Two consonent views on the 123 Agreement

The American administration sent a letter to the Congress clarifying what the 123 Agreement with India entails for the US. The letter was leaked recently. There’s nothing in the letter which should come as a surprise because its contents are consistent with what the Americans have been saying all along. What the letter strongly suggests is that either that Prime Minister Manmohan Singh is lying or it is clearly delusional.

Here’s the view of a former chairman of the Atomic Energy Commission, PK Iyengar, expressed in an article in The Pioneer. He says that India’s freedom to test will be curtailed. This is, in his opinion, undesirable as testing is essential for India to maintain a credible nuclear deterrence.

Arun Shourie makes the case that the Americans are bound by their Atomic Energy Act of 1954 and the Hyde Act, and that the 123 Agreement does not in any way invalidate them. (I don’t have a link to Shourie’s article, and so I will post his article below the fold until such time that I have a link.)

My view is that India should not sign the agreement. I find the arguments by Iyengar and Shourie persuasive. Just for argument’s sake, let’s assume that it is a bad agreement and India pays dearly for it down the line. What is the penalty that those who pushed India into such a bad deal face? None at all. Mr Singh and boss will never have the pay for the follies, just as their predecessors whose gross stupidity has caused untold misery on hundreds of millions of Indians got away with no penalty (and indeed they are celebrated as great visionaries and leaders.)

I think that the prime minister is not a deluded fool and knows fully well what the 123 Agreement will do to India. That forces me to conclude that he is dishonest in his insistence that it is good for India. But then it is not the least surprising to find dishonest politicians in India. That’s Indian democracy for you — and therein lies the only consolation for me: the people choose unwisely and it is they who will suffer the consequences of their choices.

It’s all karma, neh?

“But there is nothing new”

Arun Shourie

“But why now? Why on the eve of the NSG meeting in Vienna?” – the cry went up. Entirely predictably: when they can’t deal with the facts of a disclosure, the embarrassed always demand, “But why now?”! Should we not, on the contrary, be grateful that, at least at this penultimate hour, someone has awakened us to what the Government is bartering away in Vienna? Is there an inauspicious time for being awakened to the facts? “The secret letter has been revealed by a known opponent of the nuclear deal,” they say – as if the fact that the person disclosing the document is a known opponent of the deal, in some way dilutes the veracity of the text! And this from a newspaper that discloses secret documents every other week!

“But there is nothing new in the US Administration letter to the Congress,” say the spokesmen of the Government, and its apologists in the media. Actually, that very fact, as we shall soon see, makes things all the worse. Indeed, the American Ambassador, Mulford, has been more specific: he has said that the letter that the Administration sent to the US Congress contains nothing that has not already been shared with the Indian Government. In a word, the Government has known all these facts all along, and has yet continued to assert its falsehoods to the contrary for months on end. The US Administration letter, in fact, reveals more: on point after point, it reveals that the Indian Government, while asserting falsehoods to the contrary here in India, has not just been in the know of what the Americans were extracting, it agreed with the construction the Americans had put on the clauses in question.

“Falsehoods” is the right word, make no mistake.

“The Hyde Act does not apply to us,” Government spokesmen have been insisting. “We are bound by the 123 Agreement alone.” Indeed, as recently as July 2 this year, the Prime Minister’s Office asserted, “the 123 Agreement clearly overrides the Hyde Act and this position would be clear to anyone going through the provisions.” That is patent nonsense. Article 2 of the 123 Agreement provides that in implementing it, the two countries shall be governed by, among other things, their “national laws”. What are the national laws of the US in this regard? The Atomic Energy Act of 1954 and the Hyde Act. Does the Hyde Act apply or not?

But clauses apart, even a fool can see through the lie in that: does the Hyde Act apply to the Americans or not? That is all that is required for the consequences listed in the Act to follow. Suppose we test. What are the Americans bound to do in return by law? Both by the Hyde Act as well as the original Atomic Energy Act of 1954, they must immediately cease all nuclear commerce with India. By both these Acts as well as the Guidelines of the NSG, they must ensure that every other member of the NSG also ceases all nuclear cooperation with India. In a word, by the laws that apply to them, the Americans have to bring upon us the full weight of sanctions. What comfort is it that the sanctions fall upon us by laws applicable to them and not applicable to us?

