An empty claim?

Source: Indian Express

Monday , Sep 08, 2008 at 2352 hrs

Arun Shourie

Manmohan Singh and his spokespersons have said times without number that the US has assured India of “uninterrupted fuel supplies”. They have pointed to Article 5(6) as proof to say that the 123 Agreement enshrines this commitment. I had pointed out at that very time that the Article is just a face-saving farce. Manmohan Singh had told Parliament that the Americans had assured him that they would ensure “uninterrupted fuel supplies”, and that this would be provided in the 123 Agreement. In the event, the Americans did not budge an inch, they refused to incorporate any assurance to this effect in the 123 Agreement. At the last minute, to pleas that something had to be done to save face of the Manmohan Singh Government, they agreed to cut and paste his statement saying that in the 123 Agreement such an assurance shall be incorporated. But this was the 123 Agreement! What was to be provided in this 123 Agreement was left to some future 123 Agreement!

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Yet, the people here were sought to be fooled - we have got the Americans to promise us “uninterrupted fuel supplies”. Indeed, the insinuation went further - it was almost as if fuel supplies could not now be stopped under any circumstances. In answer to question 15 and again in answer to question 18, the US government states that only if fuel supply is interrupted for no fault of India, shall the US assist in resuming it. Thus, if some US firm fails to live up to its commitment to supply fuel, or if there is some disruption in global markets, the US will chip in. But if, for instance, we test; or we default in the account we keep of uranium we import, mine and use; or if we default on any of the numerous conditions prescribed in the 123 Agreement, the Hyde Act, the agreement with the IAEA, as well as under the guidelines of the NSG, and, as a result, fuel supply is stopped, the US will most emphatically not step in to restore fuel supplies.

Similarly, while we have been fed the fiction that the US has agreed to our building “strategic reserves” of fuel so that our reactors are not subjected to the Tarapur experience, twice in this document — from answers to questions 19 and 20 — we learn that there is no assurance to this effect. That India can secure fuel only, as the Obama amendment in the Hyde Act provides, for “reasonable operational requirements”. Not just that. The replies reveal that what this phrase - “reasonable operational requirements” - implies is not clear at all!

Manmohan Singh has repeatedly asserted that, in the event fuel supplies are interrupted or other difficulties are created, India has the right to take “corrective measures”. What is this magic bullet, we have wanted to know. Of course, there has been no answer. The US Congress asked Bush’s officials the same question. What does the Indian PM mean by “corrective measures”? The suggestion has been that, if things don’t turn out to our satisfaction, we can always withdraw our reactors from safeguards.

The answer to question 25 and again the answer to question 42 show how empty a claim this is. The Indian Government has not described what the expression means, the US Government says: we expect India to live up to the letter as well as the spirit of its commitment that it shall adhere to the safeguards “in perpetuity”. Furthermore, says the US Government, quoting the precise words to which persons like me had drawn attention in Parliament, the Secretary of State, Condoleezza Rice, has told the US Congress, “We have been very clear with the Indians that the permanence of the safeguards is the permanence of safeguards without condition.”

When the text of the 123 Agreement became public, I had drawn attention to the minatory Article 16. This provides that, should India, in the judgment of the US, step outside its commitments, even if the Agreement is terminated, the US shall have the right to get back every bit of nuclear material, every bit of non-nuclear material, every reactor, component, every ounce of fuel it has supplied under the Agreement. This position is reiterated in answers to questions 41 and 42.

Manmohan Singh keeps repeating, and so do the managed parts of the media, that India’s right to test remains unaffected. The US Congress as well as officials of the US Government have made it absolutely clear that the moment India tests, even if it is for peaceful purposes, the 123 Agreement will be terminated, and all nuclear commerce will stop. These consequences shall follow immediately. This position is reiterated in this document not once but four times - in answers to questions 16, 17, 37 and 38.

But it is not only in regard to tests that the government has woven falsehoods. The answers make two further things explicit. First, a test by India is not the only circumstance which triggers these consequences. It is just one of the circumstances that will invite the termination of the Agreement and the stoppage of all nuclear commerce. Other circumstances will be, such as a “material violation of the 123 Agreement, or termination, abrogation, or material violation of International Atomic Energy Agency safeguards.” Notice the “such as” that I wrote in the preceding sentence: these are not the only circumstances that will trigger the consequences. The answer refers to them with vital prefatory words, “for example”. Second, as the answer to question 38 puts it, that this is the import of Article 14 of the 123 Agreement is clear and well understood by India as much as by the US.

