Facts versus the government’s fiction

Arun Shourie: Friday, December 22, 2006

A section by section analysis of the Act passed by the US Congress reveals stipulations that tie India down. Yet the fiction has been purveyed by the government through the media that these provisions have been dropped. The prime minister’s assurances to Parliament may not mean anything

Everyone who has studied the Act that the US Congress has passed sees that its provisions just cannot be reconciled with the assurances the prime minister has given to Parliament. Not only has each of these been disregarded, in several cases they have been brushed aside with condescension — I don’t want to use the word others might deem more appropriate, “contempt”.

Proliferation Security Initiative

Alluding to the requirement that we join international protocols like the Proliferation Security Initiative (PSI), the PM told Parliament, “The Proliferation Security Initiative is an extraneous issue as it is outside the framework of the July 18 joint statement. Therefore, we cannot accept it as a condition for implementing the July statement. Separately, the government has examined the PSI. We have certain concerns regarding its legal implications and its linkages with the NPT. We also have concerns with amendments to the suppression of Unlawful Activities at Sea Treaty under the International Maritime Organisation.”

Section 103(b)(3) of the final Act requires that the US Administration ensure India’s “(A) full participation in the Proliferation Security Initiative; (B) formal commitment to the Statement of Interdiction Principles of such initiative; (C) public announcement of its decision to conform its export control laws, regulations, and policies with the Australia Group and with the guidelines, procedures, criteria, and control lists of the Wassenaar Arrangement; (D) demonstration of satisfactory progress toward implementing the decision described in subparagraph (C).” Section 104 (c) (2) (F) requires that the president report the steps that India has taken in this regard.

Strategic reserves

The PM placed great emphasis on India’s right to build strategic reserves of fuel for the reactors. He told Parliament that the Americans had given the assurance that India would be enabled to do so. As he was saying this in Rajya Sabha, the two under secretaries handling negotiations with India, Robert Joseph and Nicholas Burns, were telling the Senate Committee on Foreign Relations, “Our negotiators were very clear that, while the US would be willing to provide reasonable fuel assurances designed to counter market imperfections, fuel assurances are not a ‘condition’ to any of India’s commitments under the plan — including, in particular, safeguards in perpetuity.”

A formal clause, Section 103 (b) (10), was incorporated in the Senate Bill, and is now in the final Act. It says: “Any nuclear power reactor fuel reserve provided to the Government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements.” Enough just for “operating requirements”, not for building those pie-in-the-sky “strategic reserves”.

Uninterrupted fuel supplies

The PM told Parliament that India would be placing its reactors under safeguards “with assurances of uninterrupted supply of fuel to reactors... together with India’s right to take all corrective measures in the event fuel supplies are interrupted.” He repeated that condition four times. Even as he was doing so, American officials were telling the Senate Committee that India would have to and would be putting its reactors under safeguards in perpetuity.

Section 104(b)(2) of the Act lays down without any room for doubt that India will have to place the reactors under safeguards “in perpetuity.” This is how the pledge of the PM to Parliament about our right to build strategic reserves is disposed of in the Joint Explanatory Statement that accompanies the legislation: “On March 6, 2006, the Indian prime minister told the Indian Parliament that the US government had said that if a disruption of fuel supplies to India occurs, the US would, with India, jointly convene a group of friendly supplier countries, such as Russia, France and the United Kingdom, to pursue such measures as would restore fuel supply to India. The conferees understand and expect that such assurance of supply arrangements that the US is party to will be concerned only with disruption of supply of fuel due to market failures or similar reasons, and not due to Indian actions that are inconsistent with the July 18, 2005, commitments, such as a nuclear explosive test.”

Again, “India’s March 2006 nuclear facility separation plan stated: ‘The United States will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors.’ Congress has not been able to determine precisely what was said on this matter in high-level US-Indian discussions. US officials testified, however, that the United States does not intend to help India build a stockpile of nuclear fuel for the purpose of riding out any sanctions that might be imposed in response to Indian actions such as conducting another nuclear test. The conferees understand that nuclear reactor facilities commonly have some fresh fuel stored, so as to minimise down time when reactor cores are removed. They endorse the Senate proposal, however, that there be a clear US policy that any fuel reserve provided to India should be commensurate with normal operating requirements for India’s safeguarded reactors.”

So much for the PM’s “strategic reserves”. So much for his “corrective steps”. So much for his solemn assurances to Parliament.

Parity in rights

Spinners of the government maintained that by recognising India as a state with advanced nuclear technology, and by recording that India would acquire the same rights as a country like the United States, India had been in effect recognised as a Nuclear Weapon State. The “India-specific” Additional protocol with the IAEA would formalise this position, they maintained. Section 110(1) explicitly states that the additional protocol will be in accordance with IAEA’s INFCIRC 540 — that is, the one applicable to Non-nuclear Weapon States.

