A cursory reading of the 123 Agreement reveals a document deliberately loosely- worded so as to leave itself open to multiple interpretations. More than the formulations that it contains, however, the proposed bi-lateral deal is a masterpiece of purposeful omission. It is a well known legal practice that when a particular agreement is contested, interpretations will be made in consonance with the specific laws that govern it. In this context, separate from the wording of the 123 Agreement, India'sacceptance of any Agreement automatically implies acceptance of the Hyde Act and its attendant requirements.
Before attempting to go into what is omitted, it is worthwhile to consider what it actually contains. As it stands, the draft 123 Agreement is an understanding intended primarily to facilitate the import of foreign nuclear reactors with foreign uranium fuel and aspects of associated technologies that are allowed under the Hyde Act and the US Atomic Energy Act. All imports will be under the watchful monitoring of the IAEA including US, Chinese and other inspectors who can roam our facilities following ?consultations? ? in this case a euphemism for invoking the relevant verification mechanisms provided through the Hyde Act . Safeguards will in all likelihood be numerous and intrusive, in conformity to those offered to non-nuclear weapons states, and in perpetuity without any similar commitment on the part of the US in ensuring uninterrupted fuel supplies over the lifetime of the purchased reactors. A few palliative statements about joint research and development are included but continue to be restricted to the narrow scope of the Hyde Act and other existing US legislation and therefore do not substantially alter the situation concerning collaborative ventures possible even today. Indeed, the import of foreign reactors and fuel remains the only certainty that this Agreement gives. However, in exchange, the costs are far out of proportion to the benefits of sticking to tested indigenous technologies.
Of the other promises made to India, that of ?full? nuclear co-operation has not been kept. The 123 Agreement expressly excludes dual-use processes as well as technologies related to reprocessing, heavy water production and major critical components connected with such facilities. Under the current writing, Section 5.2 states that ?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.? If indeed such an amendment is possible, it is an open question as to why it couldn'thave become a part of this writing since both leaders have promised ?full? cooperation.
With respect to reprocessing, the same section further states that ?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.? Under the US Atomic Energy Act, it is amply clear that such technologies will not be shared with India. In fact, Article 6(iii) clearly states that the right to reprocess will only be given following the dedication of a special facility, presumably at Indian expense.
The most likely scenario would be that India will get sucked into the inequitious GNEP (Global Nuclear Energy Partnership) initiative as a ?recipient? nation and make itself a willing receptable to the ?supplier? countries willing to dump their toxic waste. Where the US Congress itself has refused to place faith in the cost-effective viability of such a venture in that advanced and wealthy country, the dedicated Indian re-processing facility will serve as a useful test case, all at our expense. According to Manmohan Singh, India has been given ?prior consent? to re-process spent fuel. Neither the words nor the intent are however reflected in the 123 Agreement.
Another marked deviation from promises made to the Indian people is the promise of uninterrupted fuel over the lifetime of imported reactors in exchange for safeguards in perpetuity as set out in the separation plan of 2006 and as promised by George bush during his official visit in March last year. Seen as the deal clincher then, this significant departure from what has been agreed may be seen in the context of the Indian government substantially changing its earlier position where the Hyde Act was dismissed as internal US legislation and non-binding on India, to having acknowledged that it is in fact the governing legislation. Having accepted the rigidly constraining parameters of the Hyde Act and other internal US legislation, India has had no option but to give up assurances for life-time fuel supplies since the request was specifically discussed and struck down by the US Congress before passing the Hyde Act. This has been adequately detailed in the writings of Dr. A. Gopalakrishnan and we will not deal with it here. However, with the US retaining a unilaterally enforceable right of termination followed by the right of return, the future of strategic fuel reserves that the US seeks to assist India in maintaining also remain questionable and may possibly become a matter for ?consultation?. It is likely that these reserves will be reduced to an amount ?commensurate with reasonable reactor operating requirements? as provided for under Section 103(b)(10) of the Hyde Act. At any rate, there is no fail-safe built in to safeguard future uranium fuel supplies or reserves.
