On sabbatical

Beginning this week, I have temporarily relocated to the University of California, Berkeley, where I will be teaching a course at the Graduate School of Journalism in the Fall semester. I will still be writing for The Hindu and my blog from here, but less frequently.

“Delay in safeguards talks will not affect nuclear deal”

Despite the orchestrated campaign of panic -- according to which a delay of even a few weeks in negotiating India's safeguards agreement with the International Atomic Energy Agency will end up scuttling the entire nuclear deal -- it is clear that there is no deadline or timeframe for the next steps to be completed. In other words, there is plenty of scope for the Government to take a pause, address the Left and Opposition's concerns, and then proceed.

21 August 2007
The Hindu

“Delay in safeguards talks will not affect nuclear deal”

Siddharth Varadarajan

New Delhi: There is no deadline for the conclusion of a safeguards agreement with the International Atomic Energy Agency (IAEA) and any delay in negotiations caused by differences between the United Progressive Alliance and the Left parties will not affect the outcome of the India-U.S. civil nuclear initiative, senior officials told The Hindu on Monday.

“Right from the start, people have tried to impose artificial timetables of one kind or another but India has never agreed to these,” said an official.

Though Chairman of the Atomic Energy Commission Anil Kakodkar was scheduled to travel to the IAEA’s headquarters in Vienna next month to attend a scientific forum, no decision had been taken about whether he would enter into detailed discussions with the IAEA Secretariat on the contours of India’s proposed safeguards agreement at that time.

In the two rounds of talks between India and the IAEA that have been held so far, a broad conceptual framework has been discussed. Both sides understand that the agreement will build upon the INFCIRC 66 facility-specific safeguards agreements India has already signed for Tarapur 1 and 2, RAPP 1 and 2 and Koodankulam, with the added elements of fuel supply assurances and the right to take corrective measures in the event of a fuel disruption.

However, officials insist there is as yet no draft text, let alone an agreement that has to be presented before the IAEA’s Board of Governors before a particular date. Indeed, say the officials, India does not intend to place its draft safeguards agreement before the IAEA Board for approval until the Nuclear Suppliers Group (NSG) has altered its guidelines to allow nuclear commerce with the country and the United States Congress approves the bilateral civil nuclear agreement known as the ‘123 agreement.’

Only when both those steps have been completed will India seek the Board’s approval and follow that up with its signature.

As for the NSG, the 45-nation cartel’s next plenary session is scheduled for May 2008. Though the U.S. has said it is prepared to convene an extraordinary meeting of the NSG to approve an India-specific exception to its guidelines, there is no reason why this meeting has to be convened by October, November or any other month prior to May.

“There is no reason for anyone to panic if things are delayed or put on hold for a bit,” said an official.

“It is better for the government and Prime Minister to carry everyone along and if this takes a little time, it’s not the end of the world.” Timing becomes relevant for the Congressional vote on the 123 agreement. But once the NSG approves the deal, the U.S. legislature is unlikely to stand in the way.

Deal breather, not deal breaker

By setting boundary conditions for the Government, the CPI(M) has opened a door for addressing India's concerns over the nuclear agreement with the U.S. In my view, the Prime Minister should seriously consider amending the Indian Atomic Energy Act to incorporate all the Article 14 protections against the "right of return" contained in the draft 123 agreement. If the Americans can have their Hyde Act, so can the Indians.


20 August 2007
The Hindu

Deal breather, not deal breaker

By setting boundary conditions for the Government, the CPI(M) has opened a door for addressing India's concerns over the nuclear agreement with the U.S.

Siddharth Varadarajan

New Delhi: Saturday's statement by the Communist Party of India (Marxist) on the Indo-U.S. nuclear deal is as unyielding as the Left parties' earlier stand but the recommendation that the Government not proceed "till all the objections are considered" opens a passage for moving forward provided the Prime Minister chooses to do so. The Left statement of August 7 had baldly asked the Government "not to proceed further with the operationalising of the agreement". In contrast, Saturday's announcement allows the debate to move from general or outright rejection to a consideration of specific objections.

At the same time, the CPI(M) statement reminds the United Progressive Alliance that "a majority in Parliament [does] not support the nuclear cooperation deal". The threat implied is clear: If negotiations with the International Atomic Energy Agency begin without "all the objections [being] considered" and the Hyde act's implications being evaluated, the future of the Government will be jeopardized. The Prime Minister and his advisers may resent this kind of ultimatum but they have only themselves to blame. After all, Dr. Manmohan Singh should have known better than to seek publicly to call the Left's bluff, and to do so in an interview to a newspaper published from the Red bastion of Kolkata.

Whatever the Government's discomfiture, there is a silver lining for the country in the opposition the 123 agreement has evoked inside Parliament. Until now, it is Washington which has leveraged the executive-legislative divide to extract more than its pound of flesh from Delhi. The Hyde Act passed by U.S. Congress last December subverted the finely wrought reciprocity of the July 18, 2005 (J18) joint statement and the fuel supply assurances of the March 2, 2006 separation plan (M2). India's negotiators fought their way back in the 123 agreement but the spectre of Hyde remains to be exorcised.

On the eve of crucial interactions with the IAEA and Nuclear Suppliers Group, with one major element of the nuclear deal already "frozen", it is vital that the sentiments of the majority of elected representatives be used to strengthen the hands of India. The NSG is particularly vital. In J18, the U.S. pledged to "work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India". This means the NSG waiver allowing nuclear trade must be unconditional and non-discriminatory. However, given the Hyde Act's provisions and recent statements by U.S. officials, it would be naïve to assume this is what Washington intends to secure. No doubt India has supporters at the NSG – Russia and France are more anxious for the 45-nation cartel to alter its guidelines than even the U.S. – but America's capacity to play both sides of the fence in order to wrest back concessions made to India in the 123 negotiations should not be underestimated. In this respect, the current controversy in Parliament sends a clear message to the U.S. that India will walk away if the NSG waiver does not meet the J18 benchmark.

As for the concrete technical and foreign policy objections the CPI(M) wants the Government to consider, many of these have already been articulated inside Parliament as well as by commentators outside. The more tightly these objections are framed in the weeks ahead, the greater is the likelihood of MPs forcing the Prime Minister to address them.

Even on issues where the Government can trot out an easy answer, the Prime Minister should consider using Parliament to strengthen his hand. By taking Parliament into confidence about the contours of the civil-military nuclear separation plan on February 27, 2006, Dr. Singh was able to present Washington with a fait accompli and fend off pressure to place India's fast breeder reactors and most of its pressurised heavy water reactors under international safeguards. The Prime Minister repeated this exercise in August 2006 to draw red lines as far as reprocessing, fall-back safeguards and some other issues were concerned. But since the majority of MPs feel the 123 agreement still contains ambiguities – especially when read together with the Hyde Act – a similar exercise is called for today.

For example, some commentators have noted that the Indian 123 agreement does not contain a sentence found in Article 2.1 of China's 123 agreement with the U.S., namely that "the parties recognize, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." Thus, it is felt the U.S. administration can always claim the Hyde Act's restrictions trump the 123 agreement's more generous commitments.

Though the Indian negotiators had an identical line in all their drafts and tried till the end to incorporate it in the final agreed text, the U.S. remained unyielding, claiming that Congress would shoot it down. But the Indian side did manage to push through another article – 16.4 – that the agreement "shall be implemented in good faith and in accordance with the principles of international law". The phrase "principles of international law" is a clear reference to the
Vienna Convention on the Law of Treaties. Article 27 of the Convention – which, as a part of customary international law, does not have to be cited to be applicable -- states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

Balance Hyde with Indian law

Insofar as the text of an agreement can protect one side when the other is bent on reneging on its commitments, Article 16.4 of the Indian 123 and the Vienna Convention give New Delhi as much legal cover as Article 2.1 of the Chinese 123 gives Beijing. Of course, India would get more effective protection by building a strategic fuel reserve on its territory. There is, however, the issue of the U.S. "right of return" of exported material in the event of termination of cooperation and the fear that this strategic reserve may not be fully immunised from returnability.

