By Seema Mustafa
New Delhi, Aug. 6: The nine objections raised by the CPI(M) against the India-US civilian nuclear energy agreement have not been addressed in the 123 agreement.
The Left leaders have been consulting scientists and strategic experts to reach a final position on the 123 agreement at a meeting scheduled to be held here on Tuesday. Not a single objection raised by the Left has been met, according to strategic experts consulted by this newspaper. The CPI(M) had issued a statement listing the "explicit departures in the Senate and Congress drafts from the original agreement" signed by Prime Minister Manmohan Singh and US President George W. Bush.
1. The CPI(M) was concerned that the deal required India to pursue a foreign policy congruent to that of the US; and to secure India's full and active participation in US efforts to sanction and contain Iran.
Nothing has changed with the 123 agreement. This codifies technical rules of nuclear commerce. It does not supersede the Hyde Act but is a subsidiary arrangement under the Hyde Act read with the US Atomic Energy Act. The Hyde Act is clear that Indian foreign policy has to remain congruent with the US, on Iran and all other vital issues. US undersecretary of state for political affairs Nicholas Burns said as much when asked about Iran by the American media. He said the 123 agreement was a technical document, and that the US expected India to follow its policy on Iran. He even said that he was hopeful that India would not enter into any long-term gas and energy cooperation with Iran, a reference to the gas pipeline.
Despite the 123 agreement, the US President has to annually certify to Congress that India is in full compliance with the congressionally imposed non-proliferation conditions.
The controversial provision for instituting a "cooperative threat reduction programme" remains. It has just been re-named by the Hyde Act as "United States-India scientific cooperative nuclear non-proliferation programme".
2. The deal would not allow full cooperation on civilian nuclear technology, denying India a complete fuel cycle.
India will continued to face an embargo on importing equipment and components related to enrichment, reprocessing and heavy water production, even when such activities are under International Atomic Energy Agency (IAEA) inspections and for peaceful purposes. Article 5(2) in the 123 agreement makes this very clear.
3. Steps to be taken by India would be conditional upon and contingent on action taken by the US.
It is clear from the 123 agreement itself that all restrictions are not being lifted. Embargoes are still in place, and the US President is still required to annually certify to the Congress that India is in "full compliance" with the congressionally imposed non-proliferation conditions.
4. The US will not take the necessary steps to change its laws or align the NSG rules to fulfil the terms of the India-US nuclear deal.
The 123 agreement does not change the requirement of the Hyde Act that the NSG exemption for India be "made by consensus" and be consistent with the rules being framed by the US. The legislation requires the administration to ensure that the NSG exemption for India is no less stringent than the US exemption.
5. The additional protocol referred to in the original agreement would be intrusive and not India-specific.
New Delhi's agreement with the IAEA will be "India-specific" only in name and would contain only a cosmetic reference to India's right to take undefined and unenforceable "corrective measures" in all other respects. The 123 agreement, in its "definitions", defines well understood terms but not corrective measures. The Hyde Act prescribes for India the highly invasive Model Additional Protocol applicable to non-nuclear weapons states.
One prerequisite to bring the deal into force is that India and the IAEA should have "concluded all legal steps required prior to signature" to enforce inspections "in perpetuity". A second prerequisite mentioned in the 123 agreement is for India to make "substantial progress" on concluding an additional protocol with the IAEA. The Hyde Act defines additional protocol as the one set for non-nuclear states in the 1997 IAEA information circular. At the press conference announcing the 123 agreement, national security adviser M.K. Narayanan and the Atomic Energy Commission chairman, Dr Anil Kakodkar, did not answer a question on the additional protocol, saying that this would be taken up later.
6. India is placing its facilities in perpetuity while the US President can prevent the transfer to India of equipment, materials or technology from other participating governments in the NSG, or from any other source.
The 123 agreement offers assured fuel supply only so long as India adheres to the US-prescribed non-proliferation conditions. The assurances of uninterrupted fuel supply cover only disruption due to market failure, or technical, or logistical, difficulties, but not sanctions arising from India's non-compliance with non-proliferation conditions. Both the 123 agreement and the Hyde Act have explicitly stopped New Delhi from lifting safeguards even if the US were to deliberately terminate all supplies.
7. India's fissile material stockpile will be restricted.
The 123 agreement has not changed this. The Hyde Act lays emphasis on getting India to cease all fissile material production even before negotiations on an FMCT have begun in Geneva. The act requires the US President to periodically inform Congress about "steps that the US has taken and will take to encourage India to identify and declare a date by which India would be willing to stop production of fissile material for nuclear weapons unilaterally or pursuant to a multilateral moratorium or treaty".
8. The deal includes physical verification and suitable access to be provided by India to US inspectors, and not just IAEA safeguards.
US end-use monitoring is reflected in the 123 agreement's Article 12 (3). Also, the provision for US fallback safeguards in Article 10 (4) states, "If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures."
9. The military programme will also be subject to monitoring by the IAEA and the US.
The 123 agreement does not change that requirement in the Hyde Act. The Hyde Act stipulates, "The President shall keep the appropriate congressional committees fully and currently informed of the fact and implications of any significant nuclear activities of India", which includes the fissile material produced and the production of nuclear weapons by India. It also demands annual estimates from the administration about the amount of uranium mined and milled in India, the amount of uranium used or allocated for the production of nuclear explosive devices, and the rate of production in India of both fissile material and nuclear explosive devices.
The legislation seeks to cap, roll back and eliminate India's nuclear deterrent with the phrase "halt the increase of nuclear weapons arsenals in South Asia, and to promote their reduction and eventual elimination".