The legislation signed by Bush is technically known as the 123 Agreement because it amends section 123 of the U.S. Atomic Energy Act of 1954, which regulates U.S. cooperation with other nations in nuclear matters and prohibits trading with states that have not signed the 1968 Non-Proliferation Treaty (NPT). Not only is India a non-signatory to the landmark treaty, it is, along with Israel and Pakistan, also in contravention of its underlying principle, having secretly developed the bomb by transferring fissile material from its civilian program.
But while the point of the legislation was ostensibly to enable India to meet its energy needs, in reality it was about much more than that. The primary motivation is the U.S. embrace of India as a strategic partner.
(Here's Iran's take on the Indo-US Nuclear Deal. The Persians have a point)
TEHRAN (FNA)- Iran on October 6 warned that the Indo-US nuclear deal has "endangered" the Non-Proliferation Treaty (NPT) and will trigger a "new crises" for the international community.
"The method used by several nuclear states to transfer the technology to non-members of the NPT, will create new crises for the international community," Deputy head of Iran's Atomic Energy Organization Mohammad Saeedi said.
"Cooperation in the area of transfer of nuclear technology to the NPT non-members will endanger the treaty," he said, adding that although India is enjoying nuclear weapons it is not a signatory to the NPT.
He said that "privileges" to India which is not a member of NPT will endanger the treaty.
According to the NPT, only signatories to the treaty can make use of the rights mentioned in the treaty, Saeedi noted.
Both houses of the US Congress voted in favor of the landmark nuclear deal this week and President George W. Bush is expected to sign it into law on Wednesday.
This is while Washington and its Western allies accuse Iran of trying to develop nuclear weapons under the cover of a civilian nuclear program, although they have never presented any corroborative evidence to substantiate their allegations. Iran denies the charges and insists that its nuclear program is for peaceful purposes only.
Tehran stresses that the country has always pursued a civilian path to provide power to the growing number of Iranian population, whose fossil fuel would eventually run dry.
Despite the rules enshrined in the Non-Proliferation Treaty (NPT) entitling every member state, including Iran, to the right of uranium enrichment, Tehran is now under three rounds of UN Security Council sanctions for turning down West's illegitimate calls to give up its right of uranium enrichment.
Tehran has dismissed West's demands as politically tainted and illogical, stressing that sanctions and pressures merely consolidate Iranians' national resolve to continue the path.
Iran insists that it should continue enriching uranium because it needs to provide fuel to a 300-megawatt light-water reactor it is building in the southwestern town of Darkhoveyn as well as its first nuclear power plant in the southern port city of Bushehr.
Iran currently suffers from an electricity shortage that has forced the country into adopting a rationing program by scheduling power outages - of up to two hours a day - across both urban and rural areas.
Iran plans to construct additional nuclear power plants to provide for the electricity needs of its growing population.
The Islamic Republic says that it considers its nuclear case closed as it has come clean of IAEA's questions and suspicions about its past nuclear activities.
Political observers believe that the United States has remained at loggerheads with Iran mainly over the independent and home-grown nature of Tehran's nuclear technology, which gives the Islamic Republic the potential to turn into a world power and a role model for other third-world countries. Washington has laid much pressure on Iran to make it give up the most sensitive and advanced part of the technology, which is uranium enrichment, a process used for producing nuclear fuel for power plants.
Washington's push for additional UN penalties contradicts a recent report by 16 US intelligence bodies that endorsed the civilian nature of Iran's programs. Following the US National Intelligence Estimate (NIE) and similar reports by the IAEA head - one in November and the other one in February - which praised Iran's truthfulness about key aspects of its past nuclear activities and announced settlement of outstanding issues with Tehran, any effort to impose further sanctions on Iran seems to be completely irrational.
The February report by the UN nuclear watchdog, the International Atomic Energy Agency, praised Iran's cooperation in clearing up all of the past questions over its nuclear program, vindicating Iran's nuclear program and leaving no justification for any new UN sanctions.