Additional safeguards

The PM told Parliament, “There is no question of India signing either a safeguards agreement with the IAEA or an additional protocol of a type concluded by Non-nuclear Weapon States who have signed the NPT. We will not accept any verification measures regarding our safeguarded nuclear facilities beyond those contained in an India-specific safeguards agreement with the IAEA. Therefore, there is no question of allowing American inspectors to roam around our nuclear facilities.” He repeated this declaration twice.

Even as he was telling Parliament this, American officials — in this case, the Secretary of State, Condoleezza Rice herself — were telling the Senate Committee that the Administration will ensure that there are “fall-back” safeguards too — that is, in case the US determines that the IAEA is not being able to implement safeguards satisfactorily, there will be other safeguards in place that the US can implement.

Section 104 (B)(5)(A)(III)(iii) specifies: (iii) In the event the IAEA is unable to implement safeguards as required by an agreement for cooperation arranged pursuant to Section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153), appropriate assurance that arrangements will be put in place expeditiously that are consistent with the requirements of Section 123 a.(1) of such Act (42 U.S.C. 2153(a)(1)) regarding the maintenance of safeguards as set forth in the agreement regardless of whether the agreement is terminated or suspended for any reason.”

Notice, India will have to continue to comply with these “fall-back” safeguards even if the 123 Agreement with the US is terminated. The Joint Explanatory Statement rubs the point in: “Section 104(d)(5)(B)(iii) mandates that, in the event the IAEA is unable to implement safeguards as required by an agreement between the United States and India approved pursuant to this title, there be appropriate assurance that arrangements will be put in place expeditiously that are consistent with the requirements of Section 123 a (1) of the Atomic Energy Act of 1954 (42 U.S.C. 2153(a)(1)) regarding the maintenance of safeguards as set forth in the agreement regardless of whether the agreement is terminated or suspended for any reason. Assurances that there will be such ‘fall-back safeguards’ if needed, are an important feature of agreements for nuclear cooperation; they enable such safeguards to exist more clearly in perpetuity... The conferees intend to assure that the requirements of Section 123 a (1) are fully met; they do not intend to impose a more intrusive regime than arrangements that have been used before in one or more US agreements for cooperation .”

Well, we must be thankful for small mercies — that the arrangements will not be more intrusive than are in place in other agreements!

How ‘full’?

The PM told the House that India has been assured of “full civil nuclear cooperation” — in particular, that we would get access to “all aspects of the nuclear fuel cycle” “ranging from nuclear fuel, nuclear reactors, to re-processing spent fuel.” He repeated this assurance thrice, declaring, “... We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above... Only such cooperation would be in keeping with the July Joint Statement.”

During the debate on the floor of the Senate, the co-sponsor of the legislation, Senator Joseph R. Biden, disposed of the prime minister’s “full means full” claim. He told the Senate that the provisions in the Bill were designed to legally prohibit such transfers because “these technologies are all used to produce fissile material for nuclear weapons.”

“Some Indian officials are reportedly upset because (the then) Section 106 singles out India,” he continued. “But they have long known that it is US policy not to sell them these technologies, so this is a matter more of pride than of substance, which I hope they deal with.”

Section 103(B)(2)(E) lays down that, far from processing spent fuel itself, India will not be allowed to even ship it back to the US without specific approval of the US Congress. The Act turns aside the objection that India was being singled out in an ingenious way. It now lays down in Section 104 (c) (4) (B) that the sensitive nuclear technologies — those relating to the items that the prime minister had listed — may be transferred to India, only if they are to be used in “a multinational facility participating in an IAEA-approved program to provide alternatives to national fuel cycle capabilities”, etc., and only when the president is able to ensure that these would not in any way assist India’s nuclear weapons programme. Uthe har nigah lekin baam tak na pahunche...!

The restriction is elaborated at length in the Joint Explanatory Statement accompanying the legislation. It states, inter alia, “The conferees note that the Administration has already stipulated that ‘full civil nuclear cooperation’,” the term used in the July 18, 2005, Joint Statement between President Bush and Indian Prime Minister Singh, will not include enrichment or reprocessing technology. This is consistent with President Bush’s February 11, 2004, speech at the National Defense University, in which he stated that ‘enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes’, and the fact that, other than in the SILEX arrangement with Australia, the United States does not currently engage in cooperation regarding enrichment or reprocessing technology with any country.”

Where does this leave the PM’s thrice-repeated assurance to Parliament?

