Jul 15, 2008

India - Judge the nuclear deal on facts,not convictions

Ashok Parthasarathi
In highly complex politico-techno-legal agreements, facts must totally override convictions, whoever’s convictions they may be.
A recent newspaper editorial says: “It always takes political courage to stake one’s government on a matter of conviction.” This is most surprising. All public policies must be based on facts — here facts about the Hyde Act and the 123 Agreement. A phrase repeated ad nauseam by the deal’s protagonists has been it is in the “national interest.” Is it? I am afraid not. Why? Because of the nature, scope, content, intent, and detailed provisions of Hyde and the 123.
The Hyde Act is categorical that if we test, the whole deal collapses. It restricts U.S. supplies of fuel to only that quantity needed for “normal operating conditions” of all our nuclear reactors. Hyde is against our building up any “strategic reserve of fuel” to ensure our reactors continue to operate stably even if the U.S. terminates fuel supplies. But Hyde requires that even if we build up a reserve, the U.S. government should ensure that the size of that reserve is not so large as to enable India to ride out any fuel supply cut-off and civil nuclear sanctions that the U.S. Congress would impose as soon as we undertake any nuclear explosive test.
Hyde requires the U.S. government to extract from the Indian government a “specific future date” after which we will not produce weapon grade plutonium even from our own unsafeguarded reactors. This will be a body blow to our weapons programme. India is also required to follow U.S. diplomatic and negotiating positions on the Fissile Material Cut-off Treaty (FMCT), although our position on the Treaty differs cardinally from the U.S. position. As though this were not enough, the Act calls on the U.S. government to further tighten NSG Guidelines, particularly for India.
Not confining itself to nuclear matters, the Act requires the Indian government to adopt a foreign policy across the board fully concordant with the U.S. government. Specifically, the Indian government must follow the United States to even apply sanctions on Iran. How can we accept such a stipulation when we have longstanding cordial relations of a civilisational character with Iran, and are about to conclude two very major 25-year natural gas supply agreements vital to our energy security?
As for the 123 agreement, a key Bush commitment in the U.S.-India Joint Statement of July 18, 2005 was that the U. S. would ensure “full” civil nuclear energy cooperation, that is, covering the entire nuclear fuel cycle from making uranium fuel to reprocessing spent fuel to extract plutonium – a key input into our Fast Breeder Reactor Programme. However, the actual 123 does not cover U.S. supply of technology and technical facilities relating to two crucial steps in the fuel cycle, namely uranium enrichment and heavy water production. Moreover, even in the case of the third crucial step of reprocessing, there will be no supply of technology and facilities, but only the U.S. agreeing to our reprocessing using our own technology and technical facilities. In contrast, 123s with Japan and South Korea provide for U.S. supply of technology and technical facilities for all three steps in the nuclear fuel cycle. Moreover, in regard to reprocessing, these have already been provided by the U.S. to Japan. Reprocessing plat
However, to operationalise this major concession of ‘allowing’ us to reprocess spent fuel, we must build, at our own cost, a national reprocessing plant, estimated to cost Rs. 10,000 crores. Furthermore, before we actually start building such a plant, we must provide all detailed drawings and other technical documentation, data, calculations, and so on to the International Atomic Energy Agency to review and clear. This means providing highly sensitive and classified documentation, embargoed to us by the West and generated by us after many years of R&D, formally to the IAEA, which is as much a political body as anything else.
Another requirement is our accepting a whole range of “arrangements and procedures” stipulated by the U.S. to run our own national plant. After that we have also to sign another agreement with the U.S. government, under Section 131 of the U.S. Atomic Energy Act, which must be approved by Congress. This Section 131 approval is not even alluded to, let alone indicated, in any way, in the 123. Why did our negotiating team not insist on its inclusion? Or did it not know about it?
Shockingly, 123 contains no arbitration clause. Japan spent two years to negotiate and get an elaborate arbitration clause from the U.S. The clause on “Dispute Settlement” in our 123 merely says: “if any disagreement between the Parties [India and the U.S.] arises, they will be negotiated and settled.” This is an amazing blunder on the part of our negotiators of the 123 for which we will pay a very high price in future. What happens if disagreements cannot be resolved through negotiations? Even commercial contracts incorporate arbitration clauses. Yet our 123 is silent on this vital matter.One-sided provisions
The termination clause has several one-sided provisions. One is that if, after “either party” notifies the other that it proposes to terminate the 123, consultations will be “promptly” held. However, the party seeking termination has the right to cease further cooperation if it decides not just that a mutually acceptable resolution of its reasons for seeking termination has not been possible, but that it cannot be achieved through consultations! So, all the U.S. has to do is to hold two consultation meetings and then say: “we have decided our reasons for seeking termination cannot be resolved through consultations”! If not consultations, then how? The 123 is silent on this. Without a satisfactory arbitration clause, India will totally be at the mercy of the supplier over the 40-year life of the 123.
As for nuclear testing, the 123 states: “Parties agree to take into account whether circumstances that may lead to termination [pursuant to a nuclear test by us] resulted from a Party’s [that is, our] serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.” Firstly, the U.S. only agrees to “take into account” our circumstances, not necessarily accept them. Secondly, as soon as we test, all hell will break loose! Nobody will look at the elaborate convoluted wording in the 123. The U.S. Congress will immediately demand the cancellation of the nuclear deal under Hyde. So statements by top officials of the Ministry of External Affairs and the Department of Atomic Energy that neither the Hyde Act nor the 123 prevents us from testing are totally incorrect.
Finally, a sub-clause of the termination clause relating to “arrangements and procedures” stipulated by the U.S. for our operating our National Reprocessing Plant -- without which the plant cannot be operated -- shall be subject to suspension by either party in “exceptional circumstances.” What is need at all for such a clause? It gives a strong impression that the consent to reprocess that is being given with one hand is being taken away with the other. And what is the nature and scope of “exceptional circumstances”? There is no description, let alone definition.
How long will suspension last? What will be the terms and conditions of suspension? What will our rights and obligations be during the period of suspension? Will the U.S. pay us damages for our Rs.10,000 crore nuclear reprocessing plant having to lie idle because of suspension? A sub-clause states that “exceptional circumstances” will be defined by the two parties after consultations. However, it goes on to state that such consultations are for reaching a mutually acceptable resolution of “outstanding issues.” This makes it clear that suspension is on account of “outstanding issues.” But no reference to such issues has been made in first part of the clause dealing with suspension or anywhere else.
Badly-worded clause
How are “exceptional circumstances” and “outstanding issues” related? The clause is extremely badly worded and full of ambiguities, with key phrases remaining undefined. As it is worded, the clause cries out for disputes and differences that would normally inevitably lead to arbitration. However, here dispute settlement will be prolonged, open-ended, and finally result in infructuous negotiations, as in the Tarapur case.
These facts and the analysis based on them clearly establish that in such highly complex politico-techno-legal agreements, facts must totally override convictions, whoever’s convictions they may be. No amount of ad nauseam repetition that the nuclear deal is in the national interest will help. As the great Chinese leader Deng Xiaoping prescribed to his party and people (quoting Mao Zedong): “Seek the truth from facts.”
(The writer was Science Adviser to Prime Minister Indira Gandhi.)

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