Indo-US Nuclear Treaty - A fraud on the nation

Balasubrahmanyam  Kamarsu                                                                                                                                                  Advocate,  Suprem Court of India                                                                                                     

Prime Minister Dr. Manmohan Singh and UPA chairperson Smt Sonia Gandhi have committed a fraud on the nation by obtruding a nuclear deal that seriously compromises India's strategic sovereignty and right of nuclear tests. The UPA constituent parties have fully endorsed the anti-national conspiracy hatched by the Congress. The Congress led UPA government has not only mortgaged the eight decade indigenous and self reliant nuclear technology but also tried to nullify the glorious achievements by the Indian scientists in the field of nuclear science. The Singh-Sonia duo concealed all the relevant and vital issues and facts of the Indo-US agreement and approached the IAEA stealthily. The Congress and UPA leader's assurances on assured fuel supply and transfer of technology proved to be a hoax.

The nationalist forces have been cautioning the UPA government about the adverse impacts of the Indo-US nuclear agreement. Learned persons from all walks of life – intellectuals, scientists, legal experts, professors and social activists have time and again cautioned the persons in UPA about the imminent dangers of the 123 Agreement in the present form.

Nullified Vajpayee's legacy

Explaining the hidden threats of the 123 Agreement, the Indian intelligentsia said that this agreement in the present shape is an attempt to circumvent the Nuclear Proliferation Treaty (NPT) and Comprehensive Nuclear Test Ban Treaty (CTBT). NPT is an international treaty to limit the spread of nuclear weapons. Currently, 189 countries are party to this treaty. Five of which have nuclear weapons – United States of America, United Kingdom, France, Russia and China. India did not sign NPT alleging that the treaty creates a club of 'nuclear haves' and a larger group of 'nuclear have-nots' and the treaty never explains on what ethical grounds such a distinction is valid. CTBT bans all nuclear explosions in all environments, for military or civil purposes. CTBT has been signed by 177 countries and India is not a signatory to this treaty.

All the American interlocutors, whether belong to the Republican Party or the Democratic Party or are independent experts, have made it clear that, as far as their country is concerned, their principal objective is to bring India into the Non-Proliferation Regime. What they want fits in well with the critical stand that Dr. Manmohan Singh took after Pokharan II in 1998. Both want India to come within the Non-Proliferation Regime dicated by the US.

The Manmohan Singh Government has deliberately and knowingly did not heed to the warnings and misled the people and the Parliament of India on this deal. It is now crystal clear that India will lose the right to nuclear tests forever as a result of this 123 Agreement. This agreement seriously jeopardise the great achievements of Sri Atal Bihari Vajpayee government's nuclear deterrence. The entire world recognized India as a nuclear weapon state following the successful conduct of Pokhran II. In May 1998, the Atal Bihari Vajpayee led NDA government conducted multiple nuclear tests and declared its nuclear capability. India successfully detonated five 'thermo-nuclear weapons.' On Monday 11 May 1998, India declared itself a full fledged nuclear armed State.

Besides, India confidently countered several international sanctions. The entire nation firmly stood by the Vajpayee government. India courageously fought and withstood economic sanctions imposed by major countries in the world. When India refused to succumb, these countries have lifted the sanctions unilaterally. India repudiated discriminatory non-proliferation obligations.

The UPA government headed by a weak Prime Minister Dr Manmohan Singh has compromised on this great legacy and hypothecated India's interests to foreign nations. 

LIES, LIES AND LIES

The irony is that Dr Manmohan Singh and his colleagues in the cabinet, Congress president Sonia Gandhi and her associates in the party, the allied parties of the UPA indulged in perjury and concocted illogical theories to defend the 123 agreement. The greatest misery is that the Prime Minister himself indulged in issuing false and misleading statements over the past three and a half year. He lied to the people of India and Parliament that Hyde Act is not binding on 123 Agreement and India is free to conduct nuclear tests in future.

