Wednesday, May 28, 2008

‘But you must wait for the 123 Agreement’

Arun Shourie: Wednesday, December 20, 2006

Even as the people and Parliament are being fed routine platitudes on the Indo-US nuclear deal, the government has swallowed whole all the conditions that the US Congress has set out in the final Act. There is going to be nothing in the 123 Agreement which is not already known

At each step, we have been told, “But this is just a step on a long journey. You must wait till...” When the House of Representatives passed its Bill, we were told, “But this is just the House Bill. The Senate Committee is considering its own version. The sections that are causing concern in India will be ironed out by the Committee.” When the Senate Committee sent its draft to the full Senate, and, far from “ironing out” those sections, it added another slew of unacceptable conditions, we were told, “No, no. This is just the recommendation of a committee. We must wait for the Bill that the full Senate will pass. We have been assured that our concerns will be addressed in that version.” When the Senate passed the Bill, and it had two additional conditions which even the Committee had not recommended, we were told, “No, no. But the two Bills differ. You must wait for the Joint Conference of the two Houses to see what the final Act will be.”

Now that the final Act has been passed by the two Houses, and it is evident that not one assurance that the prime minister has given to Parliament, not one has been heeded in the least, we are being told, “No, no. But you must wait for the 123 Agreement. We have been assured that not one of these sections will be in it.” There is a threefold deception in that.

Fast forward

While we are being fed soporifics, while Parliament is being stuffed with routine platitudes — “government will certainly keep in mind the important points that have been raised by honourable members” — the fact is that the government has succumbed to and swallowed whole, all the conditions that the US Congress has set out in the final Act. This is evident from what the principal negotiator for the Americans, Under-Secretary of State Nicholas Burns, said upon his return to the US. In its dispatch of December 14, the PTI reports him as saying, “The way the Congress ended up in the Conference Report is a deal that is acceptable to the United States; and I understand it is acceptable to India. That is what the Indian Government told me in the private meetings and that is essentially what I understood from Foreign Minister Mukherjee’s statements in the Parliament as well,” he said.

Burns noted that the United States has left behind a draft proposal for the conclusion of the so-called 123 Agreement and is keen on pushing the process in an expedited fashion. “The United States has left with the Indian Government a draft agreement and we are waiting for the Indian Government to respond and I am sure it will quickly,” he said.

Not just that it has swallowed whole every condition that the US Act lays down, the government is rushing ahead to sign the 123 Agreement. A related dispatch of dated December 13, 2006, from Washington DC, quotes Burns as saying, “Once we get the response to our proposal, we will make sure that our team is available immediately for meeting. I agree with Ambassador Saran and Foreign Secretary Menon that all of us want to push these negotiations forward on a very rapid pace in January and February and I am optimistic that we’ll be able to complete this.”

Completing the process in January and February means that, by the time Parliament meets again for the Budget Session, all it will be in a position to do is debate retrospective reviews.

Erasing the touchstone

The touchstone against which the provisions of the US Act are to be judged is the set of assurances that the prime minister gave to Parliament in his elaborate and detailed statement on August 17, 2006. When I pointed out to Americans who had taken the trouble to come to educate me on the merits of the deal that there was just no way in which what Manmohan Singh had assured Parliament could be reconciled with the provisions of the Act, I was told, “But that is his problem. Not ours.”

That this is a real problem is evident from the way the August 17 assurances are being sought to be replaced by invoking once again the earlier statements. Recall what the External Affairs Minister told Parliament on December 12, 2006, in this regard: “I would like to inform the House that the US Administration has categorically assured us that this legislation enables the United States to fulfill all of the commitments made to India in the July 18 and March 2 Joint Statements and this legislation explicitly authorises civil nuclear cooperation with India in a manner fully consistent with those two statements. We fully expect the July 18 Statement and the March 2 Separation Plan to be reflected in the text of the 123 Agreement.”

It is the dog that didn’t bark that gives the clue: it is evident from what Pranab Mukherjee has omitted to mention that there is no commitment by the Americans about assurances contained in the August 17 statement of the PM! Pranab Mukherjee did go on to say that the government stood by the “principles and concerns” that the prime minister had expressed in his statement of August 17, and that “These principles and concerns continue to remain the basis of our engagement with the United States and the international community on the tasks ahead.”

But Burns stuck to what he had told the government here. In its dispatch of December 14 from Washington, the PTI reported him as saying, “I was able to communicate to the Indian Government on behalf of Secretary of State Condoleezza Rice and President Bush that the US Government is going to meet all the commitments it made to India in both the July 2005 Joint Statement and in the March 2006 Joint Statement.” Again, notice the conspicuous absence of any reference to the assurances contained in the PM’s statement of August 17.

