In the avalanche of comments on and analyses of the finalised text of the Indo-US 123 Agreement, few have recalled as to who took the initiative in the July 2005 Summit talks between our Prime Minister and the American President as they sought a way for India to end its nuclear isolation. The rigid conditionalities of the Non-Proliferation Treaty (NPT) system were assisted and evolved, through the International Atomic Energy Agency’s (IAEA) mechanisms, after that treaty was signed.
<b1>Right in the beginning when the US and the Soviet Union presented this draft treaty to the world that the two superpowers had finalised, it had not suited India, which refused to join it. But we remained faithful to the broad code of conduct presented by the NPT. The treaty characterises five States as Nuclear Weapon States and the remaining 185 as Non-Nuclear Weapon States. A few in the latter group are industrialised and members of the Nuclear Suppliers Group (NSG). The remaining are developing countries that receive technical know-how and equipment through the IAEA and others to run a few small experimental reactors or derive benefits of isotope technology to assist their development needs in areas of health, agriculture etc.
Though India remained outside the NPT, it uniquely continued to develop and build its own reactors, experimenting with the Advanced Breeder Reactor Technology, indigenously achieving criticality for its Fast Breeder Test Reactor. We indicated that our programme shall aim to promote thorium as a basic fuel of choice. We kept cooperating with the international community in research and development of choice, agreed upon bilaterally wherever feasible. But all this did was to reduce us to a pariah status, denying our participation in nuclear commerce in technologies, ancillaries and equipment.
This started biting into our technological growth in the nuclear arena. Post-NPT there were two attempts to snatch away our permanent seat on the Board of Governors of the IAEA. All these pressures could not stop India from developing our capability in the strategic field, i.e. devising nuclear explosive devices. During Indira Gandhi’s prime ministership in 1974, we conducted a peaceful nuclear experiment; and then again in 1998, during Atal Bihari Vajpayee’s prime ministership, we demonstrated our multiple nuclear explosions capability.
By 2005, the US, along with the rest of the world, concluded that India, would be easy and profitable to cooperate with. Everyone seemed to recognise that leaving India feeling isolated or diminished would not serve the purposes of the international community. George W. Bush took the first step to correct the contours of the NPT system.
The Ayatollahs of non-proliferation in the US strongly objected to the concessions made to India. Their opposition to the agreement continues. The long period of estrangement between India and the US had bred suspicions and doubts about one another. This often made societies in both countries forget that when one negotiates an agreement based on an unusual context, one is negotiating a new relationship. Our two societies showed maturity in appreciating the sophistication, reticence, diligence and modesty of our two principal negotiators. The agreement is being seen as an honourable one and ensures the fulfilment of the assurances provided by Prime Minister Manmohan Singh to our Parliament in 2006.India continues to have the right to re-process spent fuel. The uninterrupted running of these reactors is also guaranteed. Only the IAEA safeguards will be applicable to us — not any additional American inspections. Under the US legal system, in the absence of an enabling legislation like the Hyde Act, it could have been difficult to move on to negotiate a 123 Agreement. However, the Hyde Act has had no direct or indirect effect on the finalised agreement. The terms of the 123 Agreement alone can bind us; not the Hyde Act. The latter remains a legislation directed solely and primarily at the US government.
There has never been any recognition of India’s de facto status as a Nuclear Weapon State. By explicitly allowing India to separate its civil and military nuclear programmes, this seems to have changed. One should be hopeful that the 123 Agreement will be followed by amendments to the NSG guidelines, thus granting India an official de facto Nuclear Weapon status. In case, India’s Opposition and Left parties force the government to reject the agreement, there is no likelihood of any NSG agreement. This could keep India outside international civil nuclear commerce.
There has been debate and discussion about how the ‘new nuclear relationship’ will affect India if it conducts a nuclear test in the future. Two pieces of American legislation — the Atomic Energy Act and the Arms Exports Control Act — would require the US to demand the right
of nuclear material and equipment transfer from the US. The US President will need to cease export of such material and equipment to India and subject it to a whole range of sanctions. At the same time, both these Acts give the US President wide discretion in exercising the authority, including waiving of the sanctions with the concurrence of the Congress. The present India-US 123 Agreement explicitly incorporates certain factors that the US President may now need to take into account. This is unique among all the 123 Agreements that were negotiated by the US until now, including those with its allies such as Euroatom (European Atomic Energy Community) and Japan.
In any discussion of civil nuclear cooperation, the question of enrichment and re-processing technologies for fuel will be required. These are neither included nor guaranteed in this agreement. However, India as a de facto Nuclear Weapon State (but not yet a de jure one), has under this agreement reserved the right to designate which future facilities it will name as civilian, offering these for IAEA safeguards. In other words, India has the right to keep whichever of its facilities it considers essential for its security to be in the strategic or military area.
As regards India’s fuel supply assurances, we should be able to stock, independent of any US action, fuel for the lifetime operation of all the reactors. There is no requirement under the 123 Agreement (unlike the case of the old Tarapur agreement) that facilities imported from the US should use only US-supplied fuel. Thus, India will be free to acquire lifetime fuel for US reactors also from other sources, without being subject to any right of return by the US.
In principle, therefore, the US retains the right to stop supply of fuel if India conducts a test, and the US President exercises the option to cease nuclear cooperation with India. The Agreement also requires the US “to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about the changed security environment or as a response to similar action by other States which could impact national security”. This clearly is a concession to the dangerous nuclear and missile neighbourhood, in which unpredictable neighbours too live. One should assume that this language indicates that the US has already factored into this Agreement the possibility of continuing the supplies to India.
SK Singh is currently Governor of Arunachal Pradesh; and a former Foreign Secretary of India