Forward-looking farce

Arun Shourie: Saturday, August 18, 2007

123 Pact: Deal binds India to Hyde Act whose main objective is to ‘halt, roll back and eventually eliminate’ India’s nuclear capability

On March 7, 2007, while introducing the Separation Plan, the prime minister told Parliament that the US had assured India that we would have access to uninterrupted supplies of fuel throughout the lifetime of the reactors that we would place under safeguards — both from the US and from other members of the Nuclear Suppliers Group. Elaborating on this assurance — the absolutely critical assurance on the basis of which the government justified placing two-thirds of our reactors under safeguards at the very beginning — the prime minister said: “To further guard against any disruption of fuel supplies for India, the United States is prepared to take other additional steps, such as:

a) Incorporating assurances regarding fuel supply in a bilateral US-India agreement on peaceful uses of nuclear energy, which would be negotiated; b) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement; c) 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, and; d) If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.”

Prime minister or no prime minister, our Parliament or no Parliament, the US Congress completely stamped out this string of assurances:

— It scotched the PM’s assurance about “strategic reserves” — reserves on which we could fall back in the event of not just normal disruption of market supplies, but sanctions — as happened in the case of Tarapur — by specifying in Section 103(b)(10): “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”.

• As for the PM’s assurance about joining India in convening a meeting of other suppliers to restore fuel supplies in the event of a disruption, the US Congress inserted not one, but five provisions in the Hyde Act to direct the US Government to ensure that, should the US stop supplies of fuel to India — for instance, in the event of India testing a nuclear device — no other member of the Nuclear Suppliers Group (NSG) shall supply fuel to India.

To give just one string of examples, the US Congress enacted in the Hyde Act:

1. Section 102 (13): “The United States should NOT seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under United States law”

2. Section 103 (4): “Strengthen the NSG guidelines and decisions concerning consultation by members regarding violations of supplier and recipient understandings by instituting the practice of a timely and coordinated response by NSG members to all such violations, including termination of nuclear transfers to an involved recipient, that discourages individual NSG members from continuing cooperation with such recipient until such time as a consensus regarding a coordinated response has been achieved”

3. Section 103(6): “Seek to prevent the transfer to a country of nuclear equipment, materials, or technology from other participating governments in the NSG or from any other source if nuclear transfers to that country are suspended or terminated pursuant to this title, the Atomic Energy Act of 1954 (42 USC 2011 et seq.), or any other United States law”.

“Not seek to facilitate or encourage...,” ... “Institute the practice of a timely and coordinated response by NSG members...,”... “Seek to prevent...”. What could be more emphatic? What could be clearer? But our Micawbers kept us hoping: “Something will turn up. We are not bound by a US law. The assurances will be in the 123 Agreement. That is all we will be bound by.”

We now have the 123 Agreement. It shows in the clearest possible terms that the US government has not moved a millimetre from its position about granting access to no more than the fuel that is required for the “operating requirements” of the reactors. For what do we read in the 123 Agreement? Here is Article 5 (6) (B) of the Agreement. Please do read it to see how smoke is fed into our eyes by this government:

To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps:

• “The United States is willing to incorporate assurances regarding fuel supply in the bilateral US-India agreement on peaceful uses of nuclear energy under Section 123 of the US Atomic Energy Act, which would be submitted to the US Congress.”

But this is the 123 Agreement! In which future 123 Agreement will the US incorporate that assurance?

The Article continues:

• “The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.”

• “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”

• “If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.”

To enable the Indian government to save face, the words have just been cut and pasted. And in his new statement to Parliament, the prime minister hails this as an achievement: “The Agreement reiterates in toto the corresponding portions of the Separation Plan,” he says. Right! What was to have been assured in the 123 Agreement has been left to be assured in the 123 Agreement!

The Americans have already nailed that particular claim. The chief negotiator for the US, Nicholas Burns, was asked this very question during his interaction with the Council on Foreign Relations on 2 August, 2007. He was asked, “Some say that under the deal, if India holds a nuclear weapons test, the US would delay its own nuclear fuel supplies to India but the US would help India find other sources of fuel, which violates the spirit of the Hyde Act. What do you say to those concerns?” And he answered, “That’s absolutely false. I negotiated the agreement and we preserved intact the responsibility of the President under the Atomic Energy Act of 1954 that if India or any other country conducts a nuclear test, the President — he or she at that time in the future — will have the right to ask for the return of the nuclear fuel or nuclear technologies that have been transferred by American firms. That right is preserved wholly in the agreement.”