The final blow, the one that comes in response to the last question, number 45, is devastating as it shows how blatantly the Manmohan Singh Government has been lying. It has been maintaining that in the 123 Agreement, if nuclear commerce with India is stopped, the US Government has pledged that it will assist India to get the supplies, etc., from other members of the NSG. This sort of an assertion could be made only on the belief that everyone concerned is an idiot. Yet, not only has it been made, it has been swallowed and spread by sections of the media.

The Hyde Act binds the US Government to ensure the opposite — namely, that, if it terminates the 123 Agreement and stops nuclear commerce with India, it shall ensure that India cannot get the supplies from any other member of the NSG. That position is reiterated, and the pledge that the US Government will indeed ensure this is repeated in answer to question 45. The US Government has drawn attention of the Congress to the guidelines that exist in the NSG, and pledged that they will apply in case the US stops nuclear commerce with India.

Paragraph 16 of the NSG guidelines, the US government says, “provides that suppliers should (1) consult if, inter alia, one or more suppliers believe there has been a violation of a supplier/recipient understanding; (2) avoid acting in a manner that could prejudice measures that may be adopted in response to such a violation; and (3) agree on “an appropriate response and possible action”, which could include the termination of nuclear transfers to that recipient.” If the NSG agrees to the exception for India, the US Government assures, this guideline “would apply in the case of any nuclear transfers by a Nuclear Suppliers Group supplier to India.” And yet the falsehoods continue.

And now comes the NSG waiver. Hailed as a great victory for the country, it seals the three-year-long effort to get India into the two-layered net — a layer to limit the country’s ability to enhance its strategic capabilities; and the second layer that follows from the first: as we will not be able to acquire the sinews ourselves. To secure us against China, we will necessarily have to seek protection under the American umbrella.

Recall that the Hyde Act has several provisions that prescribe what India must do in regard to the Fissile Material Cutoff Treaty, the Wassenaar Arrangement, the MTCR, the Proliferation Security Initiative. Manmohan Singh declared in Parliament that these are “extraneous provisions” and that India shall not accept them. Just the other day, Pranab Mukherjee repeated, “We shall not accept any prescriptive conditions.” “The waiver must be unconditional and clean”, the Government has been saying all along.

The waiver, which is being hailed as a great national victory, states that it is being given as India has undertaken “the following commitments and actions.” Among these is the pledge that it shall continue its moratorium on tests. Both as a result of the 123 Agreement with the US, and now by the pledges made to the NSG, the Government has converted what was a voluntary decision into a pledge that is now a binding international commitment.

And make no mistake, it is a commitment for the indefinite future. For, as Japan has stated after the meeting, nuclear commerce with India shall cease the moment it tests. Second, exactly as the Hyde Act requires, India has pledged “its readiness to work with others towards the conclusion of a multilateral Fissile Material Cutoff Treaty.” Yet, we are fed the lullaby: “The Hyde Act does not apply,”

Third, having entered the cage, we are now subject to scrutiny by NSG members in accordance with, to take just one instance, part 2 of the NSG guidelines. These say, in portions, that each member country shall have to be satisfied that India’s “statements and policies” “are supportive of nuclear non-proliferation” and that our actions are “in compliance with its international obligations in the field of non-proliferation.” The “non-proliferation” that concerns us is not of our giving nuclear technology or materials to others, but of our developing our strategic weapons.

Put this requirement alongside the statement that Pranab Mukherjee made on behalf of the Government to secure the waiver. In that statement the Government pledged that India shall desist from “an arms race including a nuclear arms race,” and that it will join steps being taken towards disarmament and non-proliferation. But all those agreements — the MTCR, the FMCT, the Wassenaar Arrangement, the PSI — agreements and arrangements about which Manmohan Singh had said India has “reservations”, which he said are “extraneous” to the nuclear deal, are one and all regarded by the NSG members as steps that are necessary for non-proliferation. By pledging to abide by guideline 2 of the NSG, and to have our “compliance in this regard to be assessed by each member before and as it trades with us, we pledge ourselves to signing up on each of them. It is not for nothing that, after the meetings, Germany, which had been presiding over the meetings, declared that India shall now have to undertake to work for the “entry into force of the CTBT and a termination of fissile material production for weapons.” Exactly what the Hyde Act prescribes.

