The ABC of the 123 Agreement


-An insight into the Indo-US Nuclear deal

The United States-India Peaceful Atomic Energy Cooperation Act of 2006, more commonly referred to as the ‘The Indo-US Nuclear Deal’ is perhaps the most vivid depiction of the thawing of the Cold War era relations between the world’s two big democracies. It is also perhaps the single most fundamental occurrence that would shift the scales of power in the sub-continent, and some argue, maybe in the world.However, most of us, including myself, have been hovering around the periphery of this development. Our understanding is mostly derived from the headlines of major newspapers, news tickers at red lights and amateurish sitting room- after dinner- conversations. I think it is time that an attempt is made to present the facts clearly, objectively and in a manner that would serve the best interests of our nation.

It took me two days to look for the material required for this piece, two to go through the stuff that I gathered, a day and a half to get my bearings right, and half a night to ‘sleep over’ the issue at hand. What awoke the next morning was not a walking talking encyclopaedia. Rather, it was an amalgamation of the pros and cons that concern this ‘deal.’ What lies beneath is my understanding of the Nuke deal.

Is the deal good for us? The answer is a mix of ‘yes’ and ‘no’. But that is natural of deals per se. Both parties to the accord have forfeited a bit of the ground on which they stand.

In the ever-changing global scenario, the significance of India as a key player cannot be overlooked. Washington knows this, and in order to reverse the embargoes that it placed on New Delhi in 1974 has had to change its own laws, laws that barred it from providing any nuclear cooperation to India in specific and any non Nuclear Non-Proliferation Treaty (NPT) signatory in particular. The law that will waive off the nuclear related embargoes on India is the Henry J. Hyde Act, 2006. It is important to mention that while this law is binding on the United States alone, it has no clauses for the same on India. Even then, there are certain clauses in the Hyde Act, clauses that expect India’s foreign policy to be ‘congruent’ to that of the United States, vis-à-vis, Iran, and clauses that seemingly jeopardise the deal if India tests at a later date, that have caused a furore in the political and scientific corridors. However, as Dipankar Gupta, Professor of Social Sciences at Jawaharlal Nehru University iterates “If we have no use for any more bombs, then the need to test for more is a waste of time and national resources. As it is the bombs that we have at our disposal are all dressed up but have nowhere to go. Under these circumstances, if the Hyde Act says no more nuclear tests, it should not be of any importance to us. The Hyde Act could equally have stipulated that the US would withdraw nuclear support if we conducted searches for dinosaur eggs. Would this have threatened our sovereignty too? For us there is little logical difference between conducting further nuclear tests and reviving extinct species. We need more nuclear weapons as much as we need dinosaur eggs. Why should restrictions of this order ever threaten our national sovereignty?” The Hyde act should not, as a result worry us.

The 123 agreement, on the other hand, is a bilateral affirmation of the Hyde Act and is the mechanism by which full civilian nuclear cooperation will be achieved, because Section 123 of the US Atomic Energy Act of 1954 deals with International nuclear cooperation. Because the 123 agreement is valid only for civilian and peaceful uses, India has had to classify 14 of its 22 nuclear establishments as ‘Civilian’, thereby opening it to International Atomic Energy Agency (IAEA) inspections. The remaining 8 are ‘military/weapons’ programme related establishments, and hence are not open to inspections.

In return for this ‘Civilian’ inspection by the IAEA, Washington assures full cooperation with technology, material, equipment and most vitally, fuel. India has had a long nuclear history, what with the likes of Homi Bhabha and Vikram Sarabhai at the helm of India’s nuclear affairs. But its limited supply of uranium fuel impinges on the development of its nuclear potential and capability.

The 123 agreement is consequential because it addresses a number of concerns that New Delhi harbours: our sovereignty in strategic and weapons programme; access to nuclear fuel for life (to prevent a situation like the one in Tarapur, where the nuclear facility was shut down due to a sudden cap by the US on the exisiting nuclear cooperation, prior to the 1974 nuclear tests at Pokhran); the right to reprocess spent fuel and access to full nuclear cycle and technologies.

