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“What is the nuclear agreement about? It is all about widening our development options, promoting energy security in a manner which will not hurt our precious environment and which will not contribute to pollution and global warming,”

(Prime Minister Manmohan Singh at a meeting with Senior Journalists on July 15, 2008)

***

"The nuclear deal in its present form is unacceptable to the country because the Hyde Act passed by the US Congress, which governs the 123 Agreement, undermines India’s nuclear autonomy and imposes curbs on our strategic programme. I had suggested to him that Parliament should consider passing a suitable amendment to the Atomic Energy Act to insulate India from the negative effects of the Hyde Act."

(Opposition Leader L. K. Advani at a meeting with the Prime Minister Manmohan Singh in December 2007)

***

"It is clear that the IAEA Safeguards Agreement does not address the fundamental problems in the Hyde Act and the 123 Agreement."

(Mr. Prakash Karat, General Secretary, CPI(M), on Safeguards Agreement)

***

 

 

 

 

Whither Nuke India

President George Bush exerting all pulls and pressure wanted to get it through during his reign of the world’s oldest democracy. Prime Minister Dr Manmohan Singh even risking his party’s political stake at home turf wanted to see India does not fall behind in the global race for nuclear cooperation for peaceful purposes. They made it happen. The signing of the US-India Civil Nulcear Cooperation Agreement popularly known as 123 Agreement on October 10, 2008 by US Secretary of State Dr. Condoleezza Rice and Indian External Affairs Minister Pranab Mukherjee, one of the architects of the Agreement, was the culmination of a highly debated process initiated on July 18, 2005 in Washington during Indian Prime Minister's visit for talks with the US President 123 Agreement is now operatinalized and “legally binding” on both the countries.

This marks the end of “34 years of a ‘technology denial regime’ imposed against India, opening a wide vista of opportunity for U.S.-India collaboration in commerce, civil nuclear research, technology transfer and nuclear fuel supply – essential inputs to power India’s dynamic, fast-growing economy, as termed by the US-India Business Council (USIBC) after the passage of the Agreement in the House of Congress on Oct.1, 2008. A wide vista of opportunity is opened for U.S.-India collaboration in commerce, civil nuclear research, technology transfer and nuclear fuel supply – essential inputs to power India’s dynamic, fast-growing economy.

“By enabling U.S.-India civil nuclear cooperation, India not only joins the international nuclear non-proliferation mainstream, but now has the opportunity to achieve energy security, while protecting the global environment. A massive scope for commercial opportunity between U.S. and Indian companies will also be the result, valued at more than $150 billion over the next 30 years, spurring a revival of the nuclear power industries of both countries that will create as many as a quarter million high-tech U.S. jobs for generations to come,” said USIBC President Ron Somers.

The Agreement will provide India with access to U.S. nuclear fuel, reactors and technology to generate power for its more than 1.1 billion people. India’s powerful industry lobby Confederation of Indian Industry (CII) expects about $27 billion investment in 18 to 20 nuclear plants in India over the next 15 years.   

Let no one assume, though, that our work is now finished. Indeed, what is most valuable about this agreement is how it unlocks a new and far broader world of potential for our strategic partnership in the 21st century, not just on nuclear cooperation but on every area of national endeavor,” said Dr. Condoleezza Rice before signing the agreement. In response, Indian External Affairs Minister Pranab Mukherjee said: “The significance of the agreement is that it is the first step to civil nuclear cooperation and trade between India and the U.S. This is an agreement about civil nuclear cooperation, and reflects a careful balance of rights and obligations.”

 "We remain committed to a voluntary, unilateral moratorium on nuclear testing. We do not subscribe to any arms race, including a nuclear arms race. We have always tempered the exercise of our strategic autonomy with a sense of global responsibility. We affirm our policy of no-first-use of nuclear weapons," Indian External Affairs Minister had said in a statement on the eve of the Nuclear Suppliers Group's meeting that followed the meeting of the Board of Governors of the International Atomic Energey Agency (IAEA) on August 1, 2008 which adopted by consensus the agreement calling for application of IAEA safeguards to Indian civilian nuclear facilities. At its meeting on September 6, 2008 NSG has approved a full-scope safeguards waiver for India, as a step toward operationalizing the US-India nuclear deal (123 Act) and allowing India to enter the international mainstream for civil nuclear power. Close on the heels of the US Congressional approval on October 1, Bush signed the Act on October 8, 2008. In a statement Mukherjee had said that the NSG decision "will enable India to resume full civil nuclear cooperation with the international community to meet its energy and developmental requirements."  