Finally, contrary to the falsehood that the Government has been feeding us, that should the US stop nuclear supplies to India, it is bound by the 123 Agreement to help India obtain them from other countries, the waiver has been given on the condition that all members shall ensure the opposite.

Paragraph 3(e) prescribes as follows: Participating Governments will maintain contact and consult through regular channels. For the purpose of considering matters connected with the implementation of all aspects of this Statement taking into account relevant international commitments or bilateral agreements with India. In the event that one or more Participating Governments consider that circumstances have arisen which require consultations, Participating Governments will meet, and then act in accordance with paragraph 16 of the Guidelines.

And that paragraph requires that all members act in such a way that, if one country decides to terminate nuclear supplies to a recipient country, in this case India, that recipient is not be able to obtain the supplies from elsewhere. Exactly what the Hyde Act asked the US Government to ensure, and exactly what the US Government pledged in that letter to the US Congress it would ensure.

And yet, “The Hyde Act does not apply,”; “the US administration letter has no force of law”; “a national victory”. The Government has taken the country into a chakravyuh — the consequences will unfold one by one. As for the media, I can only plead with great sadness in my heart, do not make yourselves an instrument of falsehoods. The consequences far transcend your momentary shows and “stories”.

US aims to make us strategically subservient: Shourie

Source : IBNLIVE.com

How credible are the Bhartiya Janta Party’s concerns about the 123 agreement and the NSG waiver? Those are the key issues Karan Thapar explored on the Devil's Advocate with one of the parties most outspoken critics Arun Shourie.

Karan Thapar: Let’s start with your central objection that the 123 agreement traps India into Hyde Act which will end up emasculating and crippling its nuclear deterrent. Now that India has got a waiver from the Nuclear Suppliers Group (NSG) and can trade with countries like France and Russia, hasn’t the 123 become irrelevant and, therefore, haven’t your concerns and objections become academic?

Arun Shourie: Each time something happens, we say let’s wait for the next one. This is to be seen as a chakravyuh, as an architecture. There are certain things in the Hyde Act, the123 agreement, the IAEA protocol, and there are certain thing in the additional protocols, which are yet to come, which has already been specified in the Hyde Act. In the NSG waiver, there are three other things, so it is all to be taken as a part of architecture.

NSG waiver in the end says that if any member country of the NSG is satisfied that conditions have arisen that it must stop nuclear commerce with India, then all countries should act in accordance of Paragraph 16 of the NSG guidelines.

Karan Thapar: This was in your series of articles in The Indian Express and I’m afraid you’re wrong. You’re referring to Paragraph 3e of the NSG waiver. Paragraph 3e doesn’t say this at all. All Paragraph 3e says is that NSG countries are required to consult and contact on the implementation of the waiver. It does not go as far as you’re suggesting

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Arun Shourie: There is no reason we should have any doubt on that. So I’ll read out to you what it says. I’m reading paragraph 5e: “In the event that one or more participant governments consider that circumstances have arisen which require consultation, participating governments will meet and then act in accordance with Paragraph 16 of the guidelines.”

Karan Thapar: And that does not specify that all countries would stop just because one has stopped. Your interpretation is not just wrong but it is, forgive me, exaggerated.

Arun Shourie: It’s not either. It is exactly the interpretation of the Americans themselves. It is the assurance they have given to their Congress.

Karan Thapar: I’m afraid you’re wrong. The American Ambassador speaking to the Network 18 programme Indian Tonight on Wednesday made it crystal clear that Paragraph 3e does not amount to your interpretation. It doesn’t even amount to a periodic review. It is simply a process of contact and consultation on the implementation of the waiver.

Arun Shourie: That is not what the US Government has told the US Congress. Mr Mulford’s statement should be seen in that context.

