‘But there is nothing new’

Posted: Saturday , Sep 06, 2008 at 0157 hrs
Arun Shourie
 Source: Indian Express

Sep 06, 2008 at 0157 hrs 

But why now? Why on the eve of the NSG meeting in Vienna?” — the cry went up. Entirely predictably: when they can’t deal with the facts of a disclosure, the embarrassed always demand, “But why now?” Should we not, on the contrary, be grateful that, at least at this penultimate hour, someone has awakened us to what the government is bartering away in Vienna? Is there an inauspicious time for being awakened to the facts? “The secret letter has been revealed by a known opponent of the nuclear deal,” they say — as if the fact that the person disclosing the document is a known opponent of the deal, in some way dilutes the veracity of the text! And this from a newspaper that discloses secret documents every other week!

“But there is nothing new in the US Administration letter to the Congress,” say the spokesmen of the government, and its apologists in the media. Actually, that very fact, as we shall soon see, makes things all the worse. Indeed, the American ambassador, David Mulford, has been more specific: he has said that the letter that the administration sent to the US Congress contains nothing that has not already been shared with the Indian government. In a word, the government has known all these facts all along, and has yet continued to assert its falsehoods to the contrary for months on end. The US administration letter, in fact, reveals more: on point after point, it reveals that the Indian government, while asserting falsehoods to the contrary here in India, has not just been in the know of what the Americans were extracting, it agreed with the construction the Americans had put on the clauses in question.

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“Falsehoods” is the right word, make no mistake.

“The Hyde Act does not apply to us,” government spokesmen have been insisting. “We are bound by the 123 Agreement alone.” Indeed, as recently as July 2 this year, the prime minister’s office asserted, “the 123 Agreement clearly overrides the Hyde Act and this position would be clear to anyone going through the provisions.” That is patent nonsense. Article 2 of the 123 Agreement provides that in implementing it, the two countries shall be governed by, among other things, their “national laws”. What are the national laws of the US in this regard? The Atomic Energy Act of 1954 and the Hyde Act. Does the Hyde Act apply or not?

But clauses apart, even a fool can see through the lie in that: does the Hyde Act apply to the Americans or not? That is all that is required for the consequences listed in the Act to follow. Suppose we test. What are the Americans bound to do in return by law? Both by the Hyde Act as well as the original Atomic Energy Act of 1954, they must immediately cease all nuclear commerce with India. By both these Acts as well as the guidelines of the NSG, they must ensure that every other member of the NSG also ceases all nuclear cooperation with India. In a word, by the laws that apply to them, the Americans have to bring upon us the full weight of sanctions. What comfort is it that the sanctions fall upon us by laws applicable to them and not applicable to us?

That simple and brutal fact is compounded by the 123 Agreement. In Question 3, the US Congress asks the Bush administration, “Does the Administration believe that the nuclear cooperation agreement with India overrides the Hyde Act regarding any apparent conflicts, discrepancies, or inconsistencies? Does this include provisions in the Hyde Act which do not appear in the nuclear cooperation agreement?” In turn, the Bush administration says that the 123 agreement “is in full conformity with the Hyde Act,” that it is “consistent with the legal requirements of both the Hyde Act and the Atomic Energy Act” — both of them, incidentally, require that, to take just one example, the agreement be terminated forthwith the moment India conducts a test, even for “peaceful purposes”.

The prime minister has said over and over again that the cooperation shall be “full”, that it shall cover all aspects of the full nuclear cycle. In particular, that India shall have full access to “sensitive technologies”. Anything less, Manmohan Singh has said again and again, shall be inconsistent with the statement he had signed with Bush, and India shall not accept such a dilution. Persons like me have pointed out from the beginning that this just cannot be the case, that the Americans have an unambiguous policy in this regard, a policy that has been reiterated personally by Bush as well as by the US Congress — namely, that countries like India shall not be given access to technologies for enrichment, reprocessing or heavy water production. Manmohan Singh has gone on repeating, “Full means full”.

And as proof, the government’s propagandists have been pointing to Article 5(2) of the 123 Agreement. This clause in fact is just a sleight of words. It says that these “sensitive technologies... may be transferred to India under this agreement pursuant to an amendment to this agreement.” Even then, the clause clearly records, the transfer “will be subject to the Parties’ respective applicable laws, regulations and license policies.” Hence, three conditions: (a) “may be”; (b) “pursuant to an amendment to this agreement”; and (c) “subject to the Parties’ respective applicable laws, regulations and license policies.” In spite of this, the Government’s propagandists have kept repeating that India has won access to these sensitive technologies.