The four-party Left alliance that had been supporting the Congress(I)-led UPA government for last four years withdrew its support apprehending that the Safeguards Agreement with IAEA would threaten India's sovereignty. The Prime Minister  will have to burry the Left apprehension in due course making all the Civilian Nuclear agreement related issues more transparent and convincing.

Delivering her statement during consideration of the U.S. India Nuclear Cooperation
Agreement by the House Foreign Affairs Committee, Republican Representative Ileana Ros-Lehtinen (R-FL) had said: "The U.S.-India nuclear cooperation  agreement is not one that we would offer to just any nation. It is a venture we would enter into only with our most trusted democratic allies. I believe that stronger economic, scientific, diplomatic, and military cooperation between the U.S. and India is in the national interest of both countries and that our increasingly close relationship will be one of the central factors determining the course of global events in this century. This peaceful nuclear cooperation agreement will prove to be an essential component in broadening and strengthening that strategic partnership and in ensuring that India is able to address the rapidly growing energy needs of its population, as its economy continues to expand.

Among the most important elements of this new relationship is India's commitment to cooperate with the U.S. on major issues such as halting the spread of nuclear weapons material and technology to groups and countries of concern. In particular, this nuclear cooperation agreement is essential in continuing to ensure India's active involvement in
dissuading, isolating, and if necessary, sanctioning and containing Iran for its efforts to acquire chemical, biological and nuclear weapons capability and the means to deliver those deadly weapons. It will also help secure India's full participation in the Proliferation Security Initiative, including a formal commitment to the Statement of
Interdiction Principles. And it will be a major step forward in achieving a moratorium by India, Pakistan, and China on the production of fissile materials for nuclear explosives.


 
civil nuclear initiative
acknowledgement of
India’s growing role in global affairs*

