Arun Shourie
Source: Indian Express
Sep 06, 2008 at 0157 hrs
But why now? Why on the eve of the NSG meeting in Vienna?” — the cry went up. Entirely predictably: when they can’t deal with the facts of a disclosure, the embarrassed always demand, “But why now?” Should we not, on the contrary, be grateful that, at least at this penultimate hour, someone has awakened us to what the government is bartering away in Vienna? Is there an inauspicious time for being awakened to the facts? “The secret letter has been revealed by a known opponent of the nuclear deal,” they say — as if the fact that the person disclosing the document is a known opponent of the deal, in some way dilutes the veracity of the text! And this from a newspaper that discloses secret documents every other week!
“But there is nothing new in the US Administration letter to the Congress,” say the spokesmen of the government, and its apologists in the media. Actually, that very fact, as we shall soon see, makes things all the worse. Indeed, the American ambassador, David Mulford, has been more specific: he has said that the letter that the administration sent to the US Congress contains nothing that has not already been shared with the Indian government. In a word, the government has known all these facts all along, and has yet continued to assert its falsehoods to the contrary for months on end. The US administration letter, in fact, reveals more: on point after point, it reveals that the Indian government, while asserting falsehoods to the contrary here in India, has not just been in the know of what the Americans were extracting, it agreed with the construction the Americans had put on the clauses in question.
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“Falsehoods” is the right word, make no mistake.
“The Hyde Act does not apply to us,” government spokesmen have been insisting. “We are bound by the 123 Agreement alone.” Indeed, as recently as July 2 this year, the prime minister’s office asserted, “the 123 Agreement clearly overrides the Hyde Act and this position would be clear to anyone going through the provisions.” That is patent nonsense. Article 2 of the 123 Agreement provides that in implementing it, the two countries shall be governed by, among other things, their “national laws”. What are the national laws of the US in this regard? The Atomic Energy Act of 1954 and the Hyde Act. Does the Hyde Act apply or not?
But clauses apart, even a fool can see through the lie in that: does the Hyde Act apply to the Americans or not? That is all that is required for the consequences listed in the Act to follow. Suppose we test. What are the Americans bound to do in return by law? Both by the Hyde Act as well as the original Atomic Energy Act of 1954, they must immediately cease all nuclear commerce with India. By both these Acts as well as the guidelines of the NSG, they must ensure that every other member of the NSG also ceases all nuclear cooperation with India. In a word, by the laws that apply to them, the Americans have to bring upon us the full weight of sanctions. What comfort is it that the sanctions fall upon us by laws applicable to them and not applicable to us?
That simple and brutal fact is compounded by the 123 Agreement. In Question 3, the US Congress asks the Bush administration, “Does the Administration believe that the nuclear cooperation agreement with India overrides the Hyde Act regarding any apparent conflicts, discrepancies, or inconsistencies? Does this include provisions in the Hyde Act which do not appear in the nuclear cooperation agreement?” In turn, the Bush administration says that the 123 agreement “is in full conformity with the Hyde Act,” that it is “consistent with the legal requirements of both the Hyde Act and the Atomic Energy Act” — both of them, incidentally, require that, to take just one example, the agreement be terminated forthwith the moment India conducts a test, even for “peaceful purposes”.
The prime minister has said over and over again that the cooperation shall be “full”, that it shall cover all aspects of the full nuclear cycle. In particular, that India shall have full access to “sensitive technologies”. Anything less, Manmohan Singh has said again and again, shall be inconsistent with the statement he had signed with Bush, and India shall not accept such a dilution. Persons like me have pointed out from the beginning that this just cannot be the case, that the Americans have an unambiguous policy in this regard, a policy that has been reiterated personally by Bush as well as by the US Congress — namely, that countries like India shall not be given access to technologies for enrichment, reprocessing or heavy water production. Manmohan Singh has gone on repeating, “Full means full”.
And as proof, the government’s propagandists have been pointing to Article 5(2) of the 123 Agreement. This clause in fact is just a sleight of words. It says that these “sensitive technologies... may be transferred to India under this agreement pursuant to an amendment to this agreement.” Even then, the clause clearly records, the transfer “will be subject to the Parties’ respective applicable laws, regulations and license policies.” Hence, three conditions: (a) “may be”; (b) “pursuant to an amendment to this agreement”; and (c) “subject to the Parties’ respective applicable laws, regulations and license policies.” In spite of this, the Government’s propagandists have kept repeating that India has won access to these sensitive technologies.
In its answers to not one but six questions (questions 4 to 9) from the US Congress, Bush’s administration says six times, that the sensitive technologies will not be transferred and that there is no proposal at all to amend the 123 Agreement!
Similarly, government spokesmen have maintained that our right to reprocess spent fuel has been recognised. Indeed, Manmohan Singh himself has said that our reprocessing rights have been recognized so much so that they shall be “permanent”. The answers to questions 26 and 29, as indeed Articles 11 and 12 of the 123 Agreement itself, indicate that we shall be able to reprocess the spent fuel only in a facility (a) set up at our cost; (b) under IAEA oversight; (c) and only in accordance with “arrangements and procedures” to which the US agrees. As for the right being “permanent”, the answer to question 44 gives the lie. The answer does not just reiterate that the “arrangements and procedures” under which the reprocessing may be done shall have to be agreed to by the US; it says, “the proposed arrangements and procedures with India will provide for withdrawal of reprocessing consent.” Permanent?
Manmohan Singh has insisted all along that India shall not accept any oversight or inspections other than what it shall agree to under the “India specific safeguards” in its agreement with the IAEA. Persons like me drew attention to the stern and absolutely unambiguous statements of Condoleezza Rice; to the report of the joint committee of the US Congress; as well as to the provisions of the Hyde Act, which specifically provided that India shall have to accept “fallback safeguards” - that is, should, in the judgment of the IAEA or the US, the IAEA be unable to perform its inspections adequately, the US shall have the right to institute inspections and other measures of oversight through other agencies - its own or those of some other international bodies. Even as it was asserting the contrary, Manmohan Singh’s Government, agreed to have these additional inspections and restrictions through Articles 10 and 16(3) of the 123 Agreement. All that was done was that instead of the US inspectors being called “inspectors”, they were called “experts”. Through these clauses, India agreed to ensure for them the fullest access to sites and data that they wanted to inspect.
In its answers to questions 10 to 13, the US administration has reiterated four times that, yes, there shall be these additional fallback safeguards and inspections. Not just that, the administration tells the US Congress that, in addition to pledging that it is accepting IAEA safeguards and inspections in perpetuity, the Indian government “fully appreciates that paragraph 1 of Article 10 of the Agreement does not limit the safeguards required by the Agreement to Agency (that is, IAEA) safeguards.” In a word, while we were being told the exact opposite — “We shall not allow American inspectors to roam around our facilities” — the Manmohan Singh government had accepted that very roaming around.
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