In its answers to not one but six questions (questions 4 to 9) from the US Congress, Bush’s administration says six times, that the sensitive technologies will not be transferred and that there is no proposal at all to amend the 123 Agreement!

Similarly, government spokesmen have maintained that our right to reprocess spent fuel has been recognised. Indeed, Manmohan Singh himself has said that our reprocessing rights have been recognized so much so that they shall be “permanent”. The answers to questions 26 and 29, as indeed Articles 11 and 12 of the 123 Agreement itself, indicate that we shall be able to reprocess the spent fuel only in a facility (a) set up at our cost; (b) under IAEA oversight; (c) and only in accordance with “arrangements and procedures” to which the US agrees. As for the right being “permanent”, the answer to question 44 gives the lie. The answer does not just reiterate that the “arrangements and procedures” under which the reprocessing may be done shall have to be agreed to by the US; it says, “the proposed arrangements and procedures with India will provide for withdrawal of reprocessing consent.” Permanent?

Manmohan Singh has insisted all along that India shall not accept any oversight or inspections other than what it shall agree to under the “India specific safeguards” in its agreement with the IAEA. Persons like me drew attention to the stern and absolutely unambiguous statements of Condoleezza Rice; to the report of the joint committee of the US Congress; as well as to the provisions of the Hyde Act, which specifically provided that India shall have to accept “fallback safeguards” - that is, should, in the judgment of the IAEA or the US, the IAEA be unable to perform its inspections adequately, the US shall have the right to institute inspections and other measures of oversight through other agencies - its own or those of some other international bodies. Even as it was asserting the contrary, Manmohan Singh’s Government, agreed to have these additional inspections and restrictions through Articles 10 and 16(3) of the 123 Agreement. All that was done was that instead of the US inspectors being called “inspectors”, they were called “experts”. Through these clauses, India agreed to ensure for them the fullest access to sites and data that they wanted to inspect.

In its answers to questions 10 to 13, the US administration has reiterated four times that, yes, there shall be these additional fallback safeguards and inspections. Not just that, the administration tells the US Congress that, in addition to pledging that it is accepting IAEA safeguards and inspections in perpetuity, the Indian government “fully appreciates that paragraph 1 of Article 10 of the Agreement does not limit the safeguards required by the Agreement to Agency (that is, IAEA) safeguards.” In a word, while we were being told the exact opposite — “We shall not allow American inspectors to roam around our facilities” — the Manmohan Singh government had accepted that very roaming around.

To be concluded

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.

‘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)

Forward-looking farce

Arun Shourie: Saturday, August 18, 2007

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

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

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

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

— It scotched the PM’s assurance about “strategic reserves” — reserves on which we could fall back in the event of not just normal disruption of market supplies, but sanctions — as happened in the case of Tarapur — by specifying in Section 103(b)(10): “Any nuclear power reactor fuel reserve provided to the government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements”.

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

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

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

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

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

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

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

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

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

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

The Article continues:

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

• “The United States will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors”

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

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

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

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

A very sad affair

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

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

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

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

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

Singular objective

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To be concluded

The way out

Arun Shourie: Saturday, December 23, 2006

Looking at atomic power as the major component of our electricity supplies in the future has been India’s basic strategic flaw. As far as nuclear reactors are concerned, look to them principally for our weapons programme, not for electricity — for we do have other ways of securing electricity

But the Vajpayee government itself started the discussions for this deal,” the government’s apologists shout. Would the fact that Vajpayee’s government recommenced discussions with China on the border justify surrendering Arunachal to China tomorrow?

“But Vajpayee himself announced a voluntary moratorium on further tests,” they shout. A voluntary moratorium is one that can be ended at our discretion should circumstances so warrant. What is being done under this new law of the US is to convert a voluntary moratorium into a legally binding bilateral agreement.

“But Vajpayee himself told the UN General Assembly that India was willing to convert its voluntary moratorium into a de jure one,” they shout. The position the government took was that India would do so by signing the CTBT when forty four countries signed up to bring it into force. These countries included the US, China, Pakistan, and the 41 others that are listed in the draft. As the US Senate itself has rejected the CTBT, where is the question under that statement for converting our voluntary moratorium into a de jure one?

In any event, the government is bound by what the present PM assured Parliament. He emphatically told Rajya Sabha on August 17, “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.”

But the first step

In a word, the US Congress has not attached the slightest weight to the assurances the PM has given to Parliament. Instead, the most stringent features from the House and Senate Bills have been taken and incorporated into the final Act.

