By A.N. Prasad
Now that the text of the 123 Agreement on the Indo-US nuclear deal has been made public and is being extensively covered in the media, it is time to do some retrospection on how the whole issue started and where we are heading. The preamble in the 123 text is the only portion faithful to the Joint Statement issued by both the parties on July 18, 2005. What follows in the document is an exercise of clever and at times dubious, depending on which side you are looking at it from, use of the language and words to give an illusory impression that the concerns arising from diverging interests and constraints of both sides have been duly reflected.
This is a deal binding India at least for 40 years without an exit clause (Article 16.2). In case India likes to terminate it, if in the opinion of future governments the deal, as it is being steered, is found unbearable, for which the Hyde Act gives ample scope, there is no provision for it. However, the US retains all the rights to terminate cooperation at will on various counts apart from the eventuality of an Indian test. This is a dangerous commitment tying our future national interests.
The text may take solace that such action calls for bilateral multi-layered consultations, but the end result is a foregone conclusion. Either toe their line or face the consequences. While they have a Henry Hyde Act to back their actions, we don’t have anything legal even remotely as an equivalent to hang on to. The only documents, the Joint Statements and the Prime Minister’s assurances, have been reduced practically to nothing with the passage of the Hyde Act. We cannot afford to ignore the oft repeated statement by Nicholas Burns, the US point man, that they have made sure that 123 is completely consistent and well within the bounds of the Hyde Act with which we have many problems, though for the sake of public comfort, we may keep saying that we are free to hold on to our rights and legal position. It means hardly anything having no leverage to force any of the issues during innumerable consultations suggested in the text.
During the "Trimurti" press briefing on July 27 in Delhi, answering a question as to whether under the ambit of the Hyde Act we have mortgaged our right to conduct tests, our national security adviser responded by saying that we have not mortgaged any right but, if anything, we have enhanced our rights. He owes an amplification of this statement. In the same briefing, the foreign secretary said that the finalised text met the concerns and interests of both sides and both sides are free to interpret in terms of their laws. In times of conflicts I wonder what leverage we have to force the issues our way.
In any bilateral discussion, the two sides negotiate taking into account the limits of their strengths and weaknesses. Having recognised that the cooperation agreement is between two states possessing advanced technology, unfortunately, an important element "both parties having the same benefits and advantages" is conspicuously missing throughout the evolution of this deal. It is therefore imperative to understand that one cannot just go by the wordings of a text, which as I have pointed out cannot be respected, but the underlying undercurrents and intentions are important.
As one who has served the nuclear establishment with dedication throughout my professional career it is hard to see how a state with so much of technological strength built over the years is being reduced to a recipient state fighting for its rights.
Let me now turn to some of the most contentious issues, which are not satisfactorily resolved.
Reprocessing
Reprocessing has been stated to be the most hotly debated issue. Let me therefore deal with it in some detail and in simple terms to put things in the proper perspective.
Reprocessing is at the core of our three-stage nuclear power programme. It is the interface between the first and the second stages, and again between the second and the third stages. In the first step, it facilitates extracting plutonium from the spent uranium fuel, and feeding to the fast breeder reactors in the second stage as fuel where thorium fuel is also introduced. When thorium is converted into fissile uranium in the fast reactors, the same is extracted by reprocessing to be fed into third stage reactors where large-scale thorium utilisation occurs. It was once estimated that with the limited resources of uranium in the country more than 350,000 MW of electricity could be produced through thorium utilisation ensuring long-term energy security. The steady progress India is making with the starting construction of the first 500 Mwe prototype fast breeder reactor (PFBR) is an envy of many in the advanced world.
Recognising the key role of reprocessing, development activities were started as early as 1959, much before even the first nuclear power reactor went into operation at Tarapur in 1969. As can be seen, while the first power reactor was imported from US through a 123 Agreement, the first reprocessing facility was built entirely through indigenous effort which went into operation in 1965.
