‘Strategic partnership’ without a strategy

Arun Shourie: Sunday, August 19, 2007

123 PACT:a It is not the way to energy security; the way to that is to develop our own hydroelectric resources, to redouble our uranium mining, to redouble our work on fast-breeder reactors, on thorium

The one point on which there seems to be an advance is in regard to reprocessing spent fuel—alas, that too comes with caveats. The US has given us consent to process this in a dedicated facility that we are to set up, and which is to be under IAEA safeguards. But the same Article that grants us this consent provides that “the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility”.

The steps that this latter bit shall entail have been spelled out by Nicholas Burns—both during his briefing to the press on 27 July 2007, and during his interaction with the Council on Foreign Relations. During his briefing of the press on 27 July, 2007, Burns said, “Both of us—the United States and India—have granted each other consent to reprocess spent fuel”—that genuflection is nothing but a gesture to enable our Government to maintain that we have fulfilled the PM’s ‘principle of reciprocity’—the US has been reprocessing spent fuel without our consent for decades! “To bring this reprocessing into effect requires that India would first establish a new national facility under IAEA safeguards dedicated to reprocessing safeguarded nuclear material. Our two countries will also subsequently agree on a set of arrangements and procedures under which reprocessing will take place. And for those of you who are steeped in this, you know that that’s called for by Section 131 of the Atomic Energy Act of 1954.”

In his interaction with the Council on Foreign Relations, he again pointed out that “US law states that while we can promise reprocessing consent rights, we have to negotiate a subsequent agreement. We will do that and Congress will have the right to review that agreement”.

That is, we will set up a dedicated facility under IAEA safeguards. Arrangements and procedures for using it will have to be agreed upon with the US which shall be bound by its national laws, policies, licence requirements. This new agreement, when it is made, shall be submitted to the US Congress for approval. Hence, while here we have a step forward, we have to see where it lands us by the time the sequence is completed even in regard to this one step.

The rationalisation

The rationalisation for the deal that as typical as it would be consequential if only it were true was first put out in the initial stages by K. Subramaniam. He wrote, “Given India’s uranium ore crunch and the need to build up our minimum credible nuclear arsenal as fast as possible, it is to India’s advantage to categorise as many power reactors as possible as civilian ones to be refuelled by imported uranium and conserve our native uranium fuel for weapons-grade plutonium production.”

Such rationalisations became an inconvenience for those who were lobbying for the deal in Washington: see, Senators like Senator Dorgan pointed out, Indians will use what they get from us to increase their weapons arsenal. Little was left of it after the Hyde Act was passed--the possibility was firmly scotched. And, therefore, I was doubly surprised to hear the rationalisation in a briefing from one of the highest persons: this Agreement, he emphasised more than once, gives ‘greater manoeuverability’ in regard to our weapons programme: we can use the imported uranium for electricity generation; this will leave our own uranium entirely free for our weapons programme.

What an—given the eminence of the person concerned, how should I put it?—innocent ruse! In fact, the Hyde Act specifically and emphatically directs US Executive to scotch this prospect.

It states explicitly that non-proliferation of nuclear weapons remains the vital objective, and that for this purpose, capping, rolling back, and eventually eliminating our nuclear weapons capability is the instrument. The idea of the exercise is to put heavy economic incentives in the country’s way so that, as Section 102(6)c puts it, India will “refrain from actions that would further the development of its nuclear weapons program”. The next Section begins by stating that the policy of the US is to “Oppose the development of a capability to produce nuclear weapons by any non-nuclear weapon state, within or outside of the NPT”; in South Asia to “Achieve, at the earliest possible date, a moratorium on the production of fissile material for nuclear explosive purposes by India, Pakistan, and the People’s Republic of China”—China, not being part of South Asia, had surely been thrown in just for cosmetic effect; to “halt the increase of nuclear weapon arsenals in South Asia and to promote their reduction and eventual elimination”; furthermore, “Pending implementation of the multilateral moratorium, or the treaty, encourage India not to increase its production of fissile material at unsafeguarded nuclear facilities”. Towards these ends, Section 104c(2)(D) requires the President to provide “(D) A description of the steps that India is taking to work with the United States for the conclusion of a multilateral treaty banning the production of fissile material for nuclear weapons, including a description of the steps that the United States has taken and will take to encourage India to identify and declare a date by which India would be willing to stop production of fissile material for nuclear weapons unilaterally or pursuant to a multilateral moratorium or treaty”.

These requirements are reinforced in the Section by binding the President to ensure that, in accordance with obligations of the US under the NPT, the US does nothing in cooperating with “a country that is not a nuclear-weapon State Party to the NPT that would in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices”.

Accordingly, the US President must provide the US Congress—(F) an analysis of whether United States civil nuclear cooperation with India is in any way assisting India’s nuclear weapons program, including through—

(i) the use of any United States equipment, technology, or nuclear material by India in an unsafeguarded nuclear facility or nuclear-weapons related complex;

(ii) the replication and subsequent use of any United States technology by India in an unsafeguarded nuclear facility or unsafeguarded nuclear weapons-related complex, or for any activity related to the research, development, testing, or manufacture of nuclear explosive devices; and

(iii) the provision of nuclear fuel in such a manner as to facilitate the increased production by India of highly enriched uranium or plutonium in unsafeguarded nuclear facilities;

(G) a detailed description of—

(i) United States efforts to promote national or regional progress by India and Pakistan in disclosing, securing, limiting, and reducing their fissile material stockpiles, including stockpiles for military purposes, pending creation of a worldwide fissile material cut-off regime, including the institution of a Fissile Material Cut-off Treaty;

(ii) the responses of India and Pakistan to such efforts.

Where is the scope for that ‘greater manoeuverability’ which our educators at the highest level tried to inveigle us into believing?

Won’t let American inspectors roam around

Persons like me had drawn attention to the fact that, under what was being agreed to, we would have to accept not just IAEA safeguards and inspections, but, in addition, inspections by teams of US inspectors. American Congressmen as well as officials like the Secretary of State, Condoleezza Rice, had been completely candid about this: we will ensure ‘fall-back’ safeguards, they declared time and again. I cited these declarations in the Rajya Sabha.

The Prime Minister was emphatic. He said, “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.”

That last bit, “Therefore there is no question of allowing American inspectors to roam around our nuclear facilities,” drew loud applause from Government benches. Encouraged, the Prime Minister repeated this determination on more than one occasion.

That was in August 2006. Come December, and in Section 104 (B)(5)(A)(III), the US Congress provided:

“(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.”

Exactly the “fall-back safeguards” that they had declared they would ensure. And what does the 123 Agreement provide? Article 10(4) states, “If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures.” This is to be read with Article 12(3) which states, “When execution of an agreement or contract pursuant to this Agreement between Indian and United States organisations requires exchanges of experts, the Parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the Parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices.” Inspectors become ‘experts’—and the assurance is fulfilled!