Though Article 14 of the 123 provides effective protection for India, the Government should consider the merit of adding a further layer of insurance under domestic statute just to be doubly sure. Specifically, Parliament could enact an amendment to the Atomic Energy Act of 1962 as well as a change in the Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) guidelines making it illegal for nuclear material or equipment to be transferred out of the country if the transfer would disrupt the continuous operation of our power reactors or pose an environmental or security risk. Similarly, the AEA could be amended to make it illegal to import into India any reactor under a commercial contract which does not explicitly provide for the reprocessing of spent fuel.

In other words, rather than seeing the Left's call for Parliament to play a role in validating the nuclear deal as something adversarial, the Prime Minister should realise the legislature is very much an instrument of modern diplomacy. By amending its domestic statute, India can effectively balance the provisions of the Hyde Act. If the U.S. insists in the future that internal law trumps the 123 agreement and uses that to build a case for demanding the return of material even when the strict conditions of Article 14 have not been met, India would be bound by its own internal law not to oblige Washington.

All of this, of course, begs the question of India's capacity to hold its own internationally. Washington's aim is to build a strategic relationship in which India can act as an outsourcer of U.S. hegemony in Asia. But there is a dialectic here as well. The U.S. created the NSG after the 1974 Pokhran nuclear test to isolate Delhi from all high technology trade; but today, in order to allow itself to enjoy the strategic and economic benefits of nuclear commerce with India, it must perforce open the door for everyone else as well. What Washington intends to be a chain that will tie New Delhi down could very well turn into its opposite.

Unfortunately, the Manmohan Singh government's lack of confidence in the country's negotiating strength has led it to make vital concessions over the past two years. Even today, many decisions of enormous foreign policy significance are taken casually, without due application of mind. Next month's Quadrilateral Power naval exercise (with an embedded Singaporean ship thrown in as cover) is one example. In this respect, it is perhaps more crucial that the Government be urged not to operationalise the June 2005 Indo-U.S. Defence Framework Agreement rather than the nuclear initiative.

Deal or no deal, there will always be pressure on the foreign policy front. In a country like India with sharply polarised class interests, compromising decisions can be taken even without external pressure. India's ability to withstand external and internal pressures will depend crucially on the configuration of political forces within the country at any given moment in time. The balance of forces today favours an independent foreign policy. There is no reason why this should change tomorrow.

Taking stock of the Indo-U.S. nuclear deal

Given all that has happened in the past two years, Manmohan Singh needs to provide concrete assurances on the foreign policy front.










17 August 2007
The Hindu

Taking stock of the Indo-U.S. nuclear deal

Siddharth Varadarajan

When the Indo-U.S. joint statement on nuclear cooperation was issued on July 18, 2005, three concerns were articulated within India. First, that the deal would hurt the country’s nuclear weapons programme, second, that it would impair the indigenous three-stage nuclear energy and R&D programmes, and third, that it would lead to unwelcome compromises on the foreign policy front.

The text of the U.S.-India Civil Nuclear Cooperation Agreement goes some way towards addressing the first two concerns. India’s right to possess and augment its weapons stockpile is preserved, as is its right to test. The costs of testing have been reduced somewhat by envisaging a strategic fuel stockpile that would allow for uninterrupted running of Indian reactors in the event of sanctions. So long as the NSG does not adopt clauses terminating cooperation in the event of an Indian test or withholding components for a safeguarded fuel cycle facility, there would be no real reason to worry about the “robustness” of India’s nuclear deterrent or the future of its three-stage programme. But that still leaves the wider foreign policy concerns unanswered.

To be fair to the Government, a technical document like the draft 123 agreement is hardly the appropriate place to seek or provide assurances about the independence of foreign policy. And yet, the Left’s arguments about the danger of entering into a strategic relationship with Washington have a wider resonance that Prime Minister Manmohan Singh would be unwise to ignore.

The issue becomes all the more urgent because the negotiating history of the past two years — as well as the decisions already taken on the foreign policy front — do little to inspire confidence about the future.

Consider the negotiations themselves. Right from the first day, or rather the eve of the first day, the government has been beset by bitter battles over the limits of what was acceptable to India and what was not. In Washington on July 17, 2005, the Department of Atomic Energy had to fight for the right to redraft a statement that the Ministry of External Affairs had already negotiated with the American side and which it considered final. It was only thanks to this eleventh hour internal battle that the strict reciprocity of U.S. and Indian commitments in the July statement was established. What happened that evening set a trend for the next two years. Invariably, these internal battles became more serious on the eve of difficult decisions: the anti-Iran vote at the IAEA in September 2005 (when a tightly argued note by Secretary Rajiv Sikri recommending abstention was overruled at the highest level); the contours of India’s separation plan in January and February 2006 (when some senior officials pushed for putting the fast breeder reactors into the safeguarded list); and the ‘right of return’ and reprocessing in the 123 talks — when the Government’s Apex Group on nuclear matters was forced, as recently as May 2007, to overrule a weak draft that the MEA thought was acceptable.

At every stage, the government was divided into those who felt it was easier to submit to U.S. pressure and those who argued India had nothing to lose from sticking to its principled positions. And it was not always that the latter prevailed. If a negotiating process that went through so many dubious twists and turns still managed to produce a reasonable 123 agreement, this was largely because India finally realised it pays to stick to one’s guns. But the country as a whole remains sceptical and the onus is on Dr. Singh to dispel this scepticism.

In safeguarding the independence of India’s foreign policy, two issues are important. First, any process of negotiation should seek to limit the levers of influence the U.S. or any other country or group of countries can exercise over India. Second, to the extent to which the U.S. offer of nuclear cooperation is motivated by unrealistic expectations on a wider set of issues, the Government of India needs decisively to clear the air so that there is no room for future misunderstanding. The full menu of American expectations is contained in the Hyde Act. U.S. Under Secretary Nicholas Burns added to this on July 27, 2007 by saying the U.S. now looked forward to greater cooperation with India in the military sphere. Each of these expectations and linkages must be rejected, and done so not by unnamed officials in the MEA but by the Prime Minister.

As far as the 123 agreement goes, the Indian negotiating team did a fine job limiting the amount of future leverage Washington can exercise but potential pressure points have not been completely eliminated. Reprocessing arrangements still have to be negotiated, and the right of return, though nailed down, still remains on paper. In order to further protect itself, India must do four things: Build reprocessing arrangements into the contract for any reactor purchased; build a fuel stockpile to provide the ultimate protection against termination for whatever reason, build “corrective measures” into its safeguards agreement with the IAEA, and limit the purchase of any U.S. reactor to a whole number between zero and one.

But this still leaves open the wider expectations the U.S. has on the foreign policy front. No doubt the Prime Minister will reassure the country that there will be no compromising with national interest. But rather than reiterating this in general, there are concrete assurances he needs to provide keeping in mind the water that has flowed under the bridge the past two years.

Iran and the Nimitz

The most glaring of all foreign policy compromises made by the Government was the vote against Iran in September 2005 at the IAEA Board of Governors. No less a person than the Bush administration’s former Under Secretary for Non-proliferation, Stephen Rademaker, admitted this February that India’s vote had been “coerced.” Combined with this submission to coercion was the highly irresponsible decision taken by New Delhi to play host to the USS Nimitz last mon th. Though attempts were made to claim the U.S. aircraft carrier was on its way home and was making a ‘harmless’ rest stop in Indian waters, the fact is that India refuelled and resupplied a warship that the U.S. promptly despatched back to the Persian Gulf as part of its gunboat diplomacy against Iran.

Today, if the Prime Minister wants to reassure the nation about the independence of our foreign policy, he needs to tell Parliament that if the Nimitz — having received Indian supplies and hospitality — is used by the U.S. in an unprovoked attack on Iran, the Government of India will consider this an especially unfriendly act.

Dr. Singh should also declare that India has no interest in signing an access and cross-servicing agreement (ACSA) or Logistics Support Agreement with the U.S. when the primary purpose of such agreements — as admitted by the former U.S. Under Secretary of Defence, Douglas Feith, in 2003 — is to allow U.S. forces to “move smoothly into, through, and out of host nations” as part of “military operations.” Given the destabilising effect U.S. military operations have in the wider region, the default setting should be no provision of logistical support for the U.S. armed forces. In the unlikely event that such U.S. operations are part of a U.N.-authorised effort, access can always be provided on a case by case basis. There is certainly no need for ACSA.

