge for India to stay the course on energy cooperation with Iran and to keep its overall relationship with Iran on an even keel.

External Affairs Minister Pranab Mukherjee deserves credit for his efforts to mend relations with Iran. He received Iranian Foreign Mottaki in India within days of taking over his portfolio, made it a point to visit Iran in February this year, and has given political support to the Iran-Pakistan-India pipeline project. With many in the Indian establishment happy to sell out India’s interests to the Americans, let us hope that he will be allowed to show why he is truly “indispensable” – at least for ensuring that India’s foreign policy remains independent.
Disturbing signs are already visible that the present Government has acquiesced to India becoming a junior partner of the US. The realignment of Indian foreign policy is being undertaken in driblets, so as to attract minimum public attention and scrutiny. India’s policy on Pakistan, Bangladesh, Nepal and Sri Lanka is already being guided by the US, something that was unthinkable a few years ago. Burns has said there is going to be “far greater defence cooperation” between India and the US. This would have a profound impact on India’s relations with Russia. The Government appears to be quietly preparing to sign an Acquisition and Cross-Services Agreement with the US, which will enmesh India in the US strategic plans for Asia. For all these reasons the public needs to be extremely vigilant on the sinister implications of the deal for India’s foreign and security policies.

Jawaharlal Nehru laid the foundations of India’s independent foreign policy. Indira Gandhi too was a great nationalist. Visiting the US in 1982, she was asked about the so-called ‘tilt’ in India’s foreign policy. Her tart reply was that India stands upright! Here is an opportunity for UPA Chairperson Sonia Gandhi, who controls the reins of the Government, and whose political legitimacy rests on her inheritance of the Nehru-Gandhi legacy, to demonstrate that she too is a proud Indian with an equally stiff spine!

 

[Contrarian]

A verry good article.

I really do wonder whether it was indeed what Burns said, that all our future breeder reactors would come under safeguards. Because the current ones, the ones in which research is being conducted, they are prototypes, they are not comming under the civilian category at present. How could the government do that? Is it true in the first place?

And second, yes foreign policy is a great issue of concern. US can and will try to influence our policy, and this is something that must always be kept in mind.

 

[Adux]

CPI , Didnt I tell you the MoFO's were Chinese stooges. God wish they would die. They are no against the DEAL. WELCOME TO INDIA>

 

[BanglaBhoot]

I told you that the US would take you for a ride and when its has had its fill it would dump you. Thats what exactly your own senior advisers are saying.

 

[Adux]

What did you tell mushiji? ZIltch

What

The deal is amazing, US and INdia did an amazing Job, India got what it wanted.
CPI are motherfucking bastard commie's. Who would in a drop of a hat side with China which is supporting Pakistan. They are traitors. But Guess, MM Singh told them to take a hike, as it is bilateral deal, they dont need CPI approval...lol
SO it will get passed...

 

[BanglaBhoot]

Have you not been reading what your own commentators have been saying? India is being taken to the cleaners with this agreement. Surely SAAG is not a Chinese stooge?

 

[Adux]

Surely Sir,

You must have read that Prime Minister intends to clear the deal no-matter what CPI-M says. As communist they are bound to oppose the US. Its their Commie' blood speaking. When the scientist, Press community, the government, and I myself after reading text happy, then why not. The deal is good for India, Heck in the US, Americans are shouting that they gave too much to India. Thats a good sign as far as I am concerned

 

[BanglaBhoot]

I agree that the CPI-M have their own ideological objections to the deal but even the admission by the US lawmakers that too much has been given away is another pressure tactic. None of this explains the position of SAAG authors on this issue who are surely not Chinese stooges.