Weighty reasons not to accept 123 -- PK Iyengar

June 08, 2008 Exclusive to Organiser
Indo-US nuclear deal -- There are weighty reasons not to accept 123
By Dr P.K. Iyengar (Former chairman of Atomic Energy Commission)

I, and many like-minded people, welcomed this Joint Statement. Though there was some concern about the statement regarding the FMCT, the statements about ‘adjusting’ US laws and international regimes suggested that this agreement would bring us to the nuclear table as a de facto nuclear power, in recognition of the realities of the day.

The problems with the nuclear deal commenced with the very next step—the Separation Plan. This document clearly spells out the guiding principles behind our approach to separation.

Finally, ‘losing face’ is an argument that may apply to individuals and human emotions. It is scarcely an adequate basis for conducting the foreign policy of a large nation.
The US is making strenuous efforts to get India to sign the Indo-US nuclear deal, essentially by threatening that it is ‘now or never’. This is in contradiction to the statements made by US Ambassador that a new US administration may be willing to renegotiate the deal within a year of taking over. But this begs the question whether the deal is desirable or not. Obviously, it is desirable from the American perspective because it will, in essence, prevent any further nuclear tests, cap our strategic programme, and bring us into the Non-Proliferation Treaty (NPT) through the back door. But is it in our national interest? The lack of scientific debate in the media has led the Indian people to believe that we need the nuclear deal, and they are in broad support. But the reality is that this deal, in the present form, is just another way of getting India to accept that it is not a nuclear power. To understand this, we must go back to the beginning of the deal.

Joint Statement
After several years of negotiations by the NDA Government and later by the UPA Government, the Prime Minister of India and the President of the United States of America signed an agreement on the strategic relationship between the two countries on July 18, 2005. That agreement devoted three paragraphs to cooperation in civil nuclear energy. Specifically, it said that “as a responsible state with advanced nuclear technology, India should acquire the same benefits and advantages as other such states”. President Bush promised that he would “also seek agreement from Congress to adjust US laws and policies, and the United States will work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India … .” In return India agreed to separate its civilian and military nuclear facilities and programmes in a phased manner, to place most of the civilian facilities under IAEA safeguards, to sign an Additional Protocol with the IAEA, to continue its unilateral moratorium on testing, and to work with the US on concluding at a multilateral level the Fissile Material Cut-off Treaty (FMCT).

I, and many like-minded people, welcomed this Joint Statement. Though there was some concern about the statement regarding the FMCT, the statements about ‘adjusting’ US laws and international regimes suggested that this agreement would bring us to the nuclear table as a de facto nuclear power, in recognition of the realities of the day. It would also allow us to augment our indigenous nuclear power programme with imported reactors, such as the Russian VVER reactor already under construction at Kudankulam. Most importantly, it seemed to recognise India’s impeccable non-proliferation record since 1974, and to protect our strategic programme. The Prime Minister, in his suo-motu statement in Parliament of July 29, 2005 emphasised that “… we have ensured the principle of non-discrimination. I would like to make it very clear that our commitments would be conditional upon, and reciprocal to, the US fulfilling its side of this understanding.” He added, “should we not be satisfied that our interests are fully secured, we shall not feel pressed to move ahead in a pre-determined manner.” And finally, “our autonomy of decision-making will not be circumscribed in any manner.”

The Separation Plan
The problems with the nuclear deal commenced with the very next step—the Separation Plan. This document clearly spells out the guiding principles behind our approach to separation: “Consistent with India’s national security and R&D requirements as well as not prejudicial to the three-stage nuclear programme in India”; “must be cost effective in its implementation”; and “must be acceptable to Parliament and public opinion.” However, the separation plan was only submitted for information to the Parliament by the UPA Government, not for approval.

The Plan also clearly states that: “a facility will be excluded from the civilian list if it is located in a larger hub of strategic significance.” However, in spite of the APSARA and CIRUS reactors being located within BARC, which is our largest ‘strategic hub’, CIRUS is to be closed down, and the fuel core of APSARA will be moved outside BARC and put under safeguards in 2010. Compromises like this weaken the legitimacy of the Separation Plan, and lead naturally to suspicions that on other matters too we may succumb to external pressure. For example, the two ongoing fast-breeder reactors (PFBR and FBTR) have rightly been kept out of safeguards, since the fast breeder programme is in an R&D stage. However, before the fast-breeder technology becomes mature, much more R&D will be required to evolve the reactor design. For this we will need to have more breeder reactors, and related facilities, outside safeguards - and this will be opposed by US. Will the government of the day have the strength to withstand the pressure? Similarly, we are working on a new Advanced Heavy-Water Reactor (AHWR). Since this is for the power programme, it is likely to be designated as civilian, but since considerable R&D remains to be done, it would not be in the national interest to subject that programme to safeguards.

