A number of articles have already appeared on this subject. The Agreement, also known as India's 123 Agreement with USA had been dissected, analytically viewed by many experts both within and without. But there are many minute points that, in my opinion have not been addressed. These relate to the provisions in the Agreement. There have been arguments as to how USA scored on a particular issue or India gained on a particular issue. The text of the Agreement is nearly one year old and is yet to be ratified by both the Countries. Perhaps it is time to have a re-look into the whole affair and analyse the ramifications in the light of events that have taken place or the positions respective Countries, legislators, critics adopted. Let us begin with the text of the Agreement right away.
1. One of the paragraphs in the preamble says:"DESIRING to establish the necessary legal framework and basis for cooperation concerning peaceful uses of nuclear energy;"
The text clearly says that the legal framework and basis for cooperation is not yet ready and the respective Governments are desirous of establishing the necessary framework. One should recall that Hyde Act has already been enacted. The US Government is talking of further and more legal framework and the basis for the cooperation. And only the text of the Agreement has been frozen and not the legal framework. Who does establish legal framework in US? Not the executive certainly. It is the US Congress who has that responsibility. Remember already nearly one year has passed and knowing the ways the USA legislatures and the non-proliferation supporters work, one year is too long a period for establishing the necessary legal framework. And believe me they have been working non-stop since August 2007. For its part India has been sitting prettily with a snug face as if it has achieved its goal. Surprisingly and sadly the Indian polity and the intelligentsia did not bother to take this time factor into consideration.
2. "ARTICLE 2 - SCOPE OF COOPERATION
1. The Parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this Agreement. Each Party shall implement this Agreement in accordance with its respective applicable treaties, national lwas, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes."
While the preamble text says the need for establishing legal framework and basis, the operative part of the Agreement clearly says the conditions under which the Agreement is to be implemented which is as per the respective national laws. Does India has any national legislation for implementation?. I do not know if the Atomic energy act of that country has enough 'teeth' to address international cooperation agreements. Where as the US Atomic energy act of 1954 is constantly amended to take care of any international nuclear cooperation. Added to that, new legislation is introduced almost regularly to circumvent any, what they perceive as 'inconvenient' provisions, that might have been included in these international agreements. Inconvenient to whom? to the non-proliferation lobby who takes the non-proliferation philosophy a bit too seriously and what is glaring in all these situations is adopting a convenient definition for non-proliferation and proliferator.
Indian side has been shouting from the roof tops that the Hyde Act is only an enabling provision for civil nuclear cooperation and so no need to worry about that Act. What about many nuclear draft legislations that have been introduced in the US Congress specifically to address many of the so called 'concessions' India got in the 123 Agreement. It is astounding to know that neither the Indian Government nor the so called self-proclaimed vigilant hawks ever mentioned about these draft legislations and the repercussions or consequences India may have to face once the 123 Agreement is enforced.
3. "ARTICLE 5 - TRANSFER OF NUCLEAR MATERIAL, NON-NUCLEAR MATERIAL, EQUIPMENT, COMPONENTS AND RELATED TECHNOLOGY
3.2. -------Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties' respective applicable laws, regulations and license policies."
Only India could think so naively that the US applicable laws enable transfer of these items. According to India US legislation has no role to play in implementing the 123 Agreement. Leave the Hyde Act. It permitted the US president's waiver only under certain conditions. At the same time nothing prevents the US legislation to enact new laws to take care of whatever imaginary concerns that the non-proliferation lobby perceives as abetting nuclear proliferation once India's 123 Agreement is enforced.
4. "ARTICLE 6 - NUCLEAR FUEL CYCLE ACTIVITIES
iii) With a view to implementing full civil nuclear cooperation as envisioned in the Joint Statement of the Parties of July 18, 2005, the Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement and nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred. To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility. Consultations on arrangements and procedures will begin within six months of a request by either Party and will be concluded within one year. The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. These arrangements and procedures shall include provisions with respect to physical protection standards set out in Article 8, storage standards set out in Article 7, and environmental protections set forth in Article 11 of this Agreement, and such other provisions as may be agreed by the Parties. Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards."
Declaring that India has acquired upfront reprocessing rights may give satisfaction to some. But let us do a reality check. First 123 Agreement has come into force. International civil nuclear cooperation should result in nuclear fuel supplies to Indian safeguarded nuclear reactors, the spent fuel coming out of these reactors which is again under safeguards shall have to be reprocessed in a dedicated national reprocessing facility. Agreed 123 Agreement talks of only US supplied nuclear fuel. With the current logistics, building a reprocessing plant exclusively for the safeguarded nuclear fuel is capital intensive, technology intensive and safeguards intensive not to speak of the prolonged time of implementation. The US AEC Act 1954 is very clear on reprocessing. Article 131 will surely bog the Indian establishment. Japanese are yet to start their reprocessing plant which has seen time and capital overruns.
Getting the so-called upfront reprocessing rights is, at the most, only a Pyrrhic victory for India. The US negotiators were well aware of this.
The more time Indian Government and the opposition take to come to an agreement on India's 123 Agreement, the worst it would become. Already precious time has passed and poor India is playing into the hands of the US legislation.
