MANUEL BALCE CENETA/AP

Washington, July 19, 2005: Manmohan Singh concludes his address to the joint meeting of Congress. Applauding are, among others, Vice-President Dick Cheney (front left) and House Speaker Dennis Hastert (back left).

THE elation in the Ministry of External Affairs over the Nuclear Suppliers Group (NSG) granting what is claimed to be a “clean and unconditional” India-specific waiver of the group’s guidelines for transfer of nuclear goods, materials and technology to non-nuclear weapon states had hardly subsided when the United States shocked the officials out of their stupor by laying bare the truth once again.

On September 11, President George W. Bush submitted, along with other related documents, the text of the India-U.S. Civil Nuclear Cooperation Agreement, or the 123 Agreement, to Congress for its approval and passage by a joint resolution as required by the U.S. Atomic Energy Act (AEA).

The AEA requires that a ‘Presidential Determination’ on the 123 Agreement, which includes the President’s approval of and authorisation to execute, be made and that this accompany the text of the agreement submitted to Congress. Bush made this Presidential Determination on September 10.

The AEA also requires that the submission to Congress include an unclassified Nuclear Proliferation Assessment Statement (NPAS) concerning the agreement as well as a classified annex, prepared by the Secretary of State in consultation with the Director of National Intelligence.

The AEA further requires that a joint memorandum submitted to the President by the Secretary of State and the Secretary of Energy and a letter from the Chairman of the U.S. Nuclear Regulatory Commission (NRC) also be transmitted to Congress.

Section 104 (c) of the Hyde Act of 2006, the enabling U.S. legislation for nuclear cooperation with India, requires that the President also submit a report detailing his determinations on seven conditions and the basis of his determinations.

In his covering transmittal letter to Congress, however, Bush noted that the classified annex to the NPAS would be submitted separately. Congress has made public all documents submitted to it except the joint memorandum and the NRC letter. An analysis of these documents, namely the Presidential Determination, the unclassified NPAS and the President’s report under Section 104 (c) of the Hyde Act, reveals once again the differing perceptions on the provisions of the 123 Agreement. In fact, many statements are common to the NPAS and the Hyde Act report.

Of course, these revelations are essentially no different from what the State Department had revealed in its responses to the 45 questions from Congress seeking clarifications on the 123 Agreement (Frontline, September 26). They only reiterate, more precisely in some respects, the various misleading pronouncements on the deal by the government.

The real sting is in the fuel supply assurances in Bush’s transmittal letter. He says, “In Article 5(6) the Agreement records certain political commitments concerning reliable supply of nuclear fuel given to India by the U.S. in March 2006. The text of the Agreement does not, however, transform these political commitments into legally binding commitments because the Agreement, like other U.S. agreements of its type, is intended as a framework agreement [that does not compel specific exports]” (emphasis added). This remark has been reiterated in the NPAS document – the part within square brackets occurs in this document only – as well as in the Hyde Act report.

This has drawn the ire of the Ministry of External Affairs, which promptly issued a statement: “The text of the India-U.S. 123 Agreement has been agreed upon by the Governments of India and the United States…. The rights and obligations of both India and the U.S. are clearly spelt out in the terms and provisions of the 123 Agreement. Once this Inter-Governmental Agreement enters into force, the Agreement would become a legal document in accordance with well-recognised principles of international law and the Law of Treaties.”

Of course, there is no denying that the 123 Agreement will become a legal document once it comes into force, but there is nothing in Bush’s remarks that contradicts this. In fact, not just Article 5(6), all Articles in the agreement are only in the nature of enabling provisions for specific purposes; that is, for instance, the U.S. can now engage in nuclear commerce with India, which it could not earlier, but there is nothing binding in the agreement that the U.S. must sell.

On the fuel supply assurances in particular, critics of the deal, especially the Left, as well as other analysts (Frontline, August 24, 2007), have pointed out that there is nothing definitive on these in the agreement. All the multi-layered provisions included in Article 5(6) are non-committal in nature and amount to no assurance at all. Similarly, the scope for nuclear cooperation envisaged in the agreement includes many areas. That does not make the U.S. legally bound to cooperate in each one of the areas. The MEA statement simply misses this point.

