“What is the nuclear agreement about? It is all about widening our development options, promoting energy security in a manner which will not hurt our precious environment and which will not contribute to pollution and global warming,” (Prime Minister Manmohan Singh at a meeting with Senior Journalists on July 15, 2008) ***
"The
nuclear deal in its present form is unacceptable to the country
because the Hyde Act passed by the US Congress, which governs the
123 Agreement, undermines India’s nuclear autonomy and imposes
curbs on our strategic programme. I had suggested to him that Parliament
should consider passing a suitable amendment to the Atomic Energy
Act to insulate India from the negative effects of the Hyde Act." ***
"It is clear that the IAEA Safeguards Agreement does not address the fundamental problems in the Hyde Act and the 123 Agreement." (Mr. Prakash Karat, General Secretary, CPI(M), on Safeguards Agreement) *** |
Whither Nuke India
President George Bush exerting all pulls and pressure wanted to get it through during his reign of the world’s oldest democracy. Prime Minister Dr Manmohan Singh even risking his party’s political stake at home turf wanted to see India does not fall behind in the global race for nuclear cooperation for peaceful purposes. They made it happen. The signing of the US-India Civil Nulcear Cooperation Agreement popularly known as 123 Agreement on October 10, 2008 by US Secretary of State Dr. Condoleezza Rice and Indian External Affairs Minister Pranab Mukherjee, one of the architects of the Agreement, was the culmination of a highly debated process initiated on July 18, 2005 in Washington during Indian Prime Minister's visit for talks with the US President 123 Agreement is now operatinalized and “legally binding” on both the countries.
This marks the end of “34 years of a ‘technology denial regime’ imposed against India, opening a wide vista of opportunity for U.S.-India collaboration in commerce, civil nuclear research, technology transfer and nuclear fuel supply – essential inputs to power India’s dynamic, fast-growing economy, as termed by the US-India Business Council (USIBC) after the passage of the Agreement in the House of Congress on Oct.1, 2008. A wide vista of opportunity is opened for U.S.-India collaboration in commerce, civil nuclear research, technology transfer and nuclear fuel supply – essential inputs to power India’s dynamic, fast-growing economy.
“By enabling U.S.-India civil nuclear cooperation, India not only joins the international nuclear non-proliferation mainstream, but now has the opportunity to achieve energy security, while protecting the global environment. A massive scope for commercial opportunity between U.S. and Indian companies will also be the result, valued at more than $150 billion over the next 30 years, spurring a revival of the nuclear power industries of both countries that will create as many as a quarter million high-tech U.S. jobs for generations to come,” said USIBC President Ron Somers.
The Agreement will provide India with access to U.S. nuclear fuel, reactors and technology to generate power for its more than 1.1 billion people. India’s powerful industry lobby Confederation of Indian Industry (CII) expects about $27 billion investment in 18 to 20 nuclear plants in India over the next 15 years.
“Let no one assume, though, that our work is now finished. Indeed, what is most valuable about this agreement is how it unlocks a new and far broader world of potential for our strategic partnership in the 21st century, not just on nuclear cooperation but on every area of national endeavor,” said Dr. Condoleezza Rice before signing the agreement. In response, Indian External Affairs Minister Pranab Mukherjee said: “The significance of the agreement is that it is the first step to civil nuclear cooperation and trade between India and the U.S. This is an agreement about civil nuclear cooperation, and reflects a careful balance of rights and obligations.”
"We remain committed to a voluntary, unilateral moratorium on nuclear testing. We do not subscribe to any arms race, including a nuclear arms race. We have always tempered the exercise of our strategic autonomy with a sense of global responsibility. We affirm our policy of no-first-use of nuclear weapons," Indian External Affairs Minister had said in a statement on the eve of the Nuclear Suppliers Group's meeting that followed the meeting of the Board of Governors of the International Atomic Energey Agency (IAEA) on August 1, 2008 which adopted by consensus the agreement calling for application of IAEA safeguards to Indian civilian nuclear facilities. At its meeting on September 6, 2008 NSG has approved a full-scope safeguards waiver for India, as a step toward operationalizing the US-India nuclear deal (123 Act) and allowing India to enter the international mainstream for civil nuclear power. Close on the heels of the US Congressional approval on October 1, Bush signed the Act on October 8, 2008. In a statement Mukherjee had said that the NSG decision "will enable India to resume full civil nuclear cooperation with the international community to meet its energy and developmental requirements."