That simple and brutal fact is compounded by the 123 Agreement. In Question 3, the US Congress asks the Bush Administration, “Does the Administration believe that the nuclear cooperation agreement with India overrides the Hyde Act regarding any apparent conflicts, discrepancies, or inconsistencies? Does this include provisions in the Hyde Act which do not appear in the nuclear cooperation agreement?” In turn, the Bush Administration says that the 123 agreement “is in full conformity with the Hyde Act,” that it is “consistent with the legal requirements of both the Hyde Act and the Atomic Energy Act” – both of them, incidentally, require that, to take just one example, the agreement be terminated forthwith the moment India conducts a test, even for “peaceful purposes”.

The Prime Minister has said over and over again that the cooperation shall be “full”, that it shall cover all aspects of the full nuclear cycle. In particular, that India shall have full access to “sensitive technologies”. Anything less, Manmohan Singh has said again and again, shall be inconsistent with the statement he had signed with Bush, and India shall not accept such a dilution. Persons like me have pointed out from the beginning that this just cannot be the case, that the Americans have an unambiguous policy in this regard, a policy that has been reiterated personally by Bush as well as by the US Congress – namely, that countries like India shall not be given access to technologies for enrichment, reprocessing or heavy water production. Manmohan Singh has gone on repeating, “Full means full”.

And as proof, the Government’s propagandists have been pointing to Article 5(2) of the 123 Agreement. This clause in fact is just a sleight of words. It says that these “sensitive technologies… may be transferred to India under this agreement pursuant to an amendment to this agreement.” Even then, the clause clearly records, the transfer “will be subject to the Parties’ respective applicable laws, regulations and license policies.” Hence, three conditions: (a) “may be”; (b) “pursuant to an amendment to this agreement”; and (c) “subject to the Parties’ respective applicable laws, regulations and license policies.” In spite of this, the Government’s propagandists have kept repeating that India has won access to these sensitive technologies

In its answers to not one but six questions (Questions 4 to 9) from the US Congress, Bush’s Administration says six times, that the sensitive technologies will not be transferred and that there is no proposal at all to amend the 123 Agreement!!

Similarly, Government spokesmen have maintained that our right to reprocess spent fuel has been recognized. Indeed, Manmohan Singh himself has said that our reprocessing rights have been recognized so much so that they shall be “permanent”. The answers to questions 26 and 29, as indeed Articles 11 and 12 of the 123 Agreement itself, indicate that we shall be able to reprocess the spent fuel only in a facility (a) set up at our cost; (b) under IAEA oversight; (c) and only in accordance with “arrangements and procedures” to which the US agrees. As for the right being “permanent”, the answer to question 44 gives the lie. The answer does not just reiterate that the “arrangements and procedures” under which the reprocessing may be done shall have to be agreed to by the US; it says, “the proposed arrangements and procedures with India will provide for withdrawal of reprocessing consent.” Permanent?

Manmohan Singh has insisted all along that India shall not accept any oversight or inspections other than what it shall agree to under the “India specific safeguards” in its agreement with the IAEA. Persons like me drew attention to the stern and absolutely unambiguous statements of Condoleezza Rice; to the Report of the joint committee of the US Congress; as well as to the provisions of the Hyde Act, which specifically provided that India shall have to accept “fallback safeguards” – that is, should, in the judgement of the IAEA or the US, the IAEA be unable to perform its inspections adequately, the US shall have the right to institute inspections and other measures of oversight through other agencies – its own or those of some other international bodies. Even as it was asserting the contrary, Manmohan Singh’s Government, agreed to have these additional inspections and restrictions through Articles 10 and 16(3) of the 123 Agreement. All that was done was that instead of the US inspectors being called “inspectors”, they were called “experts”. Through these clauses, India agreed to ensure for them the fullest access to sites and data that they wanted to inspect.

