In the newest 123 agreement, the US has retained the legal right to unilaterally terminate cooperation but provided political assurances to India that such a right will be exercised only in extraordinary circumstances. A similar approach is mirrored in the reprocessing accord, warns Brahma Chellaney
One more accord has been concluded under the much-trumpeted Indo-US nuclear deal. But like the previous two — the 123 bilateral agreement with the US and the safeguards accord with the International Atomic Energy Agency (IAEA) — the latest agreement, too, will escape scrutiny by the Indian Parliament. The newest agreement involves US consent to India to reprocess spent fuel of American origin.
Is it a good advertisement for the world's most-populous democracy that while the American president will submit the reprocessing agreement to the US Congress for scrutiny, the Indian Parliament will again be shut out from playing any role on this latest accord? How can there be effective checks and balances in a democracy if the executive branch insists that the national legislature has no role to play in any international agreement?
It is only on the nuclear-accident liability issue that the government is coming to Parliament because that involves passing a new law. In fact, it wants Parliament to pass a law that limits liability to a pittance, overturning the doctrine of absolute liability that the Supreme Court has set in response to the Bhopal gas disaster.
The result of blocking Parliament from scrutinising the nuclear deal is that India is now saddled with a deal that does not adequately protect its interests. India has got no legally binding fuel-supply guarantee to avert a Tarapur-style fuel cutoff, and no right to withdraw from its obligations under any circumstance, although the US has reserved the right for itself to suspend or terminate the arrangements.
The terms of the latest reprocessing agreement are in continuation of what the US was able to extract in the 123 bilateral agreement. The US has retained the right to unilaterally suspend its grant of reprocessing consent to India. This is an extension of its right, incorporated in the 123 agreement, to unilaterally suspend or terminate fuel supply to India. That is exactly what the US did in the mid-70s under its previous 123 agreement with India dating back to 1963. As a result, the twin-reactor, US-built Tarapur nuclear power plant near Mumbai, was left high and dry.
In the newest 123 agreement, the US has retained the legal right to unilaterally terminate cooperation but provided political assurances to India that such a right will be exercised only in extraordinary circumstances. A similar approach is mirrored in the reprocessing accord.
Under Article 7 of the reprocessing accord, the reprocessing consent can be suspended on grounds of "national security" or a "serious threat to the physical protection of the facility or of the nuclear material at the facility," and if the party determines "that suspension is an unavoidable measure." So the US right to suspend reprocessing consent is unfettered.
Still, the agreement's article 7 and the accompanying "agreed minute" record political assurances to India that such a right shall be exercised only in special circumstances and after careful thought. But such assurances hold little value when the legal right to suspend reprocessing consent is explicitly recorded in the text.
The actual implementation of the reprocessing agreement is years away, even though US-origin spent fuel has been accumulating in India for nearly 40 years at Tarapur.
India will not be able to reprocess that spent fuel until it has built at least one new dedicated reprocessing facility — a process that will take a number of years. Article 1(3) specifies that the US consent relates to "two new national reprocessing facilities established by the government of India."
Only in those new facilities, approved by the IAEA, can India reprocess the discharged fuel under international inspection. Any additional reprocessing facility can be added only with prior US agreement.
Another feature of the agreement is that it amplifies India's reprocessing obligations with the IAEA, including to provide facility-design information in advance and to allow unhindered international monitoring and verification (article 2). But in addition, the accompanying "agreed minute" obligates India to permit US "consultations visits" to each dedicated reprocessing facility. Every "visiting team of not more than 10 persons" will be permitted onsite access "at a time and duration mutually agreed by the parties."
It is thus apparent that the US has got what it wanted. For example, the state department had earlier notified the US Congress in writing that "the proposed arrangements and procedures with India will provide for withdrawal of reprocessing consent" by the US. That is exactly what the text of the accord provides. Also by providing for US "consultations visits," it effectively permits IAEA-plus inspections.
Had the Parliament been allowed to play a role, the government would have been able to leverage that to fight back one-sided provisions.