Future of Indo-U.S. Nuclear Deal Part 3

Wool Pulled Over India’s Eyes


Part III


Brahma Chellaney


Asian Age, September 10, 2007


There would have been no political uproar over the nuclear deal had the prime minister taken on board all important stakeholders on an issue centred on the future of India’s most-prized strategic asset — its nuclear programme. Acquiescence to the deal’s shifting goalposts also stoked controversy.


Undaunted by the conditions-laden Hyde Act, New Delhi went ahead and concluded an ambiguously formulated 123 agreement with a country that has a record of gutting even carefully crafted international treaties and bilateral accords, including an earlier 123 pact with India. The US can happily live with ambiguities in the latest 123 agreement because the accord — a requirement only under American law — carries no force under the 1969 Vienna Convention on the Law of Treaties and, in any event, it confers enforceable rights just on the supplier-state. How willingly India ceded ground can be seen from the reprocessing issue.



Illusive reprocessing right.


Reprocessing is at the heart of India’s plans to build long-term energy security. The PM had pledged to secure an unqualified right to reprocess spent fuel. Indian nuclear chief Anil Kakodkar even called India’s right to reprocess “non-negotiable.”


India ended up, however, making concessions beyond its Separation Plan merely to obtain an empty theoretical right to reprocess. The practical right to reprocess is to be separately negotiated in the future. Like on full cooperation, India settled for a conceptual entitlement than for an actual right.


The Separation Plan, whose contents were negotiated with Washington and presented to Parliament, had specified only two reprocessing-related actions: (i) “India is willing to accept safeguards in the campaign mode after 2010 in respect of the Tarapur Power Reactor Fuel Reprocessing (PREFRE) Plant”; and (ii) the Tarapur and Rajasthan spent-fuel storage pools “would be made available for safeguards with appropriate phasing between 2006-2009.”


Why did India go beyond the Separation Plan in agreeing to sideline PREFRE and build an expensive new facility at its own cost? According to the 123 agreement, to bring its reprocessing right “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.”


India has agreed not only to build a new dedicated facility, but also, as Manmohan Singh admitted, to route all spent fuel of foreign-origin through that plant. PREFRE thus will be used only for safeguarded indigenous fuel. This concession symbolizes yet another breach of assurance to Parliament.


According to the US government, it will be years before India can hope to secure the actual right to reprocess — New Delhi has to first build the dedicated facility and then negotiate with Washington a separate Section 131 reprocessing agreement. At his July 27, 2007, news conference, Burns was clear: (i) there is no timeframe within which the US intends to grant India the operational consent to reprocess; and (ii) before negotiations on the “arrangements and procedures” under Section 131 of AEC can begin, India has first to build the new “state-of-the-art” reprocessing facility to US satisfaction.


Yet the PM speciously told Parliament on August 13, 2007, that the right to reprocess has already been “secured upfront,” going to the extent of calling it a “permanent consent.” If Singh wishes to see an agreement with an operational consent to reprocess, he could look up the 1987 Japan-US accord, which came into force the following year.


The Japan-US 123 accord was accompanied by a nine-page “implementing agreement” which gave effect to “advance, long-term consent for reprocessing, transfers, alteration and storage of nuclear material” to Tokyo by spelling out the various reprocessing-related arrangements. In his message to Congress, President Ronald Reagan said, “These arrangements should enable Japan to plan for its long-term energy needs on a more assured, predictable basis…”


Shouldn’t New Delhi have also insisted on a “more assured, predictable basis” of cooperation through a similar operational right to reprocess? Why did it agree to defer operational consent to the future, to be worked out under Section 131, which is titled “Subsequent Arrangements”? While the 123 agreement states that negotiations on the subsequent arrangements “will begin within six months of a request by either party and will be concluded within one year” thereafter, the arrangements have to pass muster with the US Congress, which under Section 131 is empowered to adopt a concurrent resolution blocking such a plan.


Couldn’t nuclear India have secured a 123 deal with the US on terms at least similar to those granted to non-nuclear Japan? Like a parent calming a demanding kid, the US placated the Indian government by handing the consent-in-principle lollipop.



Yet another stage has been added to the deal.


After more than two years, the deal has completed just two of the five obligatory stages. But now, through the 123 agreement, a sixth stage has been added — a separate Section 131 agreement on reprocessing.


Furthermore, the sequencing of the next steps has now been changed to New Delhi’s disadvantage. As the July 27, 2007, separate Indian and US fact-sheets revealed, New Delhi has agreed to first conclude an IAEA safeguards agreement before the Nuclear Suppliers’ Group even attempts to carve out an India exemption from its 1992 export guidelines.


While America legislated a conditional export-control exemption for India without awaiting the safeguards pact, the US-led NSG will follow a different principle. Washington will seek to ensure that the NSG does not make an exemption on terms less restrictive than those set by the US Congress. The Hyde Act stipulates that the NSG exemption for India should neither be less stringent than what the Act itself prescribes, nor take effect before the final congressional consent to the deal. The latter rider is intended to ensure that other suppliers do not gain a head-start over US businesses.


But look at the implications of New Delhi’s climbdown on the reprocessing issue: having expended millions of dollars in a lobbying campaign to get the infamous Hyde Act passed, India has now to brace up to two more battles on Capitol Hill — securing congressional approval first of the 123 agreement, and then of a special 131 agreement. That is likely to subject India to continuing congressional scrutiny and demands for a long time.


By deferring a resolution of the reprocessing issue to the future while flaunting a barren notional right at present, India also risks getting into a bigger mess than over Tarapur, whose spent fuel continues to accumulate 38 years after the twin-reactor power station began operating. The Tarapur mess has persisted even though the 1963 agreement granted India an operational consent to reprocess and provided for no congressional role. Yet Washington blocked India from reprocessing by exploiting an innocuous provision calling for a “joint determination” that the reprocessing facility would be adequately safeguarded. The US simply refused to join India in such a “joint determination” even after the IAEA had certified that very facility — PREFRE — to be “safeguardable.” Indeed, the IAEA has applied safeguards in the “campaign mode” to PREFRE since the 1980s, whenever India introduced safeguarded fuel there from another power station, RAPS.


In the new 123 accord, the US has gained an effective veto on Indian reprocessing until such indeterminate time India has satisfied it by building a new “state-of-the-art” facility and working out the subsequent “arrangements and procedures.” The last Indian reprocessing facility at Kalpakkam took five years to complete, but the new one is likely to take longer, given the external involvement in its design and the absence of an international “state-of-the-art” model. National Security Adviser M.K. Narayanan has already warned that “spoilers” could nit-pick on its design to delay the process. “You will get spoilers I am quite sure … if someone is quibbling that ‘I don’t like it to be facing west, it should face east,’ I mean that would be different,” he said in an interview published on July 28, 2007.


Against this background, it is inexcusable that Indian negotiators have sought to pull the wool over the public’s eyes on key issues. Can allegiance to the deal be allowed to trump national interest?


Today the deal has become a political cudgel in a spreading storm. Yet there is a silver lining. The furore drives home an important message: Indian democracy has matured to the point that without winning public trust, no PM can move forward on a core national-interest issue.




© Asian Age, 2007 

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