The four-party Left alliance that had been supporting the Congress(I)-led UPA government for last four years withdrew its support apprehending that the Safeguards Agreement with IAEA would threaten India's sovereignty. The Prime Minister will have to burry the Left apprehension in due course making all the Civilian Nuclear agreement related issues more transparent and convincing.
Delivering her
statement during consideration of the U.S. India Nuclear Cooperation
Agreement by the House Foreign Affairs Committee, Republican
Representative Ileana Ros-Lehtinen (R-FL) had said: "The U.S.-India
nuclear cooperation agreement is not one that we would offer to just
any nation. It is a venture we would enter into only with our most trusted
democratic allies. I believe that stronger economic, scientific,
diplomatic, and military cooperation between the U.S. and India is in the
national interest of both countries and that our increasingly close
relationship will be one of the central factors determining the course of
global events in this century. This peaceful nuclear cooperation agreement
will prove to be an essential component in broadening and strengthening
that strategic partnership and in ensuring that India is able to address
the rapidly growing energy needs of its population, as its economy
continues to expand.
Among the most important elements of this new relationship is India's
commitment to cooperate with the U.S. on major issues such as halting the
spread of nuclear weapons material and technology to groups and countries
of concern. In particular, this nuclear cooperation agreement is essential
in continuing to ensure India's active involvement in
dissuading, isolating, and if necessary, sanctioning and containing Iran
for its efforts to acquire chemical, biological and nuclear weapons
capability and the means to deliver those deadly weapons. It will also
help secure India's full participation in the Proliferation Security
Initiative, including a formal commitment to the Statement of
Interdiction Principles. And it will be a major step forward in achieving
a moratorium by India, Pakistan, and China on the production of fissile
materials for nuclear explosives.
|
*Suo-Motu Statement by Pranab Mukherjee, Minister of External Affairs,
on “India’s Civil Nuclear Energy Initiative” in Parliament on October
20, 2008 |
|
IAEA Safeguards in Perpetuity without Concrete Fuel Supply Assurance The text of the draft “Agreement Between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities”; the so-called ‘India-specific Safeguards’ agreement sent to the IAEA Board of Governors on July 9, 2008, makes it clear that the repeated assurances made by the UPA Government in Parliament and outside, on securing uninterrupted fuel supply assurances and strategic fuel reserves have not been fulfilled. There are no concrete corrective measures in the main enforceable body of the Agreement, only a vague mention of “corrective measures” in the preamble. Under the Hyde Act, IAEA safeguards are to be imposed on India’s civilian nuclear facilities in perpetuity. The UPA government had repeatedly claimed that India would put its civilian reactors under safeguards under the strictly reciprocal condition of assured fuel supply. If fuel supply was disrupted, as happened in Tarapur, India would have the right to take corrective measures, including taking reactors out of IAEA safeguards. The key question therefore with respect to IAEA safeguards is: how to ensure that once India’s civilian reactors go under safeguards in perpetuity, the country would not be blackmailed by the withholding of nuclear fuel supplies, as the United States did in Tarapur following Pokhran-I? The preamble to the Safeguards Agreement notes that India is offering its civilian nuclear facilities for IAEA safeguards on the “essential basis” of “the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for 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.” The real point is that the preamble merely ‘notes’ India’s intentions in these respects. IAEA has neither any obligation regarding fuel supplies or building strategic reserves nor does this noting India’s basis for this offer give India any additional rights through this agreement. Therefore to read into this clause either a guarantee for fuel supplies or IAEA's support for building up a strategic reserve is misleading the people. “Corrective Measures”: Vague and Ineffective The preamble of the IAEA Agreement notes: “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.” Neither the “corrective measures” nor the precise relationship between these “corrective measures” and the in-perpetuity imposition is spelt out in any meaningful terms in the text. This means that should India for any reason decide to take