By Arun Kumar, IANS
Washington : The 123 civil nuclear cooperation agreement between India and the US takes some of the sting out of the contentious Hyde Act from the Indian point of view, but the US Congress will study the pact closely to see whether it is consistent with the US legislation, say leading US experts.
“The US administration believes it is consistent,” a non-committal Teresita Schaffer, Director, South Asia Programme, Centre for Strategic and International Studies (CSIS), told IANS when asked how the 123 agreement squares with the Hyde Act that has caused a political turmoil in New Delhi.
“There are things that are spelled out in the Hyde Act but not in the 123 agreement (such as the testing issue), but they don’t look on this as an inconsistency.”
But Sharon Squassoni, Senior Associate Non-proliferation Programme, Carnegie Endowment for International Peace notes, “The Hyde Act provided waivers for certain provisions of the 1954 Atomic Energy Act and not for others.”
“For example, it provided a waiver from a halt in exports because of India’s 1998 nuclear test, but it would not suspend the requirement to stop exports in case India tests again. So, not only does the 123 agreement have to square with the Hyde Act, but also all the other relevant provisions of the Atomic Energy Act.”
There are certain provisions of the 123 agreement that don’t appear to meet the requirements of the Hyde Act or Atomic Energy Act, she said.
“For example, giving India long-term, advance consent to reprocess does not comport with congressional intentions when the Atomic Energy Act (AEA) was amended in 1978 to include “prior approval” to reprocess. But, this is not the first time an Administration has done this (e.g., Japan, EURATOM) and there is a dispute about what prior approval entails.
“Another example is provisions for approval of storage in the agreement, which to my mind do not meet the requirement for approval in advance by the United States (Section 123 a. (9) of the AEA),” Squassoni told IANS.
“Similarly, Section 123 a. (4) of the AEA requires that the US have the right of return if a non-nuclear weapon state tests a nuclear explosive device, or terminates or abrogates an IAEA safeguards agreement.
“The language regarding termination of cooperation or the right of return in the India agreement does not mention any of these circumstances. Rather, it goes on at length about both parties taking into account whether there is a changed security environment or whether actions (i.e., tests) were in response to similar actions by other states,” Squassoni said.
That language seems to imply that mitigating circumstances (e.g., a nuclear test by Pakistan) would encourage the continuation of cooperation. Moreover, the provisions of the 123 agreement only seem to allow each party one year in which to request the return of items, whereas there are no such restrictions in the AEA.
Squassoni said there are other areas of conflict too citing “sense of Congress that the US should not support reprocessing, specifically with respect to India; that if the US has to cut off cooperation that it should encourage other NSG members to do the same, and that fuel supplies for Indian reactors should only be for reasonable operating loads (i.e., not for the entire life cycle). In all these cases, the 123 agreement contradicts the intentions of Congress.”
Daryl G. Kimball, Executive Director, Arms Control Association, agrees. There is nothing in 123 that’s a clear violation of Hyde Act, but it’s only technical conformance. “It doesn’t take a genius to see how it contradicts the clear purpose and intention of Hyde Act.”
Essentially US concessions to India under 123 cover three points: the right to terminate the deal if India conducts a nuclear test; the reprocessing of spent fuel produced from US-origin nuclear fuel; and assurances of the supply of nuclear fuel to India in the event that India suffers a disruption in supply.
The Bush administration argues its commitment to help India in securing fuel supplies if New Delhi suffers any disruption in fuel supplies and develop a strategic fuel reserve are political commitments and not legal commitments, but it’s not clear what it has committed to do, he said.
A clear exemption to India from Nuclear Suppliers’ Group (NSG) guidelines as sought by India technically opens door for other countries like Russia which have less stringent conditions, Kimball said, suggesting in this “India has a potential key to other suppliers.”
Each side interprets fuel supply assurances in a manner politically convenient for them, he said. “It’s not possible to have a substantial agreement with different interpretations. It could set us up in a 1974 like situation,” when US stopped fuel supplies for the Tarapur reactor after India conducted its first “Peaceful Nuclear Explosion”.
Accusing Washington’s chief interlocutor on the nuclear deal, Nick Burns and his India government colleagues of being “two faced” by selective emphasis for their domestic audiences, he said, “that simply makes no sense.”
Kimball was “sure some nations are going to balk” at New Delhi’s demand for India specific IAEA safeguards as also a “clean exemption” from NSG guidelines.
In his view the “deeply flawed deal” could still be fixed by the Congress by applying conditions to the 123 agreement though the Bush administration will only be seeking an up or down vote on it. “My prediction would be a 50-50 chance 123 would not come up until early 2008.”
However, Lisa Curtis, Senior Research Fellow, Asian Studies Centre, the Heritage Foundation commends it to the US Congress noting that “the 123 agreement was painstakingly negotiated for over six months and is a compromise in every sense of the word.”
The US legislature is likely to study carefully over the next few months through a series of open hearings and closed consultations with the Bush Administration how it squares with the Hyde Act, she said.
“The text of the agreement carefully ensures that the US stays in line with its NPT obligations and with the requirements of the Hyde Act, while addressing key Indian concerns that threatened to derail the landmark initiative altogether.
“The Administration ultimately accepted Indian demands regarding the right to reprocess nuclear fuel but distinguished between this right and an entitlement to US assistance in the pursuit of reprocessing activities.
“From the US perspective, ensuring that the US maintained the ‘right of recapture’ (the ability to demand back any US-origin nuclear fuel or technology) in the event of a future Indian nuclear test was a very important part of the agreement.
“The US Congress remains concerned, however, about related clauses in the agreement that say the US will help India develop a “strategic reserve” of nuclear fuel for the entire lifetime of the reactors.
“The bottom line, however, is that Section 106 of the Hyde Act makes clear that the US waiver allowing for civil nuclear cooperation will cease in the event of an Indian nuclear test,” Curtis said.