The 123 doesn’t add up
The United States concludes bilateral inter-governmental agreements on the peaceful uses of nuclear energy in terms of the provisions of Section 123 of the US Atomic Energy Act, 1954. It has concluded such ‘123 Agreements’ with 24 countries up till now. However, it is only in the case of the 24th — the agreement with India — that both the US government and the Congress here felt the need for the Agreement to be preceded and governed by a special India-specific US Act, the Hyde Act. Unfortunately, it contains a number of restrictive, intrusive and extraneous clauses that have had to be reflected by the US negotiators and accepted by our joint negotiating team of senior officials and nuclear scientists from the Ministry of External Affairs and Department of Atomic Energy in arriving at our 123 Agreement.
The Hyde Act runs into 41 pages of tightly formulated techno-politico-legal text. A careful analysis reveals that 22 of the 41 pages contain at least one, and often more, restrictive clauses or clauses that are deeply intrusive of our sovereignty or security. Some major examples include the clause that the US Government must further restrict transfers to India of technology and equipment to produce enriched uranium, plutonium and heavy water, take every possible measure to get India to stop production of nuclear weapon-making material by a specific date; take all necessary action to ensure India works actively in accordance with US policy to the early conclusion of a multi-lateral treaty on the cessation of production of weapons grade nuclear material.
If we undertake a nuclear test, the entire ‘deal’ will be cancelled. This amounts to getting us ‘covered’ by the Comprehensive Test Ban Treaty (CTBT) that we have all along refused to sign as it will permanently cripple our vital nuclear weapons programme. The Act also ensures that IAEA safeguards on reactors imported from or fuelled by fuel from the US remain in force in perpetuity — even if the 123 is suspended or terminated.
The 123 Agreement does not pledge or commit the US to a fuel supply guarantee over the life time of even US-origin nuclear reactors purchased by India. Furthermore, that assurance is assigned not to Washington but to the international nuclear regulatory agency, the IAEA, which has no access to or control over sources of supply of fuel. So, in effect, the central issue at the core of India-US civilian nuclear cooperation deal is not committed to by the US government anywhere in the Agreement. Despite the Joint Statement of July 18, 2005, that the US would provide ‘full’ nuclear cooperation — i.e. covering both technology and facilities across all stages of the nuclear fuel cycle — technology transfer to India for enriched uranium fuel, plutonium extraction from spent fuel and heavy water production is denied in the Agreement. Quixotically, it is stated that these three crucially important technologies may be provided to us under the present Agreement, but only pursuant to an amendment to the Agreement made at an indeterminate future date. This, despite transfer of technology and related production facilities for all three critical technologies being contained in the original US 123 Agreement with Japan and South Korea. And those transfers have also been operationalised.
As regards the crucial aspect of plutonium extraction from spent fuel, our 123 Agreement contains a US consent to our extracting plutonium but requires that to do so, New Delhi must spend an estimated Rs 2,000 crore to set up a new national plutonium extraction facility under IAEA safeguards. However, even this is subject to our agreeing with the US on a whole range of “arrangements and procedures”. In practice, this means that we have to provide all the design, engineering, manufacturing and testing documentation relating to the new national facility both to the IAEA and to Washington for their separate and joint clearance. This is a highly intrusive condition.
Furthermore, it is indicated nowhere in the 123 Agreement that such “arrangements and procedures” are, in fact, a long list of measures spelt out in Article 131 of the US Atomic Energy Act of 1954. A study of that list reveals that the information we have to provide and the actions we have to take are also highly intrusive. And even if we do so and reach an agreement with both the IAEA and Washington, the ‘Article 131 Agreement’ will have to be separately submitted to the US Congress for its approval independent of the earlier approval of our 123. We, therefore, run the serious risk of the US Congress not approving the 131 Agreement bringing our plutonium extraction to a complete halt.
The Agreement contains a highly arbitrary and one-sided article on ‘Termination and Cessation of Cooperation’. The Article states that “either party” (which in practice, really means the US) shall have the right to terminate this agreement on one year’s notice to the other party. The party giving such notice of termination shall provide the reasons for seeking such termination. The second sentence regarding ‘reasons’ is absolutely global in its coverage. Normally, in such agreements, the reasons for terminating must be ‘internal’ to the agreement — i.e. something that one of the parties to the agreement has done or failed to do with reference to the obligations it has taken in the agreement. The ‘global’ character of the formulation in this case is seriously adverse to India as, in principle, the US government could cite a vote by us in the UN against a US-sponsored resolution or any other such external reason as adequate ground for the US to terminate the agreement.
Clearly such a formulation gives the US unrestricted and a totally arbitrary discretion to terminate the 123 Agreement with India. Such a provision does not exist in the US 123 Agreements with China, Japan or South Korea. Although the phrase ‘nuclear test’ does not appear anywhere in the 123 Agreement, there is a clear allusion that should we undertake any nuclear test, the US will terminate the 123 in accordance with the Hyde Act.
All that we need from the nuclear deal is adequate quantities of uranium ore. However, it is unlikely we will get even that through the deal as all three top producers of uranium — Australia, Canada and Kazakhstan — have already announced that they will not supply any uranium to India unless New Delhi sign the nuclear Non-Proliferation Treaty (NPT).
Ashok Parthasarathi was Science Advisor to Prime Minister Indira Gandhi.