Get the Nuclear Deal Facts Straight

Please check your facts, Mr. Minister

Asian Age, December 22, 2007

In his reply in the two Houses of Parliament to the recent nuclear debate, India’s external affairs minister displayed a woeful ignorance of basic facts.

Brahma Chellaney

No issue continues to divide India more than the nuclear deal with the United States. Yet the first debate of 2007 in Parliament on the subject — which showed the deal backers in an abject minority — took place recently without the prime minister caring to reply to the concerns expressed by lawmakers. Manmohan Singh also had not responded to the previous debate in December 2006 after the conditions-laden Hyde Act was passed by the US Congress. But at least then he had a reason to proffer: “a throat problem.”

As on that occasion, the external affairs minister was entrusted to reply to the latest debate. Speaking first in the Lok Sabha on November 29 after the opposition had walked out to protest the PM’s refusal to reply and then in the Rajya Sabha on December 5 — a speech that triggered the Left to stage a walkout with the entire opposition — Pranab Mukherjee distinguished himself for a meandering response short on specifics but long on hyberbole.

Mukherjee had it all: From self-deprecating remarks (“I am a small fry”, and “I am a small man, sir, of less than average intelligence”); to mocking the opposition (“Why are these people making noise? What type of people they are?”); and to open defiance of the majority will of Parliament (“Sir, in respect of the sense of the House, we have never said that we will take the sense of the House”).

But whenever he dared to go into specifics, he displayed a woeful ignorance of basic facts or even naïveté. Consider the following samples from the transcript of his speeches posted on the Lok Sabha and Rajya Sabha websites:

►“As per the 1954 Atomic Energy Act of USA — which has been subsequently amended — the US cannot enter into any civilian nuclear cooperation with any country which is not a signatory to the NPT. Therefore, the administration does not have the authority. A waiver is required under that Act…” (Rajya Sabha)

In the 568-page voluminous text of the U.S. Atomic Energy Act (AEC), the word “NPT” or its full official form, “The Treaty on the Non-Proliferation of Nuclear Weapons,” does not appear even once. By spreading such a fallacy — that US law prohibits “civilian nuclear cooperation with any country which is not a signatory to the NPT”— the minister is only lending credence to the widely disseminated myth that by entering into a deal with India, America is rewarding a country that has not signed the NPT.

The fact is that the NPT does not prohibit civilian nuclear assistance to a non-signatory provided such transfers are subject to inspections by the International Atomic Energy Agency. In fact, the NPT encourages nuclear technology’s peaceful use and interstate civilian cooperation. If there is any restriction on civilian nuclear cooperation, it is outside the framework of international law and the United Nations, in the form of a US-led cartel — the Nuclear Suppliers’ Group, which has episodically changed its guidelines since it was secretly formed in response to India’s 1974 test. Even the NSG, however, conditions civil nuclear exports today not to NPT membership but to the recipient state’s opening of all its nuclear facilities to external inspection.

As far as US law is concerned, civil nuclear cooperation with any country or group of nations requires a bilateral accord (the so-called 123 agreement). But out of the nine conditions (none related to NPT) under the AEC Section 123 applicable to such cooperation, the US Congress has waived only one for India — the requirement for comprehensive IAEA inspections on all facilities.

The government will “enter into an India-specific safeguard arrangement with IAEA, which is the supreme international body to supervise all matters related to international atomic energy. India is one of the founders of this body in the early 1950s and has contributed in its own way in strengthening this most important and vital regulatory body of international atomic energy” (Lok Sabha).

The IAEA was set up only in 1957, so India could not have been “one of the founders of this body in the early 1950s.” The idea to set up such an agency, and its structure and statute, were conceived by an eight-nation group comprising the US, Britain, France, Canada, Australia, South Africa, Belgium and Portugal. As the official IAEA history states, “The structure that the eight-nation group foresaw for the IAEA and several other provisions of the draft that emerged from its discussions were quite close to the final (1957) text of the IAEA’s statute.” It was the need to bring in the Soviet Union that forced the group’s expansion to 12 in 1956, with the USSR and Czechoslovakia brought in to represent the socialist bloc and India and Brazil the developing world.

During 1956-57, India tried hard to impede the IAEA’s establishment, and although eventually it joined the agency, it continued its fight from within to prevent a discriminatory system of inspections (safeguards) that would divide the world between nuclear haves and have-nots. Homi Bhabha publicly contended that a safeguards regime would only widen the gap between the developed and developing nations.