And this is but the first round. Remember what the two Under Secretaries of State, Robert Joseph and Nicholas Burns, told the Senate Foreign Relations Committee. Pressed about the aspects that had not been covered, Burns and Joseph urged the Senate to “resist the temptation to take actions that will prejudice our ability to realise the important and long-standing nonproliferation objectives embodied in the initiative.” They urged it to see that “The commitments India has made under the Initiative are a significant gain over the status quo.” From four reactors being under safeguards, to two-third — that is, 14 — of the existing ones being under safeguards, to 90 per cent of them being under safeguards in the coming years. And they said, “We believe the best course is to lock in the significant gains reached and then seek to achieve further nonproliferation results as our strategic partnership advances.”

Since the Act was passed, we have witnessed lobbying more blatant than anything I have seen in the 35 years that I have followed Indian public affairs, the twisting and misrepresentation more shameless than I have seen. This feverish activity itself betrays that we should look closely at what is being done.

The way out

Yes, energy is an important objective. Yes, good relations with the US are important. One possible source was cooperation with the US in this field. But that cooperation, evidently, comes with an unacceptable price tag. Stop looking to this deal as the key to better Indo-American relations. Stop looking to Americans for nuclear energy. Stop looking to nuclear energy as a significant component of our electricity supplies.

This last factor — looking to atomic power as a major component of our electricity supplies in the future — has been the strategic flaw which has landed us in this quicksand. The sequence of the government’s reasoning has been:

• We need huge quantities of energy.

• Nuclear energy has to supply 35,000 megawatts of what we need — against the 3,500 megawatts it supplies today.

• While we have the requisite reserves of natural uranium, we are not able to get enough of it out of the ground for the reactors.

• Hence, the operating/plant-load factors of all the reactors have been falling since 2000. Therefore, we need imported uranium.

• Therefore, we need this agreement.

• Therefore, we have to accept the conditions that go with this agreement.

Now, it is true that with the quantities of uranium that we are currently mining and milling, we cannot pursue both — that order of power generation as well as our weapons programme — simultaneously. If for electricity one uses X amount of uranium, I was instructed, for weapons, one needs 7X. That is why we have had to come to two decisions:

• Limit the weapons programme.

• Go in for imported uranium fuel — whatever the conditions attached to securing it.

The way out is six-fold

First, as far as nuclear reactors are concerned, look to them principally for our weapons programme, not for electricity — for we do have other ways of securing electricity, but we do not have other routes to nuclear weapons.

Second, for energy look to other clean sources. For instance, clean coal; methane through coal; most important, hydroelectric power. I remember studies that have been done about the enormous potential for the latter in just the Northeast. The 5-6 stage Dihang-Subhansiri project itself has the capacity to generate 22,000 megawatts. NHPC is now executing one part of it, and this alone will generate close to 2,000 megawatts. I remember how for a decade the Dibang project had been languishing with the Brahmaputra Board; that board was almost comatose, in any event it did not have in its charter the authority to raise money for projects; we strove to get it transferred to NHPC; NHPC is now executing the project; even this project has the capacity to generate 3,800 megawatts... This is the route to energy self-sufficiency, to energy security. We have the technology. We can fabricate the turbines and ancillary equipment right here. The projects will generate jobs in the numbers that we need.

Third, intensify uranium mining and milling. A myth has been spread by interested parties as well as by those who have not been able to get the irritants out of the way, that we do not have adequate natural uranium. A good corrective to such propaganda is an excellent study done by none other than Ashley Tellis, one of the architects of this very nuclear deal, and one of its most persuasive advocates.

Entitled Atoms for War? it shows that we have much more than enough of uranium. (The study can be downloaded from www.carnegieendowment.org/publications). Tellis notes that India is widely acknowledged to have reserves of 78,000 metric tons of uranium — some estimates put the figure higher. Using the most optimistic plant-load factors, he calculates that all the reactors currently in operation as well as those that are under construction and the weapons programme over the entire lifetime of these plants will require 14,640 to 14,790 metric tons of uranium. He shows, next, that if the eight reactors that India has declared it will use for military purposes were to allocate a quarter of their cores for the production of weapons-grade material, the total amount of natural uranium that would be needed to run these facilities for the remaining duration of their lives would be between 19,965 to 29,124 tons. Finally, the fuel required to run over their entire life cycle the two research reactors that are used for producing weapons-grade plutonium will be 938 to 1,088 tons. The two last steps would yield India 12,135 to 13,370 kilograms of weapons-grade plutonium. This would be sufficient to increase our arsenal by 2,023 to 2,228 nuclear weapons. The total uranium required to run over their entire lifetime all these facilities, would thus use up just a third to one-half of the uranium deposits that are already known to exist.