Besides earlier statements, the Prime Minister's office on July 2, 2008 said that ”the 123 Agreement clearly overrides the Hyde Act and this position would be clear to any one who goes through the provisions.” But, the letter sent by the Bush administration to Chairman of the House on Foreign Affairs Committee on January 16, 2008, completely exposes the Government of India and the fraudulent claims it has been making about the merits of the nuclear deal. The Bush administration clearly stated that the proposed 123 Agreement is in full conformity with the Hyde Act and in the event India detonated a nuclear explosive device then the USA has the right to cease all nuclear co-operations with India immediately including the supply of fuel as well as to request the return of any items transferred from USA including fresh fuel.

United States – India Peaceful Atomic Energy Co-operation Act – popularly known as --Hyde Act is an act adopted by US Congress providing exemptions to India with regard to nuclear science. This is a domestic Act of United States of America. This Act provides legal  basis for 123 Agreement with India. United States – India Peaceful Atomic Energy Co-operation Act of 2006 is the legal framework for a bilateral pact between US and India under which the US will provide access to civilian nuclear technology and access to nuclear fuel in exchange for IAEA safeguards on civilian Indian reactors. 

Mr Jeffrey T Bergner, Assistant Secretary, Legal Affairs of United States Department of state in a letter to Tom Lontos, Chairman, Committee on Foreign Affairs, House of Representatives categorically stated that -- “In his September 19 Statement, Assistant Secretary Boucher twice made clear that we think (the proposed 123 Agreement with India) is in full confirmity with the Hyde Act. Indeed, the Administration is confident that the proposed agreement is consistent with the legal requirements of both the Hyde Act and Atomic Energy Act. The proposed agreement satisfies the particular requirements of Section 123 of the Atomic Energy Act with the exception of the requirements for full-scope safeguards, which the President is expected to exempt prior to the submission of the agreement to Congress for its approval, as provided for in section 104 of the Hyde Act. The agreement is fully consistent with the legal requirements of the Hyde Act.”

Section 106 of the Hyde Act makes the US position clear: “A determination and any waiver under Section 104 shall cease to be effective if the President determines that India has detonated a nuclear device after the date of the enactment of this Act.

What does Section 104 say: “Pursuant to the obligations of the US under Article I of the NPT, nothing in this title constitutes authority to carry out any civilian nuclear cooperation between the United States and a country that is not a nuclear weapon state party to the NPT that would in any way assist, encourage or induce the country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices.

Further, Mr Bergner stated that -- “the US government will not assist India in design, construction, or cooperation of sensitive nuclear techonologies through the transfer of dual-use items, whether under the Agreement or outside the Agreement. The United States rarely transfers dual-use items for sensitive nuclear activities to any cooperating party and no such transfers are currently pending.”

It is clear now that the deal will be terminated and all supplies will be stopped the moment India goes in for nuclear tests and all materials supplied to it will have to be returned.

Devaluing the Prime Minister's office Dr Manmohan Singh approached the International Atomic Energy Agency (IAEA) in a deceitful manner without first seeking a vote of confidence in Parliament. The draft circulated to the IAEA board members has serious long-term implications for India.

The Prime Minister and the Congress president Sonia Gandhi prevaricated that the Agreement cannot be made public as it is a classified document. The Congress leaders could bluff with the people of India and allies of the UPA but the entire world found it on internet.

The draft Safeguards Agreement has made a mockery of the assurances that Prime Minister Dr.Manmohan Singh had repeatedly given to the nation. Speaking in the Lok Sabha on July 29, 2005, had said: “We shall undertake the same responsibilities and obligations as … the US”; “we expect the same rights and benefits” as the US; and “India will never accept discrimination”. This assurance has been flouted in the Agreement, which does not recognize India as a Nuclear Weapons State (NWS) on par with the United States, Russia, Britain, France and China.

The PM had assured that the Agreement would be “India-specific” – that is less onerous and intrusive than the Agreements with the Non-NWS. He had assured Parliament on August 17, 2006, that, “As a country with nuclear weapons, there is no question of India agreeing to a safeguards agreement or an Additional Protocol applicable to non-nuclear-weapons states of the NPT”.