Finally, the separation plan also spells out that: to further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps.” These include: (1) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement; (2) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement. We now know that the US has reneged on both points. The bilateral 123 Agreement contains only vague reassurances and no concrete assurances, and India is negotiating with the IAEA alone, not jointly with the US. If the US has already, before the deal is done, turned its back on us, it augurs ill for the future of the relationship.

The Hyde Act
After this, the US produced a document and submitted it to their Congress for amendment of their Atomic Energy Act. This was deeply debated in the US with testimonies from several experts in that country. Going through all these statements, the Indian public was worried that the US Congress may prescribe conditions not intended in the July 2005 agreement. By November 2005 the US passed the Hyde Act for Indo-US Cooperation in Civil Nuclear Energy.

The Hyde Act states very clearly that: (1) nothing in this title constitutes authority for any action in violation of an obligation of the United States under the NPT; and (2) a determination and any waiver under section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device. These statements are not from the ‘advisory’ part of the Act, but from the prescriptive part. They make it explicit that the NPT will cast its shadow on the 123 Agreement, and therefore that India will not be treated as an equal of the other nuclear powers, in contradiction with the July 18, 2005 Joint Statement. More dangerously, the moment India tests a nuclear device, the entire deal falls through. In essence the Hyde Act, in one stroke, also terminates the development of India’s strategic programme. For many of us the Hyde Act made it decisively clear that the US had no intention of treating India as a de facto nuclear power, as the July 18, 2005 Joint Statement seemed to indicate. It became clear that this was only another way of getting us to agree to IAEA safeguards as a non-weapons country, which every Indian government has resisted since Pokhran I in 1974.

Many in and outside the government have argued that the Hyde Act is not binding on India, and therefore we need not worry about its provisions. This reasoning is clearly flawed. That the Hyde Act will constrain the actions of the US government has been made very clear by virtually every major US government official. The Indo-US nuclear deal is between two partners—India and the US. If the Hyde Act constrains the actions of one of the partners, how can it fail to have an effect on the other? Specifically, if the deal is made operational and we become dependent on imported nuclear plants and fuel, will it be possible for any responsible Indian government of the future to conduct a nuclear test and lose those plants, whatever the geopolitical realities and demands of the day? We should be very clear in our minds that, in the real world, the Indo-US nuclear deal will strike deeply at our strategic programme. All talk of retaining our ‘sovereign right to test’ is just theoretical rhetoric.

The 123 Agreement
After a series of negotiations the Government of India announced that it has initialed a 123 Agreement, without publishing the details. This created political protests and later, after the Cabinet had approved the draft agreement, it was made public. The text of the agreement confirmed our fears. The 123 Agreement very clearly states that: “each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes.” This means that the actions under the 123 Agreement are circumscribed by national laws such as the Hyde Act. By agreeing to the present draft of the 123 Agreement, India has agreed to accept all the provisions of the Hyde Act.

Further, the 123 Agreement also states that “… India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.” (Emphasis added.) This is a seriously objectionable clause, especially when the 123 Agreement itself is valid only for forty years (after which it can, by mutual consent, be extended for ten years at a time). It is completely unacceptable to place our nuclear facilities under safeguards in perpetuity. This also shows that the 123 Agreement does not treat India as an equal of the US, contrary to the word and spirit of the July 18, 2005 declaration.

The 123 Agreement seems to allow India the right to reprocess irradiated uranium, and carry out several processes towards a closed fuel-cycle, though the details as enumerated are not well thought-out. However, such a reprocessing facility will be under IAEA safeguards. Since India has so far kept the reprocessing technology out of the scrutiny of others, opening it up to the US and an international body like the IAEA will not be in the national interest, and will not help non-proliferation.

Naturally the political upheaval against this agreement was intense. There were debates in public fora, in the Committees of the political parties as well as amongst some concerned scientists. However, the offer of foreign investment in billions of dollars for nuclear power stations on a turn-key basis and assurances of supply of nuclear fuel, possible approval by the nuclear suppliers’ group to the 123 Agreement which might result in cooperation being extended by other nations, the need for nuclear energy security, have all played a part in swinging the public into favouring the 123 Agreement. Since the stability of the government depends on the support of the left parties in Parliament, which is coordinated by a special committee, the Government had to concede that they would discuss the 123 Agreement with the left parties alone. Those negotiations were continued for months without the leftists conceding their basic objections to the 123 Agreement.

IAEA negotiations
The 123 Agreement clearly states that: The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement. However, the US did not honour this commitment (which was also contained in the Separation Plan), and India approached the IAEA on its own. The negotiations with IAEA completed six rounds of talks and then it was announced that the text of the agreement was almost final. However, this text has not been made public. There have also been contradicting statements that the agreement is not final. The story goes around that the US has asked India to make IAEA responsible for ensuring fuel supply when for any reason the Agreement is violated by an Indian nuclear test. It isn’t clear when, if at all, the agreement will be finalised and made available for scrutiny to Parliament and to the people of India.

