Arun Shouries Articles

A word dropped, a word inserted and the assurances are fulfilled! | May 28, 2008

Arun Shourie: Friday, August 17, 2007

123 Agreement: Mind the gap between the PM’s assurances and the text of the deal

I had taken up with President Bush our concerns regarding provisions in the two bills,’ the prime minister’s website records Dr Manmohan Singh telling the nuclear scientists. ‘It is clear that if the final product is in its current form, India will have grave difficulties in accepting the bills. US has been left in no doubt as to our position.’

That was in August 2006, soon after his speech in the Rajya Sabha in which the prime minister had drawn the lakshman rekha below which India would not go in its negotiations on the nuclear deal.

When the US House of Representatives had passed its bill, and when the fact could no longer be denied that its provisions would jeopardise our strategic interests, we were all told, ‘But this is just the House Bill. Our concerns will be taken care of in the Senate bill.’ When the Senate passed its bill, and the fact could no longer be denied that its provisions made even deeper inroads into our strategic interests than the House version, we were all told, ‘But we have to wait for the Joint Conference of the two Houses to hammer out a final version. That will take care of our concerns.’ When the final version was passed, and the fact could no longer be denied that it had in it the harshest features of each version, we were all told, ‘But India is not bound by laws made by any other country. We have to wait for the 123 Agreement. That will take care of our concerns.’

We now have the 123 Agreement. It explicitly states in Article 2 that ‘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.’

In the case of the US, the relevant ‘national laws’ include the original Atomic Energy Act of 1954, the Nonproliferation Treaty Act, and the Hyde Act of December 2006.

To take just one example, the very Section of the 1954 Act under which the ‘123 Agreement’ is entered into — Section 123 — states that, should any nuclear device be detonated for any reason whatsoever, not only shall all nuclear commerce be halted with the country, the US shall have the right to demand the return of ‘any nuclear materials and equipment transferred pursuant’ to the agreement for cooperation as well as any ‘special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive device.’ ‘For any reason whatsoever’, the Joint Conference of the two Houses made explicit, shall also include ‘for peaceful purposes’ — the ground we had invoked for the 1974 test! This provision is re-emphasised in the Hyde Act. Section 106 of the latter states explicitly, ‘A determination and any waiver under section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device after the date of the enactment of this Act.’

As for ‘applicable treaties’ the US Act to operationalise the Nuclear Nonproliferation Treaty binds the US not to directly or indirectly — and we shall soon see the significance of these two words, ‘or indirectly’ — assist any Non-nuclear Weapon State to acquire or manufacture nuclear weapons. That in devising its cooperation with India the US must adhere to its obligations under this Article is reiterated and emphasised in the Hyde Act. That is why Section 104 of the Hyde Act explicitly states, ‘Pursuant to the obligations of the United States under Article I of the NPT, nothing in this title constitutes authority to carry out any civil nuclear cooperation between the United States and a country that is not a nuclear-weapon state party to the NPT that would in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices…’

That is just one example of what that reference to ‘national laws’ entails. As is well known by now, the US Congress completely disregarded the assurances that our prime minister had given to Parliament and incorporated a slew of provisions that were even more stringent, even more intrusive than the provisions of the original bills which the prime minister had said India would have ‘grave difficulties’ in accepting.

So, what does the prime minister do now — especially in view of the fact that the 123 Agreement explicitly mandates that, in implementing it, the US shall be bound by these laws? Simple: in the long statement that he waded through on August 13, 2007, in Parliament, the prime minister just doesn’t mention any national law at all, not the Hyde nor any other Act!

Omission actually is deployed more than once as the device of choice.

‘All’ out, ‘associated’ inserted

The central imperative in our discussions with the United States on Civil Nuclear Cooperation is to ensure the complete and irreversible removal of existing restrictions imposed on India through iniquitous restrictive trading regimes over the years. We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from nuclear fuel, nuclear reactors, to re-processing spent fuel, i.e. all aspects of a complete nuclear fuel cycle.’ The ‘complete and irreversible removal’ is just as important. But for the moment I am on the ‘all’ — in giving this assurance to Parliament, the prime minister used the word not once but twice.

In fact, a little later in his speech, he assured Parliament a third, and a then fourth time, ‘We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from supply of nuclear fuel, nuclear reactors, reprocessing spent fuel, i.e., all aspects of complete nuclear fuel supply. Only such cooperation would be in keeping with the July Joint Statement.’