It substantially meets Indian concerns on reprocessing, assures fuel supply for the entire lifetime of the reactor, and most crucially, does not stop India from the right to test nuclear devices, if needed. The agreement does not impinge on nuclear trade, transfer of nuclear material, equipment, components and related technologies. What’s more, it allows India to maintain a perpetual stockpile of nuclear fuel and carries mechanisms by means of which there would be no jeopardy to the functioning of reactors, in case there is a problem. And most importantly, the deal clearly allows India to demarcate and differentiate between the ‘civil’ and ‘military’ nuclear establishments, thereby not impeding on India’s military and strategic initiatives.

While some critics of the deal, aficionados of international non-proliferation, argue that India has been given too much in the 123, others, like those from the Left feel that India has closely aligned itself with the ‘imperialist’ US. This is not a shocking development, given the Left’s affinity for anti-American sentiments. But the quagmire that they seem to be slipping into is the anti-American rhetoric, and not the anti-123/Hyde/nuclear deal issues. Even Prakash Karat, the CPI(M) boss and someone I respect immensely, writing in the communist mouth piece-People’s Democracy on 15 August, fails to substantiate his raison de etre to oppose the deal. He does talk passionately about the usual anti-imperialistic notions though- Iran, Indo-US joint military exercises, Israel, the Palestianian cause, friendship with Arab nations etc. He states, “The Left is clear that going ahead with the agreement will bind India to the United States in a manner that will seriously impair an independent foreign policy and our strategic autonomy.” I wonder if he would be forthright enough to forego the political mumbo-jumbo and make his stance clear and objective. What the Left needs to realise is that although anti-imperialist rhetoric may be morally the ‘in’ thing to do, it should not impinge on our growth and development. Shyam Saran and his team of negotiators have done a fine job extracting as much as was possible out of this deal at the same time negotiating with aplomb with the US- arguably the world’s most difficult negotiator. They have not let the ground slip from beneath their feet.

As much as we cry out loud the importance of India in today’s scenario, we must also keep in mind the importance of the US. It is true, though sadly, that not a leaf stirs without the US knowing it. Kow-towing the US foreign policy in all aspects is despicable, and India often avoids this by its non-aligned stance; but to use this gesture, as a smokescreen that would hinder progress is even more despicable- something that the comrades must realise. Otherwise the Left risks its already sinking reputation by sentiments such as ‘China’s Stooges’. As Arundhati Ghosh, India’s former envoy to the Conference on Disarmament, says, “there’s nobody but the Chinese and the Pakistanis who are gloating at the predicament in which the government finds itself.” (The Left induced threat of withdrawal of support to the UPA government if the deal sails through)

Uday Bhaskar, former head of the Institute for Defence Studies and Analyses, agrees: “The main beneficiaries of the deal getting delayed, from a strategic point of view, are China and Pakistan — in that order. So, whose interests are we protecting?” Would the CPM care to clarify? He adds: “If the deal is delayed or scuttled, it would allow the Chinese to acquire uni-polarity in Asia. Countries like Russia, France and even Japan would like India on board because its presence would provide a sense of equipoise to the equation in the Asian strategic grid.” Symbolic implications of scuttling the deal are that India would remain in the global technology denial regime, not in the global policy formulating regime,” Ghosh adds that the Left “are wilfully damaging the country’s foreign policy. They are trying to do much more than paralyse the deal. They are trying to kill it. If this (123 Agreement) is not in India’s national interest, in whose interest is it? China can test, Iran can have a nuclear programme, but when it comes to India, why must this be put off?” “To stop negotiations at the Nuclear Suppliers Group (NSG) and the International Atomic Energy Agency (IAEA) will only help China.” All this from someone who led India’s struggle against nuclear discrimination by boldly refusing to accept the US influenced Comprehensive Test Ban Treaty (CTBT) in 1996! Surely, the left should be more discrete and not let past prejudices cloud new global perspectives.

Does the deal take away or constrain India’s sovereign right to carry out nuclear tests? The answer is ‘no’. The 123 Agreement doesn’t even mention the phrase ‘nuclear testing’ or the word ‘detonation’. More importantly, the Agreement explicitly says (Clause 2.4) that it doesn’t impinge upon India’s military strategic programme.