Next is the contention that India'sright to test remains intact since it is not explicitly mentioned in the text of the 123. Most worryingly, what is contained is an entire section warning India of the serious and extreme consequences of precisely this through the use of euphemisms. Where the UPA government has touted the absence of an explicit statement to the effect as a victory for India – (it is indeed a minor victory) – while repeatedly stating that the US was not insisting on a bi-laterally enforceable moratorium on nuclear tests, they have chosen to overlook that the fact that such loose wording may be interpreted to include any act of non-cooperation by India upon which the US reserves the unilateral right to suspend cooperation and introduce sanctions. This could include India being shy about ?isolating, containing and sanctioning? Iran, not toeing the line of the PSI (having already agreed to its precursor, the container security initiative) Australia Group etc and any and all future American whims and fancies that are often thinly disguised as ?foreign policy? but enshrined in the Hyde Act. The concession made is that through ?consultations? the exact nature of forthcoming sanctions could be delayed or waived, but the course of action would be ultimately governed by the Hyde Act and India would have to rely on the good offices of future US leaders. Apart from sanctions and in the event of a suspension of exports to India, the right of return clause (solely applicable to NNWS under the US Atomic Energy Act and therefore not applicable to China) includes compensation to India at ?fair market value? for the items returned including costs. This is a joke, for the compensation will only be for the much lower costs of the fuel supply, rather than the huge price of the reactor itself which India would have imported at a substantial value addition over indigenous technology
Coming back to the exclusion of this point from the 123 agreement and the apparent confidence with which both sides believe the Agreement will find favour with US Congress, the change of sequencing must be addressed. In yet another departure from the promises made to the Indian Parliament, Manmohan Singh in his new found acceptance of the supremacy of the Hyde Act and its dictates, has paved the way for us to negotiate India-specific safeguards with the IAEA and get an ?unconditional exemption? from the NSG, prior to final US approval. Quite apart from the duplicity of such an act, it appears that this move is quite consistent with the plan of action that appears to be unfolding. It appears that if required, the USS will work through the NSG (and the IAEA) to fulfill what has been set out in the Hyde Act ? the roll-back and termination of India'smilitary programme to fulfill non-proliferation requirements. It is feared that the NSG may insist upon India agreeing to the FMCT and the MCTR as a condition for allowing international trade in civilian nuclear materials. Without a contingency plan in place and having agreed to the 123, India would find it hard not to accept such terms. Manmohan Singh could then throw up his hands before the Indian parliament and state that where the 123 Agreement met his commitments (although the truth is far from this) India had no choice but to follow through on NSG requirements. This fait accompli would assist the US Congress in making a determination that the terms when taken together are consistent with the enabling legislation and may pass their vote in favour. India will be left with a loosely worded 123 Agreement furiously negotiated in 5-days with no obvious legal help, while subscribing to the alphabet soup in toto without an exit clause. Indeed, the only way out would be if India had the gumption to pass legislation retroactively at a future date cancelling the effect of the 123 Agreement and attendant incursions into sovereignty knowing full well that we will be bound by the one-year termination notice and attendant clauses as agreed. This would appear to be highly unlikely especially after we have commenced purchases. A more suitable plan of action would be to defer implementing the 123 Agreement until all terms are met. Such a course, for reasons that are not clear, seems anathema to Sonia Gandhi'smen.
In fact, the only right India has retained through the 123 Agreement is the right to terminate albeit without any recourse to other remedies. This is perhaps the most telling aspect of the entire writing, putting India squarely in the position of a recipient nation rather than a future supplier nation, putting us at a huge disadvantage even in comparison with the present. Any wording seeking to grant equality as two states possessing advanced technology is negated through such implications. In fact the absence of suitable legal phrasing to make the deal more equal is noticeably lacking throughout the documentv .
It comes as no surprise that what remains unmentioned throughout the entire debate is that the impractical and ruinously expensive separation plan that Sonia and her team have forced down the throat of the Indian scientific establishment as already been revised in the course of the above saga ? a fact that the Prime Minister is unlikely to reveal. That we have agreed to safeguards in perpetuity without assurances of permanent fuel supplies strikes at the very root of the principles that guided the separation of Indian facilities. It is also clear that contrary to attestations by the AEC Chairman and other bureaucrats, all future breeder reactors will fall under these safeguards. Hence, the technology developed by us will become known to our comnpetitors, especially in the absence of suitable changes in Indian law to protect the intellectual property rights of the processes developed by our scientists
As Sonia Gandhi drives her government towards taking the decisions required to effectively endorse the FMCT and other three and four letter acronyms all signifying the emasculation of nuclear India, the thorium programme and the security it offers may forever remain a distant dream, as also the prospect of an adequate nuclear deterrent . Meanwhile, while India gets hobbled, China gives Pakistan wings.
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