India gains, US doesn’t lose

Yes. Under the 123 Agreement, India has neither given up its right to test nor agreed to sign the Comprehensive Test Ban Treaty, which prohibits all nuclear testing. To be sure, the US law demands a suspension of nuclear cooperation in the event of an Indian test.

The text of the 123 agreement (Article 14.2), however, offers immediate bilateral consultations in the event of an Indian test and commits the two sides “to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about a changed security environment or as a response to similar actions by other states which could impact national security”.

Put another way, India reserves the right to test if other countries do the same. The formulations of the 123 Agreement on India’s right to test are far superior to those of the NDA government, which had imposed a unilateral moratorium and agreed to bring the CTBT into force.

The BJP leader and NDA’s foreign minister Yashwant Sinha’s protestations are just too hypocritical.

2

Fuel supply assurances: Does India have credible assurances on uninterrupted fuel supply under all conditions?

Yes. After its bitter experience with the Tarapur nuclear power station, when Washington cut off fuel supplies after the 1974 test, New Delhi has insisted on getting iron-clad guarantees on fuel supplies. It has successfully got them written into the 123 Agreement.

Sections 2.2 (e), 4.1, 5.6, 14.5, and 14.8 deal with various dimensions of fuel supply guarantees. They fully commit the US to help India develop a “strategic reserve” of nuclear fuel for the entire lifetime of the reactors. The US also promises to “create conditions” for India’s “assured and full access” to the international fuel market.

Unlike the non-binding provisions of the Hyde Act, which urges Washington to limit India’s access to fuel supplies from other countries in the event of a termination of the bilateral agreement, the 123 Agreement places no such restrictions.

It also ensures that the US commitment to facilitate fuel supplies is absolute and is not defined by the circumstances of the termination of the bilateral agreement.

Section 5.6 (b) (iv) of the 123 Agreement states: “If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.”

No bilateral agreement in recent memory has so many layers of redundancy written into it. If all fails, an extreme contingency, India will also have the right for “corrective measures” under Article 5.6 (c).

3

Right to reprocess spent fuel: Is India permitted to reprocess the waste material from imported reactors and convert it into fuel for fast breeder reactors?

Yes. Section 6 (iii) of the Agreement concedes New Delhi’s unambiguous right to reprocess spent fuel — a key element of India’s three-stage civilian nuclear programme.

This right will come into effect when India builds a dedicated reprocessing facility that meets the current standard of IAEA safeguards. Once India is ready to reprocess, the two sides will begin consultations on the arrangements for reprocessing within six months and complete them in one year.

This two-step process has been criticised by some as inadequate. This, however, is a significant improvement over the Tarapur agreement which had no time lines for a decision on reprocessing. The central consideration for India has been to get an upfront programmatic consent and define credible procedures for subsequent arrangements.

4

Right of return: How will the two countries deal with the “right to return” of US supplied equipment and material in the event of an Indian nuclear test?

With reasonable pragmatism. The 123 Agreement acknowledges the “right to return” and goes on to lay out the potential problems involved. As Article 14.4 points out, both sides “recognise that exercising the right to return would have profound consequences for their relations”.

It calls for consultations in the event the US seeks to exercise this right and suggests that both sides “shall take into account the potential negative consequences of such termination on the on-going projects and contracts”. And Article 14.5 calls for “prompt compensation” in the event the US exercises the right to return. Some have expressed the concern that the right of return might be attached to the 45 nations NSG’s approval of the Indo-US nuclear accord. These fears are entirely misplaced for Article 14.8 insists that the right of return does not “derogate” from India’s right for assured fuel supplies from the international community under Article 5.6.

5

Fallback safeguards: Would the US inspectors roam around the Indian nuclear facilities, in the event of an unlikely end to the IAEA safeguards arrangements?

No. The 123 Agreement offers no role for any party other than the IAEA in the verification of India’s commitments for peaceful use of imported technology. From the launch of its nuclear programme many decades ago, India always accepted safeguards on imported nuclear equipment and material.

Under the 123 Agreement, India is committed to IAEA safeguards “in perpetuity” in return for “assured fuel supplies”. In the unlikely event of a breakdown of this arrangement with the IAEA, Article 10.4 offers consultations to arrive at “appropriate verification measures”. Apprehensions about a special US role in safeguarding India’s civilian nuclear programme seem entirely misplaced.

6

Full Civil Cooperation: Is India entitled to all nuclear cooperation it needs from the United States?

Yes. Article 2.2 defines the scope of the 123 Agreement as including a range of areas from nuclear research to safety to “full civil nuclear cooperation activities covering nuclear reactors and aspects of the associated nuclear fuel cycle including technology transfer on an industrial or commercial scale”.

Some critics have cited the Hyde Act to say “full” cooperation does not include transfers of uranium enrichment, reprocessing and heavy water production technologies. It is indeed the policy of the United States not to export these technologies to any nation, even its closest allies or even other nuclear weapon states.

The practical question for India, however, is, should it demand technologies just because they are not on offer? If India is an exporter of heavy water and has been reprocessing for four decades why would it want to get these technologies from the United States, that too under very intrusive conditions? Why would the Indian government want to demoralise the scientific community by importing these sensitive technologies?

7

The integrity of India’s nuclear programme: Are India’s nuclear weapons programme and the indigenous civilian programme constrained by the US?

No. Even the most paranoid elements in India will find it difficult to argue that our military and civilian nuclear programmes are compromised under the 123 Agreement. Article 2.4 affirms that the agreement “will be implemented in a manner so as not to hinder or otherwise interfere with any other activities” involving material and technology, military or civilian, acquired “independent of this agreement”.

8

Foreign policy autonomy: Is there a secret unwritten agenda in the 123 Agreement, as some Left leaders have alleged?

Not by a long shot. It is a long political tradition in India to look for secret clauses in bilateral agreements. When Prime Minister Indira Gandhi signed the Peace and Friendship Treaty with the Soviet Union in 1971, the Jan Sangh, the earlier incarnation of the BJP, insisted for years that there were secret clauses in the agreement. Now it is the turn of the CPM to argue the same about the agreement with the United States.

Further, unlike the non-binding provisions of the Hyde Act, there is no reference to Iran or other foreign policy issues in the 123 Agreement.

The principal question here is whether civilian nuclear cooperation with the US is subject to either American caprice or unilateral decision. The 123 Agreement makes it quite clear that the determination on “material breach” under the 123 Agreement will not be a unilateral US decision; it will have to be taken by the IAEA Board of Governors (Article 14.3).

The 123 Agreement is likely to go down as one of the finest achievements of Indian diplomacy. India’s gain, however, is not a loss for the United States. It is a triumph for both Prime Minister Manmohan Singh and President George W. Bush for accomplishing the impossible task of bridging India’s nuclear interests with the global non-proliferation regime.

The writer is a professor at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore