Contentious clauses

Two provisions in U.S. law nullify Manmohan Singhs promises on the nuclear deal, says P.K. Iyengar, former chairman of the AEC.

TWO provisions in the United States-India Nuclear Cooperation Approval and Non-proliferation Enhancement Act passed by the U.S. Congress nullify the series of promises Prime Minister Manmohan Singh made to the nation in August 2006 on the 123 Agreement between India and the U.S., according to P.K. Iyengar, former Chairman of the Atomic Energy Commission (AEC). These provisions have also neutralised the demands made by AEC Chairman Anil Kakodkar vis-a-vis the 123 Agreement, he told Frontline.

The provisions make it clear that the 123 Agreement is no longer a bilateral agreement; they bring into play the member-countries of the Nuclear Suppliers Group (NSG) in the implementation of the agreement, P.K. Iyengar said. Besides, the U.S. President would have to certify to the U.S. Congress that he would influence the NSG countries to restrict the transfer to India of equipment and technology for enriching uranium and reprocessing of spent fuel. Thus India would be under the control of the U.S. all the time, the former AEC Chairman said.

On August 17, 2006, Manmohan Singh categorically told the Rajya Sabha that there have neither been nor will there be any compromises on the assurances given by him in this august House on the July 18, 2005, Joint Statement [by him and U.S. President George W. Bush] and the March 2, 2006, Separation Plan. The Prime Minister also said: The central imperatives in our discussions with the United States on civil nuclear cooperation is to ensure the complete and irreversible removal of existing restrictions imposed on India through iniquitous restrictive trading regimes over the years. We seek the removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy ranging from nuclear fuel, nuclear reactors, to reprocessing spent fuel, that is, all aspects of a complete nuclear fuel [cycle]. We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear cooperation as amplified above.

The Prime Minister further asserted: [The] Separation Plan includes elaborate fuel supply assurances given by the United States. Understandings in the Separation Plan also provide for contingency of disruption of fuel supplies to India. In such a case, the United States and India would jointly convene a group of friendly supplier countries (Russia, France and the United Kingdom) aimed at restoring fuel supplies to India. An important assurance [from the U.S.] is the commitment of support for Indias right to build strategic reserves of fuel over the life-time of its nuclear reactors. In the event of disruption of fuel supplies despite the assurances, India will have a right to take corrective measures to ensure operation of its nuclear reactors.

Besides, Manmohan Singh argued that Indias sovereign right to conduct a nuclear test would not be taken away by the 123 Agreement.

On his part, Kakodkar asserted that India had been assured uninterrupted fuel supply in the 123 Agreement; that India had a right to find alternative fuel suppliers in case the supply was disrupted in the event of India exploding a nuclear explosive device; and that the NSGs waiver to India, which would enable India to import reactors and access uranium enrichment and reprocessing technology, should be clean and unconditional.

However, Section 102(b)(1) in the United States-India Nuclear Cooperation Approval and Non-proliferation Enhancement Act states categorically that in the event that nuclear transfers to India are suspended or terminated pursuant to Sections under the Hyde Act of 2006, the Atomic Energy Act of 1954 or any other United States law, it is the policy of the United States to seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group or any other source.

What was more damaging, P.K. Iyengar said, was Section 204 of the Act, which was titled United States Government policy at the Nuclear Suppliers Group to strengthen the international nuclear non-proliferation regime. Section 204(a) entailed that the U.S. President shall certify to the appropriate congressional committees that it is the policy of the United States to work with members of the Nuclear Suppliers Group, individually and collectively, to agree to further restrict the transfers of equipment and technology related to the enrichment of uranium and reprocessing of spent nuclear fuel.

Section 204(b) states: The President shall seek to achieve, by the earliest possible date, either within the NSG or with relevant NSG participating governments, the adoption of principles, reporting and exchange of information as may be appropriate to assure peaceful use and accounting of byproduct material in a manner that is substantially equivalent to the relevant provisions of the Agreement.

Sections 102 and 204, which invoke the NSG countries, meant that the 123 Agreement is no longer a bilateral agreement between India and the U.S., P.K. Iyengar said. When the U.S. stopped the supply of enriched uranium to two reactors at Tarapur, Maharashtra, after India conducted a nuclear experiment at Pokhran in 1974, Russia, France and China stepped in to supply fuel to the reactors. But Section 102(b)(1) of the congressional legislation states that if the U.S. terminated nuclear fuel supply to India in the event of India exploding a nuclear device, the U.S. would seek to prevent the transfer to India of nuclear equipment, materials or technology not only from NSG countries but from any other source.

Further, according to Section 204, the U.S. President would write to the congressional committees that the U.S. would work with the NSG countries to restrict further the transfer of enrichment and reprocessing technologies to India.

