Hidden side of 123....

FOR the proponents of the India-United States nuclear deal, it could not have been worse. And from the perspective of the opponents, political and otherwise, it was just perfect. The letter sent on January 16 to the Chairman of the U.S. House Committee for Foreign Affairs, Tom Lantos (who, unfortunately, died soon after in February), concerning congressional review of the India-U.S. civil nuclear cooperation agreement (123 Agreement), became public on September 2, two days before the crucial second round of the meeting of the Nuclear Suppliers Group (NSG) to consider the proposed relaxation of its guidelines that would enable India in nuclear trade.
The letter included replies from the U.S. State Department to 45 questions that the House Committee had asked on October 5, 2007, seeking clarifications on the various provisions of the 123 Agreement vis-a-vis the Hyde Act, the enabling U.S. legislation for civil nuclear cooperation with India passed in December 2006 (Frontline, July 18), and the U.S. Atomic Energy Act (AEA) of 1954, in order that Congress was fully informed of their implications when the agreement would come up for its approval through an up-down vote.
Although the letter contained only unclassified information and was by no means “secret”, it was kept under wraps until now on instruction from the administration. For, as the administration’s spokesperson had said, it could be

External Affairs Minister Pranab Mukherjee reading out to the media the statement on the NSG’s waiver, at South Block in New Delhi on September 6.

Atomic Energy Commission Chairman Anil Kakodkar is seated by his side.

“diplomatically sensitive”.
Indeed, the letter caught the United Progressive Alliance (UPA) government completely unprepared. It has caused the government considerable embarrassment and has once again created a political turmoil, providing fresh ammunition to the opponents of the agreement, in particular the Left and the Bharatiya Janata Party (BJP). While the Left has charged the government with lying to Parliament and misleading the public and demanded its resignation, the BJP is seeking to move a privilege motion against it. As soon as the news of the letter (from The Washington Post’s story on September 3) reached the government, it immediately summoned all the Indian interlocutors to provide a quick response to the contents of the letter in a bid to contain the increasing outcry against the nuclear deal.
The government put on a brave face and issued the following statement: “We do not, as a matter of policy, comment on internal correspondence between different branches of another government [and] we will be guided solely by the terms of the bilateral agreement between India and the United States, the India Specific Safeguards Agreement and the clean waiver from the NSG, which we hope will be forthcoming in the meeting of the NSG on September 4-5.” U.S. Ambassador David Mulford too put in his bit in a statement to the media. He said that the letter did not put any new conditions on the 123 Agreement. In a television interview, Anil Kakodkar, Chairman of the Atomic Energy Commission (AEC), said there was nothing new in the letter.

CORRECTIVE MEASURES
Queried on what it understood by “corrective measures” that India sought to invoke in case of fuel supply disruption and whether it involved removal of safeguarded nuclear material from safeguards, the administration merely noted (Q. 25) that the Indian government had not provided the U.S. with a definition of “corrective measures” but hoped that the safeguards agreement with the IAEA would clarify this aspect and also that it expected the Indian government to implement “in letter and spirit” its commitment to “safeguards in perpetuity”. SOVEREIGN RIGHT TO TEST
The Indian government has always maintained that the agreement in no way constrained its sovereign right to test. The Prime Minister said on August 17, 2006, in his response to questions raised by some nuclear scientists: “We are very firm in our determination that the agreement…no way affects the requirements of our strategic programme…. Nuclear weapons are an integral part of our national security, and will remain so…. Our freedom of action with regard to our strategic programme remains unrestricted.” He told Parliament more specifically as recently as July 22, 2008: “I confirm [that] there is nothing in these agreements that prevents us from further nuclear tests if warranted by our national security concerns.” Technically, of course, he

Howard Berman, Chairman of the U.S. House Foreign Affairs Committe.

may be correct in saying that India’s sovereign right to test has not been taken away, but the price of such action, thanks to the AEA and its implication on the 123 Agreement, would be a major restrictive factorHowever, we now know that even the safeguards agreement concluded in early July did not explain what the phrase meant. The Indian government has not elaborated either and has since merely maintained that it was India’s sovereign right to decide what corrective measures would need to be invoked depending upon the situation.

RIGHT TO REPROCESS
4. Reprocessing Rights: One of the assertions of the Indian government is that it has secured the right to reprocess spent fuel of U.S. origin, as against merely consent in principle as a correct interpretation of the agreement would imply. This consent will be translated into a right only if the subsequent “arrangements and procedures”, which have to presented to Congress for review (as per Section 131 of AEA), pass muster there. On August 13, 2007, the Prime Minister said: “A significant aspect of the agreement is our right to reprocess U.S. origin spent fuel. This has been secured upfront….This…has been met by the permanent consent for India to reprocess.”
The following is the U.S. administration’s contrary position. In answer to Q. 30, the letter said: “[The agreement] provides that the consent does not become effective [emphasis original] until the U.S. and India consult and agree on arrangements and procedures…” Answer to Q. 29 states: “Section 131 of AEA provides explicitly for review and execution of subsequent arrangements related to reprocessing of U.S. origin material [in a dedicated reprocessing facility]. However, if proposed “arrangements and procedures’ for reprocessing involved changes to provisions to provisions in the…Agreement, an amendment to the Agreement would be required [involving full 90 days of Congressional consideration and approval].