Since the Hyde Act explicitly calls for foreign policy congruence between India and the U.S., Dr. Singh should emphasise that his government rejects such a call. But even this declaration should not be left at the rhetorical level. In those areas where congruence has already begun, a process of disengagement is essential. This means sticking to the ‘Panchsheel’ principles in foreign policy and rejecting the division of Asia and the world into new blocs on the basis of which countries believe in ’democracy’ and which do not. Though the United Progressive Alliance government has decided it does not seek any military or strategic objectives through its association with the Shanghai Cooperation Organisation, it has no qualms about staging a massive naval exercise of the Neocon-inspired ‘Quadrilateral’ group of Australia, Japan, India, and the U.S. As part of the debate on the nuclear deal, the Prime Minister should clarify what India’s interest in the Quad really is.

When Parliament resumes its debate on the nuclear deal next week, these are the kind of concrete assurances that the Left should seek and the Prime Minister must give. At the same time, the hurdles at the NSG level should not be minimised.

The biggest danger is that the U.S. will try to wrest back from India at the NSG what it conceded in the 123, namely effective insulation from the consequences of a nuclear test.

For India, it is vital that the NSG rule change should not build in a clause stipulating that a nuclear test by India would lead to the end of cooperation. Such a rule did not exist and was not proposed by anyone in 1998, when, despite Pokhran, Russia concluded the Koodankulam agreement with India. The NSG must also not limit the scope of permissible cooperation to some arbitrary list of items. According to the July 2005 statement, the U.S. is committed to working with its friends and allies at the international level to bring about full civil nuclear cooperation and trade with India. Prime Minister Singh must insist — in public and in his conversations with the U.S. — that his government fully expects Washington to deliver this. There should be no ambiguity here. Even if Dr. Singh is able to address the fears the country has on the foreign policy front, an NSG rule change that denies India full civil nuclear cooperation or makes it conditional on a test ban will kill the deal as surely as night follows day.

Indian capital and foreign policy - A preliminary exploration

Bandwagoning with unipolarity has been a trend, but there are limits






15 August 2007
The Hindu
Independent India at 60 Supplement

Indian capital, foreign policy
Bandwagoning with unipolarity has been a trend, but there are limits

SIDDHARTH VARADARAJAN

It is customary nowadays to divide the history of independent India’s economic policy into the pre-1991 and post-1991 periods, but what can we say about the impact of liberalisation on Indian foreign policy? Certainly, the diplomatic priorities and strategies of today are not what they used to be in the decades after Independence. But then neither is the world that confronts Indian policymakers the same one that Nehru and Indira Gandhi had to reckon with. Disaggregating the observable changes that have occurred on the foreign policy front is especially difficult because 1991 produced two distinct ruptures — the old domestic order of dirigisme ended, but so did the ancien regime of bipolarity. Indian foreign policy has had to adapt to this fundamental change in both internal and external environments.

On the domestic front, economic liberalisation has not produced a uniform or coherent foreign policy vision but there is a growing realisation of the need to consolidate South Asia as an integrated economic space. Unfortunately, other than the free trade agreement with Sri Lanka and greater physical connectivity within the region, the Indian state has not had much success in this direction.

At the global level, Indian capital tends to favour a policy of greater accommodation with Washington. In structural terms, some of the fastest growing sectors of the Indian economy such as information technology have benefited from forging symbiotic ‘back office’ ties with American companies. In key sectors where liberalisation has yet to take effect such as retail, insurance and financial services, many big Indian corporates have struck alliances with U.S. companies. Indian companies also anticipate making inroads in the lucrative defence and ancillaries sector through offsets if the U.S. is able to establish itself as a major source of weapons for the Indian military. That is why Indian capital takes a benign view of the growing cooperation between India and the U.S. in the defence sector.

This pressure from the business elite gains added policy heft from two other sources. First, the urban upper middle class sees closer political and strategic relations with the U.S. as its passport to greater personal prosperity in an increasingly globalised world. Second, to the extent to which the upper echelons of India’s bureaucratic and military elite come from this stratum, this ‘natural’ predisposition towards the U.S. gets further magnified. It is not as if the Indian ‘nomenklatura’ has lost sight of the ‘national interest’. But its quest for global prestige means it is easily flattered and deceived, and has little difficulty buying into the American rhetoric about ‘shared values.’

So strong is this impulse to bandwagon with the U.S. that successive governments since 1991 have had no option but to go along. Even the 1998 nuclear tests — though sold to the public as an affirmation of the country’s strategic autonomy — were used by the erstwhile National Democratic Alliance to signal the willingness of resurgent Indian capital to be accommodated in Pax Americana. Similarly, the United Progressive Alliance government — which came to power with the promise of pursuing an ‘independent foreign policy’ — has had no compunction pushing the Indo-U.S. ‘strategic partnership’ to new and unprecedented heights.

But if bandwagoning with unipolarity has been the dominant foreign policy trend since the 1990s, there are today other structural impulses that serve to place limits on how far India can go down this path.

The first is the role that public opinion plays. Throughout the 1990s, India drew closer to the United States but the rhetorical shell of nonalignment and solidarity was perforce maintained by those running the government. The UPA sought to break out of this shell with its discourse of “national interest” but has not succeeded in carrying the country on issues such as Iran or the visit to Indian ports of American warships while on active, aggressive deployment in the Persian Gulf. In the years to come, harmonising the expectations of the U.S. for greater military cooperation with the popular perception that America is not a benign power will be a difficult task for the Indian government.

The second structural impediment will come, paradoxically, from the same source that triggered the growing proximity with the U.S. in the first place, that is, Indian capital.

It is too early to make generalisations but the recent flood of Indian acquisitions abroad — for example, Tata buying Corus in Britain, Jindal Steel investing $2 billion in an iron and steel venture in Bolivia — is bound to have its impact on Indian foreign policy. Comparative advantage is forcing Indian companies to think of globalisation along new vectors.

India is rediscovering Asia, Africa and Latin America, this time not as the object of political solidarity but as the source of raw materials and the destination for its products. Until recently, major external acquisitions were limited to energy and involved PSUs rather than corporates. But with the growth of the Indian multinational and its expansion – at least in the first instance – to areas where India’s unique strategic identity can profitably be leveraged, it is possible that Indian capital may not see bandwagoning with unipolarity as the most effective business strategy. Of course, some companies may well feel India’s growing proximity to the U.S. opens more doors than it closes, but this is likely to be true only in Europe and parts of Asia.

A close look at India’s trade statistics, for example, tells us the greatest opportunities exist in those parts of the world — for example, West Asia and the Arab world — where it pays to put some political distance between Delhi and Washington.

Will these two factors serve to temper India’s rush to embrace the United States in every sphere, and especially the military? It is difficult to say. Strategic partnerships have a way of becoming self-fulfilling prophecies not only because of the links and interests that get formed between the two partners but also because of the links and interests that are foregone as a result. Understanding this dialectic, and doing so in time, is what will be decisive.

Siddharth Varadarajan is Associate Editor, The Hindu.

India wary of U.S. goalpost shift on NSG clearance

Washington, not New Delhi, must convince nuclear cartel to amend its guidelines to allow nuclear commerce with India.





12 August 2007
The Hindu

India wary of U.S. goalpost shift on NSG clearance

Siddharth Varadarajan

New Delhi: India will emphasise to the United States that under the terms of the July 2005 joint statement, responsibility for getting the Nuclear Suppliers Group to amend its guidelines to allow nuclear commerce with India rests with Washington and not New Delhi.

Senior officials say this reminder is considered necessary because the U.S. has now started saying it is up to India to convince the 45-nation cartel to change its guidelines.

For example, U.S. Under Secretary of State Nicholas Burns told the Council of Foreign Relations on August 2 that “the Indians will need to convince the Nuclear Suppliers Group … that it should give the same kind of international treatment in terms of civil nuclear trade to India that the United States would have just given bilaterally.”

On August 3, Mr. Burns told a group of Indian correspondents in Washington that the U.S. would actively support “India’s efforts” at the NSG. According to IANS, he said: “The U.S. will be very active in supporting India in its efforts to convince the 45-nation NSG.” The Hindustan Times reported him saying, “In a sense, the U.S. will act as India’s sherpa at the NSG.”