Second, has it jeopardized our prerogative on testing unacceptably? America has a right of return, which, no doubt, it will insist upon, if India decides to blow up a bomb. Of course it’s constrained with multi-layers of consultation and cross-cutting commitments. Our concern should not be the US’s attempts to thwart our supplies if we test. There is no doubt that Washington will operationalize the deal, now that we’ve come so far. Our concern should be to prepare and maintain a stockpile of fuel, from alternate sources, in case the American tap runs dry. We have alternatives, and hence, our prerogative remains safe. But is the NSG likely to insist on a right of return if we test? The NSG is a cartel of 45 countries, including the US, Russia, Canada, UK, France and China, which regulates all global nuclear commerce and controls international nuclear fuel and technology transfers to curb proliferation. Getting a waiver from it would allow India to resume nuclear commerce and offer it more choices to source its supplies than only the US. Karan Thapar has three reasons to deny that: Unlike America, their domestic laws do not require it. If they want to do business with India, as France and Russia do, they will not consider it. And if they want to edge out America from this competition they won’t be tempted to follow America’s example.

Do we have the right to reprocess spent fuel? The 123 is silent on that, New Delhi claims there’s no problem, and Washington may differ. Again, the NSG can be the way out if the US says ‘No.’ They want to sell to us, their laws are much less invasive and they’ve individually already indicated to us that they want to do business with us. All that they need is the green flag from the US.

The third issue is have we got the right to buy technologies or components associated with enrichment, re-processing and heavy water? At the moment the answer is no. But equally, the 123 doesn’t deny it. No mention of this is crucial to us. US nuclear policy is clearly against buying and selling of these technologies, and had the 123 said ‘no’ specifically, we would have been in trouble. But their silence on the issue vis-à-vis India is a silent permission to us to do business with NSG nations, whose laws on this issue are much more accommodating. Now, will the NSG sell? The French and the Russians are very keen and need the 123 as an affirmation.

So what does all this amount to? If you take the 123 along with the outcome we anticipate from the NSG, we’ve got what we wanted. But what if the NSG acts differently from what we expected? Well, then we can send the 123 to the dustbin. The US Congress ratifies the deal only when the NSG and the IAEA pass it. India signs in the end and can refuse to do so if our interests are threatened.

Sitaram Yechury of the CPI (M) has a different take on the costs of nuclear energy. He says, “According to the estimates made by eminent scientists, the cost per megawatt of electricity would be around Rs 11.1 crore from imported nuclear reactors. The Prime Minister has announced a target of generating 40,000 MW of nuclear power in the future.

Of this, assuming that 10,000 MW would be generated from domestic reactors, the remaining 30,000 MW would cost us Rs 330,000 crore. Now the same 30,000 MW, if produced through coal, would cost us at best Rs 120,000 crore. Using gas and water, this would cost Rs 90,000 crore only. By using the nuclear option, India would be spending anywhere beyond Rs 2 lakh crore more than by using the available alternatives. Can India afford such an expensive option? Imagine, this cost difference can build nearly 20,000 fully equipped 100-bed public hospitals, or 2,50,000 schools like the Navodaya Vidyalayas with full boarding facilities for 100 students. Who says, therefore, that the nuclear deal does not affect the common man? Apart from all other serious implications, this deal actually denies us the opportunities, very dearly, to improve the livelihood of the aam admi.”

His notions and concerns for the aam admi are admirable. But what the comrade does not realize is that coal and gas based energy will not last a century more, with the growing needs of the world. And while nuclear energy too is not everlasting, it is the best alternative as an interim source of energy, while the world R&Ds renewable and efficient sources of energy (solar, wind etc.). The high costs are the price we pay for development. After all, nothing of consequence comes easy and cheap.

At least till then, its time we put aside our archaic prejudices of the noble, non-aligned, anti-imperialist India. The nuclear agreement with the United States may not be perfect. In saying this I do not wish to either glorify or nullify its importance. But nonetheless, this deal will have far reaching effects on the geo-political and economic affairs of India. Letting this opportunity go by would have been a wasted effort and a wasted moment in retrospect. It’s time that the higher ups started working in tandem and not in a petty, power hungry, opportunistic, self destruct mode. The deal has not been inked yet, and whatever clauses bother us must be conveyed to the Americans, to be earmarked for revision or deletion. After all, we cannot afford to be lame, sitting ducks, whatever be the carrot in front of us. Its time we started thinking, working, striving and seeking towards what’s good for us. For once!

Rijul Kochhar

Credits: AG Noorani, Siddharth Varadarajan, Karan Thapar, B Raman, Sagarika Ghose, Dipankar Gupta, Brahma Chellaney, Nilova Roy Chaudhury, Sitaram Yechury, Prakash Karat, Zafarul Islam Khan.