In its answers to questions 10 to 13, the US Administration has reiterated four times that, yes, there shall be these additional fallback safeguards and inspections. Not just that, the Administration tells the US Congress that, in addition to pledging that it is accepting IAEA safeguards and inspections in perpetuity, the Indian Government “fully appreciates that paragraph 1 of Article 10 of the Agreement does not limit the safeguards required by the Agreement to Agency (that is, IAEA) safeguards.” In a word, while we were being told the exact opposite – “We shall not allow American inspectors to roam around our facilities” – the Manmohan Singh Government had accepted that very roaming around.

Manmohan Singh and his spokesmen have said times without number that the US has assured India of “uninterrupted fuel supplies”. They have pointed to Article 5(6) as proof to say that the 123 Agreement enshrines this commitment. I had pointed out at that very time that the Article is just face-saving farce. Manmohan Singh had told Parliament that the Americans had assured him that they would ensure “uninterrupted fuel supplies”, and that this would be provided in the 123 Agreement. In the event, the Americans did not budge an inch. They refused to incorporate any assurance to this effect in the 123 Agreement. At the last minute, to pleas that something just had to be done to save face of the Manmohan Singh Government, they agreed to cut and paste his statement saying that in the 123 Agreement such an assurance shall be incorporated. But this was the 123 Agreement! What was to be provided in this 123 Agreement was left to some future 123 Agreement!

Yet, the people here were sought to be fooled – we have got the Americans to promise us “uninterrupted fuel supplies”. Indeed, the insinuation went further – it was almost as if fuel supplies could not now be stopped under any circumstances. In answer to question 15 and again in answer to question 18, the US Government states that only if fuel supply is interrupted for no fault of India, shall the US assist in resuming it. Thus, if some US firm fails to live up to its commitment to supply fuel, or if there is some disruption in global markets, the US will chip in. But if, for instance, we test; or we default in the account we keep of uranium we import, mine and use; or if we default on any of the numerous conditions prescribed in the 123 Agreement, the Hyde Act, the agreement with the IAEA, as well as under the Guidelines of the NSG, and, as a result, fuel supply is stopped, the US will most emphatically not step in to restore fuel supplies.

Similarly, while we have been fed the fiction that the US has agreed to our building “strategic reserves” of fuel so that our reactors are not subjected to the Tarapur experience, twice in this document – from answers to questions 19 and 20 – we learn that there is no assurance to this effect. That India can secure fuel only, as the Obama amendment in the Hyde Act provides, for “reasonable operational requirements”. Not just that. The replies reveal that what this phrase – “reasonable operational requirements” – implies is not clear at all!

Manmohan Singh has repeatedly asserted that, in the event fuel supplies are interrupted or other difficulties are created, India has the right to take “corrective measures”. What is this magic bullet? we have wanted to know. Of course, there has been no answer. The US Congress asked Bush’s officials the same question. What does the Indian PM mean by “corrective measures”? The suggestion has been that, if things don’t turn out to our satisfaction, we can always withdraw our reactors from safeguards.

The answer to question 25 and again the answer to question 42 show how empty a boast this is. The Indian Government has not described what the expression means, the US Government says. We expect India to live up to the letter as well as the spirit of its commitment that it shall adhere to the safeguards “in perpetuity”. Furthermore, says the US Government quoting the precise words to which persons like me had drawn attention in Parliament, the Secretary of State, Condoleezza Rice, has told the US Congress that “We have been very clear with the Indians that the permanence of the safeguards is the permanence of safeguards without condition.

When the text of the 123 Agreement became public, I had drawn attention to the minatory Article 16. This provides that, should India, in the judgement of the US, step outside its commitments, even if the Agreement is terminated, even if it expires, even if India repudiates it, the US shall have the right to get back every bit of nuclear material, every bit of non-nuclear material, every reactor, component, every ounce of fuel it has supplied under the Agreement. This position is reiterated in answers to questions 41 and 42.

Manmohan Singh keeps repeating, and so do the managed parts of the media, that India’s right to test remains unaffected. The US Congress as well as officials of the US Government have made it absolutely clear times without number that the moment India tests, even if it is for peaceful purposes, the 123 Agreement will be terminated, and all nuclear commerce will stop. These consequences shall follow immediately. This position is reiterated in this document not once but four times – in answers to questions 16, 17, 37 and 38.

