February 23, 2020
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For The Record

'Unable To Accept This Agreement'

'The BJP is of the clear view that this Agreement is an assault on our nuclear sovereignty and our foreign policy options. We are, therefore, unable to accept this Agreement as finalised.'

'Unable To Accept This Agreement'

Preliminary comments of the BJP on the Agreement between the Government of India and the Government of the USA concerning peaceful uses of nuclear energy.

1. The BJP has been expressing its reservations regarding the Indo-US nuclear deal from the very beginning. When the Joint Statement was issued at the end of the visit of Prime Minister Manmohan Singh to Washington in July 2005, Shri Vajpayee issued a statement in which he expressed his reservations about the deal, specially with regard to its impact on our strategic nuclear programme. He had expressed his apprehension at the proposed separation plan of our nuclear facilities between civilian and military. Later, when the separation plan was presented to Parliament, we expressed our opposition to it. We warned the Government of India when the Senate Foreign Relations Committee and the House International Relations Committee of the US Congress adopted the draft bills for enabling this cooperation between the two countries. We protested strongly when the Hyde Act was passed by the US Congress. We have consistently opposed the deal in Parliament whenever discussions on this deal have taken place.

None of our fears and apprehensions was ever given serious consideration by the Government of India. No effort was ever made by it to evolve a national consensus on this vital issue of national concern before making commitments to the US. 

The text of the bilateral 123 Agreement has been made public on Friday, August 3, 2007. We have looked at the text and our preliminary comments are as follows:

(i) Each party is required to implement this Agreement in accordance with its national laws and regulations and its licence requirements. There is no doubt, therefore, that the implementation of this Agreement shall be governed by the provisions of the Hyde Act of 2006, the US Atomic Energy Act of 1954, which are its national laws on this subject, and its licensing requirements relating to the supply of nuclear materials to India {article 2(1)}. The confidence with which US officials have asserted that the Agreement is Hyde act bound flows from this provision. Which act will India enforce on the US? 

(ii) The Agreement is supposed to lead to full civil nuclear cooperation between the two countries yet article 2(2)(d) talks of cooperation relating to "aspects of the associated nuclear fuel cycle". Aspects mean parts and hence all aspects of the nuclear fuel cycle are not covered under this Agreement. 

(iii) According to article 5(2) of the Agreement sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities and major critical components of such facilities can be transferred to India only after an amendment to this Agreement has been carried out. The provision for such transfer should have been included in this Agreement itself instead of leaving it to a future amendment. It is a peculiar arrangement. 

Under the same provision, the US will retain the right of end-use verification of all its supplies. This will ensure that American inspectors will "roam around our nuclear installations", a fear which was completely discounted by the Prime Minister while replying to the Rajya Sabha debate on 17.8.2006.

(iv) As far as fuel supplies are concerned, the commitment of the US in the Agreement is vague and futuristic. "The US is committed to seeking agreement from the US Congress to amend its domestic laws". This assurance in article 5(6)(a) of the Agreement and the assurances contained in article 5(6)(b) of the Agreement is not only bad drafting but deliberately repeats an old assurance given by the US at the time of the separation plan and remains as evasive as it was then. According to article 5(6)(c), the India specific Safeguards Agreement with the IAEA is to be negotiated on the basis of these evasive assurances and requires India to place its civilian nuclear facilities under safeguards in perpetuity.

(v) India is required under this Agreement to establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards. If it is an agreement between two equal parties with reciprocal commitments, is the US accepting a similar provision for its reprocessing facilities? Is any such facility being created in any country belonging to the Nuclear Five? 

(vi) Following the cessation of cooperation under this Agreement either party shall have the right to require the return by the other party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use. {article 14(4)} Thus, notwithstanding the sugar-coated language which has been used in the Agreement to soften the blow, the fact remains that the US retains the right to recall all the supplies that it has made to India under this Agreement. What is worse is that under article 16(3) despite the termination of this Agreement, the safeguards in perpetuity will continue to apply so long as any material or equipment or any of the by products thereof remain on Indian soil. 

Clearly, therefore, with regard to fuel supplies, reprocessing rights and the right to recall the equipments supplied, the US has maintained its position as in the Hyde Act. India, on the other hand, has accepted legally enforceable commitments in perpetuity.

There is nothing in the Agreement regarding the reprocessing of the spent fuel of Tarapur which has accumulated over the last 33 years. 

Nuclear testing has not been mentioned in the Agreement. According to the Government of India this is a matter of great comfort for us. This view is entirely untenable. When national laws apply, which includes the NPT, the provisions of the Atomic Energy Act of 1954 and the Hyde Act of 2006 which specifically forbid nuclear tests, where is the question of India having the freedom to test once we enter into this agreement? In other words, we are being forced to accept a bilateral CTBT with more stringent provisions than the multilateral CTBT. 

In his very first statement in 2005, Shri Vajpayee had raised the issue of the financial cost of separation of our facilities between civilian and military. The Government of India has kept mum on this. To this cost has now been added the cost of setting up a dedicated reprocessing facility, the cost of holding strategic fuel supplies for the life time of all our future reactors and the cost of mammoth and intrusive IAEA inspections.

In the separation plan prepared under the surveillance of the US, two thirds of our reactors will be put in the civilian category under safeguards. The recently refurbished CYRUS reactor will be shut down. In course of time, 90% of our reactors will be in the civilian category. In the ongoing negotiations in the Committee of Disarmament in Geneva, we have agreed to work together with the US for the early conclusion of the FMCT. We appear to have given up our insistence on international verification and all countries complying. All these, along with the intrusive provisions of the Hyde Act are bound to have a stultifying effect on our strategic nuclear programme. 

The BJP is of the clear view that this Agreement is an assault on our nuclear sovereignty and our foreign policy options. We are, therefore, unable to accept this Agreement as finalised. 

We demand that a Joint Parliamentary Committee be set up to examine the text in detail; that, after it has submitted its report, parliamentary approval be secured before this deal is signed; and that all further action on it should be suspended until this sequence is completed.

The manner in which this agreement has been pushed through, leads us to further demand that appropriate amendments be made in the Constitution and laws to ensure that all agreements which affect the country’s sovereignty, territorial integrity and national security shall be ratified by Parliament.

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