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123 Text
All quiet on N-testing
Rajeev Sharma
Tribune News Service

New Delhi, August 3
After two years of intensive discussions, India and the US today made public the text of their 123 Agreement on civilian nuclear cooperation, which, by and large, has no red lines for India.

Significantly, the agreement takes care of Pakistani concerns also as it stipulates that India would be given only low-enriched uranium so that the spent fuel cannot be diverted to military and strategic programmes.

A good news from the Indian perspective is that the agreement is silent on the sensitive question of what happens to the deal if India were to conduct fresh nuclear weapon tests.

However, one clause of the pact says: “Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and licence requirements concerning the use of nuclear energy for peaceful purposes.” This can be seen as an indirect warning for India.

The clause can be interpreted to mean that the Hyde Act, which entails automatic suspension of civil nuclear cooperation between India and the US, will apply if New Delhi conducts a nuclear test. In case India conducts a nuclear test in response to a test by Pakistan or China, the US will take into account the changed security environment. Washington will also help India develop a strategic fuel reserve and will give special priority to fuel supplies in order to ensure uninterrupted operations of Indian reactors.

The 123 Agreement means that the days of nuclear apartheid for India are going to be over once it gets operationalised. And this will happen without India having to compromise on its ongoing strategic programme, a kind of “eat the cake and have it too” situation for New Delhi.

The pact, named after Section 123 of the US Atomic Energy Act which will re-open doors of global civil nuclear trade for India, makes it unambiguously clear that India’s military nuclear facilities will not be bound by this deal. The operating agreement goes one step further, allowing India to reprocess spent fuel under the supervision of the International Atomic Energy Agency (IAEA). The US has also promised help in getting India a clearance from the Nuclear Suppliers Group, and negotiate permanent safeguards with IAEA.

The deal means that Indian nuclear trade will skyrocket and the big-wigs of the world’s nuclear industry will make a beeline to India for the $100 billion market it is likely to throw open for five years after its operationalisation. This will significantly boost the share of nuclear power in Indian energy mix in the coming years. In this context, work on the four nuclear reactors that Russia recently pledged to construct in India will start soon. Coupled with this is the recent declaration of intent by Australia, which holds the world’s largest uranium reserves, to sell uranium to India.

The 123 pact gives India the right to reprocess US-origin spent fuel. New Delhi’s obligation will be that it will place 14 civilian reactors under international safeguards. The pact will be valid for 40 years and extendable every 10 years.

“This agreement shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this agreement for their own purposes,” says clause 4 of Article 2 of the 123 pact.

The pact gives the US the right to seek return of nuclear fuel and technology sold to India in case of the termination of civil nuclear cooperation. However, in such a scenario, Washington will have to compensate New Delhi promptly for the “fair market value thereof” and the costs incurred as a consequence of such removal. But even in the event of termination of the pact, fuel supplies to Indian safeguarded reactors will not be affected, the pact says.

The US will support an Indian effort to develop “a strategic reserve of nuclear fuel” to guard against any disruption of supply over the lifetime of India’s reactors and will join India in seeking to negotiate with the International Atomic Energy Agency (IAEA) an “India-specific fuel supply agreement”.

“If despite these arrangements, a disruption of fuel supplies to India occurs the US and India will jointly convene a group of friendly supplier countries such as Russia, France and the UK to pursue such measures as would restore fuel supply to India,” says clause 6 of Article 5 of the 123 pact.

The US has also assured India that it “will work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to fuel supplies from firms in several nations”.

The 22-page document provides for termination of the nuclear cooperation with one-year notice period. But prior to that the two sides will hold consultations on the circumstances, including “changed security environment”.

Before the agreement is terminated, the two countries “shall consider the relevant circumstances and promptly hold consultations to address the reasons cited by the party (country) seeking termination”, it says.

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Hyde Act not violated: US
Ashish Kumar Sen writes from Washington

The US-India civilian nuclear agreement does not violate the spirit of the Hyde Act, according to a top Bush administration official. “That’s absolutely false,” said under secretary of state R. Nicholas Burns, addressing concerns that US assurances to help India find other sources of fuel in the event of it conducting a nuclear weapons test would violate the spirit of the Hyde Act that approved the deal in principle.

In an interview with the Council on Foreign Relations, Burns said, “I negotiated the agreement and we preserved intact the responsibility of the President under the Atomic Energy Act of 1954 that if India or any other country conducts a nuclear test, the President - he or she at that time in the future - will have the right to ask for the return of the nuclear fuel or nuclear technologies that have been transferred by American firms.” He added that right ”is preserved wholly in the agreement.”

Analysts say the big question is what the Americans can practically take back should it exercise its right to return. “On one hand they may exercise their rights to do so - on the other they may not want to,” said a think tank source, referring to an amendment introduced last year by Senate majority leader Harry Reid, a Nevada Democrat, who sought to prevent the dumping of spent nuclear fuel in the United States.

Both India and the United States released the complete text of the so-called 123 Agreement on Friday. The agreement, which took two years and two days to negotiate, gets its name from the section of a US act that governs nuclear agreements between the United States and another country.

Discussing a major “sticking point” in 123 Agreement negotiations, Burns said the US thought “very carefully about whether or not we should confer reprocessing consent rights, as it’s called, on the Indians.”

The US eventually agreed to do so because of two factors. “Number one, the Indians offered and have now agreed to construct a state-of-the-art processing facility and all the foreign fuel shipped into India will go through that plant to be reprocessed. It will be fully safeguarded by the IAEA (International Atomic Energy Agency), fully transparent and monitored by the IAEA. That will give the entire international community an abundance of reassurance that there is no diversion to the weapons program,” Burns said. And secondly, “US law states that while we can promise reprocessing consent rights, we have to negotiate a subsequent agreement. We will do that and Congress will have the right to review that agreement.”

Asked if the deal addressed US concerns that India would support efforts to press Iran to abandon its suspected nuclear weapons programme, Burns said, “This is a technical agreement of the type that we’ve done with Japan, Russia, China, and the European Union in the past, so it doesn’t speak to political issues in the text of the agreement.”

Burns pointed out that the US has been “very actively involved in counselling the Indian government that they should remain with the rest of the international community in arguing to the Iranians that they should not become a nuclear weapons power, number one.” He also hoped “very much that India will not conclude any long-term oil and gas agreements with Iran.”

“The Indians, as you know, have voted with us at the International Atomic Energy Agency board of governors against Iran on two occasions. And so I trust the Indians will maintain this policy of not in any way, shape, or form assisting the Iranian government in its nuclear plans, and in giving the right advice to the Iranian government that we would expect any democratic country to give,” he said.

India’s Ambassador to the United States, Ronen Sen, told this correspondent India has “taken independent positions on Iran at the International Atomic Energy Agency and has implemented UN Security Council resolutions.”

“However, unless people are convinced - both here and in India - that this agreement stands on its own merits and is of mutual benefit, it is not going to last,” Sen said, adding, “Linking this agreement with any other issue - today it may be Iran, tomorrow it can be some other issue - will be completely counter-productive. It would be totally unrealistic to expect a large and vibrant democracy like India to give up its independence of judgement and action. The sooner this is realized the better.”

Burns was hopeful that Congress would vote on the deal when it returns from its month-long August recess.

He hoped the vote would “mirror the Hyde Act vote which was, of course, an overwhelming vote in favor of India and the United States by Congress.”

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