P.K. Iyengar asserted: So, in all respects these two modifications [to the 123 Agreement] that have been introduced by the House of Representatives and the Senate nullify all the promises made by the Prime Minister to the nation and all the demands/declarations made by the AEC Chairman [Anil Kakodkar] that the deal is clean, that it is unconditional, that we have an assurance of uninterrupted fuel supply and that we have a right to find alternative fuel suppliers in the event of a disruption in fuel supply.

He asked: The modification to the 123 Agreement as passed by the House and the Senate says that in the case of disruption of fuel supply [to India], the U.S. President shall see to it that no other country will come to the rescue of India. But the 123 Agreement says that other suppliers will be called into play. Why is the Government of India silent on this?

In September 2008, the NSG exempted India from its Guidelines, enabling the country to import nuclear reactors from NSG member-countries. After the NSG gave this waiver, Russia and France offered to sell reactors to India. Russia has already given India two reactors, which are under construction at Kudankulam in Tamil Nadu, and promised to make life-time supply of fuel to these reactors. Besides, Russia has said India can reprocess the spent fuel from these reactors. (Russia will provide four more reactors at Kudankulam.) We dont have to go to the Russians every time we want to reprocess the spent fuel from Kudankulam, said P.K. Iyengar.

He added: But the U.S. now insists that India will have to approach the U.S. Congress [every time] we want to reprocess spent fuel [from other countries reactors too] and that the U.S. has a right to deny India the right to reprocess. This means there will be uncertainty after we build a dedicated facility for reprocessing spent fuel from imported reactors. If the U.S. says it does not like the design of the dedicated reprocessing facility, we will be stuck, for Section 201(c) of the Act says that if any other nation permits India to reprocess spent fuel from imported reactors, India will have to approach the U.S. Congress for permission to reprocess, he argued.

Under Article 6(iii) of the 123 Agreement, India has agreed to establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA [International Atomic Energy Agency] safeguards and the parties will agree on arrangements and procedures under which reprocessing or other alteration in form or content will take place in this new facility.

The former AEC Chairman alleged that the entire 123 Agreement has been orchestrated to bind India to a status of a non-nuclear weapon state and to get it to surrender its right to reprocess spent fuel even under [IAEA] safeguards.

Despite these conditions laid down in the congressional legislation, George Bush claimed that the legislation makes no changes to the terms of the 123 Agreement I submitted to the Congress. He made this claim on October 8 when he signed the congressional legislation, which approves the 123 Agreement, into law. Bush also claimed: The legislation does not change the fuel assurance commitments that the United States government has made to the Government of India, as recorded in the 123 Agreement. The agreement also grants India advance consent to reprocessing which will be brought into effect upon the conclusion of arrangements and procedures for a dedicated reprocessing facility under IAEA safeguards.

In a statement, Bush again claimed that the legislation makes no changes to the terms of the 123 Agreement as I submitted to Congress, that our agreement with India is consistent with the Atomic Energy Act and other elements of the U.S. law, and that the legislation does not change the fuel assurance commitments that the U.S. government has made to the Government of India, as recorded in the 123 Agreement.

P.K. Iyengar pointed to the contradiction between the congressional legislation and the Bush statement, and asked: Does the U.S. President have the right to veto the legislation that he himself has signed into an Act? The former AEC Chairman asked a series of questions: Is the statement of Bush legally binding on the U.S. government? How can India take the word of Bush as legally applicable? If the next U.S. President says that he has nothing to do with the statement of Bush because there is nothing in law about the statement, what will India do? We will be stuck, he said.

He pointed out that India was going to sign the India-specific safeguards agreement that the IAEA Board of Governors had approved on August 1, 2008. Once we sign the safeguards agreement on the basis of the Bush assurance, we cannot withdraw from it. If the next U.S. President says that he has nothing to do with the Bush statement because there is nothing available in law, India will be stuck. Interestingly, Bush himself had earlier told Congress that his assurances on uninterrupted nuclear fuel supply to India were not legally binding.

P.K. Iyengar raised the possibility of Pakistan testing a nuclear device. What can India do if China were to give a gadget to Pakistan to detonate? he asked.

He demanded that the Government of India own up to misleading the public that without importing reactors, India would not have energy security. He alleged that the Manmohan Singh government was systematically avoiding an open discussion on the issue and accused it of throwing out its co-partners [that is, the Left parties].

On top of all these come the new rules of the U.S. Nuclear Regulatory Commission, which entail that any American company that builds a nuclear power plant must have damage-insurance guaranteed by the U.S. government. A similar guarantee has to be given by the government of the country in which the company is building the plant.

This insurance amount, besides subsidising the U.S. companys investment in India, would make electricity from a U.S.-built nuclear power plant more costly than previously thought.

With a massive financial crisis gripping the U.S. now, no credit would be available to India from the U.S. to buy reactors from that country, he added.