The UN nuclear watchdog has so far carried out at least 14 surprise inspections of Iran's nuclear sites so far, but found nothing to support West's allegations.
Also in his latest report to the 35-nation Board of Governors, IAEA Director General Mohamed ElBaradei confirmed "the non-diversion" of nuclear material in Iran and added that the agency had found no "components of a nuclear weapon" or "related nuclear physics studies" in the country.
The IAEA report confirmed that Iran has managed to enrich uranium-235 to a level 'less than 5 percent.' Such a rate is consistent with the construction of a nuclear power plant. Nuclear arms production, meanwhile, requires an enrichment level of above 90 percent.
The Vienna-based UN nuclear watchdog continues snap inspections of Iranian nuclear sites and has reported that all "declared nuclear material in Iran has been accounted for, and therefore such material is not diverted to prohibited activities."
Many world nations have called the UN Security Council pressure against Iran unjustified, especially in the wake of recent IAEA reports, stressing that Tehran's case should be normalized and returned to the UN nuclear watchdog due to the Islamic Republic's increased cooperation with the agency.
Observers believe that the shift of policy by the White House to send William Burns - the third highest-ranking diplomat in the US - to the latest round of Iran-West talks happened after Bush's attempt to rally international pressure against Iran lost steam due to the growing international vigilance.
US President George W. Bush finished a tour of the Middle East in winter to gain the consensus of his Arab allies to unite against Iran.
But hosting officials of the regional nations dismissed Bush's allegations, describing Tehran as a good friend of their countries.
(Okay, you don't agree with me. So here's Dr PK Iyengar, Former Chairman of the Atomic Energy Commission - midwife (nay one of the fathers of our indegenous nuclear programme) and known opponent of Manmohan Singh's sell-out to the US making the same point. And if you think India has made a breakthrough deal with France - bypassing the US - you've got another thing coming. But more of that tomorrow)
The US House of Representatives has passed a bill (H. R. 7081) that approves the 123 Agreement, but which is contradictory to the assurance given by the Prime Minister to the nation. An identical version is before the US Senate for voting. Even as late as 26 September 2008, the Prime Minster was seeking an agreement that would ‘satisfy India’. This has not come to pass, and it will be interesting to see how the Indian government and the Indian media will ‘spin’ this into a victory for India. The Indian side is supposed to have been unhappy with the language. The fact is that one is not worried about the language, but the content and compulsions of the Bill.
Why is the House bill not satisfactory? Even the title of the Bill, ‘United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act’, makes it clear that they seek to press their non-proliferation agenda. The Bill makes a number of things explicitly clear, and reveals the true colours of the nuclear deal.
(1) The 123 Agreement is subject to the provisions of the Hyde Act and the Atomic Energy Act, and does not supersede them.
This is said, in so many words, twice in the Bill. Section 101 (page 3, lines 16-21) says that: “The Agreement shall be subject to the provisions of the Atomic Energy Act of 1954, the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, and any other applicable United States law.” Section 102 (page 6, lines 8-12) reiterates that: “Nothing in the Agreement shall be construed to supersede the legal requirements of the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 or the Atomic Energy Act of 1954.”
Therefore there is now no question of differences in the ‘interpretation’ of the 123 Agreement. Irrespective of what we think we are bound by, the Americans have made it abundantly clear that they are bound by the Hyde Act and the Atomic Energy Act, and the 123 Agreement does not supersede either of them. If we conduct a test it is now abundantly clear that, as per the provisions of the Hyde Act and the Atomic Energy Act, it is the end of the nuclear deal.
(2) In the event of a disruption of fuel supply from the US, the Americans will not help arrange for fuel from another country.
Article 5(b-iv) of the 123 Agreement says that in the event of fuel disruption the US will help India get fuel from ‘friendly supplier countries’. But it seems that the Congress is having none of this. Section 102 (page 5, lines 4-12) of the Bill explicitly states that in the event of fuel disruption, not only will the US not help arrange for fuel from other countries, but it will also “seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group (NSG) or from any other source.” Since this sentence is not in the 123 Agreement, the Indian government will probably claim that we are not bound by it. However, the simple reality is that if there is a disruption of fuel from America, for whatever reason, the Americans will work hard to ensure that we do not get it from any other source.