More recently, on August 7, Mr. Burns told CNN-IBN in a live interview that after negotiating its safeguards agreement with the International Atomic Energy Agency, “India would then have to go to the NSG. The U.S. will be a very strong supporter of India at the NSG.”

Counter to commitment

This formulation of India exerting itself to ascend the NSG summit — even if with the support of an American “sherpa” — is counter to the very clear commitment the U.S. made in the July 18, 2005 joint statement. There, President George W. Bush pledged that “the United States will work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India.”

Senior Indian officials told The Hindu that while India fully intends to explain its case to individual NSG members, it did not want to get into a situation of negotiating with the NSG. “We are not even there [as a member]", said one official. “It is America’s responsibility to do the convincing so that the NSG allows full civil nuclear cooperation with India.”

Indeed, for certain NSG countries, India is evolving a careful strategy to ensure its position is understood. For example, serious consideration is being given to the idea of sending a high-level political envoy to Beijing to “pop the question” and address any concerns the Chinese may have. But, say officials, the task of “going to the NSG” or “convincing” the cartel belongs solely to the U.S.

New Delhi is also perturbed by another Burns formulation that suggests the U.S. might try to limit the scope of any NSG rule change to ensure that the terms of international nuclear commerce available to India are not more generous than what the U.S. itself is offering.

In his CFR interview, Mr. Burns emphasised that the changed NSG guidelines “should give the same kind of international treatment in terms of civil nuclear trade to India that the United States would have just given bilaterally.” The exact same phrase was repeated by Mr. Burns in his interview to Indian correspondents in Washington and to NDTV on August 7.

Though Mr. Burns and his team provided explicit assurances last month that the U.S. would not support the incorporation of a “right of return” clause at the NSG in the event of a future nuclear detonation by India, Indian officials are worried about Washington’s commitment to India accessing “full civil nuclear cooperation and trade” at the international level.

Since the U.S.-India 123 agreement does not provide for the transfer of reprocessing, enrichment and heavy water technology and components, as well as dual use components for the same, New Delhi’s only hope of accessing these lies in the NSG adopting a simple, non-discriminatory change to its guidelines.

Indian officials acknowledge that the first sign of a subtle shift in U.S. commitments on the NSG front came when India and the U.S. were working out the language of the joint statement to be issued on July 27 by External Affairs Minister Pranab Mukherjee and U.S. Secretary of State Condoleeza Rice.

Variations

The final version of the joint statement omitted any reference to America’s responsibility to tackle the NSG and simply states: “The next steps include India negotiating a safeguards agreement with the IAEA and support for nuclear trade with India from the forty-five member Nuclear Suppliers Group.

“Unusual for sensitive joint statements issued at the ministerial level, there is a minor variation in the version of the joint statement issued by the U.S. State Department: “The next steps include India’s negotiation of a safeguards agreement with the IAEA and support for nuclear trade with India in the forty-five member Nuclear Suppliers Group [variations in italics].”

Though minor, the variation is linguistically significant: the India n version is in active voice, the U.S. version in passive.

The failure to issue identical texts reflects not just sloppy drafting but also lingering differences between the two delegations on the nature of future commitments at the NSG.

Interview: “For nuclear renaissance, the world needs India”

As Principal Scientific Adviser to the Government of India, R. Chidambaram has played a crucial behind-the-scenes role in the formulation of India’s approach to the question of civil nuclear cooperation with the United States. Chairman of the Atomic Energy Commission from 1993 to 2000, he supervised the conduct of the 1998 nuclear weapons tests at Pokhran. In an exclusive interview to The Hindu, he spoke about the implications of the Indo-U.S. nuclear deal for India’s strategic and civil nuclear programmes, as well as for the future of nuclear power worldwide. Excerpts:



8 August 2007
The Hindu

“For nuclear renaissance, the world needs India”

Harish Khare and Siddharth Varadarajan

One of the criticisms made of the Government now that the Nuclear Cooperation Agreement with the U.S. is final is that the nuclear deal will have an adverse impact on the country’s strategic programme. What is your view?

From the outset, it had been made clear — this is exactly what has been stated in Parliament also — that there are three boundary conditions. There will be no effect on the strategic programme, there will be no deceleration in our three-stage nuclear power programme — which has been the foundation on which we have built our entire programme — and there will be no effect on our advanced R&D programme. These boundary conditions have always been with us as we’ve gone through this. So there will be no effect on our strategic programme.

But some fairly well-informed people are saying the opposite, people who had occupied important government posts in the past.

I don’t want to respond to the opinions of others. You ask me absolute questions.

All right. There’s a view that India’s ability to test will be severely constrained as a result of the agreement with the U.S., that testing will become more difficult in the future.

See, whenever you test, there will be consequences. When we tested in 1974 and 1998, the leadership then knew there would be consequences. So that is something which is built into the system. But as far as the 123 agreement goes, there is nothing in the agreement which prevents us from testing, if the government decides to test for whatever reason. That is what we should look at.

Some have argued that the 1998 tests may not have been “sufficient,” even for then, not to speak of the future, that the thermonuclear test was not successful.

As far as our own tests — the five tests we did over a range in 1998 — based on the tests, we can build weapons from sub-kiloton to 200 kilotons. Of the designs that we have tested. For the thermonuclear, the testing of the weapon design at the controlled yield of 45 kt was because of the proximity of Khetolai village. And also, people are just looking at the number of the tests, but immediately after the tests, we announced the yields of the tests before the global seismic and other data had come in. That indicates a higher level of technological capability. See, suppose you do a test and suppose something is slightly off, you may get a lower yield but still it is a test. But here, see basically, if you want to do very low sub-kiloton tests — 0.2, 0.3, 0.5 — very difficult tests because any mistake there, you would not get any yield. So we have done those tests. So we have a considerable computer simulation capability.

Based on the 1998 data…

Based on the 1998 data, so, but on the other hand, if for whatever reason — scientific, technological or because of some other requirement — the country wants to test at a future date, there is nothing in this agreement which prevents us from testing.

And you don’t think the costs will be higher than in the past in terms of sanctions?

That I’m not the right person to comment, but one general thing we can say — as we go on, our economic strength and our importance in the world is not coming down, it’s only going up.

Why do you think the U.S. has come around to offering this nuclear deal to India?

Today — this is what I say in my lectures abroad — we want the world in the short-term in nuclear, but the world is going to need us in the long term. Because, in many countries, nuclear technology has stagnated, and when nuclear technology stagnates, knowledge management becomes a problem. Young people don’t join the field. And then R&D also begins to go down. The only two countries in which nuclear is growing because of surging energy demand are India and China. So for us, nuclear ‘knowledgment’ is not a problem. I remember in 2004, there was a meeting in Obninsk in Russia. I wonder how many people know that the first reactor from which electricity was put into the grid was Russian, a small 5 MW reactor, and that was in 1954. So the International Atomic Energy Agency (IAEA) held a meeting in Obninsk on ‘Fifty Years of Nuclear Power — The Next 50 Years.’ And there was an American speaker in the session I was chairing — he works for the IAEA now — but what he said was between 2002 and 2011, the nuclear workforce in the entire west will come down to half. On the other hand, there is a nuclear renaissance which has started, driven substantially by the threat of global climate change. So he said that if a nuclear renaissance does start in the U.S., we’ll look to India for help.

In manpower terms?

I didn’t say that! Because, you see, it’s not just a question of manpower, it’s a question of R&D, it’s a question of so many other things.

We said manpower because one of the points some retired nuclear scientists have raised is that the U.S. is looking to deplete India of human resources in the nuclear field and that they will use this deal to facilitate that.

Though you can’t rule out the possibility of manpower attrition, but then 150 of the Fortune 500 companies have R&D shops in India, R&D centres in India, one way or another, which deal with materials technology, biotechnology, IT and all that. They come here — it’s not a question of our going there — they come here now because partly manpower is cheap, the capability is there, and if you want to hire guys, there are more guys available here. So there are positive aspects of this kind of interaction. The negative aspect, of course, is the possibility of attrition of manpower.

Do you feel the relatively easy access to imported Light Water Reactors might affect the government’s willingness to fund the DAE’s ongoing research into the three-stage programme?

