July 13, 2020
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For The Record

'Unable To Accept The Agreement'

'The Left calls upon the government not to proceed further with the operationalising of the agreement. There has to be a review of the strategic aspects of Indo-US relations in parliament.'

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'Unable To Accept The Agreement'
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The Left parties have consistently held that the nuclear cooperation agreement should not be seen in isolation from the overall strategic tie up with the United States. The nuclear cooperation deal is an integral part of the July 2005 joint statement, which has political, economic and strategic aspects. It is also closely linked to the June 2005 military framework agreement signed with the United States.

It is therefore not possible to view the text of the bilateral "123" agreement negotiated with the United States as a separate and compartmentalized entity without considering its implications for India's independent foreign policy, strategic autonomy and the repercussions of the US quest to make India its reliable ally in Asia. Following from the July 2005 joint statement, steps have been taken to entangle India into a complex web of political, economic and military relationships as part of the "strategic partnership". The talk of the two democracies working together on a global scale, the growing influence of US-India forums on economics and commerce and the increasing military collaboration seen through the negotiations for the Logistics Support Agreement, the steadily escalating joint exercises and the inevitable demand that India purchase expensive weaponary from the United States.

Even now, the briefing by the US spokesman on the bilateral nuclear agreement emphasises the cooperation India extended in efforts to isolate Iran by voting twice against it in the IAEA and the clear expectation that it will continue to extend this "cooperation".

Such an expectation is in line with the Hyde Act provisions, which looms in the background. The bilateral agreement cannot be seen outside the context of the Hyde Act. However much the two sides have sought by skillful drafting to avoid the implications of the Hyde Act, it is a "national law" which is there, at present, and will be there, in the future. The agreement which binds India into clauses of perpetuity and which legitimises the US abiding by its "national laws" is something which should be seen objectively for its serious implications.

Serious concern had been expressed by the Left Parties about various conditions inserted into the Hyde Act passed by the US Congress. A number of them pertain to areas outside nuclear co-operation and are attempts to coerce India to accept the strategic goals of the United States. These issues are:

  • Annual certification and reporting to the US Congress by the President on a variety of foreign policy issues such as India's foreign policy being "congruent to that of the United States" and more specifically India joining US efforts in isolating and even sanctioning Iran [Section 104g(2) E(i)]
  • Indian participation and formal declaration of support for the US' highly controversial Proliferation Security Initiative including the illegal policy of interdiction of vessels in international waters [Section 104g(2) K
  • India conforming to various bilateral/multilateral agreements to which India is not currently a signatory such as the US' Missile Technology Control Regime (MTCR), the Australia Group etc [Section 104c E,F,G]

All of these are a part of the Hyde Act. The 123 Agreement refers only to the narrow question of supply of nuclear materials and co-operation on nuclear matters. The provisions of the Hyde Act are far wider than the 123 agreement and could be used to terminate the 123 agreement not only in the eventuality of a nuclear test but also for India not conforming to the US foreign policy. The termination clause is wide ranging and does not limit itself to only violation of the agreement as a basis for cessation or termination of the contract. Therefore, these extraneous provisions of the Hyde Act could be used in the future to terminate the 123 Agreement. In such an eventuality, India would be back to complete nuclear isolation, while accepting IAEA safeguards in perpetuity. Therefore, the argument that provisions of the Hyde Act do not matter and only 123 clauses do, are misplaced.

The Left parties have well known views against nuclear testing for weaponisation, but that does not mean acceptance of any US imposed curbs on India's sovereign right to exercise that choice. The direction in the Hyde Act with regard to the Fissile Material Cut-off Treaty (FMCT) is unacceptable.

An important aspect of the Indo-US nuclear cooperation is the relegation of India's traditional commitment to universal nuclear disarmament. By getting accommodated in a US led unequal global nuclear order, India's leading role in advocating nuclear disarmament as a major country of the non aligned community is being given the go by.

While the 123 Agreement is being presented as a victory for India's positions and conforming to the Prime Minister's assurances in the Parliament, we find that there are a number of issues on which it falls short of what the Prime Minister had assured the Parliament. While the Indian commitments are binding and in perpetuity, some of the commitments that the US has made are either quite ambiguous or are ones that can be terminated at a future date.

Under the terms set by the Hyde Act, it was clear that one of the key assurances given by Prime Minister to Parliament on August 17, 2006 -- that Indo-U.S. nuclear co-operation would cover the entire nuclear fuel cycle -- would be violated. The proposed 123 agreement while superficially using the original wording of the Joint Statement of 2005, "full civilian nuclear co-operation", denies co-operation or access in any form whatsoever to fuel enrichment, reprocessing and heavy water production technologies. The statement of intent in the agreement that a suitable amendment to enable this access may be considered in the future has little or no operative value.

Further, this denial (made explicit in Art 5.2 of the proposed agreement) also extends to transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities, again a stipulation of the Hyde Act. Under these terms, a wide range of sanctions on a host of technologies would continue, falling well short of "full civilian nuclear co-operation".