Karan Thapar: Forgive me, the US government has not as yet communicated with the US Congress about the NSG waiver at all.

Arun Shourie: No, please understand what they have said in their record of their answers to questions of 45…

Karan Thapar: But that’s not in connection with the NSG waiver. That at best has a connection with the 123. The NSG waiver only happened last Saturday. Paragraph 16 doesn’t lead to automatic termination. I’m afraid your interpretation is a part of the confusion that’s entered into the debate.

Arun Shourie: That’s not the case at all. You’re spreading confusion. You please read the text once.

Karan Thapar: I have read the text. I have researched it thoroughly before I came here. I double-checked with the American Ambassador when he was here on Wednesday. I double-checked with the Indian authorities. No one believes that your interpretation of that paragraph is correct. That’s why I’m saying to you that your concerns emanate from the 123 but now with the NSG coming into place, the 123 is irrelevant. Therefore, your concerns have become academic and irrelevant.

Arun Shourie: Absolutely not. Paragraph 16 of the NSG guidelines provides as follows: “In the event that one or more suppliers believe that there has been a violation of supplier/recipient understanding avoid acting in a manner that could prejudice measure that maybe adopted in response to such a violation.”

Karan Thapar: That does not mean that they have to act in a particular way. Once again you’re over-interpreting.

Arun Shourie: You don’t see the implication of all this?

Karan Thapar: I do — you’re over-interpreting. You’re seeing the worst possible interpretation that is based upon a misunderstanding, perhaps, I would even say, a wilful misunderstanding.

Arun Shourie: That is absolute bunk and nonsense and you’re using words that are not justified by the text. Text clearly says exactly what the Hyde Act has said — if America terminates the trade if it believes India has not acted according to the Hyde Act…

Karan Thapar: For the 123, not the NSG. You’re confusing the two.

Arun Shourie: No. The two are part of an architecture. You have raised these nonsensical words such as exaggerated and wilful misunderstanding…

Karan Thapar: Explain to me why you think that the NSG allows for the whole of the NSG terminating the trade ties because one country terminates. It is against the NSG guidelines…

Arun Shourie: That is not the case. The US government is obliged to ensure under clause 16 of the guideline that if it terminates its commerce with India all other countries will coordinate.

Karan Thapar: That’s Hyde Act you’re talking about. You’re now interpolating that into the NSG guidelines. The NSG is not subject to the Hyde Act. NSG has its own rules. Individual countries of the NSG don’t observe the Hyde Act regulations and stipulations. You’re reading one into the other.

Arun Shourie: … because they are part of an architecture. We have gone to the NSG and the IAEA as a consequence of the 123 and the Hyde Act.

Karan Thapar: I accept that but the essential point you’re missing and, this is the one I want to emphasise, is that now that we’ve got the NSG waiver, the 123 has become academic and irrelevant. If India chooses not to go ahead with the 123, the Americans will be angry and will deem us to as ungrateful but we would have opened a window to unfettered commerce with the NSG, particularly with countries like Russia and France who are not going to accept America’s regulation s on their head.

Arun Shourie: If that were the case, Russia and France would have already entered into nuclear commerce with us despite American blockade.

Karan Thapar: We are the country that has held back. They are keen to go ahead. Their ambassadors have communicated that much to us.

Arun Shourie: That’s only now.

Karan Thapar: No, it was earlier.

Arun Shourie: That is since the statement of the Prime Minister in February 2007 in regard to the four plants that Russia was prepared to give us. We raised the maintenance question — that you went to Russia and the Russians said that the agreement was ready, then why did you not sign it.

Karan Thapar: As a gratitude to America so that they had an even plain field for their companies. It wasn’t because of any legality.

Arun Shourie: That is what I’m trying to say. This is from February 2007. The sanctions we had on Uranium 20 years before that were only of America. But we could not go to France and Russia.

Karan Thapar: The NSG waiver has ended the experience of 30 years. That’s a significant step. What I’m saying is that people may believe or disbelieve your concerns with the 123. They may be valid, they may be invalid but now that that waiver has opened up opportunity for trade with the NSG countries, your concerns with the 123 and the Hyde Act are overtaken and hence irrelevant because they don’t apply to the NSG.