Even that is not the end of the matter. Article 16(3) provides, “Notwithstanding the termination or expiration of this Agreement or withdrawal of a Party from this Agreement, Articles 5.6(c), 6, 7, 8, 9, 10 and 15 shall continue in effect so long as any nuclear material, non-nuclear material, by-product material, equipment or components subject to these articles remains in the territory of the Party concerned or under its jurisdiction or control anywhere, or until such time as the Parties agree that such nuclear material is no longer usable for any nuclear activity relevant from the point of view of safeguards.”

Thus, if even a little bit of the equipment, material, etc. are left behind, not just IAEA safeguards but in addition the right of the US to act on the fallback safeguards shall continue. It shall continue even if the 123 Agreement itself expires. It shall continue even if India withdraws from the Agreement. Read again the words with which this Article opens: “Notwithstanding the termination or expiration of this Agreement or withdrawal of a Party from this Agreement.”

And yet the Prime Minister says in his new statement, “There is no change in our position that we would accept only IAEA safeguards on our civilian nuclear facilities.”

And do you recall what is provided in that other 123 Agreement—between US and China? “Noting that such cooperation is between two Nuclear Weapon States”, the Agreement begins, and again in Article 8(2), “The parties recognise that this cooperation in the peaceful uses of nuclear energy is between two Nuclear Weapon States and that bilateral safeguards are NOT required.”

That is why the Government was so wrong in trying to scoff away our pointing to the insistence with which US spokesmen were declaring that India was NOT being recognised as a Nuclear Weapon State: its spokesmen insinuated time and again that we seemed to be stuck on a question of prestige! The fact was, and is that American insistence on this matter was directed at achieving vital practical consequences. The consequences are now upon us. And the Government is left redoubling its untruths.

Conclusion

On every other matter—testing; the effects on our strategic programme; ‘India specific safeguards’—the PM has repeated the assertions he has advanced in the past. They remain as misleading. The deal is not the way to energy security—the way to that is to develop our own hydroelectric resources, to redouble our uranium mining, to redouble our work on fast-breeder reactors, on thorium.

To make this deal the fulcrum of closer Indo-American relations too is a blunder. And the reason the Government has blundered is manifest: it has got swept off—should that be ‘flattered off’—its feet by talk of ‘strategic partnership’ without having a strategy. By the time the consequences of its details became evident, the deal had become a matter of ego and prestige. Hence, this uncharacteristic tenacity.

(Concluded)

A word dropped, a word inserted and the assurances are fulfilled!

Arun Shourie: Friday, August 17, 2007

123 Agreement: Mind the gap between the PM’s assurances and the text of the deal

I had taken up with President Bush our concerns regarding provisions in the two bills,’ the prime minister’s website records Dr Manmohan Singh telling the nuclear scientists. ‘It is clear that if the final product is in its current form, India will have grave difficulties in accepting the bills. US has been left in no doubt as to our position.’

That was in August 2006, soon after his speech in the Rajya Sabha in which the prime minister had drawn the lakshman rekha below which India would not go in its negotiations on the nuclear deal.

When the US House of Representatives had passed its bill, and when the fact could no longer be denied that its provisions would jeopardise our strategic interests, we were all told, ‘But this is just the House Bill. Our concerns will be taken care of in the Senate bill.’ When the Senate passed its bill, and the fact could no longer be denied that its provisions made even deeper inroads into our strategic interests than the House version, we were all told, ‘But we have to wait for the Joint Conference of the two Houses to hammer out a final version. That will take care of our concerns.’ When the final version was passed, and the fact could no longer be denied that it had in it the harshest features of each version, we were all told, ‘But India is not bound by laws made by any other country. We have to wait for the 123 Agreement. That will take care of our concerns.’

We now have the 123 Agreement. It explicitly states in Article 2 that ‘Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes.’

In the case of the US, the relevant ‘national laws’ include the original Atomic Energy Act of 1954, the Nonproliferation Treaty Act, and the Hyde Act of December 2006.

To take just one example, the very Section of the 1954 Act under which the ‘123 Agreement’ is entered into — Section 123 — states that, should any nuclear device be detonated for any reason whatsoever, not only shall all nuclear commerce be halted with the country, the US shall have the right to demand the return of ‘any nuclear materials and equipment transferred pursuant’ to the agreement for cooperation as well as any ‘special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive device.’ ‘For any reason whatsoever’, the Joint Conference of the two Houses made explicit, shall also include ‘for peaceful purposes’ — the ground we had invoked for the 1974 test! This provision is re-emphasised in the Hyde Act. Section 106 of the latter states explicitly, ‘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.’

As for ‘applicable treaties’ the US Act to operationalise the Nuclear Nonproliferation Treaty binds the US not to directly or indirectly — and we shall soon see the significance of these two words, ‘or indirectly’ — assist any Non-nuclear Weapon State to acquire or manufacture nuclear weapons. That in devising its cooperation with India the US must adhere to its obligations under this Article is reiterated and emphasised in the Hyde Act. That is why Section 104 of the Hyde Act explicitly states, ‘Pursuant to the obligations of the United States under Article I of the NPT, nothing in this title constitutes authority to carry out any civil nuclear cooperation between the United States and a country that is not a nuclear-weapon state party to the NPT that would in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices...’

That is just one example of what that reference to ‘national laws’ entails. As is well known by now, the US Congress completely disregarded the assurances that our prime minister had given to Parliament and incorporated a slew of provisions that were even more stringent, even more intrusive than the provisions of the original bills which the prime minister had said India would have ‘grave difficulties’ in accepting.

So, what does the prime minister do now — especially in view of the fact that the 123 Agreement explicitly mandates that, in implementing it, the US shall be bound by these laws? Simple: in the long statement that he waded through on August 13, 2007, in Parliament, the prime minister just doesn’t mention any national law at all, not the Hyde nor any other Act!

Omission actually is deployed more than once as the device of choice.

‘All’ out, ‘associated’ inserted

The central imperative in our discussions with the United States on Civil Nuclear Cooperation is to ensure the complete and irreversible removal of existing restrictions imposed on India through iniquitous restrictive trading regimes over the years. We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from nuclear fuel, nuclear reactors, to re-processing spent fuel, i.e. all aspects of a complete nuclear fuel cycle.’ The ‘complete and irreversible removal’ is just as important. But for the moment I am on the ‘all’ — in giving this assurance to Parliament, the prime minister used the word not once but twice.

In fact, a little later in his speech, he assured Parliament a third, and a then fourth time, ‘We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from supply of nuclear fuel, nuclear reactors, reprocessing spent fuel, i.e., all aspects of complete nuclear fuel supply. Only such cooperation would be in keeping with the July Joint Statement.’