Tests in the future

The PM was even more emphatic in regard to our right to conduct tests in the future, and in declaring his determination to fully shield the autonomy of our nuclear programme. He declared, “There is provision in the proposed US law that were India to detonate a nuclear explosive device, the US will have the right to cease further cooperation. Our position on this is unambiguous. The US has been intimated that reference to nuclear detonation in the India-US Bilateral Nuclear Cooperation Agreement as a condition for future cooperation is not acceptable to us. We are not prepared to go beyond a unilateral voluntary moratorium on nuclear testing as indicated in the July Statement. The same is true of other intrusive non-proliferation benchmarks that are mentioned in the proposed US legislation. India’s possession and development of nuclear weapons is an integral part of our national security. This will remain so.”

Well, what will the government’s stand now be, because Section 106 of the Act states,

“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.”

The Joint Explanatory Statement states the purpose of the section: “Sec 106 states that 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. The conferees intend this section to make absolutely clear a point that already follows from Section 129 of the Atomic Energy Act (42 U.S.C. 2158). This title affords no waiver from Section 129 for an Indian nuclear detonation after July 18, 2005.”

It underscores the consequences again: “As further clarified in the section-by-section analysis included in this report, the conferees believe that there should be no ambiguity regarding the legal and policy consequences of any future Indian test of a nuclear explosive device. In that event, the president must terminate all export and re-export of US-origin nuclear materials, nuclear equipment, and sensitive nuclear technology to India. The conferees expect the president to make full and immediate use of US rights to demand the return of all nuclear-related items, materials, and sensitive nuclear technology that have been exported or re-exported to India if India were to test or detonate, or otherwise cause the test or detonation of, a nuclear explosive device for any reason, including such instances in which India describes its actions as being ‘for peaceful purpose.’

Notice, even the test for “peaceful purposes” which was conducted under Mrs Indira Gandhi shall now be ruled out.

This legal condition is strengthened in the conference agreement beyond Section 129 of the AEA by a provision that the waiver authority in this legislation terminates with any Indian test. The conferees believe that termination would include the suspension and revocation of any current or pending export or re-export licenses, and that the return of US-origin items and materials should extend to any special nuclear material produced by India through the use of any nuclear materials, equipment, or sensitive nuclear technology exported or re-exported to India by the United States.”

And make no mistake on this all-important matter:

• It is by continuous testing that China has already got to the 2nd generation, some believe 3rd generation of weapons;

• The US even today conducts sub-critical tests to improve its arsenal;

• We will just have to test a few years from now to get to the next generation of weapons.

As for the autonomy of our programme, scientists — including the current head of the Department Atomic Energy, Dr Anil Kakodkar, the only scientist by invoking whose name the government has been trying to justify what it has been conceding to the US negotiators — have strongly protested against Section 109, the one about a “cooperative research programme” being set up with the American National Nuclear Security Administration. They have expressed the apprehension that it will mark a dangerous intrusion.

Nine distinct provisions in the Act make clear that the objective of US shall be to halt, rollback and eventually eliminate India’s nuclear capabilities, to have India publicly declare a date by which it will stop production of fissile material even before an international treaty on this is ready.

Similarly, the elaborate provisions that require the American president to report on every aspect of India’s nuclear programme, including in particular the activity in the reactors that we have kept out of IAEA safeguards, as well as every aspect of uranium we mine and mill and use, all those remain. The reports are to begin within 180 days of the 123 Agreement coming into force, and are to be repeated every year. Not just that, the Administration is not to wait for date by which the annual report is to be furnished. It is to report “fully and currently” — the moment significant information becomes available to it.

Such stipulations extend through section after section. And yet the fiction has been purveyed that our concern about annual, intrusive inspections has been taken into account, and the provisions have been dropped! Alas! Government has been able to purvey that fiction through the media.

All the other provisions remain exactly as they were in the Senate and House Bills:

• The aim of securing a “congruent foreign policy” (three provisions to this effect); of securing India’s full participation in containing Iran’s nuclear programme remain (four provisions to this effect) — contrasted with the PM’s categorical declarations, thrice repeated, “Government is clear that our commitments are only those that are contained in the July Joint Statement and in the Separation Plan. We cannot accept introduction of extraneous issues on foreign policy. Any prescriptive suggestions in this regard are not acceptable to us... We reject the linkage of any extraneous issue to the nuclear understanding. India’s foreign policy will be decided on the basis of Indian national interests only.”

• The sternly expressed requirement to further tighten the coordination of the Nuclear Suppliers Group (five provisions to this effect) — so that a country like India, when denied supplies of fuel or equipment or technologies by the US is not able to obtain these from any other country.

How did we get into this quagmire? What is the way out?

(To be concluded)