Arun Shourie: When the 123 agreement came you said ‘oh but the Hyde Act is irrelevant.’ Now that the NSG waiver has come, 123 has become irrelevant.

Karan Thapar: That’s because 123 and Hyde Act don’t affect NSG countries. They are separate, sovereign countries.

Arun Shourie: No. It’s a part of the architecture and India will have to pay the consequences after this waiver, as Germany and Japan have said.

Karan Thapar: Let me quote to you the leading non-proliferation authority, Daryl G Kimball of the Arms Control Association in America. He’s made it absolutely crystal clear that the restrictions of the Hyde Act have not been incorporated in any shape and form into the NSG. The Bush administration resisted efforts to incorporate in the NSG waiver the same restriction and conditions on nuclear trade that are mandatory to US law. Now I come back to my point: your concerns about the 123 are academic because they don’t apply to the NSG. The NSG has opened a new window which doesn’t have the same

restrictions and it actually makes up for the deficiencies of the 123.

Arun Shourie: Till yesterday you were saying there are no deficiencies in the 123 and that my interpretation of the Hyde Act is overblown. Now you’re saying all that is academic and NSG is all that counts. That’s not my interpretation. We can go on in circles about this.

Karan Thapar: The NSG waiver doesn’t put any restriction on fuel supply or assurances or upon the size of strategic deterrent that India can develop.

Arun Shourie: We were told the opposite — the NSG waiver will provide for a positive statement about India building strategic reserve, and that IAEA protocol will provide for India taking corrective steps in case…

Karan Thapar: It does permit corrective steps. The IAEA protocol in its preamble does permit corrective steps for India but it doesn’t specify what they are. By definition, corrective steps are something you can’t specify because then you lose the sovereignty of defining them.

Arun Shourie: When we quoted the preamble of the Hyde Act, everybody said the preamble is non binding, but in the IAEA safeguards you say they are binding.

Karan Thapar: In the case of the Hyde Act, George Bush in his signing statement in December 2006 specified that he would not honour and go by section 103 and the preamble. He said so and that’s why people argued that it’s not binding.

Arun Shourie: Again, another complete distortion. Bush’s signing statement had two points that in regard to foreign policy and seeking the determination of American foreign policy to an international body like NSG he would not give up US presidential powers

Karan Thapar: And he would therefore not implement section 103.

Arun Shourie: What is section 103?

Karan Thapar: The one that we’re talking about.

Arun Shourie: Not at all.

Karan Thapar: Yes. The whole of interpretation of the Hyde Act is irrelevant to the NSG

Arun Shourie: You are making assertions about the Hyde Act which are absolute bunk.

Karan Thapar: The NSG has given India fuel assurances. There is no bar on the size of strategic reserve. It gives India unlimited access under NSG concerns to non proliferation and enrichment technologies. It also allows India the right to reprocess. All of those were deemed to be deficiencies by some analysts — deficiencies in the 123 that have been taken care of by the NSG.

Arun Shourie: You are just completely fabricating things which are not there in the guidelines at all. Where is this bit about unlimited supplies in the NSG guidelines?

Karan Thapar: There is no bar. The NSG waiver permits India access to fuel supplies without restriction, it permits India to develop strategic reserves without limitation, it permits India access to proliferation technologies that are so defined to do with enrichment and reprocessing.

Arun Shourie: You are completely lying through your teeth to your viewers.

Karan Thapar: The point is — there is no bar on them. This is a waiver which is an exemption.

Arun Shourie: Karan this is your technique; you slip in your words and mislead the viewers.

Karan Thapar: Do you still believe that your concerns which are limited to the Hyde Act and the 123 apply to NSG countries, which are not subject to the Hyde Act or the 123? Do you still believe it?

Arun Shourie: Absolutely.

Karan Thapar: They have no sovereignty?

Arun Shourie: The NSG will work as a club. It says it will coordinate its efforts. Article 16 of the guideline specifies that they must coordinate their efforts. If one country is satisfied that conditions have arisen in which there has been a violation by the recipient country, they will all coordinate the effort.