Tellis writes that the present shortage of uranium is “a temporary aberration”, caused by impediments, removing which is within our capacity. Getting the courts, tribal leaders, activists to see reason. Firming up our land acquisition procedures. These are the sort of steps that are required. Is it not idiotic that we should close all options for the future; that we should mortgage our country’s security just because we cannot get around these self-created problems? Instead of going down on our knees for imported uranium, we should:

• Invest the amounts that are required for increased uranium mining and milling

• Solve land acquisition problems.

Fourth, we should spur DAE and AEA to be more focused. We should make them more accountable: if peer reviews are the way to spur them, government should institute such reviews.

Fifth, we must redouble research on the breeder programme. The key here is to have the reactors breed in a reasonable time — if the fuel is doubled in, say, five years, we can set up the second reactor in five years and we will have the fuel it needs; but if this doubling is going to take 30 years, we will have the fuel we need for it only 30 years from now. Kalpakkam notwithstanding, much work remains to be done. Once it is done, however, our reactors will be generating more fuel than they will be using, and we will be free of dependence altogether. That will be the time for looking to nuclear plants as a substantial source of electricity.

Finally, we are always being told that we have the largest reserves of thorium in the world. But it isn’t at all clear how far we are from the technologies that are needed for exploiting them. We need a new kind of robotics. We need automation that can withstand the enormously high temperatures that materials will attain.

In a word, instead of going on running after the Americans for reactors and fuel, these are the routes the government should set the country on.

(Concluded)

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)

The ‘non-binding’ myth

Arun Shourie: Thursday, December 21, 2006

In the Act, there is no categorisation of sections into binding and non-binding. We are left with assurances proffered in private by US officials that some provisions will be ‘non-binding’. Will we rest our country’s security on these? And if we do, what is the guarantee that the next Administration will also disregard the clear enunciations of the Act passed by Congress?

Just as at every step, we are told, “But you must wait for the next step,” so whenever we point to section upon section which will so manifestly jeopardise India’s security, we are told, “But that is not binding.”

During the discussion in Rajya Sabha on August 17, on behalf of the government, member after member declared, “But this is just a law passed by a foreign legislature. It does not bind India.”

“It binds the US President, does it not?” I had to ask. How can he negotiate an agreement that violates the Act? Indeed, under the American system the Senate is the one that has the ultimate power to approve or reject international covenants. President Woodrow Wilson was one of the principal architects of the League of Nations. The Senate threw out the treaty. President Clinton twisted the arms of many a government to make them sign up on the CTBT. The Senate rejected the treaty.

Now there is an even more telling question to consider: does the Act passed by the US Congress not bind even the US Congress? The question is decisive — because of what the Congress did in this case to the proposal of the Bush Administration.

The Bush Administration had proposed that, after the two sides have signed it, the 123 Agreement should be allowed to come into force unless the Congress passes a specific ‘Resolution of Disapproval’ within 90 days. The record of the hearings before the Senate Foreign Relations Committee documents, as does the report of that committee to the full Senate, how strongly the senators objected to this proposal. They condemned the proposal as a totally unacceptable device to whittle down the powers and rights of Congress, and they rejected it decisively.

Were the Congress to pass a ‘Resolution of Disapproval’, the president can veto it, they pointed out. To set that veto aside, a new resolution will have to be passed — but this would require a two-thirds majority. And such a majority is difficult to muster, they noted.

The Joint Explanatory Statement which the conference of the two Houses submitted to them along with the final bill records the strictures explicitly, and shows the purposes that the US Congress sets out to accomplish by overturning the proposal of the Administration. The relevant passages are indeed worth reading — they give the lie to the alibi that the government, its stooges, and the American spinners are peddling. In rejecting the Administration’s proposal, the Joint Explanatory Statement says, “In effect, the Administration’s proposal would have given it excessive latitude in negotiating a nuclear cooperation agreement with India, leaving Congress with little ability to influence the terms of that agreement, regardless of any concerns it might have.

“Both the House International Relations Committee and the Senate Foreign Relations Committee rejected this approach, believing that the Administration’s proposal did not provide for appropriate congressional oversight over what was, by any measure, an unprecedented nuclear cooperative relationship with India. Both committees were troubled by the lack of consultation by the Administration with Congress before the July 18, 2005 Joint Statement and the March 2006 US-India Declaration (in which the terms by which India would separate its civil and military nuclear facilities and further commitments by the United States were announced).”