(3) There will be no transfer of enrichment technology, and even permission for reprocessing imported fuel may be denied.
This is the most disturbing clause in the Bill. Sec. 204 of the Bill (page 14, lines 11-19) says explicitly that before the 123 Agreement enters into force (according to Article 16), the President has to certify that the US will work with NSG countries to “agree to further restrict the transfers of equipment and technology related to the enrichment of uranium and reprocessing of spent fuel”. So, one of the major advantages we were expecting from the NSG waiver and the 123 Agreement will not be forthcoming. But this Bill goes even further. Section 201 makes it very clear that any future proposal for reprocessing needs explicit approval from the US Congress, and the Congress retains the right to refuse (page 13, lines 1-4). This is a new twist, and extremely dangerous, because it leaves us completely at the mercy of the Congress. The same section also says that the US will pursue efforts with other countries to ensure that reprocessing of fuel from those countries will also be governed by ‘similar arrangements and procedures’.
This seems to suggest that the US would even like the existing arrangements with Russia for the Kudankulam reactors to be modified along the proposed lines. The same would also apply to any other supplier. It is surprising that in spite of our being a ‘strategic partner’, the US wants to restrain our fuel-cycle developments. This shows, again, that India is not being treated as an equal, in spite of the fact that for decades India has developed reprocessing and enrichment technology on its own, and produced plutonium for fast-breeder reactors as well as enriched uranium for the submarine reactor.
These explicit statements in the House Bill only reaffirm what many of us have been saying for a long time. The 123 Agreement does not supersede, and is constrained by, the Hyde Act and the Atomic Energy Act. The House Bill has added new constraints. The entire Indo-US nuclear deal, which must now be taken to comprise of the Congress Bill, the 123 Agreement and the Hyde Act, is in contradiction to the July 2005 Joint Statement, because it doesn’t give India the status of an advanced nuclear state enjoying the same obligations and benefits as others. The nuclear deal does not allow cooperation in enrichment or reprocessing technology. The nuclear deal does not guarantee fuel supplies or a fuel reserve. In the event of a breach of the 123 Agreement, the US will not work with its allies to find alternate solutions – on the contrary it will pressure them to act against Indian interests. ‘Full cooperation’ in civil nuclear power is meaningless without assurances of fuel supply and technological cooperation in the fuel cycle.
The House Bill also makes it clear that the US continues to impose on us the existing non-proliferation regime, and is not ready to recognize India as a nation with advanced nuclear technology. President Bush may have made many promises, but he will not be around to fulfill them. The reality is that the nuclear deal will not bring us as equals to the nuclear table. It will only serve to tighten the non-proliferation regime around us, make us dependent on the nuclear cartel for fuel, and completely cripple our strategic programme.
If the government’s intention is to import nuclear reactors and fuel, a simple bilateral agreement, which guarantees application of safeguards to the reactors, the fuel, and the end products of reprocessing the fuel, would have been sufficient and meaningful. There is already a precedent for this. In the nuclear deal with Russia, the irradiated fuel from the Kudankulam reactors can be reprocessed in India, provided this is done under IAEA safeguards. The plutonium that is produced in these reactors, when separated, will also attract IAEA safeguards. This is perfectly understandable, and India has accepted this. Why this should not be applicable in a more friendly agreement with the US, is incomprehensible.
In 1974, when India was less developed and had a bleaker future, Indira Gandhi was able to stand firm in supporting a strategic programme, in spite of ominous warnings of the retribution that would follow. It is ironic that in 2008, when India is in a much stronger position, economically and geopolitically, her own party is ready to betray her legacy and put on nuclear shackles, for a few dollars more.
After a lot of drama and suspense, Congressman Howard Berman, a strong opponent of certain provisions of the Indo-Us Nuclear Deal, introduced a bill in the House of Representatives that is almost identical to the one that was overwhelmingly adopted by the Senate Committee on Foreign Relations.
