In his statement of August 13, 2007, in the Parliament on the India-US Bilateral Agreement on Civil Nuclear Energy Cooperation, popularly known as the 123 Agreement, Dr Manmohan Singh has misled the House by being economical with truth.
The most important element of the Indo-US 123 Agreement is the stipulation under Article 2(1) that each party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations and licence requirements.
The US side has repeatedly clarified that this Indo-US bilateral 123 Agreement like any other treaty has to fall within and is well within the four walls of the US laws. In other words for the US side the US laws shall govern its actions on this Indo-US 123 Agreement. In para 4 of his statement, PM relying upon text of Article 2(2) has claimed that this agreement will open the way for full civil nuclear cooperation between India and the USA.
It is not a correct assertion as Article 5(2) of this agreement clearly states that technology and items pertaining to uranium enrichment, reprocessing and production of heavy water and major critical components are not transferable to India under this agreement.
Sections 106(a) (1) and 106(9) (2) of the Hyde Act also prohibit export of such technology and items to India. Article 5(2) further clarifies that transfer of dual-use items that can be used for enrichment, reprocessing or heavy water production will be subject to the US and Indian national laws, regulations and licensing policies. The present US laws [the US Atomic Energy Act 1954 and the Hyde Act 2006] prohibit transfer of dual-use items to India. Therefore, the hard truth is that despite all the rosy pictures painted by PM, India continues to be on the prohibited list for export of dual-use technology and items.
The Section 103(7) of the Hyde Act obliges the US government to work with NSG to further restrict transfer of equipment and technology related to the enrichment of uranium, reprocessing of spent fuel and production of heavy water to India. Enrichment of uranium, reprocessing of spent nuclear fuel and heavy water production are integral part of full fuel cycle but in claiming to have obtained full civil cooperation without these three ingredients, Dr Singh has again shifted the goal post in the Indian Parliament. In
para 7 of his statement, Dr Singh claims having secured permanent consent for India to reprocess US-supplied nuclear fuel on Indian soil. It is again not a correct assertion as [i] it could be suspended under Article 14(9) of the same 123 Agreement, [ii] that the procedure to operationalise this reprocessing right is still to be negotiated under Article 6(iii), and, [iii] that this 123 Agreement is still to be approved by the US Congress.
The spent fuel at the Tarapore is still awaiting finalisation of procedure with the US to reprocess. PM has claimed that any fissionable material that may be separated in the new national [Indian] reprocessing facility dedicated to reprocess foreign nuclear material under IAEA safeguard may be used in other national facilities. This facility is to be set up. Thus, PM claims, interests of our three-stage nuclear programme have been protected. What happens if under Article 14(9) of this agreement, the US suspends this reprocessing right?
Supply of plutonium to feed indigenous fast breeder nuclear reactors will stop, and, if indigenous ones use plutonium extracted from US-supplied or foreign-supplied fuel, these reactors will come within civilian list and be out of our reach for our military purposes and will become open to IAEA inspectors. PM claims that the principle of reciprocity, which was integral to his July 2005 statement, has been fully safeguarded in this agreement. Under Article 5.6 (c) India has agreed to place all its civil nuclear facility, present and future, under the IAEA safeguard in perpetuity whether fuel supply from US and other suppliers is disrupted or not.
The IAEA safeguards in perpetuity will still be there around our neck even when the Indo-US cooperation in nuclear matters is terminated or the 123 Agreement is not approved by the US Congress. Has the US separately agreed to place all its civil nuclear facility under IAEA safeguard in perpetuity? No. So there is no reciprocity.
What is worse is that under its Article 16(3) despite the termination of this agreement, the safeguards in perpetuity will continue to apply so long as any US-supplied material or equipment or any of the byproducts thereof remains on Indian soil. PM claims that this agreement achieves India'senergy security on a stable, reliable and predictable basis. Nothing can be farther from truth as the Indian requirements of fuel and spare parts for imported nuclear reactors will be subject to national laws and national export and licensing policies of the exporting country of the 45-member NSG. It is known that some members of the NSG are not very warm and friendly to India. The People'sRepublic of China is a member of the NSG. Further, any country of NSG may try to block or delay export of any crucial component to India by denying unanimity to NSG decisions. The Hyde Act Section 105(9) (A) requires that decisions of NSG for India should be unanimous. Thus, Indian energy security rather than being stable will depend upon whims and fancies not only of US senators but also those of the other 44 member countries of the NSG. Not a happy situation.