It is also important to recognise that the fast breeder reactors under this agreement would be treated as a part of the fuel cycle and any technology required for this would also come under the dual use technology sanctions. This would be true even if future fast breeder reactors were put in the civilian sector and under safeguards. Thus, India's attempt to build a three-phase, self-reliant nuclear power program powered ultimately by thorium would have to be developed under conditions of isolation and existing technology sanctions.

It might be noted that dual-use technologies pertain to a wide variety of items, which are used well beyond the nuclear sector and by this clause the US has effectively armed itself with a lever for imposing sanctions on a range of Indian activities. Even in the new facilities built for reprocessing the spent fuel under safeguards, the onerous technological sanctions implied by the "dual-use" label will apply. This is certainly a major departure from what the Prime Minister had assured the House that this deal recognises India as an advanced nuclear power and will allow access to full civilian technologies.

Another key assurance that had been given by the Prime Minister was that India would accept safeguards in perpetuity only in exchange for the guarantee of uninterrupted fuel supply. While the acceptance on India's part of safeguards in perpetuity has been spelt out, the linkage of such safeguards with fuel supply in perpetuity remains unclear. The assurance that the United States would enable India to build a strategic fuel reserve to guard against disruption of supplies for a duration covering the lifetime of the nuclear reactors in operation appears to have been accepted in the agreement. The agreement also assures that in the event of termination of co-operation with the United States, compensation would be paid for the return of nuclear materials and related equipment. This will be small comfort for the damage caused.

However, whether the fuel supply will continue even after cessation or termination of the agreement depends solely on the US Congress. The Hyde Act explicitly states that the US will work with other Nuclear Suppliers Group (NSG) countries to stop all fuel and other supplies to India if the agreement is terminated under US laws. Since this agreement explicitly gives the domestic laws the over-riding power, it appears that fuel supply from the US will not only cease in case the US decides to terminate the Agreement but they are also required under the Hyde Act to work with Nuclear Suppliers Group (NSG) to bar all future supplies. The clause 5.2 on disruption of supplies therefore seems to be limited to "market failures" and not to cover a disruption that takes place under the clauses of the Hyde Act. In such an eventuality, the US will have to pay compensation to India but all future fuel supplies would stop. Therefore, the 123 agreement represents the acceptance of IAEA safeguards in perpetuity for uncertain fuel supplies and continuing nuclear isolation with respect to a substantial amount of technological know-how.

It is clear that the UPA government looks forward to an agreement with the NSG that would be more wide-ranging than the 123 agreement allowing for access to enrichment and reprocessing technologies, support for building a strategic reserve and provision of nuclear fuel in case of disruption of U.S. supplies or termination or cessation of the 123 agreement. In the likely event that the NSG does not oblige, the terms of the 123 agreement would impact even more negatively than they appear now. The same consideration applies to any agreement that would be made with the IAEA.

The Prime Minister assured the Parliament that all steps would be taken by India reciprocally with steps by the US. The Agreement ties India into long-term virtually irreversible changes in its nuclear institutional structures and arrangements. It is crucial to ensure that India is fully satisfied on all aspects of the agreement as also other strategic and foreign policy concerns before it actually implements its separation plan and placing of its civilian facilities under permanent IAEA safeguards. Not only the provisions of the Agreement but also the sequencing of actions is therefore of vital importance.

The flawed nuclear cooperation agreement cannot be justified on the debatable basis of augmenting our energy resources, or achieving energy security. The motivation for the US side is commercial gains which will accrue for its corporates running into billions of dollars.

The bilateral nuclear agreement must be seen as a crucial step to lock in India into the US global strategic designs. Alongside negotiations for the nuclear accord, steps have been taken for closer military collaboration. The Access and Cross Servicing Agreement, otherwise known as the Logistics Support Agreement is being pushed ahead as provided for in the Defence Framework Agreement . This would lead to regular port calls by US naval ships in Indian ports for fueling, maintenance and repairs. The regular joint naval exercises have now been widened to include India in the trilateral security cooperation which exists between the US, Japan and Australia. The September joint naval exercises in the Bay of Bengal are a major step in this direction. The United States is exerting pressure on India to buy a whole range of weaponary such as fighter planes, helicopters, radars and artillery involving multi-billion dollar contracts. The aim is to ensure "inter-operability" of the two armed forces.

The Left parties had earlier cautioned the government not to accept nuclear cooperation with United States on terms that compromises its independent foreign policy and its sovereign rights for developing a self-reliant nuclear programme. It had asked the UPA government to desist from proceeding with the negotiations for the 123 agreement till the inimical provisions of the Hyde Act are cleared out of the way.

The Left parties, after a careful assessment of the text of the 123 agreement and studying it in the context of the burgeoning strategic alliance with the United States, are unable to accept the agreement. The Left calls upon the government not to proceed further with the operationalising of the agreement. There has to be a review of the strategic aspects of Indo-US relations in parliament. The Left parties will press for a Constitutional amendment for bringing international treaties and certain bilateral agreements for approval in parliament.

(Prakash Karat)

Communist Party of India (Marxist)

(A.B. Bardhan)

Communist Party of India

(Devarajan)

All India Forward Bloc

(Abani Roy)

Revolutionary Socialist Party

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