Persons like me pointed out that the ‘full cooperation’ the US would enter into could not but be ‘less than full’. The reason was simple: US authorities — including President Bush — have stated time and again that as reprocessing, enrichment and heavy water have to do with producing nuclear weapons, and not with meeting energy requirements, the US shall not transfer technologies, materials or equipment related to these three vital aspects. Sponsors of the Hyde Act, that is the ones on whom India was relying to see the legislation through Congress, themselves emphasised this in their speeches on the floor and in the Joint Explanatory Statement that they submitted while forwarding the reconciled bill to the two Houses.

And throughout the negotiations for the 123 Agreement, the US Government stuck to this stand. But how to save the Indian Government’s face? Through what our prime minister in his statement of August 13, 2007, calls, ‘forward looking language’! Article 5(2) of the 123 Agreement, which the prime minister claims as an achievement, is the result. It provides, ‘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.’

Notice the two conditions: (1) ‘pursuant to an amendment to this Agreement’; and (2) ‘subject to the Parties’ respective applicable laws, regulations and license policies.’ And then too, ‘may be transferred’. When the Agreement which has not even become effective will be amended, no one knows! And how it will be amended when the ‘applicable laws, regulations and license policies’ of the US explicitly prohibit such transfers, no one knows! But the ‘forward look’ zindabad!

But what about that four-times repeated assurance to Parliament? The prime minister’s new statement, the one of August 13, 2007, deploys an ‘out-of-the-box’ solution. ‘The concept of full nuclear cooperation has been clearly enshrined in this Agreement,’ the PM’s new statement reads. ‘The Agreement stipulates that such cooperation will include nuclear reactors and aspects of the associated nuclear fuel cycle, including technology transfer on industrial or commercial scale.’

Please read that again. Did you spot the word that is suddenly missing? ‘All aspects’ has suddenly become ‘aspects’! And ‘all aspects of the fuel cycle’ has become ‘aspects of the associated nuclear fuel cycle’ — that is, aspects associated with reactors that the US will supply: a manual describing safety procedures, for instance!

‘All’ dropped. ‘Associated’ inserted. Assurances fulfilled. And Parliament can go jump out of the box!

What the PM does not refer to

This is not the first time that we have had a 123 Agreement with the US. We had one for Tarapur also. The US signed that Agreement with us in 1963. It was to be effective for 30 years, till 1993. That Agreement provided that the US would give fuel for Tarapur as needed by India. It provided that the US would have the first right to spent fuel in excess of India’s needs for peaceful nuclear energy. And even for this part, just the first right. If it did not take back the fuel, we would have the right to reprocess it. There were no conditions. In testimony to the US Congress, US officials have themselves acknowledged that the US is not to this day sure that India violated any term of the 1963 Agreement. Yet, the US terminated all fuel supplies in 1974, saying that India had violated domestic US laws. Pressed about the laws, the US maintained that India had violated the intent of US domestic laws! For decades, it has consistently refused to either take back spent fuel or let us reprocess it. All this happened, even when there was no Hyde Act — no India-specific law — to govern that Agreement.

That is why the provision in the new 123 Agreement that, in implementing it, a party — the US in this case — shall be governed by, inter alia, its national laws becomes all important. And that is why the prime minister’s decision not to let any reference to this provision slip at all into his lengthy statement is so telling of this new culture — of spin; of the half-truth. Nor do we have to wait for the laws that the US may pass in the future. The three laws that are already on their statute books — the Atomic Energy Act of 1954, the Nonproliferation Act, and the Hyde Act — are sufficient to keep India on the shortest possible leash.

To gauge the difference, contrast the provision in the 123 Agreement that the US signed with China in 1985. Article 2(1) of that Agreement specifies: ‘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’ — so far, almost the same as the Indo-US text. But then comes the vital sentence which is missing from the Indo-US agreement: ‘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.’

That provision shields China from the Tarapur-treatment. The text in the Indo-US 123 Agreement opens us to a repeat of that treatment — on an even longer list of ‘grounds’ than could be envisaged at the time of Tarapur, and at a time in future when, if the PM’s dreams are realised, we will be even less able to resist pressures than we were in the past — for we will be dependent on imported nuclear fuel for 35,000 megawatts of electricity and not just, as in the case of Tarapur, for just 300 megawatts.

To be continued

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