The assurance from the Prime Minister is that the three-stage programme will not be affected, number one. And two, I wrote an editorial in Nuclear Energy 2006 [with Ratan Kumar Sinha] called ‘The importance of closing the nucl ear fuel cycle.’ This is needed not just for India but for the whole world, because the same amount of uranium, when you recycle it through fast breeder reactors (FBRs), will give you 50 times more power, and if you close the fuel cycle with thorium, maybe it will give you 600 times more power. So if you want to optimally utilise the nuclear fuel resources of the world — uranium and thorium — you will have to close the nuclear fuel cycle. So the importance of the three-stage programme goes beyond just building the first generation of reactors. And even if you take the Generation IV reactors of the U.S. — half a dozen new systems which they have produced — several of them require reprocessing and closing the fuel cycle. In my opinion, not going in for FBRs is a passing phase. Just because somebody puts away the plutonium in the spent fuel as waste, in my opinion, that is only a temporary phenomenon. If you have access to cheaper uranium, why will you cut open the spent fuel and take out the costlier plutonium? But over a period of time — the price of uranium has gone up in international markets — that plutonium is not running away anywhere, it’s got a half-life of 24,000 years. So that’s what I tell my American friends, that what you are building…

The Yucca mountain repository?

Yes, Yucca as a waste disposal site is really a plutonium mine! Because the later you reprocess, the easier it is. All the other radioactivities would have died down. So everybody has to close the fuel cycle.

If that is so, how important is the fact that the 123 agreement leaves out access to reprocessing equipment? And are you hopeful that when the Nuclear Suppliers Group guidelines are amended, India will be able to access these from the world market?

Those have to be worked out. See, we have our own reprocessing technology. Of course, we want to get equipment. In any area of technology, cooperation is a good idea, so if equipment comes, why not. But then we have built our own plants also at the same time. However, in all these areas, today’s India wants international cooperation on an equal partner basis. I am not talking just nuclear. That is why we have joined the Large Hydron Collider, contributing a substantial amount to the accelerator, we joined the ITER project.

So are you confident the NSG will lift these restrictions?

That is what India wants, a clean exemption at the NSG.

Tell us something about the implementation costs of the deal. How expensive will separation of the military and civilian nuclear sectors be? And what about the cost of storing a 20-30 year supply of uranium and LEU?

All that will cost, but I don’t think those costs will be excessive. Storage of LEU — I don’t think that could be a big problem — there are methods of storing. And the civil-military separation, the way we are planning, I don’t think will be expensive, the way we are.

So there will be no need to replicate facilities?

Not really. Of course, you see when you build large numbers, that’s what our thing will be, for example, the number of reactors we are going to put under safeguards, they are all separated reactors. So there will be no big problem there. But we are not firewalling between the civil and military programmes in terms of manpower or personnel. That’s not on.

Until now, the fact that India’s civil and military programmes were run as one meant the political class may not have had a clear sense of the true cost of each programme. Separation means the end of cross-subsidisation. Will both programmes be able to withstand closer financial scrutiny?

In my opinion, our nuclear weapons programme was one of the most economical in the world because it followed the civilian programme. Unlike in all the other nuclear weapons states, which did the military programme first and then came on to the civilian side. That way, our weapons programme has been one of the most cost-effective ones.

But some argue the inefficiencies of nuclear power generation have been justified internally by the need for weapons. In his book, Ashok Parthasarathy recounts P.N. Haksar telling him in the early 1970s not to worry about the costliness of nuclear power because ‘there are larger objectives to our atomic programme.’

The tariff charged by our Nuclear Power Corporation wherever they have built nuclear power plants (NPP) — Tarapur, Koodankulam, or Kaiga or wherever — the unit energy cost is comparable to the cost of a coal-fired plant at that place. This is how we compare. The capital cost is higher in nuclear because it is easier to build a boiler than reactor, but the fuelling costs are lower compared to thermal. If you build a coal-fired thermal plant at the pithead, obviously it will be cheaper, but as you move further and further away, you have to add the cost of transportation. The second thing was that in the earlier days, there was the cost of interest during construction. Two things have happened now — the gestation period for NPPs has come down from more than seven years to five years, which is comparable to the best global standards, and because of the improvement in the strength of the rupee, the cost of interest during construction has come down. But even before that, we were comparable at 700 or 800 km from the coal pithead. So there was never any big subsidy problem of the type you mentioned. There was a problem because, you see, immediately after Pokhran-I, when we had to go back and build everything ourselves because suddenly these guys walked out. So that took time.

Why was it important to keep India’s fast breeder reactors out of safeguards? Is it because they could serve a strategic purpose?

First of all, whatever reactors we put under safeguards will be decided at India’s discretion. Now, anything which requires advanced R&D, we don’t want to slow it down by having someone looking over our shoulder. Our FBR has lots of technological innovations. I don’t think it is meant for weapons.

And what about future fast breeder reactors?

FBRs which use safeguarded plutonium can go under safeguards. But if an FBR is to use unsafeguarded plutonium, why should it be subject to safeguards? The main point is that we will decide.

What is your view of the proposed Fissile Material Cut-off Treaty?

The FMCT should be verifiable and multilateral. This has been our stand and we should stick to it.

Why are many retired nuclear scientists still sceptical about the nuclear deal?

Not all of them have objected. But why not? This is a democracy. Everybody need not have same views.

In the U.S. too there are critics.

There, you have people objecting on the basis of proliferation misconceptions. It is time the U.S. realised India is not a ‘proliferation threat.’ In a 2001 paper, I introduced a new parameter — the Stockpile Increase Significance Coefficient (SISC) — defined as a measure of the significance of a unit increase in the number of nuclear weapons a country has, i.e. the significance of x weapons going to x+1.
The SISC is obviously maximum when x=0. As x increases for a country like India with a programme based on self-reliance, the coefficient approaches zero as the country ceases to be of interest in the context of nuclear weaponisation. This is when the hurdles to international cooperation likely disappear. That, in my opinion, is the reason why the U.S. came to India with this deal. Obviously this graph would not apply to a country with weapons based on clandestine acquisition.

Insulating India’s reactors from fuel disruption

In the tussle between test and text, what will be decisive is the political resolve to defend the sovereign rights enshrined inthe 123 agreement.










8 August 2007
The Hindu

Insulating India’s reactors from fuel disruption

Siddharth Varadarajan

Running like a ‘sacred thread’ through the length of the nuclear cooperation agreement with the United States, India’s right to run its reactors without interruption and take “corrective measures” in the event of fuel supply disruptions provides the ultimate textual insurance against the kind of uncertainty that plagued Tarapur following the 1974 nuclear explosion at Pokhran. But beyond the sanctity of words lies the world of politics. When push comes to shove, the U.S. and India will both have to decide how far they are prepared to go in confronting each other — the former by deviating from the very clear procedures and steps it has committed itself to following in the event of a new Indian nuclear test, and the latter by taking the 123 agreement’s protections to their logical conclusion, even if this leads to a serious political rupture with Washington.

Under Section 123a(4) of the U.S. Atomic Energy Act, every nuclear agreement with a non-nuclear weapons state must include a clause granting the U.S. the right to seek the return of nuclear material and equipment exported pursuant to the agreement, in the event of the recipient state exploding a nuclear device. Since the premise of the July 18, 2005, Indo-U.S. statement on civilian nuclear cooperation was that Washington was prepared to accept India’s de facto nuclear weapon status, the Bush administration should have ensured the waivers it sought to the Act covered this requirement for nuclear commerce as well. Unfortunately, it did not.

When formal negotiations on the text of the bilateral nuclear agreement started earlier this year, the U.S. made it clear the ‘right of return’ would have to be included. The Indian side had two options. It could either walk away or try to make the best of a bad situation by crafting balancing provisions. In choosing the latter, India’s negotiators sought to enshrine the commitments the U.S. had made in July 2005 and March 2, 2006, and protect the country from disruptions that would inevitably result from any American attempt to take back nuclear fuel or vital reactor components following an Indian test.