Karan Thapar: Let’s come to the politics behind your concerns with the nuclear deal. For many people, the BJP is the architect of the relationship with America, which is today culminating in the Indo-US nuclear deal. Yet today, by some amazing transformation, the BJP has converted itself into the principal opponent to its own vision for the future.

Arun Shourie: BJP is the architect of strategic relationship, not of strategic subservience, and we believe that this architecture puts us in a position in which we would have to accept the American umbrella…

Karan Thapar: America’s aim is to make India strategically subservient. Is it a trap that America has set for India?

Arun Shourie: Of course.

Karan Thapar: Atal Bihari Vajpayee was the man who called America India’s natural ally. And today you’re saying that America has set a trap for its natural ally?

Arun Shourie: It is an ally and you have to be very cautious with this ally. Just see what they have made of Pakistan and several other countries.

Karan Thapar: Middle class supporters were exultant when the waiver was granted. Today you are putting yourself in opposition to them.

Arun Shourie: Are you the only one who understands the middle class? Don’t we know about the middle class? It will have consequences for the next three decades and we believe that it does subordinate India in a strategic relationship which is just a first step.

Karan Thapar: Isn’t it interesting that you’re arguing the same point which the CPM in China raised? So is BJP on the side of China when it comes to Indo-US nuclear deal?

Arun Shourie: You can get the CPM fellows and ask them that aren’t they ashamed of the fact that they are arguing the same thing as BJP. Is this even an argument?

Karan Thapar: Why does China not want the deal to go through? They believe that it would give India an opening which should be resisted. You seem to be arguing China’s case for them.

Arun Shourie: I’m arguing that in my view we have a great threat from China and we can not rely on the US umbrella to face it we have to strong independently.

Karan Thapar: Do you have no second thoughts about your criticism on the NSG waiver? You may be right about the Hyde Act, you may be right about the 123, but are you still critical on the NSG waiver?

Arun Shourie: Of course not.

Karan Thapar: Arun Shourie, a pleasure talking to you.

Arun Shourie: Thanks.

Necessity is the mother of fabrication too

Arun Shourie: Tuesday, December 11, 2007

Cut through the hype on the Indo-US nuclear deal, and all you have is the possibility of a marginal contribution to our nuclear energy generation. For this, our strategic interest is being mortgaged in perpetuity

India’s uranium deposits are limited and of low grade,” Hindustan Times declared on December 12, 2006, in a large, prominently displayed, boxed item. “The uranium available today can fuel only 10,000 reactors...” Ten thousand reactors? The total number of commercial reactors in the entire world today is just four hundred and forty. With uranium enough for 10,000 reactors, are we short of ore?

In the same account, we were instructed that “the nuclear deal can save us from the increasing energy deficit by helping install up to 40,000 MW of new nuclear capacity by 2015.” Assuming reactors that generate 500 MW each — the size of our new experimental fast breeder reactor, double the size of several of our current reactors — that would mean eighty new reactors being commissioned in the next eight years: that is, one new reactor coming into operation every five weeks.

The account proceeded to declare that India’s “nuclear electricity capacity” shall “see a 10-fold increase” by 2020. The account noted that at present we are producing 3,310 MW electricity from our nuclear plants. The paper’s forecast would, therefore, mean that electricity generation from our nuclear plants will increase to 33,100 MW by 2020. Assuming a plant-load factor of even 80 per cent — a third higher than the one at which our plants are working today — to generate this quantum of electricity, would entail setting up a capacity for over 40,000 MW. Even in its most optimistic forecasts — and we will have occasion to learn a bit about these soon enough — the Department of Atomic Energy has been putting the figure at half that level!

But that was not the end. Polishing up the deal further, the Hindustan Times informed its readers that by 2050, an astronomical “200,000 MW of nuclear energy can be produced”. We would presumably have more reactors by then than the whole world has today. As my friend T.C.A. Rangachari once said, “Jo hyper-bole so nihal.”

This has been one of the main strengths of the government over the past two years — the utter innumeracy of our media exceeded only by its utter willingness to put out anything. “Killer amendments dropped, India’s concerns taken care of,” the papers proclaimed — when, in fact, as even the most cursory glance would have shown, each and every one of the clauses was very much a part of the Act. “Objectionable clauses non-binding,” they proclaimed — when, in fact, neither our government nor that of the US was able to furnish any list of which clauses were binding and which were non-binding, and, of course, the Act itself made no such distinction.