PM claims that there is no provision in the 123 Agreement that states that the US cooperation with India will be subject to annual certification procedure. It is again the half-truth as the provisions of end user monitoring and annual certification is very much there in the Hyde Act [Sections 107 and 108]. The US President will be invoking the Hyde Act to grant waiver to India from the prohibitions contained in the US Atomic Energy Act 1954. PM makes loud claims that this agreement secures fuel supply to imported nuclear reactors. He proudly quotes the US commitments of support contained in Article 5.6(b) (iii) for India'sright to build up a strategic reserve of nuclear fuel to meet lifetime requirements of India'sreactors. How could India build a stockpile of reserves if the US supplies under Article 5.4 of the 123 bilateral Agreement are to be on hand to mouth basis limited in quantity to actual requirement at the time of each supply, and; if the NSG also decides to stick to this US norm agreed to by India? Obviously these two articles of the 123 Agreement are mutually contradictory so this is a badly drafted and disjointed agreement.
Demolishing the concept of strategic reserves in India, Section 114 of the Hyde Act too states that US supply of nuclear materials to India should be commensurate with reasonable operating requirements of reactors. Relying upon Article 5.6(a) PM has painted a rosy picture about uninterrupted supplies of fuel and made tall claims of US assurance to be a reliable supplier. Under this Article, US has conveyed its commitments to the reliable supply of fuel to India, and, US also assured to create necessary conditions for India to have assured and full access to fuel. The US also agreed to seek support of the US Congress to further amend its domestic laws and to work with friends and allies to adjust practices of NSG to create necessary conditions for India to obtain full access to international fuel market.
Under Article 5.6(b) (iv) India and US would jointly convene a meeting of friendly countries [UK, France, Russia etc.] to restore fuel supply to India. Well these rosy commitments made in the 123 bilateral Agreement are contrary to the Section 102(6) of the Hyde Act which reads: ?It is the sense of the Congress that the US should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under the US laws.? Further, such negotiations do take time. It means there shall be periods of non-supply.
PM is right to claim that our right to use for our own purposes our independent and indigenously developed nuclear facility has been fully preserved. But his claim that this agreement does not in any way impact on India'sability to produce and utilise fissile material for its current and future strategic needs is not full truth as placing so many Indian reactors under IAEA will adversely affect ?pace? of expansion of military capability in future. Adding a new facility for military use shall take few years, say, about five to ten years.
On cessation and termination of this agreement, PM has made loud claims about agreement providing for multi-layer consultations. Well governments do consult and communicate with each other through diplomatic channels even where no mechanism of consultation is provided. PM has made loud claims about US recognising India'sright to take ?corrective measures? to ensure uninterrupted supply of nuclear fuel. What India could do if taking lead from the US, other NSG members also refuse to supply fuel? Yes, it is true that this agreement does not specifically talk about India'sright to conduct nuclear tests in the future. Such tests become necessary while upgrading or modernising existing nuclear weapons or developing new ones. But PM has forgotten to mention that the penalty for conducting the nuclear tests in future will be there in terms of the US Atomic Energy Act and the Hyde Act which oblige the US government to terminate nuclear cooperation and call for return of US-supplied nuclear materials. So the ?cost? of conducting nuclear test in future will go up.
Concept of credible nuclear deterrent requires right to test. But the US Ambassador to India has been quoted as saying that while negotiating this agreement it was presumed that India would not go for nuclear tests. Section 110 of the Hyde Act stipulates that the waiver given to India shall cease to be effective if the President determines that India has detonated a nuclear explosive device. Section 129 of the US Atomic Energy Act stipulates that export of nuclear materials and equipment to non-nuclear weapon state shall be automatically terminated if it detonated any nuclear explosive device. Section 123(a) (4) of the Atomic Energy Act calls for return of US materials in case of tests. In addition, Article 14(4) of the Indo-US bilateral agreement too confers the right to require return of the nuclear material in case of cessation or termination of this agreement. So this poorly drafted 123 Agreement has internal inconsistencies and is also in conflict with the Hyde Act. On one hand, this 123 Agreement has potential to cripple and cap Indian military nuclear capability at current nascent state, and, on the other hand, will make Indian civil energy security vulnerable to domestic politics of the USA as well as to the international politics within the 45-member NSG.
So it is injurious to our national interests, both civil and military, apart from reducing our foreign policy options in terms of the Hyde Act [Sections 103 (2) (A) and (B), 105(8) etc.]. Thus the path selected by the Manmohan Singh government to increase share of nuclear electricity in India'spower portfolio is obviously risky and faulty. The criticism of the present text of the 123 Agreement by the Left and the Right are based on merits. The Left parties should give up their tactics of opposing outside and supporting within the Parliament as it reflects badly on their own electoral reliability.
Route suggested by the former President A.P.J. Abdul Kalam to accelerate commercial utilisation of fast breeder reactors was much pragmatic as it would not make India dependent upon imports. Commercialisation of fast breeders is about ten years away, and, the first megawatt through the 123 route will also take about ten years to reach Indian consumers. There are other legitimate and transparent routes to import PHWR nuclear reactors from US and other NSG countries without India having to accept any of humiliating terms acceptable to the UPA government. Let us explore these other routes innovatively.
(The writer recently retired in the rank of Secretary to Government of India in the Indian Foreign Services (1971 batch).