A careful reading of the final 123 agreement — and in particular Article 5.6 on fuel supply assurances, Articles 13 and 14 on the procedures the U.S. would have to follow in the event of invoking its right of return, Article 10.2 on safeguards and Article 16.3 on duration — shows that their efforts have been more than successful. A solid web of protection has been woven by the interlocking nature of all rights and commitments contained in the agreement. While the Bush administration can claim the “right of return” has been “preserved” and “protected,” the Manmohan Singh government can also state with confidence that this right has been so effectively boxed in as to render it harmless for all intents and purposes.

To understand why this is so, let us consider a hypothetical situation of termination and see how the different layers in the agreement might conceivably work even in the worst case scenario at each stage. Assume the year is 2020, and India is running one 1000 MWe U.S.-supplied light water reactor with low enriched uranium supplied by the U.S. India also maintains an LEU stockpile equivalent to 20 years consumption by the reactor, the bulk of which has been provided by the U.S.

If on January 1, 2020, the Government of India were to test a nuclear weapon, the U.S. would immediately serve notice for the termination of the 123 agreement invoking Article 14.1. Under 14.2, India and the U.S. would then have to “promptly hold consultations” on the “relevant circumstances,” including whether India’s test “resulted from [its] serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.” The importance of relevant circumstances is further reinforced by Article 13.1’s stipulation that consultations on termination would be between “two States with advanced nuclear technology” with the “same responsibilities and practices” as other such countries. If India’s test followed that of another country, the consultation process ought to end quickly and the notice of termination withdrawn. If the Indian test was “unprovoked,” India could still claim a change in the security environment. However, since this exercise is about worst-case scenarios, let us assume the U.S. is unmoved by India’s reasons.

Though termination kicks in one year after notice is served, Article 14.2 allows the U.S. to cease cooperation immediately if it feels the consultations under that Article are not going anywhere. By now, even if a few rounds of consultations have been held prior to cessation of cooperation, we would already be in, say, February. Once the cessation of cooperation takes place, Article 14.4 gives the U.S. the right to seek the return of nuclear equipment, material, and fuel transferred to India. This right can only be exercised after “cessation” and until the time termination actually takes place (i.e. by January 1, 2021, in our example). However, let us assume the U.S. invokes its right of return on February 1, listing not just LEU stocks for the reactor it supplied but also certain critical reactor components, knowing that the reactor would be disabled as a result.

Once this notice is served on India and before any items can actually be returned, the U.S. is obliged under Article 14.5 to again consult with India. Indeed, the exercise of this right must pass through a number of legally binding filters. To begin with, consultations “shall give special consideration to the importance of uninterrupted operation of nuclear reactors” in India. Let us assume the U.S. says, “We have given special consideration to the running of your reactors but we still want our material back”. However, Article 14.6 says no item can be returned without India being compensated “for the market value thereof and for the costs incurred as a consequence of such removal.” The latter costs are quite open-ended (which is why they do not figure in any other 123 agreement) and return cannot take place unless India and the U.S. agree on the amount of compensation to be paid.

Article 14.7 also provides for one more hurdle prior to any return of nuclear material: India must satisfy itself that “that full safety, radiological and physical protection measures have been ensured in accordance with [its] existing national regulations” and that no risk will be posed to the “global environment” in the process of return.

Even if India is able to stretch this process out for several months, there may come a time when the compensation and safety issues are finally sorted out. At this point, however, the process loops back because if the continuous operation of the U.S.-supplied reactor is no longer possible, this would violate the U.S. commitment in Article 14.8 that “the Party seeking the return of nuclear items shall ensure that the timing, methods and arrangements for return of nuclear items are in accordance with paragraphs 14.5, 14.6 and 14.7,” the most important provision of which is continuous operation of reactors.

Accordingly, 14.8 provides for yet another round of consultations, this time aimed at addressing the “mutual commitments” to assured fuel supply contained in Article 5.6. To drive home this linkage, 14.8 states: “It is not the purpose of the provisions of this Article regarding cessation of cooperation and right of return to derogate from the rights of the Parties under Article 5.6.” So tight is this linkage between the right of return and the continuous operation of the U.S.-supplied reactor that the “timing” of any return, especially fuel, can only be calibrated with the replacement of U.S. material with material provided by other “friendly countries.”

“Corrective measures”

But what would happen in a scenario where no friendly country is willing to make good the fuel supplies the U.S. wants returned? This would trigger the situation envisaged by 5.6(c) — the right of India to take “corrective measures … to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.” The legal status of these corrective measures has been further enhanced by three additional clauses in the 123 agreement. In 14.8, the U.S. recognises them as India’s “rights”; in Article 10.2, India explicitly states it is agreeing to place U.S.-supplied nuclear equipment and material under IAEA safeguards in perpetuity not in a free-standing manner but “taking into account Article 5.6 of this Agreement”; and Article 16.3 on entry into force and duration clearly states: “notwithstanding the termination … of this Agreement,” India’s rights under Article 5.6(c) “shall continue in effect” so long as U.S.-supplied material remains in India.

No one in government has ever explained what these “corrective measures” might be. However, the 123 agreement’s clear link between the perpetuity of IAEA safeguards — even on U.S.-supplied material — and the assured supply of fuel for the lifetime of all of India’s civilian reactors provides a powerful deterrent to any U.S. desire to seek the return of exported material or terminate the agreement. For, once the U.S. invokes 14.1 and serves notice of termination, it is likely to set in motion a sequence of steps and counter-steps that could end with the suspension of safeguards by India.

How would our post-test scenario of 2020 compare with 1974 or 1998? One difference is that unlike then, the U.S. now would have the right of return. But the very process of invoking that right — as outlined above — would trigger a set of legally binding Indian rights that did not exist in 1974 or 1998. On balance, therefore, it is obvious that India would be in a much better position to forestall any disruption to its civilian energy programme if the U.S. were to try and penalise it for conducting a nuclear test, provided it actually creates a fuel stockpile

Under a worst-case scenario where the U.S. ignores its obligation to ensure the continuous operation of Indian reactors, presumably citing the Hyde Act, India would be under no obligation to entertain an American request for the return of nuclear items. If a U.S.-supplied fuel stockpile exists on Indian territory, India could continue using that fuel if not doing so means disrupting the operation of its reactors. Possession is more than nine-tenths of the law. However, the Indian Government of the day must be prepared to uphold its sovereign rights, even if it means incurring the wrath of the U.S. The best agreement in the world is worthless if the men who must implement it turn out to have weak knees.

A guide to the provisions of the 123 agreement

The text of the Indo-U.S. nuclear cooperation agreement – also known as the 123 agreement – was released on Friday. How does the text measure up to the assurances Prime Minister Manmohan Singh provided to Parliament?

4 August 2007
The Hindu

A guide to the provisions of the 123 agreement

Siddharth Varadarajan

The text of the India-U.S. nuclear cooperation agreement — 22 pages and 17 Articles long — was “frozen” in Washington on July 22 but made public finally on Friday. A preliminary reading of the agreement suggests a serious effort was made by both India and the U.S. to square a very difficult circle. Both sides made and received concessions and the consensus within Government of India — including the Department of Atomic Energy — is that t his is a deal the country can live with provided it does not become the template for the Nuclear Suppliers Group when it considers changing its guidelines to allow nuclear commerce with India. In particular, Indian officials hope the NSG will not prohibit the sale of fuel cycle technology and components, or adopt a rule terminating cooperation in the event of an Indian nuclear test. While those are issues of the future, it is important to understand the extent to which the 123 agreement has addressed India’s concerns.

Under what circumstances can the U.S. terminate cooperation?

The agreement will remain in force for 40 years but Article 14.1 gives the U.S. the right to terminate the agreement “on one year’s written notice.” It should also provide the reasons for seeking this termination. 14.3 also allows for termination in the event of a violation of the agreement by India. If termination is based on violation of an IAEA safeguards agreement, a “crucial factor” will be whether the IAEA Board of Governors has made a finding of non-compliance

Isn’t termination after one year’s notice too open-ended?

It is. The standard 123 with a non-nuclear weapon state (NNWS) provides for termination in the event that the NNWS conducts a nuclear test or violates the terms of the agreement, such as the peaceful use clause, or safeguards. However, India felt a reference to a nuclear test as the trigger for termination of cooperation would amount to converting its unilateral, voluntary moratorium on nuclear testing into an obligation with legal consequences.