the items subject to the Agreement out of IAEA safeguards on the contention that the “essential basis” no longer applies, it will open itself to the serious charge of violating an international agreement. In this connection, it is worth remembering that although India claims the right, under the provisions of the 1963 Indo-US agreement on Tarapur, to reprocess the considerable quantities of Tarapur spent fuel that have accumulated to India’s great inconvenience and expense, it has not been able to enforce the claimed right to reprocess, which has long been disputed by the United States. As against the vagueness of the “corrective measures” figuring in the preamble, what is spelt out clearly in the body of the agreement (Paragraph 32) is that India can withdraw its facilities from safeguards only if it is (a) jointly agreed between India and IAEA, and (b) if these facilities are no longer usable for any nuclear activity. What does this mean? It can only mean that India can withdraw any facility it wants out of IAEA safeguards only if it strips it of all capability of producing nuclear energy and that too only after the IAEA determines that “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards.” Even if the Agreement is terminated by mutual consent, the termination of safeguards on the items subject to the Agreement [these are material and facilities as defined in Paragraph 11(a)] would stay in place in accordance with GOV/1621 till all the conditions of GOV/1621 are met. The conditions of GOV/1621 are so stringent that the rights and obligations of the parties continue to apply on all nuclear materials till they have been returned or all fissionable materials supplied or produced goes out of the inventory – that is, until all the facilities and material, nuclear or non-nuclear, supplied to the country under these safeguards are either returned or consumed or no longer usable for any nuclear activity. Therefore, this provision will not allow a single reactor to be taken out of safeguards. Preambular References Non-Enforceable It is well established in international law that the preamble is a part of the treaty or international agreement and it can be used to give colour and tone to the interpretation of the operative part of the treaty/agreement. This does not however mean that it can be used to create additional rights or obligations that are not contained in the clauses of the Treaty/Agreement. The text of the IAEA Draft Agreement makes clear there are no corrective measures identified in the operative of the clauses of the Agreement. The mention of corrective measures is only in the preamble and here too, no concrete corrective measures have been defined. Unless there are specific provisions in the operative clauses, a phrase such as “corrective measures” inserted in the preamble cannot create either omnibus rights or obligations outside the text of the treaty. A similar example is for instance the TRIPS Agreement in WTO. The preamble states that it recognizes “the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives”. However, can any country use the “public policy objectives” to override, for instance, the need for providing product patents as contained the body of the TRIPS agreement? The way a facility can be withdrawn from safeguards has been spelt out in the main body of the draft agreement. Therefore, if the UPA government is trying to argue that the preambular statement of “corrective measures” gives India some kind of overriding right over all clauses in the body of the Agreement, it is committing a deliberate fraud on the people. The final arbiter with regards to any interpretation of the Agreement and dispute settlement is the Board of Governors of IAEA. The Board of Governors decision is final in this regard and if India is held to be non-compliant, even though it is not so by its own interpretation, India can be referred to the Security Council for action including sanctions. The Iran case is an example. Though many countries including India had publicly endorsed Iran’s right to the fuel cycle, it was referred to the Security Council for violation of its Safeguards Agreement by the Board of Governors at US’s instance. Left Parties’ Concerns Not Addressed The Left Parties, on July 8, 2008, asked the UPA government to spell out the following: In case the US or other countries in the Nuclear Suppliers Group renege on fuel supply assurances for imported reactors, will India have the ability to withdraw these reactors from IAEA safeguards? If the US/NSG countries renege on fuel supply assurances, can we withdraw our indigenous civilian reactors from IAEA safeguards? If we have to bring nuclear fuel from the non-safeguarded part of our nuclear programme for these reactors in case