So, we remain at what the Hyde Act provides, “operating requirements”, and some assistance against “market disruptions”. And that too to be enshrined in some future 123 Agreement. But on the basis of such postponement, the prime minister claims, “Hon’ble Members will agree that these provisions will ensure that there is no repeat of our unfortunate experience with Tarapur.”

A very sad affair

There is just no end to such subterfuges — and that they should have been put out by the very person with whom the country associates honesty, makes it all a very sad affair.

“This Agreement further confirms that US cooperation with India is a permanent one,” the prime minister says in his new statement. “There is no provision that states that US cooperation with India will be subject to an annual certification process.”

How many times will such dissimulations be repeated? There is no provision in the 123 Agreement because there is no need for any provision in this Agreement. The Agreement is the first step in operationalising the Hyde Act. It clearly states that US actions under it shall be governed by the national laws of the US — among these is the Hyde Act. That Act sets out a long, long list of reports that the US president must submit to Congress — every year, and in addition as soon as material information becomes available. On the basis of such information and in accordance with the reports, the president must certify to Congress that India is fully complying with provisions and goals of the Hyde Act and other US laws. If he is unable to do so, the “cooperation” must cease forthwith.

Nor is this an idle apprehension. To give just one example, the 123 Agreement between US and China was signed in 1985. It could not be operationalised for thirteen years because the American president could not submit the certifications that were required.

And that is when there was no, and is no China-specific law — as there is the Hyde Act in our case.

Singular objective

The items on which the US president must report to the Congress have nothing to do with energy. They have one object and one alone: to see that this deal is not directly or indirectly helping India thwart the central goal of the Hyde Act — namely, as the Act puts it, to “halt, roll back and eventually eliminate” India’s nuclear capability.

A score of examples can be given. One will suffice — to show how those reporting and certification requirements have indeed been built into the 123 Agreement.

The Hyde Act provides that the US president must furnish detailed reports to the US Congress on, among a host of other things, uranium that India has mined, obtained, used, has in stock, and so on. It does so as part of the measures that it specifies to ensure that the “civil nuclear cooperation” is not indirectly helping India enhance its weapons capability.

Section 104(5)(g) of the Act lays down that the US president furnish “fully and currently” — that is, he must not wait for the mandatory end-of-the-year reporting — detailed reports on:

• An estimate of a) the amount of uranium mined and milled in India during the previous year; b) the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices and; c) the rate of production in India of fissile material for nuclear explosive devices and nuclear explosive devices;

• An analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices.

Not only is it the case that, irrespective of the 123 Agreement, the US president has to compulsorily satisfy Congress that the Indo-US deal is not enabling India enhance its nuclear capabilities in any way. The fact is that requirements about uranium, and so on are built into the 123 text directly. They stick out through the camouflage.

Article 10.7 of the Agreement: “Upon the request of either Party, the other Party shall report or permit the IAEA to report to the requesting Party on the status of all inventories of material subject to this Agreement.”

You realise the import of that requirement when you go back to the Article on “definitions”, Article 1. That Article specifies, among other things, what materials are “subject to this Agreement”. These include:

• “Low enriched uranium”, which means uranium enriched to less than twenty per cent in the isotope 235

• “Non-nuclear material”, which means heavy water, or any other material suitable for use in a reactor to slow down high velocity neutrons and increase the likelihood of further fission, as may be jointly designated by the appropriate authorities of the Parties

• “Nuclear material”, which means source material and special fissionable material.

• “Source material”, which means uranium containing the mixture of isotopes occurring in nature; uranium depleted in the isotope 235; thorium; any of the foregoing in the form of metal, alloy, chemical compound, or concentrate; any other material containing one or more of the foregoing in such concentration as the Board of Governors of the IAEA shall from time to time determine...

Each of these is a material subject to this Agreement. In regard to each of them, India will supply a comprehensive account of inventories.

And yet, the PM makes out as if the government has ensured some sort of dilution in the requirements that the Hyde Act has specified.

But that is the minor part — an entire tale of attempted deception hangs by it, something to which I shall now turn.

To be concluded