Persons like me pointed out that the ‘full cooperation’ the US would enter into could not but be ‘less than full’. The reason was simple: US authorities — including President Bush — have stated time and again that as reprocessing, enrichment and heavy water have to do with producing nuclear weapons, and not with meeting energy requirements, the US shall not transfer technologies, materials or equipment related to these three vital aspects. Sponsors of the Hyde Act, that is the ones on whom India was relying to see the legislation through Congress, themselves emphasised this in their speeches on the floor and in the Joint Explanatory Statement that they submitted while forwarding the reconciled bill to the two Houses.

And throughout the negotiations for the 123 Agreement, the US Government stuck to this stand. But how to save the Indian Government’s face? Through what our prime minister in his statement of August 13, 2007, calls, ‘forward looking language’! Article 5(2) of the 123 Agreement, which the prime minister claims as an achievement, is the result. It provides, ‘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. 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.’

Notice the two conditions: (1) ‘pursuant to an amendment to this Agreement’; and (2) ‘subject to the Parties’ respective applicable laws, regulations and license policies.’ And then too, ‘may be transferred’. When the Agreement which has not even become effective will be amended, no one knows! And how it will be amended when the ‘applicable laws, regulations and license policies’ of the US explicitly prohibit such transfers, no one knows! But the ‘forward look’ zindabad!

But what about that four-times repeated assurance to Parliament? The prime minister’s new statement, the one of August 13, 2007, deploys an ‘out-of-the-box’ solution. ‘The concept of full nuclear cooperation has been clearly enshrined in this Agreement,’ the PM’s new statement reads. ‘The Agreement stipulates that such cooperation will include nuclear reactors and aspects of the associated nuclear fuel cycle, including technology transfer on industrial or commercial scale.’

Please read that again. Did you spot the word that is suddenly missing? ‘All aspects’ has suddenly become ‘aspects’! And ‘all aspects of the fuel cycle’ has become ‘aspects of the associated nuclear fuel cycle’ — that is, aspects associated with reactors that the US will supply: a manual describing safety procedures, for instance!

‘All’ dropped. ‘Associated’ inserted. Assurances fulfilled. And Parliament can go jump out of the box!

What the PM does not refer to

This is not the first time that we have had a 123 Agreement with the US. We had one for Tarapur also. The US signed that Agreement with us in 1963. It was to be effective for 30 years, till 1993. That Agreement provided that the US would give fuel for Tarapur as needed by India. It provided that the US would have the first right to spent fuel in excess of India’s needs for peaceful nuclear energy. And even for this part, just the first right. If it did not take back the fuel, we would have the right to reprocess it. There were no conditions. In testimony to the US Congress, US officials have themselves acknowledged that the US is not to this day sure that India violated any term of the 1963 Agreement. Yet, the US terminated all fuel supplies in 1974, saying that India had violated domestic US laws. Pressed about the laws, the US maintained that India had violated the intent of US domestic laws! For decades, it has consistently refused to either take back spent fuel or let us reprocess it. All this happened, even when there was no Hyde Act — no India-specific law — to govern that Agreement.

That is why the provision in the new 123 Agreement that, in implementing it, a party — the US in this case — shall be governed by, inter alia, its national laws becomes all important. And that is why the prime minister’s decision not to let any reference to this provision slip at all into his lengthy statement is so telling of this new culture — of spin; of the half-truth. Nor do we have to wait for the laws that the US may pass in the future. The three laws that are already on their statute books — the Atomic Energy Act of 1954, the Nonproliferation Act, and the Hyde Act — are sufficient to keep India on the shortest possible leash.

To gauge the difference, contrast the provision in the 123 Agreement that the US signed with China in 1985. Article 2(1) of that Agreement specifies: ‘Each party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes’ — so far, almost the same as the Indo-US text. But then comes the vital sentence which is missing from the Indo-US agreement: ‘The parties recognise, with respect to the observance of this Agreement, the principle of international law that provides that a party may NOT invoke the provisions of its internal law as justification for its failure to perform a treaty.’

That provision shields China from the Tarapur-treatment. The text in the Indo-US 123 Agreement opens us to a repeat of that treatment — on an even longer list of ‘grounds’ than could be envisaged at the time of Tarapur, and at a time in future when, if the PM’s dreams are realised, we will be even less able to resist pressures than we were in the past — for we will be dependent on imported nuclear fuel for 35,000 megawatts of electricity and not just, as in the case of Tarapur, for just 300 megawatts.

To be continued

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)

Not one concern has registered

Arun Shourie : Wednesday, November 29, 2006

Every single element that the prime minister had listed as unacceptable in the Indo-US nuclear deal is still there. Is the deal acceptable in spite of these provisions that are ‘not acceptable to us’?

After assuring the Rajya Sabha that no law that seeks to bind our foreign policy would be accepted; after spelling out in detail that “full” must mean “full”, the prime minister referred to the requirement in the Senate Bill that the president report every year to the Congress and certify that India is in full compliance with its non-proliferation and other commitments. He then declared, “We have made it clear to the United States our opposition to these provisions, even if they are projected as non-binding on India, as being contrary to the letter and spirit of the July Statement.” He said that the dilution and uncertainty that such annual certification would entail are “not acceptable to us.” Categorical. One may even say, bold.

But the bill retains the provision — Section 108 — requiring the same, very comprehensive and equally detailed, annual report. The report must certify every year, among other things, that India is in compliance with its non-proliferation commitments; it must inform the US Congress about any new construction by India of nuclear facilities; about any significant changes in the production by India of nuclear weapons or in the types and amounts of fissile material; about changes in the purpose or operational status of any military nuclear fuel cycle activity; about any significant nuclear commerce between India and any other country. Furthermore, the US president must report the result of “United States efforts to promote national or regional progress by India and Pakistan in disclosing, securing, capping, and reducing their fissile material stockpiles, pending creation of a world-wide fissile material cut-off regime, including the institution of a Fissile Material Cut-off Treaty.”

Every single element which the prime minister had listed as unacceptable is still there. Is the deal acceptable in spite of these provisions that are “not acceptable to us”?

Conditional upon uninterrupted supplies of fuel

The fourth point that the prime minister emphasised was made much of — by him as well as by Congress benches. He said that India would be placing the civilian reactors under IAEA 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.” Again, “We, of course, have the sovereign right to take all appropriate measures to fully safeguard our interests,” he added.