I
rise to inform this august House about recent developments in our civil nuclear initiative. In the three months since this matter was last considered in Parliament, we have made considerable progress.
2.
The India-specific Safeguards Agreement with the IAEA was approved unanimously by the IAEA Board of Governors on 1st August 2008. As approved, the Safeguards Agreement reflects the key understandings upon which our civil nuclear initiative is based and enables their implementation. We will bring the agreement into force and offer facilities for safeguards in a phased manner in accordance with the provisions of the Safeguards Agreement and in keeping with our Separation Plan.
3.
On 6th September 2008 the Nuclear Suppliers Group (NSG) adopted a decision by consensus which enables its members to engage in full civil nuclear cooperation with India. This decision opens the door for India to resume civil nuclear cooperation with the international community to meet its energy and development requirements. As I had mentioned in my statement in this House last July, the IAEA approval and the NSG decision provide us the passport which allows us to engage in civil nuclear cooperation with our international partners. We are now in the process of getting visas by engaging with our international partners to negotiate and finalise bilateral cooperation agreements.
4.
On September 30, 2008 we signed an Agreement for Cooperation in Civil Nuclear Energy with France during PM’s visit to France. On October 10, 2008 I signed the Agreement for Cooperation between the Government of India and the Government of the United States of America concerning Peaceful Uses of Nuclear Energy (also known as the 123 Agreement), with the US Secretary of State Dr. Condoleezza Rice in Washington. We hope to sign a cooperation agreement with Russia when President Medvedev visits India in December later this year.
5.
These agreements represent a careful balance of rights and obligations. Cooperation with our international partners will be carried out on the basis of the terms and provisions of these agreements. The agreements that we have signed with the US and France and will be signing with Russia provide for cooperation in various aspects of nuclear fuel cycle. They include the fuel supply assurances which are the basis of our civil nuclear initiative as well as our right to build our strategic fuel reserves, to ensure the uninterrupted operation of our civil nuclear reactors under IAEA safeguards. These Agreements and the India-specific safeguards Agreement also provide for India to take corrective measures if necessary. These are interlocking provisions which protect our rights fully.
6.
It has also been ensured in these agreements that we have the right to reprocess the nuclear material that we obtain from our international partners. We will also be setting up a new national reprocessing facility and taking other steps necessary to operationalise these agreements and realize the full potential of the civil nuclear initiative.
7.
All these agreements are fully consistent with India’s national interest, with the assurances that PM had given to Parliament and that Government has made to the people of India. Taken together the India-specific Safeguards Agreement, the NSG decision and the bilateral cooperation agreements provide the basis for us to engage in international cooperation in civil nuclear energy on a long term and sustainable basis with interested international partners. We regard these decisions as a vindication and recognition of India’s impeccable non-proliferation credentials. When the enabling bilateral cooperation agreements are brought into force they will provide the legal framework to negotiate and finalise commercial arrangements to source nuclear fuel for our strategic fuel reserve as well as other nuclear equipment and technologies covering the nuclear fuel cycle. We will honour our commitments and implement these agreements in good faith and in accordance with the principles of international law and have no doubt that our partners will similarly discharge their commitments and obligations.`
8.
In achieving this result the Government has ensured that they only relate to cooperation in civilian nuclear energy and that our strategic programme and our indigenous research are not affected. Our three stage indigenous nuclear programme will continue as envisaged by Pt. Jawaharlal Nehru and Dr. Homi Bhabha. The bilateral cooperation agreements that we have signed with the US and France as well as the India-specific Safeguards Agreement include specific provisions which ensure that there will be no hindrance to our strategic programme and that we retain the freedom to take action with regard to our strategic programme even as we engage in international cooperation in civil nuclear energy.

Hon’ble Speaker Sir,
9.
Allow me to use this opportunity to elaborate why Government considers this initiative a historic contribution to our nation building effort, in respect of energy, sustainable development, technology and other aspects.

First, it enhances our development options. We are all aware that the availability of clean, affordable and sustainable sources of energy is a critical requirement if we hope to maintain healthy economic growth and abolish poverty. Today, the shortage of energy hampers our efforts to rapidly develop our economy. Hon’ble members are well aware of the strain put on our economy and on the daily lives of the people by the rise in the global prices of crude oil earlier this year. We must develop and utilize energy sources which are clean and do not contribute to climate change or global warming. We are and will continue to develop renewable sources of energy such as bio-fuels, solar and wind energy as well as other sources like hydel power. Nuclear energy offers us an economically and environmentally viable alternative. With the international cooperation that is now available, we will be in a position to bring additional generating capacity through nuclear power into our energy mix. It will also help our indigenous nuclear programme to grow rapidly. Today we have about 4000 MW of installed capacity in nuclear power. Even the existing plants are operating at a much lower level than their capacity due to a shortage of uranium. With the opening up of international nuclear trade and commerce we will have new opportunities to expand our nuclear power capacity.

Today, our total power generation capacity is about 1,45,000 megawatts. If we wish to sustain an annual GDP growth rate of 9-10%, then by 2030, our projected energy deficit would be 1,50,000 megawatts. If we go a little more in future, that is by 2050, our energy deficit would be 4,12,000 megawatts. In working out these figures, we have taken into account thermal power, coal, petrol and diesel, hydel power, and non-conventional energy sources like wind, solar, etc. Even after their fullest exploitation, the projected deficit would remain. Nuclear power is the only effective way to bridge this gap. As per some studies, if we start work today on nuclear power, to produce 40,000 megawatts of energy in the period of eight years from 2012 to 2020, then within 22 years, that is by 2030, we will be able to reduce the deficit to only 50,000 megawatts as against the deficit of 1,50,000 megawatts. Thereafter, we will be able to reduce the energy deficit in 2050 from 4,12,000 megawatts to only 7,000 megawatts.

