123 Agreement: a response to Brahma Chellaney

Kapil Sibal
The Hindu, 17 September

To contend that India has somehow allowed itself to be denied the rights conferred by the U.S. to other contracting parties is misleading.

The UPA-Left Committee has an historic opportunity to iron out doubts that have been expressed publicly by some, and specifically by the Left, in opposition to the Indo-U.S. Civil Nuclear Cooperation Agreement. Historic, because if the UPA-Left Committee does not address these issues upfront with an open mind, India will lose an opportunity to be recognised as a nuclear weapons state and to avail itself of options to diversify our energy basket and enhance power generatio n to bridge the gap of unmet demand for electricity.

The statement that U.S. national laws have primacy over the 123 Agreement as contended by Brahma Chellaney (September 14) is both constitutionally and legally untenable. Reference to the U.S.-China Agreement, which stipulates that the parties to the Agreement will observe “the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty,” is a reiteration of the principle of international law, the absence of which, specifically in the Indo-U.S. 123 Agreement, does not result in its inapplicability. It is also not a standard provision found either in the U.S.-Japan accord or the Australia-China Agreement. Besides, in the 123 Agreement, Article 16(4) stipulates that “this agreement shall be implemented in good faith and in accordance with the principles of international law.” Also, Article VI(2) of the U.S. Constitution grants to international treaties the status of a sovereign law. Once the 123 Agreement is ratified by Congress, it will be regarded as the “last expression of the sovereign will” and overrides all other laws including national laws.

Mr. Chellaney next objects to the absence of a tribunal to settle disputes, a mechanism available only under the U.S.-Japan Agreement. Under that Agreement, the setting up of an Arbitral Tribunal is relevant only when and if a question arises concerning its interpretation or application. It has no application if either party decides to terminate the Agreement.

To contend that India has somehow allowed itself to be denied the rights conferred by the U.S. to other contracting parties is misleading. Reference to the U.S.-China and the U.S.-Japan Agreements demonstrates that India has been able to negotiate a far better agreement. For example, the Chinese do not have the right to reprocess spent fuel, a right granted to India, enhancing manifold our energy generation capacity. Secondly, the 123 Agreement recognises India as a de facto nuclear weapons state and for the first time has been granted a de jure nuclear weapons state status. Thirdly, the provision for termination of the agreement by either party is far more complex and difficult to implement than similar provisions in other agreements. Fourthly, the Japanese being signatories to the NPT, have no right to use either the nuclear material or technology for research and/or development of any nuclear explosive device, or for military purposes. If sovereignty is an issue, India’s sovereign rights are recognised by the non-hindrance clause reflected in Article 2(4).

Mr. Chellaney states that India bent backwards and agreed to terms that go beyond the requirements of U.S. law. The argument is a non-starter since no other similar agreement contains a termination clause, which conforms to specific provisions in the U.S. Atomic Energy Act. All agreements related to civil nuclear cooperation contain a termination clause that clothes both parties with the authority to, in the interim, suspend cooperation, without assigning reasons. The 123 Agreement with India is unique in that it provides for a one year notice of termination along with reasons. Instead of lauding our negotiators for having protected India’s interest so admirably, we are nitpicking on clauses which are in fact beneficial to our long term interests.

Mr. Chellaney then suggests that New Delhi has granted unfettered and uninfringeable rights to the U.S. to demand the return of all exported items and materials if it were to hold India in breach of stipulated conditions. The author is aware that in all other similar agreements, the right is entirely unfettered and uninfringeable and that in the 123 Agreement with India, the ambit of the right is limited by considerations which are contextual relating to India’s geographical situation and security concerns.

Further the safety net provided in the termination clause in the 123 Agreement with India is absent in all other agreements. What is a gain for India is being viewed as a sell-out.

The next major objection relates to the Separation Plan and the right to reprocess spent fuel, the operationalisation of which depends upon the setting up of a dedicated reprocessing facility. It makes sense to set up such a facility and route all foreign nuclear material to ensure its safeguarded use and verifiability. Such a framework serves the objective of enhancing our capacity to generate electricity, with India-specific safeguards in place. The decision to opt for a dedicated facility and not using the existing PREFRE plant under safeguards is based on scientific considerations of verifiability and administrative convenience. The building of such a facility is not a sell-out as contended.

The statement of the Prime Minister that the U.S. has a longstanding policy not to allow reprocessing and enrichment transfers is accurate. Under the U.S.-China Agreement, the Chinese are allowed neither the right to reprocess spent fuel nor enrichment transfers. Has China bartered its sovereignty in the bargain? Does the U.S.-Japan Agreement not inhibit the right of Japan to even conduct research for weaponisation and making nuclear devices?

Mr. Chellaney’s next objection is that the U.S. has the right to veto a separate agreement on reprocessing contingent upon building a new state-of-the-art facility before working out such arrangements. It may be stated upfront that India’s ability to reprocess spent fuel is not contingent on the transfer of reprocessing technologies from the U.S. We don’t need these from the U.S. Besides, we have a right to access such technologies from members of the Nuclear Suppliers Group. Despite this, the U.S. has agreed to seek an amendment of its Atomic Energy Act to share reprocessing technologies. Our right will be operationalised on building a dedicated reprocessing facility with IAEA safeguards.

As far as foreign policy implications of this deal are concerned, even in the Hyde Act, matters relating to foreign policy are regarded as statements of policy, not binding on India. The operative part of the Hyde Act deals with permanent waivers and congressional approval. Statements of policy and reporting requirements of the President vis-À-vis Congress have no bearing on the provisions of the 123 Agreement just as our statements of policy have no bearing on U.S. obligations under the Agreement.

Safeguards

Let us now deal with the nature of safeguards. Safeguards in perpetuity are contingent upon assured and uninterrupted fuel supplies, to which the U.S. is committed. Assured and uninterrupted fuel supply to safeguarded facilities is reflected in Articles 5(6)(a) and 6(b) 2, 3 & 4 of the Agreement. Article 5 (6)(c) stipulates specifically that the IAEA safeguards agreement, which would be India-specific will provide for safeguards against “withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.” To say that corrective measures are cosmetic is again not based on the language of this Agreement. Indeed, this is the only Agreement which confers on any country to take corrective measures in the event of a possible disruption of supplies and these corrective measures will be taken by India in its national interest.

The next objection deals with possible impetuous and induced monitoring based on Section 104(d)5 of the Hyde Act. A close reading of the provision will indicate that the accountability to Congress is of entities required to account for technology transfers and the obligations of the Department of Commerce and the Nuclear Regulatory Commission.

All these again are consistent with the IAEA safeguards and the terms of the 123 Agreement and can neither impinge upon nor impact on India’s sovereignty. The interpretation of Section 108 of the Act is again an attempt to find a ghost in every corner where none exists. Collaboration with the Indian scientific community is a salutary provision, which would give us access to technology and information.

The argument relating to the life of the Agreement and the stipulated expiry date cannot by any stretch of reasoning be a subject matter of debate and discord when India has the right to terminate the Agreement by giving one year’s notice, which right is also granted to the U.S. The period of 40 years, in fact is evidence of the level of confidence and goodwill between the contracting parties.

In the U.S., many believe that the 123 Agreement is a bad agreement made worse. That the U.S. can live without this agreement, there is no doubt. That India should live without this agreement is certainly a matter of debate. India should not lose this historic opportunity to be part of a global regime in which India is included as a shareholder. We must get on the bus of nuclear renaissance. History has taught us if you miss the bus once, you will also miss the ride. The walk forward will be long and arduous.

(The writer is Union Minister for Science & Technology and Earth Sciences.)