The fabrications of government

Arun Shourie: Wednesday, December 12, 2007

If energy security is what we are after, shifting to power dependency on imported technology, reactors, components, uranium, each of which is controlled by an even tighter cartel than oil, is hardly the answer

Explaining his assessment about the cost at which nuclear power would be available, the prime minister told the Rajya Sabha on August 17, 2006, “Arun Shourie asked me what calculations I have seen. I have seen many calculations in the Department of Atomic Energy. In the eighties when K.C. Pant was the chairman of the energy policy committee, a detailed study was done and it was shown that if you are talking of generating power and reaching it to a place 700 km away from a coal mine, nuclear energy is the right economic answer. Things can change. And I think the Planning Commission has done recent work, and they have also come to the conclusion that having the nuclear option is something which will give us a greater degree of security on the energy front.”

Actually, if energy security is what we are after, shifting from power dependent on imported oil to power dependent on imported technology, imported reactors, imported components, imported uranium, each of which is controlled by an even tighter cartel than oil, is hardly the answer. And, as we saw, even the Planning Commission’s Integrated Energy Policy acknowledges this.

As for some study done in the 1980s, the price of uranium used to be $7 per pound then. It is over $140 per pound today.

The change of much greater consequence relates not to the price of uranium, but to that of reactors. The US has not placed an order for a new reactor since 1978 — and that order was cancelled. The last order for a reactor was placed in 1970 — and it took 26 years for that reactor to come into operation. With this attenuation of demand for reactors, the capacity of the US nuclear industry today to build reactors is very limited. By contrast, see what that industry has to do just in the US in the coming years. The MIT report, The Future of Nuclear Power, 2003 — as well as the study by the University of Chicago published the following year — had already established that energy from nuclear sources would be one and a half times to twice as costly as that from coal and gas. Since then an all-important consideration has been the focus of analysis. The US has a total of 103 commercial reactors today. The original licensed life of US reactors used to be 40 years. This life has been extended for forty-odd of these reactors for 20 more years. Even with that having been done, every single reactor of the US will have to be replaced by 2056. Other countries too have plans to build reactors. Given the extremely limited capacity to build reactors, the price that will be charged by vendors is bound to leap up. (A recent study published in April 2007 by the most influential organisation on US foreign policy gives a succinct and authoritative account of the prospect in this regard: Charles D. Ferguson, Nuclear Energy, Balancing Benefits and Risks, Council on Foreign Relations, April 2007.)

What of “recent work” by the Planning Commission that the PM mentioned? The most recent one is the Report of the Working Group on Power, which the commission published as recently as February 2007. The working group lists the cost per megawatt for generation projects. The report places the cost at Rs 4 crore per megawatt for coal based projects; Rs 3 crore per megawatt for gas based projects; Rs 4.50 crore to Rs 5 crore per megawatt for run-of-the-river hydro projects; Rs 5.50 crore to Rs 6 crore for storage hydro projects. And for nuclear power projects? Rs 6.50 crore per megawatt. And, recall, this group was straining to pad up the necessity for nuclear power to justify recourse to the deal.

But we don’t have to go just by estimates: there is an actual and current example. The new unit at Tarapur is supplying power at Rs 2.70 to Rs 2.80 a unit. What is the price per unit that has been accepted for power from the new ultra-mega thermal power project? Rs 1.19 per unit! The moment I recalled this contrast in the Rajya Sabha the other day, Dr Kasturirangan, who had just spoken in favour of the deal, interjected, “That price for nuclear energy is subsidised.” Others who have studied the matter intervened, “Actually the cost is Rs 9 per unit.” So, power at double or seven times the cost from other sources.

Indeed, even at these levels, these Indian estimates of the cost of nuclear power are gross underestimates. To cite just one fact, they do not build in the cost of disposing nuclear waste. The US itself is today plagued by this problem — having spent over $9 billion for developing a storage repository in the Yucca Mountain in Nevada, having striven for two decades to develop the site, the expectation is that the site will not become operational till 2015/2020 or so.

Nor do our estimates build in the cost of the more and more stringent and increasingly expensive security arrangements that will have to be made to prevent theft of fissile material as the number of reactors multiplies. Even countries that have exerted to the utmost to secure such material are experiencing insuperable difficulties. “The nuclear material currently unaccounted for at plutonium reprocessing facilities could make many bombs,” Ferguson notes. “For example, Japan cannot account for more than two hundred kilograms of plutonium at the Tokai-mura plant. In Britain, the Sellafield plant cannot account for about thirty kilograms of plutonium. According to the IAEA, only eight kilograms of plutonium are needed to make a bomb. But even less than that was used in the Nagasaki bomb, which employed six kilograms. More advanced designs could use as little as one to three kilograms.” (In addition to Ferguson’s study, for an instructive analysis of all this see the oft-cited report by Brice Smith, Insurmountable Risks, The dangers of using nuclear power to combat climate change, Institute for Energy and Environment Research, Md., 2006.)