Second, this initiative marks the end of the technology-denial regimes which have restricted India for over three decades. These developments are the beginning of a new chapter for India - of engagement as equal partners in civil nuclear energy cooperation with other countries. As we move forward it will help us to expand high technology trade with technologically advanced countries.

Third, it is an acknowledgement of the scientific and technological achievements of our scientists whose tireless efforts in the face of adverse conditions laid the basis for this initiative. It is their efforts that have made it possible for the world today to recognize India as a state with advanced nuclear technology. Hon’ble members are aware that the embargoes in the nuclear field that were in place against us had hampered the efforts of our scientists to fully participate in international exchanges. With this initiative they will be able to engage with their counterparts in exchange of scientific ideas and technical know-how and contribute to the global effort to deal with the world-wide challenges of energy security and climate change; and

Finally, the initiative is an acknowledgement of India’s role as a responsible power in international affairs on global stage. It is for us to utilize this opportunity with confidence as we pursue our national interests.

Hon’ble Speaker Sir,

10.
During the course of negotiations on the civil nuclear initiative questions were raised whether we would be able to maintain the independence of our foreign policy. As I have said on earlier occasions, let me reiterate once again that we will never compromise on our independent foreign policy. Our foreign policy will be determined at all times by our own assessment of our national interest. This initiative in no way constrains our ability to pursue an independent foreign policy. It does not in any way affects our strategic autonomy. In fact it does the opposite by increasing our foreign policy options. The NSG decision by opening up the possibility for us to engage in civil nuclear cooperation with other countries actually enhances our choices to engage as an equal partner with the international community. The ultimate objective of our foreign policy is to create conditions conducive to our growth so that we can meet our developmental objectives. In this respect I can say emphatically that this initiative creates more space for us to pursue a foreign policy which serves our national interest.

11. In conclusion, the civil nuclear initiative is a landmark achievement which not only allows us to meet our future energy requirements in a sustainable manner but is also one which acknowledges India’s growing role in global affairs. I am sure that you all will agree with me that it is time for us to look ahead and move forward with confidence to occupy our new and well deserved position in the Comity of Nations.  

*Suo-Motu Statement by  Pranab Mukherjee, Minister of External Affairs, on “India’s Civil Nuclear Energy Initiative” in Parliament on October 20, 2008


THE LEFT ANGLE

 
Safeguards Agreement harmful

"
….India is about to bind its entire civilian nuclear energy programme into IAEA safeguards in perpetuity without getting concrete assurances for uninterrupted fuel supply, right to build strategic reserves and right to take corrective steps in case fuel supplies are stopped.

IAEA Safeguards in Perpetuity without Concrete Fuel Supply Assurance 

The text of the draft “Agreement Between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities”; the so-called ‘India-specific Safeguards’ agreement sent to the IAEA Board of Governors on July 9, 2008, makes it clear that the repeated assurances made by the UPA Government in Parliament and outside, on securing uninterrupted fuel supply assurances and strategic fuel reserves have not been fulfilled. There are no concrete corrective measures in the main enforceable body of the Agreement, only a vague mention of “corrective measures” in the preamble.

Under the Hyde Act, IAEA safeguards are to be imposed on India’s civilian nuclear facilities in perpetuity. The UPA government had repeatedly claimed that India would put its civilian reactors under safeguards under the strictly reciprocal condition of assured fuel supply. If fuel supply was disrupted, as happened in Tarapur, India would have the right to take corrective measures, including taking reactors out of IAEA safeguards.

The key question therefore with respect to IAEA safeguards is: how to ensure that once India’s civilian reactors go under safeguards in perpetuity, the country would not be blackmailed by the withholding of nuclear fuel supplies, as the United States did in Tarapur following Pokhran-I?

The preamble to the Safeguards Agreement notes that India is offering its civilian nuclear facilities for IAEA safeguards on the “essential basis” of “the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors.” The real point is that the preamble merely ‘notes’ India’s intentions in these respects. IAEA has neither any obligation regarding fuel supplies or building strategic reserves nor does this noting India’s basis for this offer give India any additional rights through this agreement. Therefore to read into this clause either a guarantee for fuel supplies or IAEA's support for building up a strategic reserve is misleading the people.