The transmittal letter reiterates the above standpoint in the context of termination of safeguards, which could come about in the event, for instance, of a nuclear test by India or for any other reason, such as abrogation of the International Atomic Energy Agency (IAEA) safeguards. “A party seeking early termination of the Agreement,” Bush states in his letter, “has the right immediately to cease cooperation, under the Agreement, prior to termination. …In any case the Agreement, as noted, is a framework agreement that does not compel any nuclear activity. In the event of termination of the Agreement, key non-proliferation conditions and controls would continue with respect to material and equipment subject to the Agreement” (emphasis added).

The perpetuity of safeguards is another issue on which the government has maintained that it is only on a reciprocal basis of uninterrupted fuel supply, even in the event of a nuclear test by India because there is no explicit reference to nuclear explosion or test in the agreement.

It is clear from a careful reading of the Safeguards Agreement with the IAEA (Frontline, August 1) that safeguards would be in perpetuity irrespective of the circumstances leading to a disruption in fuel supply, a point emphasised by the Left as well (The Hindu, July 14). But the government has maintained that it has the sovereign right to take (undefined) “corrective measures” and that the safeguards agreement makes a preambular reference to it.

In this context, it is interesting to note the statement in the NPAS. It says: “Once… a facility is notified and placed in the Annex [of the safeguards agreement], safeguards cannot terminate on it without a joint determination by the IAEA and India [that the facility is no longer usable for any nuclear activity]” (Para 32). This is reiterated in the Hyde Act report as well.

The NPAS adds: “Although the safeguards agreement includes preambular language noting India’s ability to take ‘corrective measures’ to ensure uninterrupted operation of India’s reactors, both the U.S. and the IAEA have concluded that the preambular language establishes the historical context of the agreement and does not affect the obligations quoted above, which are contained in the agreement’s operational provisions” (emphasis added).

Even in the 123 Agreement there is no link of perpetuity of safeguards with uninterrupted fuel supply. The NPAS points this out clearly by referring to Articles 10(2) and 16(3) of the 123 Agreement. It says: “Article 10(2) provides that nuclear material and equipment transferred from the U.S. to India… shall be subject to safeguards in perpetuity [emphasis original] in accordance with the India-specific safeguards agreement….”

It adds: “Article 16(3) provides the assurance that, notwithstanding the termination or expiration of the Agreement… the safeguards required under Article 10 shall continue in effect so long as any nuclear material, non-nuclear material, by-product material, equipment or components subject to Article 10 remains in the territory of the Party concerned or under its jurisdiction or control anywhere, or until such time as the Parties agree that the nuclear material is no longer usable for any nuclear activity….”

The right to reprocess spent fuel of U.S. origin, the government has maintained, was obtained upfront and is permanent. But, just as the “secret” letter of the State Department (Frontline, September 26) clarified, the NPAS too says that for the consent to reprocess to take effect “India must establish a dedicated national reprocessing facility dedicated to reprocessing safeguarded nuclear material… and [emphasis original] both Parties must agree on ‘arrangements and procedures’ under which reprocessing…will take place in the new facility…. Article 14(9) [of the agreement] provides that the above ‘arrangements and procedures’ are subject to suspension… under exceptional circumstances… after consultations….” The NPAS adds that if the agreement as a whole were to be terminated, “arrangements and procedures” would need to be suspended “prior” (emphasis added) to the termination of the Agreement.

The documents also reveal that the government has already initiated certain steps towards implementing the IAEA’s Additional Protocol (AP). The Hyde Act report, besides noting that India was working closely with the IAEA towards this – which External Affairs Minister Pranab Mukherjee, too, stated in his statement of September 5 to the NSG – says that Indian officials had conveyed the contours of a proposed Protocol in a letter to the IAEA, and the IAEA was reviewing it.

The report adds that IAEA Director General Mohamed ElBaradei had also concluded on September 10 that India had made substantial progress towards concluding an AP, “consistent with IAEA principles, practices and policies that would apply to India’s civil nuclear programme”. These are facts that the government has thought not fit to share with Parliament.

It must be pointed out that, as the NPAS says, since the Indian AP will be different from the ‘Model AP’ (INFCIRC/540) – as India will have undeclared facilities outside the scope of safeguards at civil facilities – the provisions of such an AP are not known.