But the enthusiasts had a ready reason for not studying the Act! “Laden with numbing bureaucratese and legalese,” The Times of India declared on its front page, in its — what else should one call it? — “analytical report” of the Hyde Act on December 9, 2006, “littered with sections, sub-sections, clauses, sub-clauses and footnotes, it has enough statements, caveats and requirements to make heads spin”.

How much easier then to just concoct! For it isn’t the precise figure that propagandists count on remaining in the mind, nor the precise assertion but the general impression — in this case, that the nuclear deal will light up the bulbs, that the concerns which had been expressed have been met. How much easier to abuse: those who were pointing to the provisions of the US legislation were charged with being “obsessed with clauses and sub-clauses”, to be “anti-deal jihadis”. And to put out stories, ‘Advani softens’ ‘Rajnath says if concerns met...’ I had attended every single meeting of the BJP leaders at which the nuclear deal was deliberated upon. At no meeting at all had the leaders felt that either new evidence or new argument had surfaced which required that the assessment be changed. And yet, ‘BJP softens...’ And this after written statements were put out repeatedly over the signatures of the principal leaders themselves.

The press, of course, has been the instrument in all this — that itself is as deplorable as it is worrisome. The wielder of the instrument has been the government. And its fabrications can fill a volume.

The myth of power

As the desperation to justify the deal has swelled, in the government’s reckoning the contribution that nuclear power can make to our energy needs has swelled!

In the Approach paper to the 11th Five Year Plan, which was put out with the usual fanfare in December 2006, the word ‘nuclear’ occurs just twice. The first time is in the context of housing: we are instructed that, along with growing numbers, nuclear families are creating the need for more housing. The second time it occurs is just to state that policies must be evolved to ensure swift completion of hydro and nuclear projects.

But by the time we get to the Report of the Working Group on Power for Eleventh Plan (2007-12), which was put out in February 2007, imagineering takes over the Planning Commission and its experts. The report notes that nuclear capacity at the end of the 10th Plan is liable to be 3900 MW. Reviewing the projects that can be completed in the 11th Plan, the report concludes that capacity addition during the 11th Plan (that is, by 2012) shall be 3160 MW. And then comes a sudden leap: the report says that during the 12th Plan (that is, between 2012 and 2019), 13,500 MW of capacity shall be added.

Pause for a moment and ask, how has this figure — of 13,500 MW — been arrived at? One explanation is, of course, generic: the more distant the date for which you are putting out a figure, the more daring you can afford to be! The second is specific to the figure. You see, when asked what it can aim at for 2020, the Department of Atomic Energy has been in the habit of saying, almost as a reflex, ‘20,000 MW’. Hence, the working group figure: our present capacity is for 3900 MW; add to that what can be constructed at best during the 11th Plan: that makes, 3900 MW plus 3160 MW, that is 7060 MW. To jack the figure up to 20,000 MW by 2020, 13,000 MW or so will have to be added in the 12th Plan. So, that is what we will declare as added! QED!

But assume this sudden leap is executed in the 12th Plan. Another document tells the tale the government has conjured up because of the deal. This government’s main study on the energy sector has been the report of another committee set up under the overall rubric of that habitual legitimiser, the Planning Commission. The committee had the usual stellar cast. Its report is entitled Integrated Energy Policy and was put out by the Planning Commission in August 2006. At page 37, in Table 3.4, the report gives two sets of possible figures for installed capacity of nuclear power — a set for a ‘pessimistic scenario’ and another set for an ‘optimistic scenario’. The capacity for 2020 in the former is put near the usual DAE figure, 21,000 MW. Under the ‘optimistic scenario’, it is put at 29,000 MW — far higher, you will recall, than even the working group figure, but still not so high as to sell the deal. To locate the sabz bagh in the name of which the government has been marketing the deal, you have to look at the figures for 2030: 48,000 MW in the ‘pessimistic scenario’ and 63000 MW in the ‘optimistic scenario’.