For these reasons, the US Congress has legislated that the procedure will be the opposite of what the Bush Administration had proposed. The 123 Agreement will come into force only if the Congress — if each House of the US Congress, separately — passes a specific ‘Resolution of Approval’ within 90 days of the agreement being submitted to it. If such a resolution is not passed, the agreement will not come into force. That the vote on the resolution will not be just a blind one; that the Congress will make sure that the 123 Agreement fulfils the conditions it has prescribed in the Act, is evident from the foregoing passages itself — the Congress is determined to “influence the terms of the agreement,” it is determined to see that the Administration does not whittle down its power of oversight. The point is put beyond doubt by what the explanatory statement proceeds to say: “However, any such agreement cannot enter into force until it has been submitted to the Congress, along with a completed IAEA-India safeguards agreement and other documents and presidential determinations such as a Nuclear Proliferation Assessment (required by the AEA and by this legislation, as detailed in the section-by-section review of this report), and approved by both Houses according to the existing procedures of Section 130(i) of the AEA.”

Is the Congress insisting on these documents just to enable senators to write articles? Is it anybody’s case that the Congress will approve an agreement that the US President enters into even though that agreement skips past and thus violates a law the Congress has itself passed?

The Act is a complete scheme. It sets out the ‘Sense of the Congress’ about the principles that are to govern US policy in this sphere. It sets out, next, particulars of the policy through which those principles are to be realised. Then the specific instruments through which that policy is to be implemented. And, finally, the determinations and reports that the US President must submit to the Congress certifying the extent to which those instruments are securing the policy objectives that the Congress has laid down.

Furthermore, there is no categorisation of sections among binding and non-binding. American spinners keep saying, and it is sad to see how many of our pressmen they are able to have parrot, “but that is non-binding”. I have for three months asked them, “But why don’t you give us a glossary of what is binding and what is not binding?” Each time, those officials and educators have said they will send a “marked up copy” of the legislation showing what alone is binding. They have not sent one.

The other day, when the three educators came to me, there was a new variant on this spin: “We can’t. The Congress will be after us. But let the Indian Government say that such and such sections are not binding, and we will not contradict it.”

Asking for acts of faith

American officials say in private, as one of the principal architects of the deal tried at length to convince me, that the Administration is determined not to let the provisions that are causing concern in India come in the way. We will get our lawyers to study the Act, they say, and tell us which are the sections not complying with which would amount to a violation of the law. The Administration, they say, will implement only those sections. Like every Administration since Nixon, this Administration will just not have the Congress encroach on the Executive’s right to implement foreign policy, they proclaim. Of course, no official will be prepared to say so in public, they say, but you can be confident on this score.

We are thus left with affirmations proffered in private. Even a fool will see that to rest our country’s security on these private statements will be a reckless act of faith. But assume, for a moment, that you can believe these averments in the case of this Administration. What guarantee is there that the next Administration — and that is just a year away — will have the same view about disregarding the clear enunciations and provisions of the Act passed by Congress?

In any case, even this Administration has not shown the slightest discomfort with the contents of the Act as it has been passed. In its dispatch of December 13, 2006, rediff.com quotes Nicholas Burns as saying, “The Congress did make a number of adjustments that we think deal in large part with some of the objections that India had registered and we are very grateful to the Congress for the leadership. I called Congressman (Tom) Lantos yesterday and I thanked him for the leadership Congress had given.” “We are contacting all the members of the committees who voted to thank them for their support.” Does that indicate any reservations? Any willingness to defy the Congress?

Moreover, my educator said, we believe that India will not go in for a test unprovoked. If some significant event occurs in the neighbourhood — for instance, if China or Pakistan tests some new generation of atomic weapons — whichever Administration is in office in the US will understand and have a very different response than was the case in 1998. This argument entails not one but five acts of faith. What event will compel us to test? Who will be in office in the US? How will he respond? What will his weight be vis a vis the Congress at that juncture? Will he be willing to pick a fight with the Congress over India at that moment?

But our aim, the deal’s advocate said, is to ensure that relations between the US and India become so intense in the coming years; that so many companies etc. develop so deep an interest in India’s continuing growth that, were a president to want to initiate steps against India in the event of India going in for tests, they will restrain him. Further acts of faith. Just for energy supplies, we are being goaded to accept these conditions. To get a sufficient number of American companies to develop that deep an interest in India, what will we have to accept down the line?

The prime minister was himself more circumspect about resting the matter on assertions that the provisions are “non-binding” than his propagandists or these advocates from America. In his statement to Rajya Sabha on August 17, he said, “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 returned to the matter a little later, and told the House, “We have studied the proposed US legislation very carefully, including the so-called binding and non-binding provisions. The non-binding provisions do not require mandatory action, but at the same time, have a certain weight in the implementation of the legislation as a whole. We have conveyed our concerns to the US Administration in this respect.”