End-game
The entire Indo-US nuclear deal started grandly, with the July 18, 2005 Joint Statement announcing that “as a responsible state with advanced nuclear technology, India should acquire the same benefits and advantages as other such states”. This had all the connotations of India being admitted to the nuclear club as a card-carrying member, in recognition of both, our achievements and our responsible behaviour. In the three years since then, the arguments in favour of the deal have become weaker. Today the proponents of the deal have two much narrower arguments to make. The first is technical: we are short of uranium and we need the deal to keep our reactors operational. The second is political: this is the best deal we can get, so let us grab it before it disappears. More recently a third has been added: if we don’t conclude the deal we will ‘lose face’.

Let me take first the uranium problem. For years we have claimed that we have enough uranium ore to support 10,000 MW of nuclear power for 30 years. We have not used up even major part of it, then why this sudden cry? Further, there has been no discussion regarding the economics of importing uranium or the legal issues (related to providing guarantees). The 123 Agreement does not guarantee free or cheap uranium to India. It only formalises the intent of the US government to allow trade in nuclear material and technology, which is presently forbidden. The actual sale of uranium will still be a commercial transaction, governed by market price of uranium, and by commercial terms and conditions, and will be subject to perpetual safeguards. The price of uranium has gone up four-fold in the last three years—from $20 to $85 a pound—and the price will shoot up even more with increasing demand. Therefore, the 123 Agreement is not a panacea for our uranium problems. A cheaper and faster solution would be to spend the money on uranium prospecting, and simultaneously to look towards non-NSG countries for importing uranium.

The second argument is that we should clinch the deal now; otherwise a new US administration may not offer a similar deal. This flies in the face of statements from the US Ambassador that a new administration may be able to negotiate a deal within a year of taking over. In the time-scales of nuclear power, this is not a very long time. In fact, the longer we wait, the stronger the country becomes economically, the better the deal we can negotiate.

Finally, ‘losing face’ is an argument that may apply to individuals and human emotions. It is scarcely an adequate basis for conducting the foreign policy of a large nation.

Conclusion
It is clear, from the texts of the various acts and agreements, which I have quoted above, that:

(1) the 123 Agreement will be circumscribed by the provisions of the Hyde Act;

(2) if India conducts a nuclear test, the 123 Agreement will be abrogated and we will have to return all nuclear material;

(3) consequently the nuclear deal, via the provisions of the Hyde Act, does, for all practical purposes, severely constrain our strategic programme;

(4) the 123 Agreement does not secure our national interests, does not give us a status equal to the US, and is therefore in direct contradiction with the July 18, 2005, Joint Statement and the assurances given by the Prime Minister to Parliament on July 29, 2005;

(5) The US has already, by not joining us in approaching the IAEA, not fulfilled its reciprocal obligations, again contradiction to the assurance given in Parliament;

(6) Given that the purchase of uranium and nuclear technology will be governed by market forces, and safeguarded in perpetuity, it has not been demonstrated that the nuclear deal will be cost-effective in its implementation.

These are weighty reasons why the nuclear deal is not in the national interest. This is perhaps why a majority of Parliamentarians are also opposed to the nuclear deal. Winston Churchill has defined democracy as “the rule of the majority with the willing consent of the minority”. Here is a case in which a government in a minority wants to rule without the willing consent of the majority! It would be a matter of regret for the nation if the democratic process is not allowed to play its role in coming to a conclusion on a very important and strategic area of activity. In many countries in the world this could be a subject for a referendum, but we have never experimented with this method.

One is reminded of the call given by Pandit Nehru at the dawn of Independence, on our “Tryst with Destiny”. The right to decide our own destiny is what we gained. However, in the last sixty years, we seem to have described destinies on paper but never implemented them effectively. Education for children, emancipation of women, abolition of distinctions have all continued without a firm decision at any time. All the good work done by this Government will be obliterated by a single mistake which affects the future generations.

It is also a matter of regret that the Government has not considered the advice of senior scientists who appealed to the Parliamentarians in August 2006, to look to the future of nuclear policy in an objective manner and not accept the conditions extraneous to the cooperation in civil nuclear power. It is also regrettable that this country which has grown on its own for the last sixty years still seeks expert advice from outside and does not care for its own accomplished experts. It is not only in the nuclear field such problems exist but also in other fields like in agriculture, health, education and economic policies. Recently, India Today quotes former Prime Minister Indira Gandhi as follows: “A nation’s strength ultimately consists in what can it do on its own, and not in what it can borrow from others.” Let us remember her words, and act by them.
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