What happens once the U.S. serves notice?

Article 14.2 says that before the agreement is terminated, the U.S. and India “shall co.sider the relevant circumstances and hold consultations based on the recognition that both are States with advanced nuclear technology, which have agreed to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced technology.” The consultations may be carried out by a Joint Committee specifically established for this purpose. There is no time frame for these consultations but they cannot be open-ended: one year after notice is served, the agreement stands terminated.

Why the reference to “States with advanced nuclear technology”?

India considers this phrase — first used in the July 2005 Indo-U.S. statement — to be a euphemism for nuclear weapons states. The U.S. is unwilling to say so. But Article 14.2 adds that the U.S. agrees “to consider carefully the circumstances that may lead to termination or cessation of cooperation.” This is a euphemism for an Indian nuclear detonation.

So what happens if India were to conduct a nuclear test?

Article 14.2 says the U.S. agrees to “take into account whether the circumstances that may lead to termination or cessation resulted from [India’s] serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.”

Though there is nothing in this language to oblige the U.S. to take a benign view of an Indian test which follows a test by another country, an attempt has been made to differentiate an ‘unprovoked’ Indian test from a test conducted in response to a detonation by others, presumably China or Pakistan. Obviously, the resumption of nuclear testing by Washington — America is considered the one nuclear weapon state most likely to test in the next decade — may not be treated by the U.S. administration as an acceptable excuse for an Indian test.

Does the 123 agreement give the U.S. the right of return?

Article 14.4 unambiguously grants the U.S. “the right to require the return … of any nuclear material, equipment, non-nuclear material or components transferred under this agreement and any special fissionable material produced through their use” following the cessation of cooperation. This includes nuclear fuel as well as any plutonium that is produced from the reprocessing of U.S.-origin spent fuel.

When can this right be invoked?

The same article says the U.S. can serve notice invoking this right and listing the items whose return is being sought at any time before the date on which the agreement terminates. In other words, the U.S. can serve a right of return notice at the same time notice to terminate cooperation is issued.

What protections has India built into the agreement?

Article 14.5 says that India and the U.S. “recognize that exercising the right of return would have profound implications for their relations.” Prior to the removal of any items under the exercise of this right, therefore, the agreement provides for several layers of insulation. First, the U.S. is obliged to “undertake consultations” with India. These consultations are envisaged to be separate from the Article 14.2 consultations on termination. Secondly, “such consultations shall give special consideration to the importance of uninterrupted operation of nuclear reactors” in India. Thirdly, 14.6 says “fair market value” compensation must be agreed upon and paid to India prior to the removal of any items and an agreement must be reached with Delhi “on methods and arrangements” for the return.

Fourthly, 14.7 says prior to any return, India “shall satisfy [itself] that full safety, radiological and physical protection measures have been ensured in accordance with [its] existing national regulations.” Fifthly, bearing in mind the importance of uninterrupted operation of nuclear reactors, 14.8 stresses that “the consultations between the parties shall address mutual commitments” on continuity of fuel supplies contained in Article 5.6 of the agreement. This Article incorporates the fuel supply assurances spelt out in the March 2 Indo-U.S. agreement on the separation of Indian nuclear facilities. The same clause adds: “It is not the purpose of the provisions of this Article regarding cessation of cooperation and right of return to derogate from the rights of [India]” under Article 5.6. Sixthly, and finally, India retains the right, under Article 5.6(c) to take “corrective measures” on the safeguards front if there is disruption of fuel supplies pursuant to any U.S. action.

How different is the right of return clause from the other 123 agreements the U.S. has signed?

Japan’s 123 agreement provides for compensation and says that before the U.S. terminates cooperation or requires the return of its exported nuclear items, “the parties shall consult for the purpose of taking corrective steps and shall carefully consider the economic effects of such actions, taking into account the need to make such other appropriate arrangements as may be required.” This is the standard template the U.S. uses with non-nuclear weapon states. China’s 123 agreement has no right of return clause since the U.S. Atomic Energy Act only requires this of NNWS.

What does India’s 123 agreement say about reprocessing?

Under Article 6(iii), the U.S. grants India “consent to reprocess … nuclear material transferred pursuant to this agreement.” Though the MEA fact-sheet issued last week had used the word “prior consent,” the word “prior” does not figure in the agreement. The reason is that this Article clearly states: “To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing … will take place in this new facility.” There is also an explicit timeline: “Consultations on arrangements and procedures will begin within six months of a request [by India] and will be concluded within one year.”

What will these “arrangements and procedures” involve?

Apart from the application of IAEA safeguards, the Article says the arrangements and procedures will include provisions relating to the IAEA’s physical protection, storage, and environmental protection standards “and such other provisions as may be agreed by the Parties.” This last open-ended reference represents a potential source of uncertainty and delay, especially if the U.S. insists on India agreeing to terms and conditions which go beyond what the IAEA requires. Article 14(9) also allows for the suspension of these arrangements by the U.S. “in exceptional circumstances.”

How does the language on reprocessing differ from other 123 agreements?

China’s 123 commits the U.S. to “promptly hold consultations to agree on a mutually acceptable arrangement,” to view any Chinese request for reprocessing rights “favourably” and “seek agreement within six months on long-term arrangements.” There is provision for an interim arrangement to be reached within six months and China undertakes not to act within that period of time. In other 123 agreements, the standard language is that material transferred “shall not be reprocessed unless the [U.S.] agrees.”

What does the 123 agreement say about the possibility of U.S. inspections of Indian nuclear facilities?

Article 10.4 says: “If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures.”

How different is this from the standard 123?

The language usually used — for example in the Japan 123 — is that if either party “becomes aware that for any reason the Agency is not or will not be applying safeguards” they “shall immediately enter into arrangements which conform to safeguards principles and procedures of the Agency and provide effectiveness and coverage equivalent to that intended to be provided by [IAEA] safeguards.” In India’s case, the crucial determination has been left to the IAEA and not the U.S. Also, no timeliness adjective has been specified.

So there will be no question of U.S. inspectors roaming around Indian nuclear facilities?

There is an unusual clause in the agreement — 12(3) — which speaks of India facilitating the entry of experts “when execution of an agreement or contract pursuant to this agreement” requires this. This clause does not figure in the 123 agreements the U.S. has signed with other NNWS such as Japan or Morocco and is perhaps intended to smooth the way for U.S. end-use verification efforts, should they ever become necessary following an IAEA determination on the non-application of safeguards.

What about “full cooperation”?

The agreement does not allow India to access reprocessing, enrichment or heavy water technologies or components, or dual-use components for use in reprocessing, enrichment or heavy water facilities. Article 5.2 only says an amendment to the agreement is needed to allow such transfers.

Any other loose ends?

Article 17 calls for the establishment of an “Administrative Arrangement” in order to provide for the effective implementation of the provisions of the agreement. Given that the nature of this arrangement will govern the consultations both parties must have in the event of termination or right of return, the Indian side is likely to be keen to finalise this aspect as well.

The text of the 123 agreement...

has finally been posted on the Ministry of External Affairs website. You can read it in PDF by clicking here.

Four weeks for a SIM card Vs. 5 years for a million dollar note a.k.a. And what about India's Haneefs?

Ever since the Haneef arrest and New Delhi's welcome intervention in the case, I had been meaning to write something about India's pathetic record as far as the domestic treatment of terrorism suspects is concerned. Even when Indians have been arrested abroad, the Indian government has not been that diligent about ensuring consular access and due process. Remember Azmath Javid and Gul Mohammed? They were arrested in the U.S. soon after 9/11 and spent 18 months in jail as terror suspects. At the end, when nothing was found, they were made to plea-bargain on some minor charges and deported back to Hyderabad, India. I do not recall during that entire period reading any statement of concern by the erstwhile BJP-led Vajpayee government.

Anyhow, I am happy to report that I've been scooped by the one journalist most qualified to write such a piece, Iftikhar Gilani. Visitors to this blog may have read my Foreword to his book, My Days in Prison, a Kafkaesque account of what happens when Indian spooks decide to throw the book at you. Needless to say, the behaviour of the Indian media and judiciary in his case -- as in most cases where the State arrests individuals (especially Muslims) on terrorism or espionage charges -- fell woefully short of the kind of professionalism we saw on display in Australia in the Haneef case.

