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 © 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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  • http://rambodoc.wordpress.com ram­bodoc

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

  • http://nitawriter.wordpress.com/ Nita

    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.

  • http://cafephilos.blogspot.com/ Paul Sun­stone

    Mahen­dra, thank you for this extra­or­di­nar­ily infor­ma­tive post!

  • http://skeptic.skepticgeek.com mahen­drap

    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…

  • http://skeptic.skepticgeek.com mahen­drap

    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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