But now, suddenly, we must swallow everything because it will not, on the say-so of these educators and their agents here, bind our throats!

(To be continued)

Time to deal with the aftermath

Time to deal with the aftermath

Arun Shourie

Then came the point on which the prime minister received much applause. Members like me had drawn attention to the very comprehensive and intrusive inspections that were being accepted. Government spokesmen insisted that we had, in fact, been recognised as a Nuclear Weapon State, and that the IAEA would devise “India-specific safeguards”. These, we were sought to be convinced, would be akin to the ones that apply to the five Nuclear Weapon States. I had drawn attention to four vast differences.

First, the sheer numbers. The total number of nuclear power reactors in the five Nuclear Weapon States is 217. Of these 217, just eleven are open to inspections. Of the 104 nuclear power reactors that the US has, only five are under IAEA safeguards. By agreeing to place two-thirds of our 22 reactors, that is 14, under safeguards, the government was now placing a larger number of Indian reactors under safeguards than the total number placed by all the five Nuclear Weapon States taken together! That is just the beginning: with the government having committed to put all new civilian reactors including breeder reactors under safeguards, President Bush, Condoleezza Rice and others have pointed out, within a few years 90 per cent of India’s reactors will be under safeguards.

Second, there is an even more basic difference: the Nuclear Weapon States can withdraw any reactor, equipment or material from the ambit of safeguards. Under the agreement with the US, India was being made to place its reactors under safeguards in perpetuity.

The third difference relates to the nature of inspections: for the Nuclear Weapon States, these are infrequent and nominal. Under the Information Circular of the IAEA that the US is insisting shall apply to us, inspections are frequent and most intrusive.

But there is an even more consequential factor. Under the US Bill as it had been passed by the House and the version that had been approved by the Senate Foreign Relations Committee, inspections would not be limited to inspections by the IAEA. The US would have a right to send its own inspectors.

The prime minister was emphatic. He stated repeatedly that the safeguards agreement that we would enter into with the IAEA would be “India specific” — of course, neither he nor any other government spokesmen indicated or has since indicated how it would differ in regard to the first three points that I have listed above: the frequency and intrusiveness of inspections; our not being able to remove reactors from under safeguards as the Nuclear Weapon States are allowed to do; the agreement being without conditions. But for the moment, I am on what he said in regard to the fourth point. 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 the loudest applause. The PM reverted to the point. He said later in the debate: “In the Separation Plan, we have agreed to offer for IAEA safeguards nuclear facilities specified in the Separation Plan for that purpose. The nature of safeguards will be determined by an India specific safeguards agreement with the IAEA. This will be applied to the safeguarded nuclear facilities in India. Therefore, there is no question of accepting other verification measures or third country inspectors to visit our nuclear facilities, outside the framework of the India specific safeguards agreement.”

Well, Section 107 of the Senate Bill provides explicitly for detailed inspections — and not just by the IAEA. In particular, Section 107(3) requires that the US-India Agreement ensure,

“In the event the IAEA is unable to implement safeguards as required by an agreement between the United States and India arranged pursuant to section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153), arrangements that conform with IAEA safeguards standards, principles, and practices that provide assurances equivalent to that intended to be secured by the system they replace, including —

“(A) review in a timely fashion of the design of any equipment transferred pursuant to the agreement for cooperation, or of any facility that is to use, fabricate, process, or store any material so transferred or any special nuclear material used in or produced through the use of such material and equipment;

“(B) maintenance and disclosure of records and of relevant reports for the purpose of assisting in ensuring accountability for material transferred pursuant to the agreement and any source or special nuclear material used in or produced through the use of any material and equipment so transferred; and

“(C) access to places and data necessary to account for the material referred to in subparagraph (B) and to inspect any equipment or facility referred to in subparagraph (A).”

In a word, India will have to provide not just records and reports, but also allow access to American inspectors. And neither the US administration nor the senators have been in any doubt on this score. In answer to a pointed question in this regard, secretary of state, Condoleezza Rice told the Senate Foreign Relations Committee, “In addition, in accordance with normal practice, the administration is seeking a provision in the agreement for ‘fall-back’ safeguards (i.e. direct verification by the United States of material, equipment and components subject to the agreement) if for any reason IAEA safeguards are not being applied to those items as provided in the agreement. This is necessary to satisfy the requirement in Section 123(a)(1) of the A(tomic) E(nergy) A(ct) that the safeguards provided for in the agreement will be maintained ‘so long as the material or equipment remains under the jurisdiction or control of the cooperating party, irrespective of the duration of other provisions of the agreement (like that for IAEA safeguards).