Iftikhar writes in the New Indian Express:

External Affairs Minister Pranab Mukherjee needs praise for picking up phone at the behest of the Prime Minister and conveying his country’s concerns to his Australian counterpart. It is high time now for the Prime Minister to pick up a phone and talk to his Home Minister across the road in North Block and ponder over sufferings of many other innocents who might have become victims of ‘‘exceptionally good work’’ of his intelligence and security officials.

Among the cases he describes is his own, of course, but also that of a Kashmiri shawl vendor, Altaf Ahmed, jailed for five years on a charge of terrorism financing. The evidence? A million dollar novelty note that the police found on him! You can find Iftikhar's article here. Just in case the link expires, I'm also posting it here. Go ahead and read it.

2 August 2007
New Indian Express

Haneef should thank Australia
Iftikhar Gilani

Last Sunday while I was watching a radiant and emotional Dr. Mohammad Haneef on TV reuniting with his family in Bangalore, I had nothing but praise for the Government of India, whose intervention led to an honourable release of the hapless doctor. It was perhaps the first time that the government had shown a sense of belonging towards its own citizen caught in the vortex of security laws. But my admiration for the government proved short-lived as soon as I received a call from Mohammad Aslam, a barrackmate from my days in Delhi’s Tihar Jail, where I spent seven months in 2002-03. An illiterate auto driver, he was convicted for five-and-half years under Official Secrets Act (OSA) for possessing hand-drawn sketches of some roads in Delhi and Agra Cantonments. Besides, police claimed to have recovered from him details of army units located at Meerut and Roorkee and some amateur photographs of ’vital installations’ like the Delhi Secretariat, the Okhla Barrage and Indian Oil Corporation. Aslam’s ordeal began in May 2002, at an East Delhi bus stop where he had been waiting for a UP roadways bus. Suddenly, a Maruti car came to a screeching halt near him and two persons emerged. One of them asked for directions to an address. As Aslam was explaining the way, another person grabbed him and forced him to smell something that left him semi-unconscious.

As he lost power of resistance, he was bundled inside the car. At that point Aslam had not completely lost his senses. He heard his abductors arguing over whether they had caught the correct man. But one of them finally ended the debate, saying, ‘‘This boy is tall and fair and matches the one we want. We can fix him’’. Probably, they had been tailing someone else, who had given them a slip but that did not prevent the abductors from going ahead. Ultimately, at an interrogation centre, Aslam was made to copy the sketches and sign on the paper. This became the ultimate ‘proof ‘ to book and later convict him under the OSA. In jail, Aslam studied hard and passed exams. He was even made coordinator for secondary education. But after coming out of jail where he served a five-and-half year sentence, he was aghast. In a choked voice, he told me that Sunday as Dr Hannef was joyfully reuniting with his family that his third employer has now thrown Aslam out of his job. Aslam was sacked after the employer came to know of his stint in jail. Hardly in his early 30s, Aslam’s future is deeply uncertain. He feels shattered. In the police lock-up where I had been taken to, I had met Altaf Ahmed, a small time Kashmiri shawl vendor, crying in pain. He had been severely tortured, kept naked in sub-zero temperature; ice-cold water was poured on him and, thereafter, he hah been beaten mercilessly. Police had recovered a million dollar note from him! The note was a novelty note, a souvenir, of no monetary value. On the strength of this novelty currency Altaf was booked for financing a terrorist organization in Jammu and Kashmir. He was convicted and had to spend five years in prison.

Take my case. Had there been no pubic outcry and some soft hearts within the establishment who ultimately recognized the dirty games of the Intelligence Bureau (IB) sleuths and police, I too, would have been convicted and sentenced to a 14-year long jail term. The only evidence against me was an article ‘A Review of Indian Repression in Kashmir’ by Nazir Kamal, I had downloaded from a website (www.issi.org.pk) of a Pakistani think-tank, Institute of Strategic Studies Islamabad (ISSI). To top it all, when the annexure of the article were sent to the Military Intelligence for their opinion, the MI determined the document to be of ‘‘high security value, prejudicial to the security of the country and discloses order of the battle (ORBAT) in Jammu and Kashmir.’’ However, it took as long as six months for the MI to revise its opinion and tell the court the document had no security relevance and that the document was available in public domain. I commend Australian criminal justice system.

They realized their folly within merely 25 days and released Hanif from incarceration. I was happy to note that they filed his charge sheet within only five days. His bail application was decided in one week. Can you guess how much time it took for my charge sheet to be filed? Three months! Until the charge sheet was filed for three months there was a lot of cock and bull stories that found their way to the media, which lapped them up. I suspect the stories were there to affect public opinion. Immediately after my arrest in June 2002, my lawyer had filed a bail application. The court took it up for hearing after five months. I must tell you the application was summarily rejected. One of the arguments for the rejection was that court had found evidence of my inclination towards liberation of Kashmir and cited as proof the existence of an e-mail in my computer entitled ‘‘ATROCITIES OF FORCES IN GILGIT’. It needs hardly to be mentioned here that Gigit does not exist within that part of Jammu and Kashmir that India controls! The e-mail was actually a memorandum issued by Balwaristan National Front detailing alleged atrocities of Pakistani forces and the Inter Services Intelligence in the Gilgit area of Pakistan administered Kashmir. In the e-mail the organization had appealed to the United Nations and other organization to ’’intervene‘‘ on behalf of 2 million down trodden people of Balwaristan (Occupied Gilgit Baltistan)’’ and had demanded that then Pakistani President Rafiq Tarar, the then Prime Minister Nawaz Sharief, Army Chief General Pervez Musharraf, General Ziauddin, the then ISI Chief, General Mohammad Aziz be brought to the International Court of Justice as ‘‘war criminals.’’ The court had not even bothered to read this evidence before passing orders.

Soon after my arrest till the filing of the chargesheet, we had been pleading that that the document existed on the web. One day the court took notice and directed the police to investigate. In the next hearing, police furnished a certificate from a cyber cafe owner in which he declared he could not locate the document on the net. When we protested, court asked us to arrange a computer and internet facility. My friends brought a laptop into the chamber at the subsequent hearing. But the judge, Sangeeta Dhingra Sehgal, did not allow use of her official telephone line to connect the laptop to the internet. Those days broadband and wireless internet were yet to enter the market. Without connecting to the telephone there was no way we could access the internet. Without referring to my case, because it was sub-judice the Press Council of India, a quasi-judicial body in its July 19, 2002 meeting at Varanasi under the chairmanship of Justice K Jayachandra Reddy, had held ’’that any information which is publicly displayed on the internet cannot be treated as confidential and the reproduction or possession of such matter may not attract provisions of the Official Secrets Act.’’ Not only was this opinion of the Press Council ignored by the government, but when we produced the resolution in the court, the judge threw it away, and rebuked my lawyer. The same judge, it needs to be mentioned here, was later appointed Secretary to the same Press Council of India, whose resolution she had thrown at our face. My case took a turn only when the Military Intelligence (MI), under pressure from media and friends in the establishment, realized its folly and revised its opinion. The Home Ministry disregarded the fresh MI opinion but ultimately decided to withdraw the case in ‘‘public interest’’ after seven months.

Last Sunday I heard Dr. Haneef demanding apologies from the Australian government for his travails. At least they should apologize to my peace-loving nation, he said. Australian Prime Minister John Howard vowed to be safe in future rather than express regret. In my case, while leaders did express their regret privately, there were no public apologies. The officials, who had tampered with the documents, which amounted to contempt of court, are free. Before I forget, I must mention that two of them recently completed a prized posting in Kosovo as part of International Police Force. One of them was even promoted for ‘‘exceptionally good work.’’ External Affairs Minister Pranab Mukherjee needs praise for picking up phone at the behest of the Prime Minister and conveying his country’s concerns to his Australian counterpart. It is high time now for the Prime Minister to pick up a phone and talk to his Home Minister across the road in North Block and ponder over sufferings of many other innocents who might have become victims of ‘‘exceptionally good work’’ of his intelligence and security officials.

Iftikhar Gilani is the Delhi Bureau Chief of Kashmir Times and is the author of My Days in Prison