“Corrective Measures”: Vague and Ineffective

The preamble of the IAEA Agreement notes: “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.”  Neither the “corrective measures” nor the precise relationship between these “corrective measures” and the in-perpetuity imposition is spelt out in any meaningful terms in the text. This means that should India for any reason decide to take the items subject to the Agreement out of IAEA safeguards on the contention that the “essential basis” no longer applies, it will open itself to the serious charge of violating an international agreement. In this connection, it is worth remembering that although India claims the right, under the provisions of the 1963 Indo-US agreement on Tarapur, to reprocess the considerable quantities of Tarapur spent fuel that have accumulated to India’s great inconvenience and expense, it has not been able to enforce the claimed right to reprocess, which has long been disputed by the United States.

As against the vagueness of the “corrective measures” figuring in the preamble, what is spelt out clearly in the body of the agreement (Paragraph 32) is that India can withdraw its facilities from safeguards only if it is (a) jointly agreed between India and IAEA, and (b) if these facilities are no longer usable for any nuclear activity. What does this mean? It can only mean that India can withdraw any facility it wants out of IAEA safeguards only if it strips it of all capability of producing nuclear energy and that too only after the IAEA determines that “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards.”

Even if the Agreement is terminated by mutual consent, the termination of safeguards on the items subject to the Agreement [these are material and facilities as defined in Paragraph 11(a)] would stay in place in accordance with GOV/1621 till all the conditions of GOV/1621 are met. The conditions of GOV/1621 are so stringent that the rights and obligations of the parties continue to apply on all nuclear materials till they have been returned or all fissionable materials supplied or produced goes out of the inventory – that is, until all the facilities and material, nuclear or non-nuclear, supplied to the country under these safeguards are either returned or consumed or no longer usable for any nuclear activity. Therefore, this provision will not allow a single reactor to be taken out of safeguards.

Preambular References Non-Enforceable

It is well established in international law that the preamble is a part of the treaty or international agreement and it can be used to give colour and tone to the interpretation of the operative part of the treaty/agreement. This does not however mean that it can be used to create additional rights or obligations that are not contained in the clauses of the Treaty/Agreement.

The text of the IAEA Draft Agreement makes clear there are no corrective measures identified in the operative of the clauses of the Agreement. The mention of corrective measures is only in the preamble and here too, no concrete corrective measures have been defined. Unless there are specific provisions in the operative clauses, a phrase such as “corrective measures” inserted in the preamble cannot create either omnibus rights or obligations outside the text of the treaty. A similar example is for instance the TRIPS Agreement in WTO. The preamble states that it recognizes “the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives”. However, can any country use the “public policy objectives” to override, for instance, the need for providing product patents as contained the body of the TRIPS agreement?

The way a facility can be withdrawn from safeguards has been spelt out in the main body of the draft agreement. Therefore, if the UPA government is trying to argue that the preambular statement of “corrective measures” gives India some kind of overriding right over all clauses in the body of the Agreement, it is committing a deliberate fraud on the people.

The final arbiter with regards to any interpretation of the Agreement and dispute settlement is the Board of Governors of IAEA. The Board of Governors decision is final in this regard and if India is held to be non-compliant, even though it is not so by its own interpretation, India can be referred to the Security Council for action including sanctions. The Iran case is an example. Though many countries including India had publicly endorsed Iran’s right to the fuel cycle, it was referred to the Security Council for violation of its Safeguards Agreement by the Board of Governors at US’s instance.

Left Parties’ Concerns Not Addressed 

The Left Parties, on July 8, 2008, asked the UPA government to spell out the following:

In case the US or other countries in the Nuclear Suppliers Group renege on fuel supply assurances for imported reactors, will India have the ability to withdraw these reactors from IAEA safeguards?

If the US/NSG countries renege on fuel supply assurances, can we withdraw our indigenous civilian reactors from IAEA safeguards?

