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 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.
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)