of fuel supply assurances not being fulfilled, will we have the ability to take it back again? What are the corrective steps India can take if fuel supplies are interrupted by the US/NSG countries? What are the conditions that India must fulfill if the corrective steps are to be put into operation? What is clear now is that every one of these concerns remains, and that the unspecified “corrective measures” inserted in the preamble of the Safeguards Agreement will not address any of them. India to be treated as a Non-Nuclear Weapons State for Safeguarded Facilities Except for the preamble, which explains the context in which India is entering this Safeguards Agreement and outlines the basis of India’s concurrence, the main body of the Text is a true copy of INFCIRC-66/Rev.2 (1968), which is the standard agreement applicable to all Non-Nuclear Weapon States of the NPT. The India-specific part comes not from INFCIRC 66 but from the fact that India has kept a part of its nuclear programme out of IAEA safeguards. But for the facilities it proposes to put under IAEA safeguards, it will be treated as a Non-Nuclear Weapon State. Clearly, India will not have any special rights in its safeguarded facilities and this directly contradicts the assurances given by the Prime Minister to Parliament. Nuclear Weapon States, as defined in the NPT, have the right to take any facility out of safeguards, a right India will not have for the reactors it is offering to IAEA for safeguards. Against India’s Interests It is clear that the IAEA Safeguards Agreement does not address the fundamental problems in the Hyde Act and the 123 Agreement. As a result of operationalising the Indo-US Nuclear Deal, India will place its costly imported reactors under perpetual IAEA safeguards and risk their permanent shutdown in case it fails to toe the US line on foreign policy issues. Thus going ahead with the Safeguards Agreement will be harmful to India’s interests.”
(Excerpts
of the Press statement signed and issued by the General Secretaries
of the four left parties –CPI(M), RSP, CPI & Forward Block
on July 11, 2008) |
On the other hand the Opposition Leader in Parliament L. K. Advani said "the BJP wants to see friendly relations between India and the United States. Indeed, as the world’s largest democracy and the world’s strongest democracy, I believe that our two countries should forge a strategic partnership to pursue common goals. It goes without saying that India should also simultaneously deepen friendship and cooperation with all the other major powers – Russia, Japan and others -- in today’s world, which we want to see as a multi-polar world tomorrow. A multi-polar world in which India itself becomes an important pole, working for the welfare of the entire mankind.
"..we want a strategic partnership with the US on equal terms. The BJP will never support a relationship with any country, howsoever strong and powerful it may be, in which India becomes its client or a subservient partner" he said in Parliament on July 21.
"The Nuclear Deal in its present form is nothing but acceptance of severe curbs on our strategic weapons programme. All the American interlocutors, whether belong to the Republican Party or the Democratic Party or are independent experts, have made it clear that, as far as their country is concerned, their principal objective is to bring India into the Non-Proliferation Regime. What they want fits in well with the critical stand that Dr. Manmohan Singh took after Pokharan II in 1998. Both want India to come within the Non-Proliferation Regime dictated by the US.
"Therefore, the Nuclear Deal in its present form means that India will not be allowed to perform Pokharan III or Pokharan IV, without inviting termination of the agreement and severe punitive action. This is unacceptable to my party, to the NDA, to the majority of MPs in this House, and to the people at large", Advani said.
Commenting on Indian Parliament’s clearance of the government’s move to operatiolaize the nuke deal once it is through at IAEA and NSG levels the US-India Political Action Committee (USINPAC) chairman Sanjay Puri said: "As this is a truly historic accord, so too this is a historic victory for the government of Prime Minister Singh and all Indians. The agreement benefits both countries on several levels, strategically, politically and economically, and it will usher in a new positive era of broadened and deepened cooperation between the oldest democracy and the largest democracy."
"We will rally the Indian-American community and engage all like-minded allies to ensure this deal gets included in the US Congressional calendar for this year. We look forward to the day that this important milestone in US-India relations is finalized," he said.