123 doesn't violate Hyde Act: Experts

Refuting criticism that fuel assurances and reprocessing right to India are inconsistent with the US's non-proliferation obligations and the Hyde Act, two reputed scholars have said the 123 Agreement will limit the negative impact of disagreement over the Non-Proliferation Treaty on bilateral ties.

In their memo 'US Nuclear Agreement with India: An Acceptable Deal for Major Strategic Gain', Lisa Curtis and Baker Spring said India's behaviour 'was consistent with a policy to establish objective criteria for civil nuclear cooperation with de facto nuclear weapons states'.

'Throughout the negotiations, India consistently defended its right to reprocess the nuclear fuel under the agreement. The administration ultimately accepted Indian demands, but distinguished between the right and an entitlement to the US assistance in pursuit of reprocessing activities,' they said.

'In fact, any action on reprocessing will depend on the conclusion of a subsequent agreement, as required by section 131 of the US Atomic Energy Act of 1954,' the authors said. They said India had committed to set up a dedicated reprocessing facility to ensure that American origin fuel is not diverted for weapons programme.

'Members of Congress who were adamant about denying India reprocessing rights may be reluctant to accept the compromise, but they should consider the fact that India's construction of a new reprocessing facility under international safeguards will actually bring India's nuclear programme into greater conformity with the international non-proliferation regime,' Curtis and Spring said.

They said, 'If India goes against the spirit of the 123 Agreement, Washington will have the right to demand the plutonium that is stripped out through reprocessing.'

Terming it a 'critical element' of the agreement to ensure that the US cannot be accused of violating its NPT obligations, they said the right was embedded in Article 14 of the agreement, which allowed either party to terminate the agreement on one-year written notice.

On fuel assurances for India, they said ensuring that the US maintained the right of recapture – the ability to demand back any US-origin nuclear fuel or technology -- in the event of a future Indian nuclear test was an important part of the agreement from the US perspective.

They said the 123 Agreement language did not violate the Hyde Act since the fuel access provisions were a part of the agreement itself and would terminate along with the agreement.

Lisa Curtis is a Senior Research Fellow in the Asian Studies Centre at The Heritage Foundation and Baker Spring is FM Kirby Research Fellow in National Security Policy in the Douglas and Sarah Allison Center for Foreign Policy Studies.