Far from it being an India-specific agreement, the accord resembles IAEA agreements with non-nuclear-weapons states. With the exclusion of the first two pages that contain the preamble, and a couple of other exceptions, the text is largely modelled on IAEA safeguards agreements with non-nuclear-weapons state. As sought by the United States, the text of the India-IAEA accord has been drawn from the strengthened INFCIRC-66/Rev.2 (16 September 1968) model for NNWS.

India will have none of the rights that the five established nuclear-weapons states have vis-à-vis the IAEA. Nuclear-weapons states accept only voluntary, revocable inspections. Moreover, these five nuclear powers have the sovereign right to terminate their safeguards agreement with the IAEA.

The India-IAEA safeguards accord comes with perpetual, legally irrevocable obligations, which India cannot suspend or end, even if the supplier-states cut off supply of fuel and replacement parts. The IAEA inspections in India will not be nominal but stringent and invasive, of the type applicable to non-nuclear-weapons states.

The draft Agreement is exactly the same – word for word, para by para – as what the US Administration had wanted. India has not only accepted stringent “routine” inspections with “access at all times”, but also “Special Inspections”. Paragraph 63 of the India-IAEA accord states the “Agency may carry out special inspections if: (a) the study of a report indicates that such inspection is desirable; or (b) any unforeseen circumstance requires immediate action. The Board shall subsequently be informed of the reasons for and the results of each such inspection”.

In other words, the Agency will have the right to carry out “special inspections” if it believed any activity at a safeguarded Indian facility or any report raised questions. In the North Korean case, the board had approved the special inspections which the Pyongyang refused to allow. But India, in its accord with the IAEA, has consented to be subject to special inspections without the Board’s prior consent.

While the five established nuclear powers have offered only 11 facilities in total — less than 1% of their total facilities — for IAEA safeguards, India has agreed to place 35 of its facilities under IAEA inspection, according to the civil-military separation plan presented to Parliament by the Prime Minister in 2006.

These facilities include 14 power reactors; three heavy-water plants at Thal-Vaishet, Hazira and Tuticorin; six installations at the Nuclear Fuel Complex in Hyderabad; the PREFRE reprocessing plant at Tarapur; and nine research facilities, such as the Tata Institute of Fundamental Research, Board of Radiation and Isotope Technology and Saha Institute of Nuclear Physics. In addition, the Prime Minister has agreed to shut down by 2010 the Cirus research reactor, which is one of the two research reactors in India producing weapons-grade plutonium. Several of these are generic facilities: nuclear medicine, irradiation of food grains, nuclear energy, and also nuclear weapons.

A source of grave concern for India is the fact that the so-called “Corrective Measures” in the draft Agreement, in the event of disruption of fuel supplies, are dangerously vague and non-specific. For example, the safeguards accord’s Clause 29 reads: “The termination of safeguards on items subject to this Agreement shall be implemented taking into account the provisions of GOV/1621 (20 August 1973)”. Although the text of the GOV/1621 document is not public, its central stipulation is well-known — that facility-specific safeguards shall be “in perpetuity”, allowing for no suspension of international safeguards and shutting out room for corrective measures. Such are the known conditions of GOV/1621 that the rights and obligations of the parties continue perpetually on all nuclear materials until the materials have been returned or all the fissionable material supplied, produced or processed goes out of the inventory.

Under Clause 32 of the India-IAEA accord, New Delhi can withdraw a facility from safeguards with the prior consent of the IAEA but only after “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards,” which means the installation’s nuclear capability has been dismantled or permanently disabled to the Agency’s satisfaction.

Another cause of concern is that in case of disagreement or dispute, there is no arbitration. India can only represent its case to the Board (Clauses 104 to 106), whose decision has to be implemented by us. If India does not act on its directive, the Board will report India’s non-compliance to the UN General Assembly and Security Council. Past experience has shown that India has rarely received justice when India-related disputes have gone to the UNSC.