But: “I have seen many calculations in the Department of Atomic Energy. In the eighties... a detailed study was done... And, I think, the Planning Commission has done recent work, and they have also come to the conclusion that...” says the PM. And that is the end of the matter.

The fabrications in regard to uranium

The argument that we need nuclear power would not have been enough to justify the deal — for the response could have been, “All right, use domestically available uranium to generate it.” Hence, two further myths were fomented: we are woefully short of uranium; such uranium as we have is of poor quality.

The authoritative compilation on uranium supplies is what is known as the Red Book of the IAEA and OECD. The latest one — published in 2005/06 — records India’s uranium reserves as being 94,000 tonnes. Of these, 64,000 tonnes are what are termed as ‘RARs’, Reasonably Assured Reserves; and 30,000 tonnes are EAR-I, that is, ‘Estimated Additional Reserves’. Currently we are using 1,334 tonnes a year. By every stretch, these are enough to see us through to the time we will master fast breeder and thorium technologies. What is probably the best available study of the potential of these reserves, Atoms for War? (Carnegie Endowment for International Peace, 2006) has been done, in fact, by one of the architects of the deal, Ashley Tellis. In it, he shows that India has more than enough uranium — even if it were to aim in the coming decades at a nuclear arsenal of 2023 to 2228 weapons.

Now see how the twin myths are formented. The Planning Commission’s Integrated Energy Policy states: “India is poorly endowed with uranium. Available uranium supply can fuel only 10,000 MW of Pressurised Heavy Water Reactors. Further, India is extracting uranium from extremely low grade ores (as low as 0.1 per cent uranium) compared to ores with up to 12-14 per cent uranium in certain resources abroad.” Notice the sleight of words: our average — 0.1 per cent — is compared to other unspecified countries’ highest, their “up to...”

The facts are more reassuring! The most important suppliers of uranium are Australia, Kazakhstan and Canada — half the world’s output comes from them. The most recent account of uranium reserves, put out as recently as November 2, 2007, again by the Council on Foreign Relations, notes that it is only in Canada that the ore — about a fifth of it — is above the 1 per cent grade. “In Australia, on the other hand, some 90 per cent of uranium has a grade less than 0.06 per cent. Much of Kazakhstan’s ore is less than 0.1 per cent.”

Nor has the government ever explained why we are not able to get more uranium from countries that are not members of the Nuclear Suppliers Group — Niger, Nigeria, Mongolia. Is it that we have been fixated on our traditional suppliers, like Russia? Is it that we have tried but found that, in fact, the governments of these countries are so weak that eventually they go by the dictates of multinational companies and the major powers that control the NSG itself, the US, France, Russia, China? Is it that these controllers have blocked the non-members from supplying uranium to us even as they themselves have blocked members of the NSG from supplying it? If that is indeed the case, how come we are putting so much faith in these very controllers as to place our future energy security in their hands?

That last question also arose in regard to what the prime minister said when he charged Yashwant Sinha with spreading falsehoods. Yashwant Sinha was asking why the deal with the Russians for four additional reactors had not been signed during the PM’s recent visit to Moscow. Was it under US pressure? The PM said that “it had always been understood” that this agreement would be signed only after restrictions had been lifted by the NSG. That was certainly not the impression he gave in the written statement that he read out during the joint press conference that he held with President Putin in New Delhi on January 25, 2007. In that statement he thanked President Putin for the help that Russia had given in ending the international restrictions that had been placed on imports of nuclear materials by India. He pointed to the memorandum of intent that had been signed by India and Russia for the construction of four new reactors at Kudankulam. There was not the shadow of a hint that further progress was contingent on anything that was to be done by the very countries that had imposed those international restrictions. And now, suddenly, “it was always understood...”

‘Why don’t you believe the CEO of America instead of some undersecretary?’

The Americans have been absolutely candid in what they intend to accomplish through the nuclear deal. To halt, roll back, and eventually eliminate India’s nuclear capability. To draw India into the non-proliferation regime. To have it sign up on other international protocols that the US, etc are crafting — the FMCT, the PSI, the Wassener Agreement... To make its energy supplies so dependent on imported uranium, imported reactors, that it would ‘on its own’ desist from testing. Provision upon provision of the Hyde Act speaks to this design explicitly. Statements upon statements of US Congressmen, Condoleezza Rice, Nicholas Burns and others testify to it.

Each time these have been cited by persons like me, government spokesmen have said, “But why relying on what some undersecretary has said? Why don’t you believe what the CEO of America, President Bush himself said when he signed the Hyde Act into law — that he would not be bound by the provisions? Did he not say that he would treat these as ‘advisory’ — that is, they shall be non-binding — and go by his own assessment?”