But if India has made a proposal that the IAEA considers to be sufficient to term as “substantial progress”, the government should make elements of the proposal known. In this context, both the Hyde Act report and the NPAS note, while discussing the Indian Separation Plan, that India has declared many nuclear facilities, such as heavy water plants and research institutions, as civilian but which India regarded as “not relevant for safeguards purposes”. “At a minimum,” both the documents say, “India’s AP is expected to include them.” It is also, therefore, imperative that the government provides Parliament the scope of the AP being negotiated and the facilities it would open up for inspections.

The NPAS provides a very interesting perspective of the implication of the negotiated safeguards agreement on the existing “voluntary” safeguards at the Tarapur plants. The document states, contrary to the position stated by India: “The U.S. maintains, and has formally advised the Indian government on several occasions, that certain ‘vested rights’ have survived expiration of the 1963 Agreement, including a U.S. right to approve reprocessing of the fuel used in Tarapur…. India has consistently disputed this position…. The proposed [123] Agreement with India does not apply retroactively to the U.S.-supplied reactors or their fuel.”

This means that even if the U.S. granted reprocessing rights under the 123 Agreement, they would not apply to the Tarapur spent fuel. Also, India has listed the Tarapur units as “civil” in its Separation Plan, which implies that they would come under safeguards in perpetuity and, therefore, cannot be removed, which could have otherwise been done since they were only under “voluntary” safeguards and not under an “Umbrella INFCIRC/66-type” safeguards agreement that would be implemented now.

The Prime Minister had categorically stated that India would not accept any linking of extraneous issues with the proposed civilian nuclear cooperation. But, as the Left had apprehended, this is exactly what seems to be happening, in particular with regard to Indian policy towards Iran, as the documents reveal. Section 104(c)(2)(G) of the Hyde Act requires that the President provide “a description and assessment of specific measures that India has taken to fully and actively participate in U.S. and international efforts to dissuade, isolate and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction (WMD)…”.

The Hyde Act report says: “The government of India has taken several steps to support the U.S. in this regard… As a member of the IAEA Board of Governors, India voted in favour of both the resolution [concerning Iran’s non-compliance with IAEA safeguards] in September 2005… and the resolution [reporting to the Security Council] in February 2006. Responding to the adoption of three… U.N. Security Council Resolutions… India reported that it is fully implementing their provisions, including those related to preventing Iran’s acquisition of sensitive technology [of enrichment and reprocessing]….”

This is contradictory to India’s stated position that it supports the right of Iran to the full nuclear fuel cycle. “India,” the President further reported, “maintained a strong public line of support for P5+1 and U.S. diplomatic efforts to resolve international concerns with Iran’s nuclear programme.”

The Hyde Act report also reveals that India has stated its unilateral adherence to the NSG guidelines and its annexes in a letter dated September 8 to the IAEA Director General. Likewise, India is also supposed to have stated its adherence to the Missile Technology Control regime (MTCR) and its annex in a letter dated September 9 to the MTCR secretariat in Paris.

Besides the change in Iran policy, there are other indications of India’s foreign policy getting aligned to that of the U.S. and of India getting drawn into the U.S. camp. Having initially been critical of the U.S. counter-terrorism and counter-proliferation measures such as the Proliferation Security Initiative (PSI) and the Container Security Initiative (CSI), which are seen as illegal operations amounting to sea and air piracy, India is slowly being drawn into these.

The Hyde Act report said that discussions with India on the PSI were going on. Both the report and the NPAS revealed that in October 2007 India attended the PSI’s three regional interdiction exercises as an official observer as well as the PSI Fifth Anniversary Workshop for non-PSI partners.

The NPAS further revealed that India had agreed to join the CSI; it is yet to take Parliament into confidence on this. In addition, the document says that India participates in the U.S. Department of Energy’s Megaports Initiative (similar to the CSI) and has deployed advanced scanners at seaports as part of the radiation portal monitor programme of the Initiative to screen (for the U.S.) cargo for arms, explosives, WMD and other contraband.

Perhaps the ultimate and most damning statement is the following in the NPAS. According to the statement, the U.S. is seeking to work with India to win the global war on terrorism, to prevent the spread of WMD and the missiles that could deliver them, to enhance peace and stability in Asia, and to advance the spread of democracy. This could well mean that the day is not far away when India may have to send troops to fight in Afghanistan or somewhere else where the U.S. may mount another unjust war.