The irony is, the US, knowing fully well our four decades of experience in reprocessing and aware of its importance in our three-stage programme, has sought to create impediments and make us cringe for reprocessing consent, that too after accepting us as strategic partner. Should we call this nuclear cooperation or non-cooperation? What hypocrisy! Is it not obvious that their intention is to put hurdles on our thorium utilisation programme right from the beginning? In fact, even though there is what is called a fast reactor nuclear fuel cycle, not a word is mentioned in the agreement on fast reactor cooperation, while the text calls for all future fast breeder reactors to be put under civil list for applying safeguards in perpetuity just because plutonium extracted from imported uranium spent fuel is fed into these reactors. It is a pity that our negotiators have chosen not to pursue extending the cooperation into the area of fast reactors at least to the extent that we should be able to access international market for equipment and components, which otherwise have to be produced by Indian industry with considerable effort.
The way the reprocessing issue has been resolved certainly does not give any comfort. What has been agreed to is consent in principle, with arrangements and procedures to be agreed in the future. Having offered a dedicated facility for reprocessing imported fuel we should have got unconditional upfront consent to be made effective on satisfactory conclusion of safeguards. The intent of the American legislation is to deny reprocessing to those NPT countries which do not already have this technology. We cannot be equated to Japan which is stated to have been used as a model for resolving this issue in one of the briefings of Burns. I can say from personal knowledge that Japan was totally unhappy in dealing with the US while negotiating the procedures and arrangements during the late Seventies for its reprocessing plant. We should watch out.
Also, over the entire fuel cycle, application of safeguards on reprocessing is toughest. The point of concern is, Burns keeps harping that the dedicated facility, though not mentioned in the text, has been offered by India as a state-of-the-art facility. This is a dangerous prospect for conflict during the consultations on safeguardability, as there is no reference standard on the design of such a facility in the world, and information on less than a handful of facilities operating in the world at present is kept secret and is not shared. Perhaps the dedicated plant we have offered will be the first plant to be thrown wide open to the outside world and the US will definitely have a good look into it.
Being a dedicated facility committed to full safeguards it should be our endeavour to obtain special items of equipment and hardware components from the international market.
Full civil nuclear cooperation
In spite of the Prime Minister’s assurances, the issue of full civil cooperation has not been resolved in our favour. The text has allowed an unfair definition of this term, with the result that embargoes will continue on the most complex part of the fuel cycle facilities such as enrichment, reprocessing and heavy water. Though we may not need to import technology as such, there should have been an opportunity to access world market for specific low quantity dual use items which otherwise have to be produced by Indian industry.
This historic deal not being able to get rid of sanctions in spite of taking on a whole lot of burden on safeguards and other aspects is a big disappointment.
Assurance of uranium supply
Much has already been written on this. The whole issue is wishy-washy and it is hard to say what conditions will be attached to realise it.
Testing
This is a much talked about topic and any further discussion is like flogging a dead horse. Suffice to say that irrespective of what is said or unsaid, we have surrendered our decision, though not the legal right, for all practical purposes, fearing the consequences. Talk of multi-layered consultations and actions is all an eyewash and public relations exercise.
Fall-back safeguarded safeguards
It is surprising that such a hypothetical issue has found specific mention in the text contrary to the Prime Minister’s assurance. There is every likelihood that this could be invoked. Though it is the bounden duty of the IAEA to apply safeguards in member states in a cost-effective manner, there is a large inflow of extra-budgetary grants for this activity. With a huge spurt in safeguards load from India, whose cost substantially has to be met by additional extra-budgetary grants, there could well be a move in future to create a situation that due to paucity of funds IAEA puts its hands up for US to step in. At that point, US inspectors will roam around irrespective of what our Prime Minister has assured.
A.N. Prasad is a former Director of Bhabha Atomic Research Centre and former Consultant/Specialist on Safeguards at the International Atomic Energy Agency, Vienna