In responding to questions that were raised after he had spoken, he said again, “The nuclear agreement will not be allowed to be used as a backdoor method of introducing NPT type restrictions on India. Our offer to put nuclear facilities under safeguards in perpetuity is conditional upon these facilities securing fuel from international sources for their lifetime. If the fuel supply assurances as enumerated in Separation Plan are disrupted, then India will have the right to take corrective measures to ensure the continued operation of these reactors.” And yet again, “These safeguarded facilities will be eligible for and will receive fuel materials and technology from international sources. If such supplies cease, then India will be free to protect its interests through corrective measures.”

Three operational points flow from what he said. First, the US and the Nuclear Suppliers Group will commit themselves to supplying fuel without interruption to the reactors that are being placed under safeguards. Second, India’s offer of placing all our civilian reactors under safeguards “is conditional” upon this assurance being fulfilled. Third, should the US and others renege on this commitment — as happened in the case of Tarapur — India would exercise its sovereign right to take “all corrective measures”, to take “all appropriate measures”.

Officials of the US Administration have told the Congress time and again, and the Senate Bill builds on the fact that India is accepting safeguards (1) in perpetuity, and (2) without condition. To recall just a few observations from what the Secretary of State Condoleezza Rice told the Senate Committee on Foreign Relations, “Once a reactor is under IAEA oversight, safeguards will be in place permanently and without any conditions.” “We have been very clear with the Indians that the permanence of the safeguards is permanence of the safeguards without condition.” A little later, “The government of India has agreed that these safeguards will be in place in perpetuity...” Yet again, “Importantly, for the safeguards to be meaningful, India had to commit itself to apply IAEA safeguards in perpetuity; it did so. Once a reactor is under IAEA safeguards, those safeguards will remain there permanently and on an unconditional basis...”

What could the “corrective measures” be? Either that we will somehow get fuel from other members of the Nuclear Suppliers Group. Or that we will withdraw those reactors from safeguards. The first option is stamped out by the Senate Bill providing that the US president coordinate actions with other members of the Nuclear Suppliers Group so that, in the event of the US stopping supplies of fuel, equipment, technologies to India, no other member shall provide them. The second option is put down even more decisively: India is to put its reactors under safeguards in perpetuity and without condition — were it to go back on either of these features, the entire deal will be off, and all sorts of consequences — including the obligation to return to the US all plant, equipment, fuels, spares, etc. that it has obtained under the agreement as

well as all fuel, etc. that has been generated as a result of using these plants, equipment, etc.

So, what “corrective measures”, what “appropriate measures” does the Indian government have in mind, the Senators repeatedly asked administration officials. That is for the Indian government to spell out, they said. But two things are clear, they said: India will place all its civilian reactors under safeguards in perpetuity, and without condition — otherwise there is no deal. The Senate Bill proceeds on this basis. Where does that leave the “sovereign right” to which the prime minister referred? If all that the prime minister meant was that we can always withdraw our reactors from IAEA safeguards and take the consequences, well we could do that without the deal too!

Another obfuscation nailed

There is a related obfuscation that spokesmen of the government have been trying to feed us — that, by acknowledging in the 18 July Joint Statement India as “a responsible State with advanced nuclear technology,” the US in effect recognised us as a Nuclear Weapon State. This insinuation was sought to be reinforced by the expression that followed: “India would reciprocally agree that it would be ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States.” This was also given as the reason for the expression in the Separation Plan — namely, that India will “voluntarily” place two-thirds of its reactors under IAEA safeguards. That is how the Nuclear Weapon States place theirs, it was suggested.

Spin-doctors have been taking advantage of public innocence in these matters. Nuclear Weapon States enter into “Voluntary Safeguards”. These have two features, as Under Secretary Joseph observed during the Senate Foreign Relations Committee hearings: they “do not obligate the IAEA to actually apply safeguards and do allow for the removal of facilities or material from safeguards.” The second category is of “full-scope safeguards” by which a country places all its reactors under safeguards. This is what Non-Nuclear Weapon States undertake to do. India would fall in a third category: as in the case of Non-Nuclear Weapon States, the safeguards would apply in perpetuity — that is, once reactors are placed under safeguards, they would remain under safeguards for their entire life; and they would remain there without condition. But these safeguards would apply only to those reactors which India voluntarily declares to be civilian. This latter is the only sense in which the safeguards would be “India specific”.

The distinction is clear from what Under Secretary Joseph told the Senate Foreign Relations Committee: “We heard from other states at the recent NSG meeting that they would not support a ‘voluntary offer’ arrangement as, in their view, it would be tantamount to granting de facto Nuclear Weapon State status to India. We have similarly indicated to India that we would not view such an arrangement as defensible from a non-proliferation standpoint. We therefore believe that the logical approach to . . . a safeguards agreement for India is to use INFCIRC/66, which is currently used at India’s four safeguarded reactors.”

Condoleezza Rice too was asked about the status that India would have under US law as well as in regard to the IAEA. She said categorically, “While India has nuclear weapons and we must deal with this fact in a realistic, pragmatic manner, we do not recognise India as a Nuclear Weapon State

or seek to legitimise India’s nuclear weapons programme.”

“The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) defines a ‘Nuclear Weapon State’ as ‘one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.’ India does not meet this definition, and we do not seek to amend the Treaty to provide otherwise. US law adopts the NPT definition, so India is a Non-Nuclear Weapon State for purposes of US law.”

And this fact would determine the type of Additional Protocol that India would have to sign with the IAEA, Burns and Joseph explained. They were asked how this protocol would compare with “the very limited Protocol” that China has signed. They answered, “India pledged in the July 2005 Joint Statement to conclude an Additional Protocol with respect to its civil nuclear facilities. This goes beyond what is included in China’s Additional Protocol, which covers only certain cooperation with other countries. China, of course, is recognised as a Nuclear Weapon State, while India is not.”

The Senate Committee while forwarding the bill to the full Senate left no doubt on this score. It drew attention to Section 105(3) of the bill which requires that the safeguards be in perpetuity, and observed, “Subsection (3) adds the words ‘in perpetuity’ to the language proposed by the administration in Section 1(b) (2) of S. 2429 because permanent safeguards are vital to any assurance that civil nuclear commerce with a facility will not assist India’s nuclear weapons program. Safeguards in perpetuity are also key to not according India the status of a Nuclear Weapon State under the NPT, since only the NPT-recognised Nuclear Weapon States have heretofore been allowed to exclude (or selectively apply) the application of safeguards, in time or scope, to any facilities, materials and programs under their control. India will be allowed to determine which facilities are to be safeguarded, but will not be allowed later to remove those facilities from safeguards, as the recognised Nuclear Weapon States are permitted to do.”

During the debate on the floor of the Senate, senators went farther — not only is there a distinction between Nuclear Weapon States and Non-Nuclear Weapon States, they said; there will be a distinction between Non-Nuclear Weapon States that are signatories to the NPT and Non-Nuclear Weapon States, like India, that have not signed the Treaty. As Senator Biden, one of the co-sponsors of the bill, told the Senate, “The NSG is not likely to single out India as an exception to its guidelines. Rather, it will create tests that a non-NPT State must meet before nuclear commerce with the country may take place. The committee believes that such a test should be substantial, so that the countries outside the NPT are not all given the same benefits as the Non-Nuclear Weapon States inside the treaty. Thus, the bill before us today is designed to maintain important non-proliferation policies that have served our country well.”

And yet we are being sought to be fooled — “in effect recognised as a Nuclear Weapon State with all the rights and advantages that a country like the US has...”

Strategic reserves

Next, the prime minister told the Rajya Sabha, “An important assurance is the commitment of support for India’s right to build up strategic reserves of nuclear fuel over the lifetime of India’s reactors.” The clear implication was that India would be able to stock up fuel for these reactors beyond their immediate requirements so that, in case fuel supplies are interrupted, we can continue to operate the reactors.

American officials, on the other hand, were completely candid about what is contemplated. In written answers to the Senate Foreign Relations Committee, the two Under Secretaries handling negotiations with India, Joseph and Burns, stated, “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.”

And now, a formal clause has been incorporated by the Senate into the bill: “It is the policy of the United States that 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.”

In a word, we will be allowed only as much fuel as is “commensurate with reasonable reactor operating requirements.” Where does that leave the assurance about building “strategic reserves” to which the prime minister attached such importance?

(To be concluded)

Now let the PM square this circle

Arun Shourie: Tuesday, November 28, 2006

What had the prime minister drawn as the contours beyond which India would not budge on the Indo-US nuclear deal? Do the provisions of the bill as finally passed by the Senate fall within those contours? If they do not, how can the country now be made to swallow the deal?

The prime minister’s website records some of the responses he gave to the nuclear scientists when he met them after his statement of 17 August, 2006 in the Rajya Sabha. Asked about what India’s response would be if the US Congress passed the bills as they had emerged from the House and the Senate Foreign Relations Committee, Dr Singh said: “I had taken up with President Bush our concerns regarding provisions in the two bills. It is clear that if the final product is in its current form, India will have grave difficulties in accepting the bills. US has been left in no doubt as to our position...In their final form, if US legislation or the NSG guidelines impose extraneous conditions on India, the government will draw the necessary conclusions consistent with my commitments to Parliament.”

Dr Manmohan Singh had earlier told the Rajya Sabha itself, “We have concerns over both the House and Senate versions of the bill.” He had recalled the 18 July, 2005 Joint Statement and the Separation Plan that government had announced in March 2006, and added, “What we can agree with the United States to enable nuclear cooperation must be strictly within these parameters.”

The bill as it has been passed by the Senate is not just what it was then, and in accepting which the prime minister had said India “will have grave difficulties,” it now has provisions which, as we shall see, put it even farther outside the lakshman rekhas that Dr Manmohan Singh had drawn in the Rajya Sabha. But, lo and behold, the bill is being projected as a great breakthrough for the nuclear deal, indeed for India. The fact that the vote in the Senate was overwhelmingly in its favour, is being projected as a triumph of Indian diplomacy!

What had the prime minister spelled out as the contours beyond which India would not budge? Do the provisions of the bill as finally passed by the Senate fall within those contours? If they do not, how can the country now be made to swallow the deal?

Our foreign policy’s independence

To begin with, the prime minister told the Rajya Sabha: “I would, hence, again reiterate in view of the apprehensions expressed, that the proposed US legislation on nuclear cooperation with India will not be allowed to become an instrument to compromise India’s sovereignty. Our foreign policy is determined solely by our national interests. No legislation enacted in a foreign country can take away from us that sovereign right. Thus there is no question of India being bound by a law passed by a foreign legislature. Our sole guiding principle in regard to our foreign policy, whether it is on Iran or any other country, will be dictated entirely by our national interest.”

He returned to this issue in his response to questions that were raised after he had spoken. He again said:

“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.”

Asked a third time about the reference in the bills to Iran, he said yet again:

“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.”

Well, the bill as passed by the Senate requires, as a condition for the waiver authority to become effective, the president to certify that “India is fully and actively participating in United States and international efforts to dissuade, sanction, and contain Iran for its nuclear program consistent with United Nations Resolutions.”

Nor has this clause been included inadvertently. Even during the hearings of the Senate Foreign Relations Committee, a senator had closely questioned officials of the US government about a newspaper report that India was giving training to Iranian naval personnel, and had refused to believe their explanations that the ships in question had only made a port-call at Kochi. During the full debate on amendments, Senator Harkin, who introduced the Iran amendment, pointed at length to the fact that, while India had twice voted with the US in the IAEA, it had tried to keep Iran out of the reach of the Security Council and thus beyond the reach of sanctions. He drew attention to the resolution which India had joined in passing at the meeting of Non-Aligned Countries in Havana. He pointed to the “robust relationship” of India with Iran. He recalled that recently sanctions had to be imposed on two Indian firms for exporting chemicals to Iran which could be used for chemical weapons, and that the Indian External Affairs spokesman had claimed that the exports were “not in violation of our regulations or our international obligations.” “This is deeply disturbing,” the senator told his colleagues. “What this means is that India’s current export control laws are inadequate and do not meet the same high standards of US export laws.” He said, “India actively engages in military-to-military cooperation with Iran...” He told his Senate colleagues, “The ties between India and Iran are troubling.” “That is why I believe we must — through my amendment — require the president to provide a determination that India is actively supporting efforts to contain Iran’s nuclear program before he can waive existing restrictions on civil nuclear commerce with India.”

It was after all this that the Senate inserted the clause into the bill.

Now, it can be argued, and the prime minister has stated this on occasion in the context of Iran, that it is not in India’s national interest that there should be another state in the region that has nuclear weapons. Moreover, he has pointed out that, being a signatory to the Nuclear Nonproliferation Treaty, Iran must abide by the international obligations it has undertaken. The point is different. When what we must do on a matter as grave as this is made part of the law of the US and an agreement that we sign with it, our hands get tied. Tomorrow, the US changes its mind, we must, adhering to our international commitments no less, also change our mind! Yesterday, arming, financing the Taliban was good — to defeat the USSR; we would have had to believe it to be good. Today, Taliban are a scourge; we must believe that too, and act accordingly.

‘Full’ means ‘less than full’

Next, the prime minister placed great emphasis on the fact that the nuclear cooperation from the side of the US must be “full”. That is what the 18 July, 2005 Joint Statement had pledged, he pointed out. Nothing less would be acceptable. It is necessary to read his precise words:

“Let me now turn to some of the concerns that have been expressed on the second set of issues regarding possible deviations from assurances given by me in this august House on the July 18, 2005 Joint Statement and the March 2, 2006 Separation Plan. I would like to state categorically that there have neither been nor will there be any compromises on this score and the government will not allow such compromises to occur in the future.”

