True colours of the nuclear deal
by P.K. Iyengar on 02 Oct 2008 1 Comment

The US House of Representatives has passed a bill (H.R. 7081) that approves the 123 Agreement, but which is contradictory to the assurance given by the Prime Minister to the nation. An identical version is before the US Senate for voting. Even as late as 26 September 2008, the Prime Minster was seeking an agreement that would ‘satisfy India.’ This has not come to pass, and it will be interesting to see how the Indian government and the Indian media will ‘spin’ this into a victory for India. 

The Indian side is supposed to have been unhappy with the language, but what is worrisome is the content and compulsions of the Bill. Even the title of the Bill, ‘United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act’, makes it clear that they seek to press their non-proliferation agenda. The Bill makes a number of things explicitly clear, and reveals the true colours of the nuclear deal. 

(1) The 123 Agreement is subject to the provisions of the Hyde Act and the Atomic Energy Act, and does not supersede them 

This is said, in so many words, twice in the Bill. Section 101 (page 3, lines 16-21) says that: “The Agreement shall be subject to the provisions of the Atomic Energy Act of 1954, the Henry J. Hyde … Act of 2006, and any other applicable United States law.” Section 102 (page 6, lines 8-12) reiterates that: “Nothing in the Agreement shall be construed to supersede the legal requirements of the Henry J. Hyde … Act of 2006 or the Atomic Energy Act of 1954.” 

Therefore there is now no question of differences in the ‘interpretation’ of the 123 Agreement. Irrespective of what we think we are bound by, the Americans have made it abundantly clear that they are bound by the Hyde Act and the Atomic Energy Act, and the 123 Agreement does not supersede either of them. If we conduct a test it is now abundantly clear that, as per the provisions of the Hyde Act and the Atomic Energy Act, it is the end of the nuclear deal. 

(2) In the event of a disruption of fuel supply from the US, the Americans will not help arrange for fuel from another country 

Article 5(b-iv) of the 123 Agreement says that in the event of fuel disruption the US will help India get fuel from ‘friendly supplier countries’. But it seems that the Congress is having none of this. Section 102 (page 5, lines 4-12) of the Bill explicitly states that in the event of fuel disruption, not only will the US not help arrange for fuel from other countries, but it will also “seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group (NSG) or from any other source.” 

Since this sentence is not in the 123 Agreement, the Indian government will probably claim that we are not bound by it. However, the simple reality is that if there is a disruption of fuel from America, for whatever reason, the Americans will work hard to ensure that we do not get it from any other source. 

(3) There will be no transfer of enrichment technology, and even permission for reprocessing imported fuel may be denied 

This is the most disturbing clause in the Bill. Sec. 204 of the Bill (page 14, lines 11-19) says explicitly that before the 123 Agreement enters into force (according to Article 16), the President has to certify that the US will work with NSG countries to “agree to further restrict the transfers of equipment and technology related to the enrichment of uranium and reprocessing of spent fuel”. 

So, one of the major advantages we were expecting from the NSG waiver and the 123 Agreement will not be forthcoming. But this Bill goes even further. Section 201 makes it very clear that any future proposal for reprocessing needs explicit approval from the US Congress, and the Congress retains the right to refuse (page 13, lines 1-4). 

The same section also says that the US will pursue efforts with other countries to ensure that reprocessing of fuel from those countries will also be governed by ‘similar arrangements and procedures.’ This seems to suggest that the US would even like the existing arrangements with Russia for the Kudankulam reactors to be modified along the proposed lines. The same would also apply to any other supplier. 

It is surprising that in spite of our being a ‘strategic partner,’ the US wants to restrain our fuel-cycle developments. This shows, again, that India is not being treated as an equal, in spite of the fact that for decades India has developed reprocessing and enrichment technology on its own, and produced plutonium for fast-breeder reactors as well as enriched uranium for the submarine reactor.

These explicit statements in the House Bill only reaffirm what many of us have been saying for a long time. The 123 Agreement does not supersede, and is constrained by, the Hyde Act and the Atomic Energy Act. 

The House Bill has added new constraints. The entire Indo-US nuclear deal, which must now be taken to comprise of the Congress Bill, the 123 Agreement and the Hyde Act, is in contradiction to the July 2005 Joint Statement, because it doesn’t give India the status of an advanced nuclear state enjoying the same obligations and benefits as others. The nuclear deal does not allow cooperation in enrichment or reprocessing technology. The nuclear deal does not guarantee fuel supplies or a fuel reserve. In the event of a breach of the 123 Agreement, the US will not work with its allies to find alternate solutions – on the contrary it will pressure them to act against Indian interests. ‘Full cooperation’ in civil nuclear power is meaningless without assurances of fuel supply and technological cooperation in the fuel cycle.

The House Bill also makes it clear that the US continues to impose on us the existing non-proliferation regime, and is not ready to recognize India as a nation with advanced nuclear technology. The reality is that the nuclear deal will not bring us as equals to the nuclear table. It will only serve to tighten the non-proliferation regime around us, make us dependent on the nuclear cartel for fuel, and completely cripple our strategic programme.

If the government’s intention is to import nuclear reactors and fuel, a simple bilateral agreement, which guarantees application of safeguards to the reactors, the fuel, and the end products of reprocessing the fuel, would have been sufficient and meaningful. The deal with Russia for the Kudankulam reactors is an example, which can be duplicated. 

In 1974, when India was less developed and had a bleaker future, Indira Gandhi  was able to stand firm in supporting a strategic programme, in spite of ominous warnings of the retribution that would follow. It is ironic that in 2008, when India is in a much stronger position, economically and geopolitically, her own party is ready to betray her legacy and put on nuclear shackles, for a few dollars more.

Dr. P. K. Iyengar is former Chairman, Atomic Energy Commission

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