Response to CPI(M) Objections against the Indo-US Nuclear Deal

Background

Woke alerted me to a “concern questionnaire” by the CPI(M) on the Indo-US nuclear agreement. The CPI(M) has asked for “clarification” on 9 issues. It wants answers to 9 questions, that are detailed in this article in the DNA. It is not clear if the journalist herself believes in those objections or is simply vomiting those concerns morsel-by-morsel.

To be clear what we’re talking about, the actual, full, text of the 123 agreement between India and the United States on the nuclear deal can be downloaded here (PDF). If you’re not interested in the detailed response to each of their objections, jump to the Summary. Now, let’s get to work with the CPI(M) objections!

Response to CPI(M) Objections

#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.
There is no reference to any aspect of foreign policy in the 123 agreement. The 123 agreement does not mention Iran at all. This “objection” or “concern” is the result of viewing everything through “imperialist” glasses and being completely misguided as a result. Also, see response to Opposition #2 in my Trilogy Part 3.

#2: The deal would not allow full cooperation on civilian nuclear technology, denying India a complete fuel cycle. India will continue 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.

Article 5(2) of the 123 agreement states (in full):
“Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an Amendment to this agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy-water production facilities will be subject to the Parties’ respective applicable laws, regulations, and license policies.”

Where is the embargo? Has the writer of the article actually read the 123 agreement? Instead of applauding the terrific job done by India’s negotiating team (which the whole world is surprised about), our critics are twisting interpretations to suit their pathetic objectives!

#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.

There is no “embargo” in the 123 agreement. How can a requirement between the US President and the US Congress be a part of an international deal between US and India?! The 123 agreement is between the US and India. It does not, and cannot, contain any clauses regarding what the US President needs to do for the US Congress. The 123 agreement has no such requirements. It is the Hyde Act that has reporting requirements for the US President, not certification requirements.

#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.

The US cannot and is not willing to take the necessary steps to change the rules of the 45-member NSG. Why should it? It is up to India to diplomatically deal with each NSG member, many of whom are already willing to make all the exceptions in India’s favor (except China)! Observe the repeated references to the Hyde Act and attempts to blur the distinction between the Hyde Act (an internal US legislation) and the 123 agreement (a bilateral agreement).

Further, clause 5.6(a) of the 123 states: “As part of its implementation of the July 18, 2005, Joint Statement the United States is committed to seeking agreement from the US Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations”. To further guard against any disruption of fuel supplies, the United States is prepared to take additional steps. Read about them in clause 5.6 (b).

What more can you ask for?

#5: The additional protocol referred to in the original agreement would be intrusive and not India-specific…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.

Article 5.6 (c) states (in full):
“In light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between Indian and the IAEA providing for safeguards to guard 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 nuclear supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.”

Article 10.2 states (in full):
“Taking into account Article 5.6 of this Agreement, India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of nuclear material, non-nuclear material, equipments or components so transferred shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards agreement between India and the IAEA and an additional protocol, when in force”.

First, the term “India-specific” is recurring in the agreement because India has not signed the Nuclear Non-Proliferation Treaty. No such exceptions have been made to any nation in the history of mankind.

Second, to expect the United States, which has a binding legal agreement with the IAEA, to make exceptions to India, that would make its legal agreements with the IAEA illegal, is foolish.

Third, Concluding all legal steps required prior to signature is obviously required. What is the specific problem with that?

Fourth, as you can observe, the “inspections in perpetuity” that are referred, are only in the context of the India-specific Safeguards Agreement with the IAEA, which has not been negotiated or signed yet. This only goes to show that we have a long way to go before we enjoy the benefits of this deal. But to castigate this signed agreement on the basis of an as-yet-unsigned agreement, shows that the critics of this deal do not share the long term objectives, but only choose to criticize whatever we have achieved so far.

#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.
Oh, I thought the CPI(M) was opposing the deal because it would make India a subservient country to the US! I wasn’t aware that they knew we could also deal with other nations like communist Russia! 🙂

India is only placing its civilian facilities under safeguards in the 123 agreement. The US President can (and should have the right to) prevent transfer of equipment, materials, or technology. When this 123 agreement wasn’t in place, we’re still living in exactly this kind of isolation. Also see responses to Opposition 2 and 6 in Part 3.

#7: India’s fissile material stockpile will be restricted.

Talks only about the Hyde Act. India has never negotiated and has not been part of the deliberations behind the Hyde Act. See response to Opposition 2 in Part 3.

#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.”

Article 12 (3) states (in full): “When execution of an agreement or contract pursuant to this Agreement between Indian and United States organizations requires exchanges of experts, the Parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations, and practices. When other cooperation pursuant to this Agreement requires visits of experts, the Parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations, and practices.”

