Spinmeisters' Nuclear Spiel Deconstructed

By Roger Alexander

With the US Senate Foreign Relations Committee all set to determine whether to recommend to the Senate to accept or reject the 123 Agreement with India with or without additional amendments. The Indo-US Nuclear Deal is in its home stretch.

In opening remarks before the crucial testimony of Undersecretary of State for Political Affairs William Burns before the Committee on Thursday, September 18, ranking minority member of the powerful Senate Foreign Relations Committee Senator Richard Lugar (R, Indiana) stressed that the nuclear agreement was an "important strategic opportunity" for the US.

He pointed out that the nuclear deal reinforced non-proliferation efforts and maintained US obligations under the Nuclear Non-proliferation Treaty.

Lugar also talked about the "seven determination requirements that the President must make in order to waive provisions of the Atomic Energy Act and submit the agreement to Congress."

"Last week, President Bush determined that each of these requirements has been met. Today's hearing will review these determinations in preparation for Congressional acceptance," he said.

He also outlined the four main policy and legal questions that must be resolved during the hearing. He emphasised on the need to "establish the definitive US interpretation of this agreement and avoid any ambiguity about the effect of this agreement on US law and policy."

Later after the hearing got underway, Acting Chair of the Senate Panel (Senator Joe Bidden, the permanent chair was away campaigning) Senator Dodd asked whether the fuel supply commitments were binding on the next administration taking charge on January 20, 2009. William Burns replied, "Any president would be bound by US law, just as you described, and I believe that the Indians understand the clarity of

our position,"

Then it was Acting Undersecretary for Arms Control and International Security John Rood’s turn to answer queries. “What was the legal effect of including assurances in the agreement? If those have no legal effect, then why were they included in the agreement at all? What would the United States do to help India create its strategic reserve of nuclear fuel? Does the government of India agree that those assurances were not legally binding and if so, has it said so in public,” asked Dodd

Replying to Senator Dodd's question, Rood said, "With regard to their understanding that our actions are going to be guided by US law and will be consistent with US law, I believe the Indians do understand that." (Emphasis added)

Let us, therefore, examine the US interpretation of the deal, which is consistent with US laws.

The documents submitted to the US Congress by the US President along with the Presidential Determination on Indo-US civil nuclear cooperation have made it amply clear that the terms of the 123 Agreement are fully in conformity with the Hyde Act.

In brief, the following points have been underscored to demonstrate that the 123 Agreement with India is in full conformity with the Hyde Act:

· India will not have any uninterrupted fuel supply assurance;

· India will have to place its civilian reactors under IAEA safeguards in perpetuity without such a fuel supply assurance;

· India will not have any assurance regarding stock piling fuel reserve for the life time of the reactors;

· Whatever corrective measures India may contemplate vis-à-vis fuel supply disruption, taking the reactors out of IAEA safeguards will be impermissible;

· India will not have access to full civilian nuclear technology;

· The consent to India's reprocessing of spent fuel is only notional;

· The US can terminate the 123 Agreement at will and stop all supplies immediately;

· India will have to align its foreign policy to that of the US, particularly on Iran.

Regarding Fuel Supply Assurances, the signed covering note to the Presidential Determination (President's Transmittal of Text to Congress) – also referred to as the ‘Hyde Package’ - George Bush makes it clear that the fuel supply assurance in the 123 Agreement is not legally binding. "In Article 5(6) the Agreement records certain political commitments concerning reliable supply of nuclear fuel given to India in March 2006. The text of the Agreement does not, however, transform these political commitments into legally binding commitments because the Agreement, like other US agreements of its type, is intended as a framework agreement."

This categorical denial of any legally binding fuel supply assurance in the 123 Agreement by the US President is accompanied by a specific observation contained in the Report Pursuant to Section 104(c) of Hyde Act Regarding Civil Nuclear Cooperation with India accompanying the Presidential Determination, which states:

"Once a facility is listed in the Annex, safeguards will continue indefinitely unless 'India and the Agency have jointly determined that the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards’. Thus the facilities and materials subject to safeguards are under 'safeguards in perpetuity in accordance with IAEA standards, principles, and practices'."

The Report Pursuant to Section 104(c) of Hyde Act has also left the quantity of nuclear material transferred under the 123 Agreement undefined. Therefore the US is under no obligation to help India build up adequate fuel reserves for lifetime operations of the reactors.

Regarding Full Co-Operation in Civilian Nuclear Technology, the Presidential Determination clearly states:

"It (the 123 Agreement) does not permit transfers of any restricted data. Sensitive nuclear technology, heavy-water production technology and production facilities, sensitive nuclear facilities, and major critical components of such facilities may not be transferred under the Agreement unless the Agreement is amended." This is also reiterated in the Report Pursuant to Section 104(c) of Hyde Act.

Regarding Consent to Reprocess, the Nuclear Proliferation Assessment Statement accompanying the Presidential Determination states:

"Subsequent to India's March 2006 separation plan, the Indian government decided to pursue development of a new civil facility dedicated to reprocessing material under safeguards. Development of this facility (and agreement with the United States on arrangements and procedures related thereto) will be required to bring into effect the ‘programmatic consent’ in Article 6 of the Agreement.”

Regarding Iran, the Report Pursuant to Section 104(c) of Hyde Act approvingly talks about India aligning with the US on the Iran question both in the IAEA and the UN and that India "maintained a strong public line of support for P5+1 and US diplomatic efforts to resolve international concerns with Iran's nuclear program".

Regarding Missile Technology Control Regime, the Report Pursuant to Section 104(c) of Hyde Act mentions that India has written a letter stating its "adherence to the MTCR and its annex in a letter dated September, 9, 2008, to Mr Jacques Audibert, the MTCR Point of Contact in Paris".

As Dr AN Prasad and other critics of the deal point out that all this makes the 123 Agreement almost identical to the Tarapur one, where India had been forced to run from pillar to post for fuel after the US unilaterally terminated the Tarapur 123 Agreement.

India still continues to hold spent fuel as the US has never given its consent to reprocessing, even though such a "programmatic consent" was there in the Tarapur 123 Agreement also. It is with the experience of Tarapur that India had sought fuel supply assurances and various other terms including the right to reprocess spent fuel.

With the documents accompanying the Presidential Determination, the US has made its intentions clear - this 123 Agreement is no different from the earlier Tarapur one, with all the attendant Tarapur problems. Therefore, India can again land into a Tarapur-like mess, as the right of the US to terminate the agreement is an unfettered one.

Therefore the argument that India has a different interpretation of the 123 Agreement is meaningless. The US as a supplier of nuclear equipment and materials will undertake such supply only under the terms of what it calls a "framework agreement."

A different interpretation of the 123 Agreement by India will in no way bind the US as a supplier.

ends