It just so happened that the very morning when the debate was to take place in the Rajya Sabha in December last year, every Indian correspondent in Washington received the statement — in hard as well as soft copy — and was urged to creed it to India post haste. Jaswant Singh received it from a correspondent in Washington and gave me a copy. The use to which the government would put it, and the construction it would put on it, were obvious. So, during my speech, I mentioned the statement, and said that before the debate was done, government would be invoking it. Sure enough, the minister for external affairs didn’t just invoke the statement, he read into it exactly what I had said government would. Since then, he has himself invoked it twice in Parliament, and of course sundry government spokesmen have been touting it to insinuate that the Hyde provisions are not really going to apply.

That is typical of what the government has been doing, with full confidence that no one will read or remember the original. In fact, what President Bush said can provide no solace to anyone concerned with India’s options in regard to its strategic programme.

The statement had to do only with a long-drawn tug of war between the executive and legislative in the US over who has the final say on the country’s foreign policy. Sticking to the position he has taken in invading Iraq, Bush said that the conduct of foreign policy is the prerogative of the executive and so he would construe the provisions in the Hyde Act that had a bearing on foreign policy as advisory. That is little consolation for us — the provision that prescribes penalties which must befall India should it test, for instance, is NOT one of these provisions.

For the same reason, he said that the provision in the Hyde Act that lays down that should NSG guidelines prohibit the export of some item to India, the US too would desist from exporting that item to India, would entail that the conduct of US foreign policy would be ceded to some international body, and this the executive could not do under the US Constitution. What use is this assertion of presidential powers to us? The provision of concern to us is the opposite one — it is the direction to the president, repeated more than once, that when the US terminates nuclear exports to India, it shall ensure that no other member of the NSG steps in to provide those materials components, fuel, and so on to India.

The third point Bush made was about information the executive shall collect regarding India’s nuclear programme. He said, the executive would not automatically disclose all of it. Again, no help to us. He did not say that the US government shall not collect the enormous amount of information about every aspect of our nuclear programme that the Hyde Act requires it to collect — including information about every bit of uranium mined, milled, used, the power produced from it, and how much is left over for weapons, and so on. The fact is that parts of such information are collected through US intelligence agencies also. The executive does not automatically make it public. Often, it gives the information to committees of the Congress in closed hearings. How does that help us?

Nor is it that the statement does not in the least say what the government has been trying to make us believe it says. The farcical thing is that it is seeking to find solace in the fact that on provisions regarding foreign policy — say, Iran — Bush will go by his own assessment, and not be constrained by the US Congress!

And then there is the obvious point: the law is not what a president says at some signing ceremony, the law is what the US Congress has enacted. Clinton specifically set aside signing statements of President Reagan and President Bush Sr. Will the next president, or one twenty years down the line, go along with the Congress in regard to even these provisions regarding foreign policy or with Bush’s statement?

Obvious. And yet the fabrication. In the full confidence that no one will read the original — even when it is as brief as Bush’s statement is, just 15 lines! How disheartening that the confidence is all too often justified in regard to our media.

The moral is simple:

•Don’t run after secret documents;

•Just read the printed ones;

•But do read them;

•Governments will be brought to heel.

editor@expressindia.com

Necessity is the mother of fabrication too

Arun Shourie: Tuesday, December 11, 2007

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

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

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

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

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

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

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

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

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

The myth of power

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

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

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

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

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

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

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

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

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

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

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

But take one more leap of faith.

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

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

Notice what the experts are saying:

•Even if —

•There is a twenty-fold increase

•The contribution to capacity — not to actual generation

•Shall at best be....

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

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

Alternatives

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

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

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

But that is just half the story.

‘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

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

Arun Shourie: Friday, August 17, 2007

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

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

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

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

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

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

To take just one example, the very Section of the 1954 Act under which the ‘123 Agreement’ is entered into — Section 123 — states that, should any nuclear device be detonated for any reason whatsoever, not only shall all nuclear commerce be halted with the country, the US shall have the right to demand the return of ‘any nuclear materials and equipment transferred pursuant’ to the agreement for cooperation as well as any ‘special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive device.’ ‘For any reason whatsoever’, the Joint Conference of the two Houses made explicit, shall also include ‘for peaceful purposes’ — the ground we had invoked for the 1974 test! This provision is re-emphasised in the Hyde Act. Section 106 of the latter states explicitly, ‘A determination and any waiver under section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device after the date of the enactment of this Act.’

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

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

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

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

‘All’ out, ‘associated’ inserted

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

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

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

And throughout the negotiations for the 123 Agreement, the US Government stuck to this stand. But how to save the Indian Government’s face? Through what our prime minister in his statement of August 13, 2007, calls, ‘forward looking language’! Article 5(2) of the 123 Agreement, which the prime minister claims as an achievement, is the result. It provides, ‘Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties’ respective applicable laws, regulations and license policies.’

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

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

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

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

What the PM does not refer to

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

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

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

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

To be continued

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)