India and the United States have recognised that exercising the “right of return” of nuclear material would have “profound implications” for their relationship, in case cooperation under the terms of the draft civil nuclear cooperation accord was ended.
The draft, posted on the websites of the External Affairs Ministry and the US embassy, provides India with the prior right to reprocess spent nuclear fuel – a facility not extended to China by the US under their own agreement in July 1985.
The document, containing 17 articles and an agreed minute, has been made public ahead of a debate on the politically contentious nuclear deal in the monsoon session of Parliament.
A preamble to the agreement says that the two sides want to cooperate in developing civil nuclear cooperation on the basis of “mutual respect for sovereignty, non-interference in each other’s internal affairs, equality, mutual benefit, reciprocity and with due respect for each other’s nuclear programmes”.
The text, an effort to reconcile the conflicting interests of both sides, contains no direct reference to the 2006 US Hyde Act, which stipulates cessation of cooperation in the event of a future nuclear test by India.
“The parties (India and the US) agree to consider carefully the circumstances that may lead to termination or cessation of cooperation,” an obvious reference to the possibility of an Indian nuclear test and New Delhi’s insistence that it would not go beyond its voluntary commitment not to test again.
“They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about a changed security environment or as a response to similar actions by other States which could impact national security,” the draft accord held.
In implicit recognition of India’s nuclear weapons’ programme, the draft said the agreement would not “affect the unsafeguarded (read military) nuclear activities” of either country while allowing “peaceful nuclear cooperation”.
Nothing in the agreement shall be interpreted as affecting the rights of the two parties to “use for their own purposes” nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of what was supplied under the accord.
Fulfilling the commitments made by Prime Minister Manmohan Singh to Parliament, the draft said the “purpose” of the agreement was to enable “full civil nuclear cooperation activities covering nuclear reactors and aspects of the associated nuclear fuel cycle including technology transfer on an industrial or commercial scale”.
On the re-use of spent fuel, the parties granted “each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this agreement”.
India, which is to establish a dedicated national reprocessing facility, will agree with the US under Article 6 (iii) on “arrangements and procedures” under which such reprocessing will take place in the new facility.
“Consultations on arrangements and procedures will begin within six months of a request by either party and will be concluded within one year,” the draft said, adding in Article 14 (9), that such arrangements and procedures could be “subject to suspension” in “exceptional circumstances” as defined by the two parties after consultations.
A South Block official clarified that “suspension” in exceptional circumstances related only to arrangements and procedures and not the right to reprocess.
The agreement, which enters into force on the date on which the parties exchange diplomatic notes to the effect they have completed all applicable requirements, will be valid for a period of 40 years. “It shall continue in force thereafter for additional periods of 10 years each.”
Each country may, by giving six months written notice to the other, terminate this agreement at the end of the initial 40 years, or at the end of any subsequent 10-year period.
Under Article 14 – termination of cessation of cooperation – either party can terminate the agreement prior to its expiry on one year’s notice to the other party. If either country exercises its right of return to previously supplied nuclear material, then it must “compensate promptly” the other country for the “fair market value thereof” and for the costs of removal.
Given that the US is balancing its international non-proliferation commitments with allowing India access to nuclear technology and material, the draft held that the agreement shall be implemented in “good faith and in accordance with international law”.
To ensure uninterrupted supplies of nuclear fuel, not only will the US support the establishment of a strategic reserve of nuclear fuel for India, but join New Delhi in negotiating with the International Atomic Energy Agency (IAEA) an India-specific fuel supply agreement.
New Delhi has also agreed that nuclear material and agreement transferred to it by the US under this agreement “shall be subject to safeguards in perpetuity” in accordance with a still-to-be-negotiated India-specific safeguards agreement with the IAEA.