Nuclear deal: It could have been worse

With the publication of the final texts of the 'Agreement for Cooperation between the Government of India and the Government of the United States of America concerning Peasceful Uses of Nuclear Energy' (or, the Agreement), the cat is out of the bag, but the pigeons among which it is set are unlikely to be unduly agitated.

The Bharatiya Janata Party and the Left must have already known what to expect, and other than remonstrating along familiar lines for the record, will let it pass.

A noticeable aspect of the Agreement is that in an otherwise elaborate document set out in meticulous detail, there is no mention of the basis of its authority being derived from section 123 of the US Atomic Energy Act of 1954.

Of course, there is reference to that section at one or two places, but only to draw attention to certain operational requirements. For all intents and purposes, it is a standalone Agreement, and cannot justifiably be called a section 123 Agreement.

However, the Agreement has to be read with the mandatory provisions of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act, which is the umbrella legislation.

One of the most unambiguously worded provisions of that Act is that all commitments and concessions that may be agreed upon as part of the framework of full civilian nuclear cooperation 'shall cease to be effective if the President determines that India has detonated a nuclear explosive device…'

There should be absolutely no doubt in any quarters that once India conducts a test at any time in the future, the Hyde Act will simply put a stop to all further implementation of the Agreement, and if the US administration ignores the categorical injunction, it will fall foul of its Congress and the law.

In short, in the event of a test, the Agreement will stand automatically terminated with no need for notice or consultations.

The Agreement no doubt talks of both countries considering carefully the circumstances that may lead to termination or cessation of cooperation, taking into account 'whether the circumstances that may lead to termination or cessation resulted from the country's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.'

Put simply, if India carries out a test, the US will examine whether this became necessary in the changed security environment or because some neighbouring country gave the provocation.

But all this rigmarole goes against a plain reading of the Hyde Act.

No doubt, India can still say 'go to hell' and proceed with the test, braving the consequences, but if it means to stick with the Agreement, it should be taken as having abjured its right to conduct any more tests.

Tight surveillance

The Hyde Act makes it obligatory for the US administration to submit to the US Congress comprehensive annual reports on a wide range of subjects meant to keep India under tight surveillance. A sampler:

1. An analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices;

2. An estimate of --

(i) the amount of uranium mined and milled in India during the previous year;

(ii) the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices; and

(iii) the rate of production in India of --

(a) fissile material for nuclear explosive devices; and

(b) nuclear explosive devices;

3. An analysis of whether US civil nuclear cooperation with India is in any way assisting India's nuclear weapons programme, including through --

(i) the use of any US equipment, technology, or nuclear material by India in an unsafeguarded nuclear facility or nuclear-weapons related complex;

(ii) the replication and subsequent use of any US technology by India in an unsafeguarded nuclear facility or unsafeguarded nuclear weapons-related complex, or for any activity related to the research, development, testing, or manufacture of nuclear explosive devices; and

(iii) the provision of nuclear fuel in such a manner as to facilitate the increased production by India of highly enriched uranium or plutonium in unsafeguarded nuclear facilities;

4. A description and assessment of the specific measures that India has taken to fully and actively participate in US and international efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel and the means to deliver weapons of mass destruction.

Even a cursory look at these should convince those familiar with the functioning of bureaucracies that the US administration, in order to satisfy the inquisitiveness of its Congress, will be constrained to demand of Indian authorities, including the nuclear establishment, disclosure of all kinds of facts and figures with regard to both safeguarded and unsafeguarded nuclear facilities.

One can expect that, in order to verify the accuracy of data and information supplied, the US will send teams of inspectors to crosscheck them on the spot. So long as the Hyde Act is on the statute book and the Agreement is in force, India will be subjected to recurrent intrusive queries from the US side on this account in derogation of its sovereignty and self-respect.

Now, coming to the Agreement itself, although its stated objective is 'to enable full civil nuclear energy cooperation,' it has shortchanged India in one important respect: It has effectively ruled out transfer of sensitive nuclear technology (information important to the design, construction, fabrication, operation, or maintenance of any sensitive nuclear facility designed or used primarily for uranium enrichment, reprocessing of nuclear fuel, or fabrication of nuclear fuel containing plutonium), heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities as also dual-use nuclear related items which have a technical use in both nuclear and non-nuclear applications.

This puts paid to any claim of 'full' cooperation.

Never-never land

Even those features of the Agreement which at a superficial glance are promising, seem to spell trouble on deeper examination. The first pertains to reliability of fuel supply for reactors and establishment of safeguards against any disruption of supply over their lifetime.

On this matter of vital importance, the Agreement can be said to be credible insofar as it commits the US to make available to India assured and full access to nuclear fuel, drawn from either the American resources, or the strategic reserve built up by India with US support. But, as regards access to international fuel market, or a disruption of fuel supplies for any reason, the provisions of the Agreement will bog India down in the slough of a never-never land.

On the question of international market, all the US will do is seek 'agreement from the US Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations.'

And when there is disruption, the only solution the Agreement envisages is for the US and India to 'jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.'

There is every likelihood of both courses leading to a prolonged flurry of to and fro of country plenipotentiaries without resulting in any tangible action.

As regards the second important issue of reprocessing spent fuel, the Agreement seemingly recognises India's right by granting consent 'to reprocess or otherwise alter in form or content nuclear material transferred pursuant to the agreement, and nuclear material and by-product material used in, or produced through, the use of nuclear material, non-nuclear material, or equipment so transferred.'

For this purpose, India has offered to establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material and to bring not only the new facility, but, unwisely, all other facilities concerned with reprocessing, under International Atomic Energy Agency safeguards.

Even then, any further activity by India will be conditional on putting in place arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility. India is not free to make these arrangements in its best judgment, but has to abide by the recommendations of consultations begun within six months of a request by either US or India and concluded within one year.

Nagging feeling

The third anaesthetising part of the Agreement is regarding the return, on termination or cessation of cooperation, of any nuclear material, equipment, non-nuclear material or components transferred under the Agreement and any special fissionable material produced through their use.

In view of the 'profound implications for their relations' of such a step, the US has agreed to hold, prior to the removal of any nuclear items, consultations with India giving special consideration to the importance of uninterrupted operation of nuclear reactors with respect to the availability of nuclear energy for peaceful purposes as a means of achieving energy security and taking into account the potential negative consequences of such termination on the ongoing contracts and projects initiated under the Agreement of significance for the respective nuclear programmes of either country.

Before any nuclear items are removed consequent on the failure of consultations, the supplying country is required to compensate promptly the recipient country for the fair market value and for the costs incurred as a consequence of such removal.

This apparently agreeable resolution of the issue may get bedevilled by disputes over methods and arrangements for the return of the items, the relevant quantity of the items to be returned, and the amount of compensation that will have to be paid.

All said, one has the nagging feeling that it is too late to mend or reverse the outcome. The Agreement is as good as signed, sealed and delivered, subject to the formality of approval by Indian Parliament and US Congress.

One can only hope that the actual working of the Agreement will belie these fears and that the provisions on consultations and settlement of disputes will help in the smooth implementation in a spirit of accommodation, understanding and goodwill.

B S Raghavan is a former director (political) at the ministry of home affairs.