A 123 agreement in nuclear transfers generally refers to a US agreement for civil nuclear cooperation with another country, and is named after the relevant section in the US Atomic Energy Act (AEA). The term has become a commonplace in India primarily because of the ongoing Indo-US nuclear deal. However, now that the NSG has amended its guidelines for nuclear transfers to enable NSG members to engage in civil nuclear commerce with India, India will now have to negotiate separate agreements for with individual member countries.The US has come in for extensive criticism in India because of past experience with the Tarapur nuclear power station which was built with US assistance. However, what is not commonly known is that after the 1974 nuclear test, India had an equally unpleasant experience with all the countries with whom it had nuclear cooperation at the time. The US stands out not because it was the only country that acted against India but because of the very public actions it took, namely the amendment to its AEA which made nuclear cooperation with India difficult. The others, without much fanfare, quietly acted to stop engagement with India.At the time of the 1974 test, India had strong nuclear cooperation agreements with US and Canada. With US the agreement involved Tarapur; with Canada it was in respect of the Rajasthan Atomic Power Stations (RAPS) I and II. The Tarapur case is well known, and the US did manage to find alternate suppliers for the items it was denying, primarily because it was aware of having broken a legal commitment to India and that India would have been within its rights to terminate the safeguards agreement it had with IAEA. .In respect of RAPS, the India-Canada agreement had incorporated separate articles outlining the nature of assistance. In particular, Article V had stated that “The Government of India will procure from Canada as much of the material and equipment for the station as is available on reasonable terms and which cannot be procured in India.” and Art. VII that “uranium for the continuing requirements of the Rajasthan Atomic Power Station, to the extent it is not available from indigenous sources within India, will be procured from Canada provided it is available on financial terms no less favourable than those from other sources”. However, even though India had not violated any of its legal commitments to Canada, the latter unilaterally terminated all nuclear cooperation with India, although strangely enough it did not terminate the agreement itself. In fact, according to Canada the agreement is still in force even though RAPS has been denied all help for the past more than 30 years. Unlike the US, Canada did not arrange for any alternate supplier.This withdrawal of assistance had two significant negative effects on the Indian nuclear power programme. First, it forced India to develop the PHWR program without any outside help. Secondly, the withdrawal of assistance by Canada forced India to seek suppliers elsewhere, especially for the heavy water requirements. The then-USSR stepped in to assist India but under safeguards conditions far stricter than was in case of the original RAPS. For its short term supply of heavy water, it forced India to accept IAEA safeguards on RAPS in perpetuity with a strong pursuit clause even after the heavy water supplied by USSR was deleted from the inventory of safeguarded items and RAPS was run on purely indigenous heavy water and natural uranium, which has been the case for the more than 25 years.What about France which stepped in to supply enriched uranium fuel for TAPS? The agreement was signed in 1989 well before the NSG amended its guidelines to require fullscope safeguards, and even then the NSG had exempted agreements that had been concluded before the NSG amendment took place. Therefore, France could have continued to supply fuel for TAPS, but it chose to terminate its supplies of enriched uranium citing NSG guidelines! India then had to look for another source of fuel for Tarapur, and China stepped in to export such fuel. However, it, too, for reasons unknown terminated its exports soon after, forcing India once again to look for another supplier. It was then Russia, under a different leadership than the earlier period, which undertook to supply this fuel citing the exception clause in NSG guidelines, much against the wishes of other members.Therefore, historically, all suppliers — US, France and China had acted against Indian interests although only the US had openly cited any domestic legislation for its action. The others had no domestic legislation or international commitment that obliged them to suspend any nuclear cooperation with India. In case of RAPS, Canada not only acted illegally without offering any alternate assistance to India, it still continues to maintain that the original agreement is in force even though it had stopped any kind of assistance nearly 35 years ago.Therefore, before the Indian nuclear community and public become euphoric about France, Canada, and Russia, they would be well advised to demand full disclosure of all 123 agreements that the Indian government enters into with any country. It is not without significance that while there has been lot of public discussion about the US-India 123 agreement, there is no discussion of any other 123 agreement, whether Russian or French. In particular there should be disclosure of the conditions under which these countries may, if at all, suspend cooperation with India; whether there is any reference to any testing in these agreements; whether they agree for prior consent for reprocessing of spent fuel and whether they allow for transfer of sensitive technologies. The writer is visting fellow at IDSA and National Maritime Foundation