If we have to bring nuclear fuel from the non-safeguarded part of our nuclear programme for these reactors in case of fuel supply assurances not being fulfilled, will we have the ability to take it back again?

What are the corrective steps India can take if fuel supplies are interrupted by the US/NSG countries?

What are the conditions that India must fulfill if the corrective steps are to be put into operation?

What is clear now is that every one of these concerns remains, and that the unspecified “corrective measures” inserted in the preamble of the Safeguards Agreement will not address any of them.

India to be treated as a Non-Nuclear Weapons State for Safeguarded Facilities

Except for the preamble, which explains the context in which India is entering this Safeguards Agreement and outlines the basis of India’s concurrence, the main body of the Text is a true copy of INFCIRC-66/Rev.2 (1968), which is the standard agreement applicable to all Non-Nuclear Weapon States of the NPT. The India-specific part comes not from INFCIRC 66 but from the fact that India has kept a part of its nuclear programme out of IAEA safeguards. But for the facilities it proposes to put under IAEA safeguards, it will be treated as a Non-Nuclear Weapon State. Clearly, India will not have any special rights in its safeguarded facilities and this directly contradicts the assurances given by the Prime Minister to Parliament. Nuclear Weapon States, as defined in the NPT, have the right to take any facility out of safeguards, a right India will not have for the reactors it is offering to IAEA for safeguards.

Against India’s Interests 

It is clear that the IAEA Safeguards Agreement does not address the fundamental problems in the Hyde Act and the 123 Agreement. As a result of operationalising the Indo-US Nuclear Deal, India will place its costly imported reactors under perpetual IAEA safeguards and risk their permanent shutdown in case it fails to toe the US line on foreign policy issues. Thus going ahead with the Safeguards Agreement will be harmful to India’s interests.

(Excerpts of the Press statement signed and issued by the General Secretaries of the four left parties –CPI(M), RSP, CPI & Forward Block on July 11, 2008)
 

On the other hand the Opposition Leader in Parliament L. K. Advani said "the BJP wants to see friendly relations between India and the United States. Indeed, as the world’s largest democracy and the world’s strongest democracy, I believe that our two countries should forge a strategic partnership to pursue common goals. It goes without saying that India should also simultaneously deepen friendship and cooperation with all the other major powers – Russia, Japan and others -- in today’s world, which we want to see as a multi-polar world tomorrow. A multi-polar world in which India itself becomes an important pole, working for the welfare of the entire mankind.

"..we want a strategic partnership with the US on equal terms. The BJP will never support a relationship with any country, howsoever strong and powerful it may be, in which India becomes its client or a subservient partner" he  said in Parliament on July 21.

"The Nuclear Deal in its present form is nothing but acceptance of severe curbs on our strategic weapons programme. All the American interlocutors, whether belong to the Republican Party or the Democratic Party or are independent experts, have made it clear that, as far as their country is concerned, their principal objective is to bring India into the Non-Proliferation Regime. What they want fits in well with the critical stand that Dr. Manmohan Singh took after Pokharan II in 1998. Both want India to come within the Non-Proliferation Regime dictated by the US.

"Therefore, the Nuclear Deal in its present form means that India will not be allowed to perform Pokharan III or Pokharan IV, without inviting termination of the agreement and severe punitive action. This is unacceptable to my party, to the NDA, to the majority of MPs in this House, and to the people at large", Advani said.

Commenting on Indian Parliament’s clearance of the government’s move to operatiolaize the nuke deal once it is through at IAEA and NSG levels the US-India Political Action Committee (USINPAC) chairman Sanjay Puri said: "As this is a truly historic accord, so too this is a historic victory for the government of Prime Minister Singh and all Indians. The agreement benefits both countries on several levels, strategically, politically and economically, and it will usher in a new positive era of broadened and deepened cooperation between the oldest democracy and the largest democracy."

"We will rally the Indian-American community and engage all like-minded allies to ensure this deal gets included in the US Congressional calendar for this year. We look forward to the day that this important milestone in US-India relations is finalized," he said.