Recalling what had been stated in the Joint Statement and the Separation Plan, he emphasised, “This Separation Plan had identified the nuclear facilities that India was willing to offer, in a phased manner, for IAEA safeguards, contingent on reciprocal actions taken by the United States. For its part, the US administration was required to approach the Congress for amending its laws and the Nuclear Suppliers’ Group for adapting its guidelines to enable full civilian nuclear cooperation between India and the international community.”

Not to leave any doubt about what “full” meant, the prime minister reiterated: “The central imperative in our discussions with the United State on Civil Nuclear Cooperation is to ensure the complete and irreversible removal of existing restrictions imposed on India through iniquitous restrictive trading regimes over the years. We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from nuclear fuel, nuclear reactors, to re-processing spent fuel, i.e. all aspects of a complete nuclear fuel cycle.”

“... We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above.”

And a third time: “We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy — ranging from supply of nuclear fuel, nuclear reactors, reprocessing spent fuel, i.e., all aspects of complete nuclear fuel supply. Only such cooperation would be in keeping with the July Joint Statement.”

But Section 106 of the bill as passed by the Senate expressly prohibits “export or re-export to India of any equipment, materials, or technology related to enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water.”

Nor is this accidental. Article 1 of the Nuclear Non-proliferation Treaty binds the US not to directly or indirectly assist any non-nuclear weapon state to acquire or manufacture nuclear weapons. All the three items listed in Section 106 are useful for producing nuclear weapons. Its existing laws also explicitly prohibit the US from allowing the export of any technology relating to these aspects. Officials of the US administration state that they have made this plain to Indian negotiators time and again.

Both in the report of the Senate Foreign Relations Committee and during the debate in the full Senate, members drew attention to the fact that non-proliferation of nuclear weapons remains a key objective of US policy, and of this agreement with India too. They pointed out that enriched uranium, reprocessed spent nuclear fuel and heavy water are used for production of nuclear weapons. They recalled that in an important address to the National Defence University in February 2004, President Bush had spoken of the loophole in Article IV of the NPT that “enables non-nuclear weapon states to acquire all forms of nuclear technology, including sensitive uranium enrichment and plutonium reprocessing facilities, as long as they are under IAEA safeguards and are used exclusively for peaceful purposes.” In particular,

President Bush called on the Nuclear Suppliers Group to “tighten its export control guidelines by prohibiting the export of enrichment and reprocessing technology and equipment to countries that do not already operate enrichment and reprocessing plants.” In fact, the president had gone further and urged the Nuclear Suppliers Group to also ban such transfers: “The 40 nations of the Nuclear Suppliers Group,” he had said, “should refuse to sell enrichment and reprocessing equipment and technologies to any state that does not already possess full-scale, functioning enrichment and reprocessing plants.” He had also noted that “enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.”

Condoleezza Rice and the under secretary who has been negotiating this deal with our officials, Nicholas Burns, both testified before the Senate Committee that the US would not allow transfer of equipment, materials or technologies for any of the three purposes. They told the Senate Committee that they had already informed the Nuclear Suppliers Group that the US would not allow such transfers to take place. Accordingly, while testifying before the Senate Committee, the Under Secretaries, Burns and Joseph, stated that “full civil nuclear cooperation will not include enrichment or reprocessing technology.” And, furthermore, that the administration was not contemplating any transfers of these relating to production of heavy water either. During the debate, the sponsors of the bill, like Senator Biden, themselves recalled these statements of the president and other officials of the administration. They said that such prohibition was necessary in view of US laws; in view of US obligations under Article I of the NPT; and in view of the fact that one of the principal objectives of the US remains the limitation of military uses of nuclear energy. As one of the co-sponsors of the bill, Senator Biden, told the Senate, Section 106 is designed to legally prohibit such transfers because “these technologies are all used to produce fissile material for nuclear weapons. In fact, the administration already has a worldwide policy of not exporting these technologies.” “Some Indian officials are reportedly upset because 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.”

I am sure the senator must not have had our prime minister in mind — for the latter is known the world over for being free of pride!

The senators said that they were deliberately making the prohibition tighter than IAEA safeguards: the latter prohibit the transfer only of nuclear materials; the bill they were sponsoring prohibited not just materials but, in addition, technologies that may help in any of the three spheres.

Nor does the bill just prohibit the US from transferring materials, equipment and technologies that may assist in enriching uranium, reprocessing spent fuel or in production of heavy water. Section 103(7) of the Senate Bill imposes a further duty on the president. It lays down: “Given the special sensitivity of equipment and technologies related to the enrichment of uranium, the reprocessing of spent nuclear fuel, and the production of heavy water, to work with members of the Nuclear Suppliers Group, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India.”

In view of the categorical pledge of the prime minister that “We will not agree to any dilution...” in this regard, that “Only such cooperation would be in keeping with the July Joint Statement” as encompasses all aspects of the fuel cycle “ranging from supply of nuclear fuel, nuclear reactors, reprocessing spent fuel,” etc., by what rationalisations will the government now accept the deal?

(To be continued)

Third Demension to the N-threat We Face

Arun Shourie

Remember that incident in April 1996, about the ring magnets? "Baseless", the Chinese thundered.

When they could not deny the sale any longer, they acknowledged the shipment but insisted that the ring magnets were for hold your breath -- windshield wipers for cars!

And anyone who didn't take their word for it was part of an evil conspiracy. When no one bought that silly story, they insisted that, whatever the ring magnets may have been for, the sale had been made by their atomic agency without the knowledge of the Central Government!

Even so, in May 1996, China gave a commitment that it would not sell or in any way transfer anything or provide any form of assistance for unsafeguarded nuclear facilities.

But just a while later, their shipment of high-temperature furnaces and high technology diagnostic equipment for Pakistan's Khushab plant was caught -- the Chinese had full knowledge that Khushab is an unsafeguarded facility: they had helped build it in the First place!

At first it was the same story: Vigorous denial, allegations that conspirators were trying to denigrate China, which remained a responsible nuclear State fully alive to its responsibilities and commitments.

Within months, China changed track again: The sale had indeed taken place, the Chinese Government now said, but it had taken place a while before May 1996!

The sequence on missiles is exactly the same. China was nailed exporting M-11 missile technology to Pakistan. For that reason the US had, by its law, to impose sanctions on China.

In November 1991, China gave a verbal assurance to the US, records the CNS website, that it would adhere to the Missile Technology Control Regime [MTCK] guidelines.

The US lifted the sanctions. In February 1992, China gave written assurances on this count.

But in August 1993, the US had to impose sanctions once again as China continued the transfer of M-11 missile technology, to Pakistan.