Ironically, the first country asked by the US to accept IAEA inspections was India — through a 123 agreement signed in 1963. So reluctant was India to accept even safeguards at one facility — Tarapur — that it persuaded the US to insert several riders into that 123 Agreement: (i) the IAEA’s safeguards role will “not be implemented until the station has reached reliable full-power operation;” (ii) if New Delhi later declined to accept IAEA inspections, the US will not exercise its right to terminate the agreement “unless there has been widespread acceptance, by those nations with whom it has bilateral agreements, of the implementation of safeguards by the Agency or of provisions similar to those contained” in the accord with India; and (iii) the Tarapur safeguards are a quid pro quo for an exclusive fuel-supply arrangement, with the US required to provide fuel “as needed” by India. Yet in 1978 America broke its 1963 agreement with India by enacting a new domestic law that retroactively rewrote the terms of that bilateral accord.

Today, an economically rising, nuclear-armed India has initialled a new 123 agreement with built-in discrimination. The accord provides for IAEA safeguards of a type applicable only to non-nuclear states — permanent and legally irrevocable — with the inspections to extend not just to prospective facilities with foreign components or materials, but also to eight indigenous power reactors and a host of other locally built heavy-water and fuel-fabrication plants. With the longstanding critic of the safeguards regime now becoming its cheerleader, Bhabha must be turning in his grave.

“Yes, as per the Hyde Act, there will be a requirement of presidential determination. To have the presidential determination, the president will have to report to Congress. But, most respectfully, I would like to submit through you, sir, that this is one-time” (Rajya Sabha).

The Hyde Act splits the presidential-determination requirement into two parts. Under Section 104(b), the US president is to certify to Congress that all the listed preconditions have been met to begin nuclear cooperation with India, including that New Delhi has with the IAEA “concluded all legal steps required prior to signature.”

Once the 123 Agreement takes effect, the Hyde Act requires the president to certify cyclically that India is meeting all the good-behaviour conditions post-implementation. As the Joint Explanatory Statement accompanying the Act states, such presidential “certification” has been designed to enforce “India’s continued implementation” of prescribed obligations. In fact, within 180 days of the Agreement’s entry-into-force, the president has to submit a comprehensive “implementation and compliance report” detailing India’s nuclear military activities and its observance of the post-implementation conditions, including on Iran.

“We are not bound by the Hyde Act” (Rajya Sabha).How can it be binding on us? As a law passed by the Indian Parliament is not binding (on) US congressmen, similarly a law passed by US congressmen may be binding on the US administration but not on India” (Lok Sabha).

The Hyde Act cannot bind India but it surely obligates the US government to enforce the legislative conditions. By affecting the terms (and fate) of cooperation with India, it impinges on Indian leeway and interests. Equally important is that Congress, in denying the president the authority he sought to permanently waive relevant sections of the AEC in relation to India, has carved out a conditional waiver authority subject to congressional oversight.

The US has 24 separate 123 agreements today, but only the one with India is governed by such a country-specific law. The Indian national security adviser indeed is on record as saying that the Indo-US 123 Agreement was negotiated keeping in mind the Hyde Act. “As far as we are concerned, we haven’t breached the Hyde Act … We have seen to [it] that no law is broken,” M.K. Narayanan said.

Nothing better illustrates how India has deferred to the primacy of the Hyde Act than the 123 Agreement itself, which does not incorporate the principle that neither party will invoke its internal law as justification for a failure to honour the accord, or provide for an international arbitral tribunal in case of any dispute. Further, to help Washington enforce Indian compliance with the Hyde Act’s conditions, it empowers the US to suspend all cooperation forthwith, without having to assign any reason or bring in an alternative supplier.

Washington’s consistent legal position has been that a 123 agreement with any state is a requirement under American law and that such an accord lacks treaty status under the Vienna Convention on the Law of Treaties, which the US hasn’t even ratified. Against this background, the 123 Agreement stands out for India securing the right to worthless “consultations” in return for putting itself at the mercy of the supplier.

The minister shied away from answering troubling questions even about the 123 Agreement, including the lack of an enforceable link between perpetual international inspections and perpetual fuel supply or why America granted Japan and EURATOM the actual right to reprocess upfront but India is to negotiate a separate accord on reprocessing in the years ahead under Section 131 of AEC. The minister’s refrain was: “I am not an expert, I am a layman like you;” and “I am not a practising lawyer, I am a humble teacher.”

The more one hears the official defence of the deal, the more it sounds like the tale of the blind men examining an elephant. Mukherjee indeed showed he is a cut above the rest: He neatly demolished the PM’s raison d’être for pushing the deal — nuclear energy. “Yes, it is proved, everybody admits that the nuclear energy (from) reactors is definitely costly … nuclear energy if it appears to be too costly today, perhaps, it will not appear that costly tomorrow,” he declared.

With the elephant still being scrutinized, “these men of Indostan” will continue to:

“Rail on in utter ignorance
“Of what each other mean,
“And prate about an Elephant
“Not one of them has seen!”
(John Godfrey Saxe)
 
These old men of "Indostan" are certainly not blind, but as the Bible says:
"None is so blind as he who refuses to see."
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