That the credulity of even the authors of the report was being strained is obvious from the note they add to this table. They record, “These estimates assume that:

•“the FBR (Fast Breeder Reactor) technology is successfully demonstrated by the 500 MW PFBR (Prototype Fast Breeder Reactor) currently under construction,

•“new uranium mines are opened for providing fuel for setting up additional PHWRs (Pressurised Heavy Water Reactors),

•“India succeeds in assimilating the LWR (Light Water Reactor) technology through import and develops the Advanced Heavy Water Reactor for utilising Thorium by 2020.”

Anyone who has the least familiarity with what the Times of India would have called ‘bureaucratese’ will see through to the extreme skepticism that the authors — heavily pressurised reactors, if I may say so — are trying to convey. By the time three pages have passed, the pressure has taken the better of the reactors: in listing “some energy supply scenarios for 8 per cent GDP growth”, they go for “maximum nuclear”, which they say “assumes nuclear development as per the optimistic scenario of Table 3.4.” The “pessimistic scenario”? Press “Del” for delete!

That apart, what would we have to do to get from 20,000 MW in 2020 to 63,000 MW by 2030 — that is, how do we add 43,000 MW in 10 years? If we put up 500 MW reactors, that will require that we put up over 80 reactors in 120 months: that is, we bring into operation one reactor every one and a half months; if we put up 1000 MW reactors, that will require over 40 reactors — that is, we bring into operation one reactor every three months.

But take one more leap of faith.

Assume that the reactors are set up at this pace. What do we get at the end?

The report states, “Even if a 20-fold increase takes place in India’s nuclear capacity by 2031-32, the contribution of India’s nuclear power capacity to India’s energy mix is also, at best, expected to be 4.0 to 6.4 per cent.” (Integrated Energy Policy, Volume I, xxii.)

Notice what the experts are saying:

•Even if —

•There is a twenty-fold increase

•The contribution to capacity — not to actual generation

•Shall at best be....

For this marginal contribution, indeed for the possibility of this marginal contribution, our strategic interest is being mortgaged in perpetuity.

While the government peddles the deal as the magic lamp that will, as the papers have been putting it, “end the nuclear winter”, which will open “the nuclear trove”; while the government peddles the deal as the master-stroke that will ensure “energy security”, the government’s principal document on energy acknowledges the obvious: “If the sanctions by the NSG (Nuclear Suppliers Group) are removed and India is able to import uranium and nuclear power plants, nuclear power can play a much bigger role in the power sector. The capacity growth then would not be constrained by Table 3.4. However, if energy security concerns are our primary driver towards nuclear (sic), then imports of LWRs (Light Water Reactors), even though more economical, may have to be limited to restrict our dependence on energy imports.” (Integrated Energy Policy, p. 48.)

Alternatives

Contrast this contribution with just three of the many alternatives that are available. Citing an Asian Development Bank study, Integrated Energy Policy states (on p. 81) that demand-side management has the potential for affecting a peak saving of “at least 15 per cent of total generation”. The report lists several methods by which these “megawatts” may be secured — every megawatt saved is a megawatt generated. In fact, I am instructed by Commission staff themselves, this is the order of saving that comes about merely from the adoption of more efficient end-use appliances. The correct figure of this potential is not 15 per cent but 19 per cent to 22 per cent: this is the difference between the efficient and inefficient energy scenarios projected on pages 48-49 of the report.

Consider a second alternative. The working group on power itself indicated that the potential of hydro power in just our northeastern states is 58,000 MW.

Add to this what can be secured through partnering with Nepal. The current cost of a reactor — a cost that is bound to leap higher, as we shall see — is around $2.5 billion per reactor. For generating the 35,000 MW that the government’s representatives had mentioned in Parliament, we will have to spend $91 billion. For those mythical 63,000 MW, mentioned by the Planning Commission’s Integrated Energy Policy, we will have to spend $158 billion. Now, the total budget of the government of Nepal is about $1.6 billion. You could offer to defray the entire budget of the Nepalese government for 60 to 100 years, and invite it to together build a string of hydro power projects with money raised from the market, and you will still come out better: you would have got power from a perennial, renewable source; you would have alleviated the problem of floods in UP, Bihar and the rest; you would have converted a neighbour into a friend.

But that is just half the story.

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