Waiting for nothing

“But you must wait for the 123 Agreement. After all, that is what India will be committing itself to,” we are being told.

Now, the first point to remember is that the 123 Agreement is to be an Agreement under the new Act and other US laws — like the Atomic Energy Act of 1954. The Agreement will be just an instrument to operationalise what this new law has provided. For this reason, there is going to be nothing in the 123 Agreement which is not already known. That Agreement will be consequential to, and be governed by the Hyde Act. It does not have to have a clause saying that all exports shall terminate upon India testing a nuclear device — for that is already provided as a condition in the Hyde Act. It does not have to urge India to declare a date by which we will stop production of fissile material — for that is already provided in the Hyde Act. It does not have to say that India make a public declaration to the effect that we will adhere to the Proliferation Security Initiative — for that is already provided in the Hyde Act.

Moreover, the 123 Agreement will contain specifications in regard to only one of the matters that are covered by the new Act — the export to India of nuclear reactors, fuel, materials. It need not contain many sections of the law precisely because that Agreement is not the place to include them — it is as if one were to be shown the export license issued to General Electric permitting it to export a reactor to India, and be told, “See, our concerns have been addressed. There is no reference to Iran, none to testing, none to inspections... A breakthrough, a triumph...” The Agreement need not contain the sections precisely because they have already been legislated in other laws — like this new Hyde Act.

Brahma Chellaney points out that there are today 23 agreements in operation under Section 123. Each differs a great deal from the other. The least that we could have done was to prepare our own draft, and negotiate on that basis. In fact, as Nicholas Burns’ statement to PTI and reveals, the Americans are the ones who have swiftly given the draft. As a consequence, their draft is the one that will now be the basis of negotiations. The oldest trick in negotiations is to be first with the draft; to put the maximum number of conditions in it, in particular to put some conditions that you are certain the other side just cannot accept; and, then, with much foot-dragging, with much show of reluctance “take account of your concerns” and delete or modify some of those conditions!

We will do the rest! As the government has shown, it will proclaim victory, “See, we have been able to beat them down. We have made them take out the clauses...” Alas, not just the government. Many a newspaper too shall do so. “Killer amendments defeated, India’s concerns taken note of,” many of them proclaimed in the rounds we have just been through. The amendments that were introduced at the last minute, and which were not taken up, were not the fatal ones. The sections that were in the text from the beginning were the ones that sought to tie us down. And they remain where they have always been.

The equally important fact is that we have already had our fill of experience, of bitter experience of how a 123 Agreement works, and what store Americans put by it. The US signed a 123 Agreement with us in 1963. An early book of Brahma Chellaney (Nuclear Proliferation, The US-Indian Conflict, Orient Longman, 1991) records the sorts of provisions that the 1963 Agreement contained, provisions that are nowhere near what we will now be faced with in the new 123 Agreement. Two examples will suffice. The 1963 Agreement provided that the US will give fuel for Tarapur as needed by India. Second, it provided that the US will have the first right to spent fuel in excess of India’s needs for peaceful nuclear energy — only the first right to it, not a veto on us reprocessing it, should the US decide not to lift the spent fuel.

There were no conditions. Under-Secretary of State Robert Joseph himself acknowledged to the Senate Foreign Relations Committee on November 2, 2005, that whether India had “illegally” used the CIRUS reactor for military purposes was still “inconclusive owing to the uncertainty as to whether US-supplied heavy water contributed to the production of plutonium used for the 1974 device.” In other words, the US cannot to this day say that India violated any term of the 1963 Agreement.

Yet, the US terminated all supplies of fuel for Tarapur in 1974, saying that, whether India has violated the Agreement or not, by exploding a nuclear device, it has violated the intent of domestic US laws! The intent. And the intent of what? Of the domestic laws of the US.

The consequence? A mountain of spent fuel has accumulated. The US has refused to take it back. And we have not felt we could proceed to reprocess it ourselves. Another illustration of our “civilisational values”! We have unilaterally continued to adhere to the 1963 Agreement even though the US unilaterally repudiated it in 1974, and even though the Agreement itself expired in 1993!

The US terminated the fuel supplies, it repudiated the 123 Agreement of 1963 even when there was at the time no India-specific law — no Hyde Act — to govern that 123 Agreement. There was no other law that applied to India. But this time round, the US Congress has enacted an India-specific law that lays down, as the Joint Explanatory Statement to the Act states, the procedures and conditions that are to govern nuclear cooperation with India. How will the 123 Agreement not be bound by the provisions of this law? How will the US Government let India disregard its own law?

But there is an even more conclusive fact that debunks this, “But we must wait for the 123 Agreement.” And it nails the next alibi.

(To be continued)

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