The Prime Minister had assured Parliament on August 17, 2006, that, “As a country with nuclear weapons, there is no question of India agreeing to a safeguards agreement or an Additional Protocol applicable to non-nuclear-weapons states of the NPT”. In contrast, the “Additional Protocol” will seek to ensure that specialized equipment, trained personnel, and designs and operating manuals are not transferred from the civilian programme to the military programme. The Hyde Act demands that the “Additional Protocol” for India be “based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540” — that is, the Protocol applicable to non-nuclear-weapons states.

The following are not provided at all: (a) Assured, uninterrupted fuel supply; (b) strategic reserves of fuel. In 123 Agreement, the promises for uninterrupted fuel supplies are all prospective. In August 2006, the PM had told Parliament, for instance, that: “An important assurance is the commitment of support for India’s right to build up strategic reserves of nuclear fuel over the lifetime of India’s reactors”. The Draft with IAEA carries no reference to the continuation of India’s safeguards obligations being contingent on perpetual fuel supply. The agreement indeed explicitly blocks India from ever undertaking real correction in response to a fuel supply cut-off — the lifting of  IAEA safeguards.

In fact, what was provided even in the 123 Agreement has been given the go-by. Article 5 of the 123 Agreement specified, “In the light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.”

Clause 3 of the IAEA draft Agreement provides: “The purpose of safeguards under this Agreement is to guard against the withdrawal of safeguarded nuclear material from civilian use at any time” Notice that the words are exactly as provided in the 123 Agreement. But the words that follow in the 123 Agreement are conspicuously missing! Similarly, no reference in operative parts to strategic reserves. Quite rightly too: it is no job of IAEA to help us build stocks of fuel – yet Government spokesmen are saying that the Agreement provides for these!

Lastly, the BJP has been demanding from the Government, right since July 2005, to know the cost of separation of military and civilian facilities. The Government has not given a reply to this important question till date.

While the Government has all along said that the deal is exclusively about nuclear energy, the US Administration and America’s bipartisan political class has left no one in doubt that the deal is all about bringing India into the non-proliferation regime.

The leadership of the Congress party and the Government  is assisting the US in realizing its most important foreign policy objective vis-à-vis India in a manner that has undermined India’s strategic autonomy while promising illusory energy security.

Disrespect for Parliament

Dr Manmohan Singh kept every thing secretive about the Nuclear Deal. He did not discuss the contents of this deal either in Parliament nor with his cabinet colleagues. There was total lack of transperancy. The irony is that the political parties and governments of the countries represented on the Board of Governors of the IAEA have an opportunity to debate the contents of the draft safeguards agreement concerning India, but the people and the political parties in India are deprived of that opportunity.

Dr. Manmohan Singh addressed a press conference in Washington on 20 July 2005, two days after he and US President George Bush issued a joint statement about the Indo-US nuclear deal. One correspondent asked Dr. Manmohan Singh a pointed question: “Mr. Prime Minister, do you see any resistance coming forward from your allies and the opposition in putting the new India-U.S. policy to practice? And will you seek a parliamentary consensus or approval to the new direction you seem to be taking in foreign policy?”

This is how the PM replied. “Well, the Parliament in our country is sovereign,” he said. “It goes without saying that we can move forward only on the basis of a broad national consensus.” If Dr. Manmohan Singh truly believes that “Parliament in our country is sovereign”, why did he not seek a sense of the two Houses before rushing into the 123 Agreement and the safeguards agreement with the IAEA? Not even one all-partmeeting was conducted on this issue. There was a consistent demand for setting up a Joint Parliamentary Committee to study the 123 Agreement. Dr Singh did not accept the demand. Probably the Prime Minister must have thought that the MP s are incapable of giving considered opinion on the issue.

Accountability and transparency are the cornerstones of democratic system of governance. These have been casualties in the functioning of the UPA government. This is best illustrated by the manner in which the government has handled the issue of the Indo-US nuclear deal. Ideally in a democracy, any major international agreement that impinges on India’s national unity, territorial integrity and security must be ratified by Parliament. The Prime Minister has reduced an important agreement between two sovereign nations into a private agreement between two individuals — himself and President Bush. He has behaved as a junior partner in this partnership.

                         (Authour is BJP national Media Co-Convener based in New Delhi)