China denounced the sanctions as "groundless", and, the website reports, threatened the US that it would scrap its promise to abide by the guidelines.

In October 1994, China signed a joint statement with the US agreeing to ban all exports of MTCR-class missiles, and the US agreed to lift the sanctions.

But soon it was found that China continued to transfer what it had been transferring.

"Ballistic missiles per se are not weapons of mass destruction," its analyst wrote in an official publication, "but rather a carrier vehicle. Likewise, fighter aircraft are also a carrier vehicle that can carry nuclear, biological, and chemical weapons... Limiting missile exports without limiting fighter plane exports is clearly a double standard."

In any case, the commitment we had made was that we would not transfer missiles, China said, but these are just components and parts of missiles.

For reasons we shall notice in a moment, the Clinton administration had been bending backwards to paper over what China had been doing.

But in April 1997, even its Deputy Assistant Secretary of State Robert Einhorn had to say, during his testimony before a Senate Committee.

"We have had no reason to believe that China has violated its pledge not to export such missiles. However, concerns about transfers of missile-related components, technology, and production technology persist, raising serious questions about the nature of China's commitment to abide by MTCR guidelines."

At the least, said Einhorn, China does not Interpret the commitments we think it has undertaken the way we and other MTCR members do.

Moreover, he added, exempting the Chinese government from being held responsible, "as we learn more about current Chinese procedures for controlling missile-related goods and services, we become more skeptical about the ability of Beijing's control system to implement missile restraints effectively."

In September 1997, The Washington Post reported that the Clinton administration was preparing to certify that China was adhering to commitments not to export nuclear weapons-related material to countries such as Pakistan and Iran.

"Experts say China continues to exchange, of views on issues or mutual concern, the Prime Minister said, adding that it has been supplemented by the exchange of views at the official level, including the framework of the joint working group. Mr Vajpayee said that through these exchanges India had conveyed to the Chinese, side concerns arising from actions affecting the country�s sovereignty, territorial integrity and security. He stated that bilateral trade between the two countries had recorded a rapid growth in the last few years.

Bilateral trade for 1997 amounted to $ 1.83 billion, an increase of 30.2 per cent over 1996. He said there, was considerable Potential to expand bilateral economic and commercial co-operation. Mr Vajpayee said the exchanges in diverse fields including the military, have continued to develop in recent years.

The then Union Defence Minister Sharad Pawar had visited Beijing in July 1992, which had led to commencement of exchanges between the military establishment of the two countries, he said. Recalling that China's President Jiang Zemin visited India in November 1996, the Prime Minister said the two sides agreed to build a constructive and cooperative relationship oriented towards the 21st century.

The Pioneer
June 4, 1998

The Pakistani Bomb is, and has been, a Joint Venture

Arun Shourie
"But What was the immediate threat?," ask the pundits. "Why now?," they demand. I K Gujral adds the considerable weight of having been Prime Minister to the argument: as one who had access to secret information as Prime Minister, he tells Parliament, I say that when I left office there was no threat that warranted the explosions.

By 1969 Gujral was in Mrs Gandhi�s inner circle. Mrs Gandhi had the first explosion in May 1974. Could Gujral tell us what was the immediate threat in May 1974?

The shafts in which the explosions have been conducted now were dug in 1981. And they were dug and prepared because Mrs Gandhi had decided that we had to move to the next stage, and a series of explosions had to be undertaken. Could someone go back to those days and tell us what was the immediate threat in 1981?

The decisions taken, second thoughts set in: and that unfortunately was not special to the nuclear programme -- Sanjay�s death had disoriented Mrs Gandhi, she began to hesitate and fumble on every matter.

But, as Mr R Venkatraman has confirmed, the decision was retaken in 1983: he has said that he personally went down in the shaft to see things for himself. Any recollection of what was the Immediate threat then?

Rajiv decided in 1990 to have the explosions conducted. Scientists were revved up. Any recollection of what...?

Narasimha Rao scheduled to have the tests done In December 1995. Any recollection of what...? The news leaked to the Americans. They publicised the plans. And brought to bear the requisite pressure -- something which was not hard to do on that Government.

Gujral says that when he left office there was no threat. How come then that simultaneously his Defence Minister Mulayam Singh claims credit for having "signed the file" for the tests? The Defence Minister�s secret information versus the Prime Minister�s secret information?

But so much of the information is public knowledge that one has no option but to conclude that the effort these personage should have devoted to planning a response, they expanded on shutting their eyes.

Everything that follows has been taken from American sites on Internet. Much of it is from the sites maintained by the Centre for Non-proliferation Studies, Monterey Institutes of International Studies, Monterey, California -- that is, the very first sites to which anyone with the slightest interest in the subject will go.

The pattern the information reveals hits one like a truck. First, to the knowledge of every concerned authority, Pakistan has been for twenty years single-mindedly pursuing a nuclear weapons programme: that programme has been nothing but a nuclear weapons programme, as will become obvious in a moment. Second, its own efforts towards this goal floundered almost at the outset: it, therefore decided to buy, smuggle, steal, get whatever was necessary -- for this reason, its programme has been a clandestine one.

Third, its principal helper in the venture has been China.

How very short public memory Is, how assiduously facts are obscured from our people -- that is what strikes one as one reads the facts today. For all of them have been published from time to time -- Just that Prime Ministers do not seem to have read them, and the rest of us, attaching no Importance to them, soon forgot them.

28 January, 1998: In the Hearing of the Senate Select Committee on "Current and Projected National Security Threats," the Director of the CIA said, "Conventional arm sales have lagged in recent years, encouraging Chinese defence industries to look to WMD (Weapons of Mass Destruction) technology sales, primarily to Pakistan and Iran, in order to recoup. There is no question that China has contributed to WMD advances in these countries."

There has been a tightening recently, the CIA Director said more on this in a moment -- and added, "But China's relations with some proliferant countries are long-standing and deep, Mr Chairman. The jury is still out on whether the recent changes are broad enough in scope and whether they will hold over the longer term. As such, Chinese activities in this area will require continued close watching."

June 1997: In his report on The Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, July-December 1996, the Director of the CIA said that during the period covered by the report China "was the primary source of nuclear-related equipment and technology to Pakistan."

7 August, 1996: In its annual report on "Adherence to and Compliance with Arms Control Agreements," the US Arms Control and Disarmament Agency stated, "Prior to China�s NPT accession, the United States concluded that China had assisted Pakistan in developing nuclear explosives. Since China's accession to the NPT, it appears that China may have continued to assist Pakistan's unsafeguarded nuclear program and may have continued contacts with elements associated with Pakistan's nuclear weapons related programme. The United States Government has continuing concerns regarding possible continuation of China's past nuclear weapons assistance to Pakistan and Beijing's compliance with its NPT obligations."