However, his bill is said to have an extra paragraph that would require that the Senate and the House versions would have to be reconciled in a committee with the involvement of the administration as well, reports rediff.com.
Berman was also persuaded to drop killer amendments, including one on Iran that could have sabotaged the legislation following which he introduced the bill. He probably did so as the Hyde Act contains 17 references to Iran and directs India to have a foreign policy “congruent” to that of the US. That was why India voted twice against Iran in the IAEA.
(The Hyde Act requires an annual Presidential certification that India is in compliance with American law. And this so-called prescriptive clause is going to be a millstone around country’s neck for a long time to come.)
As this blog reported yesterday (September 24) - ‘US Senate Committee Shafts India On Nuclear Deal’ - Berman provided considerable input into the Senate Committee’s legislation with his staffers and that Senate panel staffers worked in concert to craft a bill that could possibly be cloned in the House of Representatives for floor action. That has happened.
According to the rediff.com report, Berman's bill, though in all respects similar to the Senate Committee's Bill, contains an additional proviso that in the event of a nuclear test by India, which leads to the automatic termination of the deal, the presidential waiver of this termination could be limited.
Under the Senate Committee's bill, as does many pieces of legislation dealing with such 123 Agreements and arms sales bills with America's allies, automatic termination of these agreements can be waived by the President on national security grounds and can be overridden by Congress only with a two-thirds majority.
Berman's Bill puts slightly more teeth into Congress with the presidential waiver having the authority for being overridden by the Congress with a simple majority and not two-thirds majority.
Now it is only a matter of time and procedure that the US Congress puts is imprimatur on the Indo-US 123 Agreement. It was being speculated that Congress might fail to endorse the 123 Agreement as House Committee on Foreign Relations chairman Howard L Berman, an alleged critic of the deal (even though he supported the passage of the Henry J Hyde Act) was refusing to play ball. But unlike in India, even the so-called maverick American politicians put the US' supreme national interest above personal preferences.
The Senate panel bill - the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act - though approved 19-2, forcefully stresses that “…nothing in the Agreement shall be construed to supersede the legal requirements of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 or the Atomic Energy Act of 1954.”
It also introduces a new element impinging on India's right to uninterrupted fuel supplies guaranteed by the 123 Agreement. In the approval legislation sent to the full Senate, the Committee makes it clear that “...it is the policy of the US to seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in NSG or from any other source.”
This contingency would arise in the event nuclear transfers to India are suspended or terminated in the event of a test in pursuance of provisions of the US enabling law, the Hyde Act, the Atomic Energy Act or any other US law, it says.
Manmohan Singh and his minions have consistently trotted out the specious argument that India is only bound by the 123 Agreement and papered over the supposedly "extraneous provisions" in the Hyde Act, the US legislation that grants the US administration an exemption from the Atomic Energy Act to carry out nuclear trade with India, a non-signatory to the Nuclear Non-Proliferation Treaty (NPT).
Another provision in the SCFR's recommendation sets limits on the nuclear fuel provided to India as part of promised fuel reserve saying "any nuclear power reactor fuel reserve provided to the government of India in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements.”
This is a far cry from Manmohan Singh’s assurance to Parliament on a number of occasions that India had obtained fuel supply guarantees for the lifetime of the reactors that would be purchased from the US and that India would have the right to build up a strategic reserve.
As usual, the Indian government’s spinmeisters are trotting out arguments that have already been discredited. "I am not going to comment on internal process in the US. We have the right to test and they have the right to react," Foreign Secretary Shivshankar Menon told reporters in New York. The usual bluster – India has the right to test while others have the right to react – was once again the retort to pointed questions from the media.
Still, the US Congress is all set to pass the Indo-US 123 Agreement along with the attendant riders (maybe some more may be added by Representatives and Senators). But Manmohan Singh is all set to sign away India’s sovereign rights and shackle us permanently to the Hyde Act and its pernicious conditions, including India’s foreign policy being “congruent” to that of the US. He has indicated as much in the past few days.
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.