But it is not only in regard to tests that the Government has woven falsehoods. The answers make two further things explicit. First, a test by India is not the only circumstance which triggers these consequences. It is just one of the circumstances that will invite the termination of the Agreement and the stoppage of all nuclear commerce. Other circumstances will be, such as a “material violation of the 123 Agreement, or termination, abrogation, or material violation of International Atomic Energy Agency safeguards.” Notice the “such as” that I wrote in the preceding sentence: these are not the only circumstances that will trigger the consequences. The answer refers to them with vital prefatory words, “for example“. Second, as the answer to question 38 puts it, that this is the import of Article 14 of the 123 Agreement is clear and well understood by India as much as by the US.

The final blow, the one that comes in response to the last question, number 45, is devastating as it shows how blatantly the Manmohan Singh Government has been lying. The Government has been maintaining that in the 123 Agreement, if nuclear commerce with India is stopped, the US Government has pledged that it will assist India to get the supplies, etc., from other members of the NSG. This sort of an assertion could be made only on the belief that everyone concerned is an idiot. Yet, not only has it been made, it has been swallowed and spread by sections of the media.

The Hyde Act binds the US Government to ensure the opposite – namely, that, if it terminates the 123 Agreement and stops nuclear commerce with India, it shall ensure that India cannot get the supplies from any other member of the NSG. That position is reiterated, and the pledge that the US Government will indeed ensure this is repeated in answer to question 45. The US Government has drawn attention of the Congress to the Guidelines that exist in the NSG, and pledged that they will apply in case the US stops nuclear commerce with India.

Paragraph 16 of the NSG Guidelines, the US Government says, “provides that suppliers should (1) consult if, inter alia, one or more suppliers believe there has been a violation of a supplier/recipient understanding; (2) avoid acting in a manner that could prejudice measures that may be adopted in response to such a violation; and (3) agree on ‘an appropriate response and possible action’, which could include the termination of nuclear transfers to that recipient.” If the NSG agrees to the exception for India, the US Government assures, this Guideline “would apply in the case of any nuclear transfers by a Nuclear Suppliers Group supplier to India.”

And yet the falsehoods continue.

The nuclear deal is by now clothed in two layers of sin. The layer of the cash-for-votes sin. And the ever thickening layer of falsehoods.

I can only plead with much sadness in my heart to the media: do not lend yourself to spreading such falsehood.

— Arun Shourie, 6 Sept. 2008

Related post: About the nuclear energy deal.

Author: Atanu Dey


3 thoughts on “Two consonent views on the 123 Agreement”

  1. You’re right in stating that we should not sign the agreement in its present form. Indian government and all the supporters of the deal, in my opinion, have always been under some delusional spell about the nuclear realities of the world. U.S and world opinion would never stand for the kind of exemption that the UPA was trying to peddle. It undermines everything that the NPT has tried to accomplish over the last 50 years.

    But the energy situation as is cannot go on in India. After all the virtues of extolling the benefits of Nuclear Power, spinning that with India’s concern for the environment and her desperate energy needs to sustain an 8% growth I’m amazed how quickly both the Government and the Indian editorials are doing an about turn that we don’t need this deal. And of course the over-sentimentalism of feeling victimized by the US double-cross.

    But we do need energy and we it more than we need nuclear bombs, I’d be interested to hear your opinion on India signing the Non-Proliferation Treaty and just getting into a regular agreement with the NSG. It would actually send out a very different message to the world that India is not looking to proliferate or test weapons. You know that we can always simulate tests in a virtual world and this can be discussed with the IAEA if we ever need to create any deterrent that PK Iyengar is so worried about.

    And of course we can then use Nuclear Power for civilian purposes like so many other countries do without the need for any 123 agreement or U.S law. This will allow us to address the more important energy needs of India that Rahul Gandhi was so passionately wailing about in Lok Sabha during the trust vote.


  2. Navneet

    You are absolutely right. We need nuclear power, much more than we need nuclear bombs.

    It is extremely irresponsible and stupid for a developing country like India to link nuclear power with nationalism. This is highly detrimental to our own future.

    We should go nuclear at the highest speed possible. We should close the loop in power production by turning to breeder reactors. We should welcome international (particulary American) cooperation in this area.


    Please lose no time, buy this book and read it.

    A lot more information on breeder reactors.


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