So much for US end-use monitoring. The agreement doesn’t state any criteria for deciding when expert inspections would be ‘required’. Again, as mentioned in my response to Opposition 2 in Part 3, it is the diplomatic relationship that matters and is the key deciding factor.

Article 10 (4) states (in full): “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.”

Observe that the article is not about US, but about IAEA. However, our critic chooses to term it as “the provision for US fallback safeguards”. Now, what is wrong with this clause in the 123 Agreement? Here, an ostracized country that has refused to sign the terms of joining the IAEA (the NPT), is agreeing that if, under some circumstances, the IAEA doesn’t approve of its safeguards, then it will consult and agree (in other words negotiate) on appropriate verification measures.

I have not touched upon this earlier, but I probably should. Nuclear proliferation is a very real concern. The possibility of nuclear weapons landing in the wrong hands is enormous. No country can afford to say it will use nuclear power without being transparent about it to some extent. Those who do – like Iran and North Korea – face economic sanctions.

#9: The military program will also be subject to monitoring by the IAEA and the US. The 123 agreement does not change that requirement in the Hyde Act.
This is complete misrepresentation, exaggeration, and disinformation. The 123 agreement does not refer to monitoring of military facilities by the IAEA at all.

Regarding the other objections with respect to the Hyde Act, see response to Opposition 2, Part 3.

Summary

It is clear from these nine objections of the CPI(M), that either they’re misinformed about the 123 agreement (a fault of the Congress government) or they’re immune to the sensitivities involved in negotiating an international agreement. Their scholarly stand of nitpicking over clauses of the 123 agreement, picking words and phrases out of context, and misrepresenting them towards irrational conclusions is just a political gimmick. It is instructive to note that the Left has not negotiated anything with any other country ever. It has only negotiated with other Indian political parties towards the objective of getting representation in the Indian parliament.

It works because hardly anyone from the Indian public questions anything like “Article X.Y(Z) restricts India’s right to…”. Remember that the Left leaders are intellectual, bookish, and scholarly. It is precisely their intellectual stance that makes them appealing even to the educated Indians. The need of the hour is to really dig into their so-called intellectuality and question them. Unfortunately however, our public will read stories and stories and articles upon articles describing each and every movement, behavior, nod, glance, and expression of a Bollywood hero being freed from prison, and spend time voting via SMS about them, rather than read the 123 and oppose the Left. That is why they wield such a power in India.

Photo Credits: The subject of this post deserved a photo of a Left leader, but I decided against (dis)gracing my blog with it!

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  • Pingback: The Great Indian Mutiny » Response to CPI(M) Objections against the Indo-US Nuclear Deal()

  • Great going, mate!
    Why don’t you think of a career in politics?
    You have one vote sealed up already!

  • You have taken a lot of effort over this post. Anyone looking for a comprehensive understanding of the subject should certainly look this post up.

  • Mahendra, thank you for this extraordinarily informative post!

  • Rambodoc: Career in politics?! I’ll have to search for a way to break the law first! 😉

    Nita: Thank you. I’ve been taking a lot of effort on this subject ever since I wrote on Mutiny, because it is easy to question something; it’s much more difficult to answer!

    Paul: Thank you. Your appreciation means a lot to me. I really mean this.

  • Pingback: India-US 123: we can run but can we ‘Hyde’ « “me no big chief…()

  • A certain ‘somebody’ has been trying to post comments to this post. The ‘comments’ have been a copy-paste of clauses/sections of the Hyde Act, with follow-up comments asking me to ‘respond’ to the ‘questions’.

    An earlier post, this one, and the one following this, make it amply clear that we need not be worried about the Hyde Act. If any reader fails to understand this, even after reading my posts, I’ll prefer agreeing to disagree. However, simply copy-pasting Hyde Act clauses and expecting a response is not what I consider as a valid way to comment, and hence such comments have been deleted.

    I encourage reasoned debate (as anyone following my blog will agree), and have kept comments unmoderated. Please help me to make it stay that way. Thank you.

  • Sathish

    Of course some of the CPI’s complaints are unfounded but so are most of your explanations too. Yes I agree they have used Hyde and 123 interchangably – but once you had established that in the 2nd point or so, you could have moved on to answer the content of their complains rather than the context of their claims. You conveniently ignored CPI’s explanation for item 9 – where they have meant to say that Hyde requires such a thing and the 123 does nothing to stop it. I believe its very convenient for the US to have tied a local regulation to an international treaty and foolish of indians to have agreed to something as vague as “will be subject to the Parties’ respective applicable laws, regulations, and license policies”!!! If the US president is not able to report to Congress as per Hyde that India is in full compliance, the above statement allows US without any liability to stop their end of the obligations in the treaty…

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