September 1996: The Washington Times, a paper which has been following Chinese activities in this sphere with diligence, cited a report of the CIA dated 14 September 1996, saying that China had sold a special industrial furnace and high technology diagnostic equipment to unsafeguarded nuclear facilities in Pakistan -- "unsafeguarded" facilities are ones which are being kept by the country out of the reach of international inspection agencies.

The Centre for Non-proliferation Studies account of the news story records, "The equipment reportedly is of a dual-use nature and could be applied to either civilian or military applications. The report also said that Chinese technicians were in Pakistan in September 1996 to install in the equipment. The China Nuclear Energy Industry Corporation (CNEIC) reportedly may have arranged the transfer.

According to the CIA report, 'In the aftermath of CNEIC�s ring-magnet sale to Pakistan and China's May 11 commitment not to provide assistance to unsafeguarded nuclear facilities, senior-level government approval probably was needed for this most recent assistance'. The report also alleged that China planned to submit false documentation on the equipment�s final destination. High-temperature furnaces (also called vacuum or 'skull' furnaces) can reportedly be used to mould uranium or plutonium into bomb cores for use in nuclear weapons, and mould titanium for missile nose cones and other key components. The equipment may have been headed for Pakistan's Khushab heavy water reactor."

The Centre records that the Pakistani Embassy spokesman vigorously denied the sale: "We deny that there was any nuclear-weapons related transfer to Pakistan." As usual Pakistan saw itself as a victim: "I regret to say," the spokesman solemnly declared, "that we seem to be becoming the victims of a series of leaks, some of which are... simply motivated or inspired by the electoral fever in the United States and by their own internal shadow-boxing among themselves."

The Chinese were cleverer -- we did it, but earlier, they exclaimed! The Chinese Embassy spokesman dismissed The Washington Times report as "groundless," recalls the CNS site. It had conducted an internal investigation of the sale, the Chinese Government told the US Administration, and had established that the sale had taken place in late 1995 and early 1996 -- that put the sale a few convenient months before China signed the pledge on May 11, 1996!

Late 1995: "The CIA told the State Department," recalls the CNS account, "that a China National Nuclear Corporation (CNNC) subsidiary, the China Nuclear Energy Industry Corporation (CNEIC) had supplied Pakistan's unsafeguarded state-run A Q Khan Research Laboratory in Kahuta, a reported nuclear weapons laboratory with 5,000 specialised ring magnets for the top suspension bearing of high-speed gas centrifuges to be installed at the facility. The deal was valued at between $ 50,000 - $70,000."

"Ring magnets" are devices used in centrifuges which can make weapons-grade enriched uranium.

"Groundless", fumed China. It warned" the US not to impose sanctions on the basis of mere "rumours." Pakistan was as vehement. Soon China acknowledged that a sale had indeed taken place --- but that the China Nuclear Energy Industry Corporation had made the sale on its own! The central Government of China had not known! A sale of components vital for a nuclear weapons programme, a sale by a Government Corporation, a sale by a Corporation of not just any Government but of the Government of China, and yet "it was made without our knowledge"!

1994, 1993: Agreements signed with much fanfare between Pakistan and China for financing and deepening their cooperation for Pakistan's "peaceful" nuclear programme. But this time let us start from the earlier dates in the CNS sites.

1974: Convinced about what Pakistan was up to, "Western countries embargo nuclear exports to Pakistan........"

1977: "Leybold Heraeus of Hanan Germany sells Pakistan vacuum pumps and equipment to be used in uranium enrichment........"

1981: "Albert Goldberg is arrested in November at a US airport while attempting to ship two tons of zirconium to Pakistan. Zirconium is used in nuclear reactor operations that can lead to nuclear weapons........"

1983: "China reportedly supplies Pakistan with enough highly enriched uranium for one to two nuclear weapons.... China supplies Pakistan with a complete design of a 25kt nuclear bomb.... Senior Pakistani nuclear scientist Dr Abdul Qadeer Khan orders over 6,000 tubes made of special steel to be used for uranium enrichment... In June a US State Department memo says that US intelligence agencies believe the Pakistani centrifuge program is intended to produce material for nuclear weapons.... In July a report published in the USSR says that Pakistan can make five atom bombs in a year."

1984: "Pakistani citizen Nazir Vaid is caught smuggling electronic components, potentially useful for nuclear weapons, from the United States."

1985: "In July a US television station reports that Pakistan has tested US-made krytron electric triggers in conventional explosions. Krytron triggers can be used in the detonation of nuclear devices."

1986: US intelligence agencies allege that Pakistan is producing highly enriched uranium, which may be used in nuclear weapons... In September Pakistan conducts 'cold tests' of a nuclear implosion device at Chagai."

1987: "Pakistan acquires a tritium purification and production facility from West Germany. The plant can produce up to 10g of tritium daily. Tritium can be used to produce a thermonuclear device."

1989: "A 27k research reactor (PARR-2) is built at Rawalpindi with Chinese assistance... Western intelligence sources indicate that China is arranging for Pakistan to tests its nuclear device at China's Lop Nor nuclear test site."

1990s: "China reportedly provides assistance for the construction of the Chashma plutonium reprocessing facility."

1991: "In September, Prime Minister Benazir Bhutto said that Pakistan could 'rapidly produce' a nuclear weapon in the event of a serious threat."

1992: "In February, Pakistani Foreign Secretary Shahryar Khan confirmed that Pakistan has the components necessary to construct at least one nuclear weapon...

1993: "China's National Nuclear Corporation begins work on a 300MW pressurised-water reactor at Chashma... A report by The Stockholm Peace and Research Institute (SIPRI) says that approximately 14,000 uranium-enrichment centrifuges have been installed at Kahuta... German officials seize approximately 1,000 gas centrifuges bound for Pakistan."

1994: "Former Prime Minister Nawaz Sharif says Pakistan has a Nuclear bomb."

1996: "Pakistan expects to complete its unsafeguarded 40 MW heavy-water reactor at Khushab. US officials believe that the reactor is being built with Chinese assistance....

Three conclusions stare one in the face:

The threat comes not from the recent explosions which Pakistan has carried out. it has consisted in the programme -- single-minded and clandestine -- which Pakistan has been pursuing for twenty years to acquire nuclear weapons.,

Its principal supplier and guide in this programme has been China;

Information about this programme, as well as about the pivotal role of China in it, has been public knowledge.

And yet the assertion, "As Prime Minister I had access to secret information. And on the basis of that I tell you -- with full sense of responsibility -- that when I gave up my office, there was no threat."

All I can say is that perhaps Prime Ministers are kept so busy reading "secret information" they have no time to notice what is staring everyone in the face.

But even this is but a part of the story, as we shall see.

The Pioneer
June 3, 1998