“In general, the United States (like other NSG participants) relies upon IAEA inspections and monitoring. However, the United States would in fact be able to conduct ‘special verification visits’ in the form of fall-back safeguards as required by the US-India agreement for peaceful nuclear cooperation in the event that IAEA safeguards were not being applied.”

During the debate, Senator Biden, one of the co-sponsors of the bill, observed, “Indian officials are reportedly upset that American personnel might need to visit India’s nuclear sites. It should come as no surprise, however, that we need to ensure that US nuclear materials, equipment, and technology are not diverted to military uses.” He emphasised that, apart from other factors, the US is bound by its obligations under Article I of the NPT not to allow such diversion when it enters into nuclear cooperation agreements with Non- Nuclear Weapon States, “And India remains a Non-Nuclear Weapon State under both the NPT and US law, despite the fact that now it does have nuclear weapons.”

So, if, as the prime minister put it, American inspectors will not be allowed to “roam around” in our nuclear plants, will they be allowed to loiter in or march through them? Is that the distinction that we will now be fed?

On top of Section 107, there is now Section 115. As Dr Gopalakrishnan, former Chairman of the Atomic Energy Regulatory Board, has pointed out, this new section was suddenly, and without any discussion at all, inserted into the bill on the floor of the Senate. Under it, Indian nuclear establishment is obliged to enter into “cooperative research” about technologies and practices for non-proliferation with a new agency, the National Nuclear Security Administration - an agency that had not figured in the Indo-US discussions at all, and whose principal function has hitherto been the denuclearisation of the erstwhile Soviet satellites.

Dr Anil Kakodkar, the chairman of the Atomic Energy Commission, has now gone on record to say that this section, intrusive as it is, has come as a “surprise” to him, that it is a cause of “additional concern”, that we do not need this kind of “cooperation”.

Tests in the future

The prime minister turned next to the provision in the bills as they stood at the time regarding our testing nuclear devices in the future. In their testimony before Congressional Committee as well as in other public statements, US officials had been explicit: we have made it absolutely clear to the Indian negotiators, they said, that, should India ever carry out a nuclear test, the deal would be off. I remember reading out in the Rajya Sabha the statements as well as the specific provision of the bills. The prime minister was emphatic:

“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 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 104(3b) of the bill as finally passed by the Senate states, “A determination under section 105 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.”

Furthermore, the Section 104 specifies that the deal would be contingent on full observance by India of Section 123(a)(4) of the US Atomic Energy Act — that latter provision lays down that, should any nuclear device be detonated for any reason whatsoever not only shall all nuclear commerce be halted with the country, the United States 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.”

In its report, the Senate Foreign Relations Committee is absolutely emphatic on this score. It says, “The committee believes that there should be absolutely no ambiguity regarding the legal and policy implications of any future Indian nuclear detonation. The president must terminate all US-origin exports and re-exports of nuclear materials and equipment or sensitive nuclear technology to India, and the committee expects the president to make full and immediate use of US rights to demand the return of all exports and re-exports to India, if India tests or detonates, or otherwise causes 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 purposes.’ The committee believes 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 and equipment or sensitive nuclear technology exported or re-exported to India by the United States.”

Nor is the termination of all nuclear commerce in such an event likely to be confined to the US. Condoleezza Rice gave a glimpse of discussions that American officials have been having with other members of the Nuclear Suppliers Group when she told the Senate Committee, “Our interlocutors in the NSG have made it clear that their support for accommodating civil nuclear cooperation with India hinges upon India’s successful implementation of its commitments in the July 2005 Joint Statement, including India’s commitment to continue its moratorium on nuclear testing. We do not have the official views of potential nuclear suppliers regarding a termination of transfers of nuclear material, including fuel and technology, to India should India detonate a nuclear explosive device. However, we expect that there would be irresistible political pressure for NSG participants to terminate any transfers of nuclear material and technology to India should India detonate a nuclear explosive device.

“Moreover, there is a provision in the NSG guidelines calling for suppliers to meet and consult if a supplier believes there has been a violation of the supplier/recipient understandings resulting from the guidelines, particularly in the event of, among other things, an explosion of a nuclear device. India’s 1998 nuclear tests prompted the NSG to meet in an extraordinary plenary for such consultations. The guidelines further reference the possibility of a common response, which could include the termination of nuclear transfers.

“We have made it clear to the Government of India that the Civil Nuclear Cooperation Initiative relies on India’s commitment to continue its unilateral nuclear testing moratorium. This gives India clear economic and energy incentives not to test.”

That last point — of creating “clear economic and energy incentives not to test” — has been a cornerstone of this “Energy Cooperation Initiative.” The principal sponsor of the bill, the influential head of the Senate Committee on Foreign Relations, Senator Richard Lugar, while moving the bill, emphasised the same point. He told the Senate that the objective of the bill is to provide “a lasting incentive for India to abstain from further nuclear weapons tests and cooperate closely with the US in stopping proliferation.” Recall the enormous pressure to which successive Indian governments have been subject by fuel supplies being cut-off to just the Tarapur reactor — one that produces a mere 365 MW of power. Imagine the pressure that will descend on them when we are faced with the prospect of 35,000 MW being switched off. That is what Rice and others mean when they talk of creating “clear economic and energy incentives not to test.”

Four conclusions for government, two for us

There are several other features of the bill as it has been passed by the Senate that fly in the face of the assurances that the prime minister has given to Parliament. But the few that I have listed are sufficient to show that not one of the “concerns” that the prime minister said he has conveyed to the US president has been heeded - not one, not in the least. The Senate has stuck to the version about accepting which the prime minister had said India has “grave difficulties”. Yet his spin-doctors are declaring victory. And many in our media are lapping it up.

The US is not to blame for this. Their process is so transparent that no one here can pretend that anything at all in the foregoing has come as a surprise. The administration there as well as their legislators want closer ties with India — both because they see India at last beginning to stretch itself to its potential, and also as a possible counter to the growing power of China. But for them, non-proliferation is also a very important objective. The NPT has been a vital and, in a sense, very effective mechanism for arresting the spread of nuclear weapons. But it has begun to fray: India, Pakistan, Israel, and North Korea have acquired the weapons in spite of the Treaty. Brazil, Argentina, Turkey, Egypt, Taiwan are within reach of them. The treaty has also not been able to prevent clandestine proliferation — for instance, by Pakistan. Americans and others have accordingly been looking for other devices with which to supplement that treaty.

The Indo-US agreement is devised as a possible model to achieve this objective among others. American officials have made no secret of this. Pressed about its rationale, this is how Rice responded during her testimony before the Senate Committee:

“Under this initiative, 65 per cent of India’s thermal reactors will be brought under safeguards, a figure that the Indian government has said could rise as high as 90 percent as India procures more civil reactors in the next 15 years. To put this in perspective, imagine the alternative: Without this initiative, 81 percent of India’s current power reactors — and its future power and breeder reactors — would continue to remain outside of IAEA safeguards. The Indian nuclear power program would remain opaque, a nuclear black box.”

Indeed, one of the most knowledgeable experts on South Asian security matters told me that India itself should look ahead - to a situation in which, as a consequence of North Korea’s weaponisation, Taiwan goes nuclear; in which, as a consequence of Iran’s weaponisation, Turkey, Egypt and Saudi Arabia feel compelled to go nuclear; in which Pakistan continues its clandestine proliferation and Bangladesh acquires a nuclear capability — via Chinese built reactors. And it should assess whether it would not be in India’s own interest if the Indo-US Agreement becomes a model for other countries.

They have also been very candid about their modus operandi. Pressed about the aspects that had not been covered, Burns and Joseph urged the Senate to “resist the temptation to take actions that will prejudice our ability to realise the important and long-standing nonproliferation objectives embodied in the Initiative.” They urged it to see that “the commitments India has made under the Initiative are a significant gain over the status quo.” And said, “We believe the best course is to lock-in the significant gains reached and then seek to achieve further nonproliferation results as our strategic partnership advances.”

The problem has not arisen, therefore, because the Americans have been opaque. But because our government has concealed, prevaricated, and outright misled us. And now it is in a bind.

I would, therefore, urge four things to government:

• Do not make a Micawber of the country — waiting for something to turn up.

• Do not make the mistake that earlier Congress governments made — that because you can plant stories in the media, the facts are going to go away.

• Do not make the mistake that earlier Congress governments made — to think that because it controlled three-quarters of Parliament, it could control the situation outside Parliament.

• Yes, closer relations with the US are in India’s interest, but do not make this deal the test of those relations.

But as I have little hope that the government will heed my advice, I would urge two things to the rest of us — especially to my friends in the media:

• Do not be taken in by lullabies of the government and its agents.

• Find out yourselves what is going on behind the scenes: whether in negotiations with Pakistan — on Siachin, on Kashmir; or in those “Round Table Conferences” with Kashmiri separatists; or in regard to this nuclear deal.

(Concluded)