D
Dr. Jai Maharaj
Guest
Mediawatch
The 123 Agreement: An analysis
By M. D. Nalapat
THE ORGANISER
Page 7/45
September 16, 2007 issue
Safeguards will in all likelihood be numerous and
intrusive, in conformity to those offered to non-nuclear
weapon states, and in perpetuity without any similar
commitment on the part of the US in ensuring uninterrupted
fuel supplies over the lifetime of the purchased reactors.
A few palliative statements about joint research and
development are included but continue to be restricted to
the narrow scope of the Hyde Act and other existing US
legislation and therefore do not substantially alter the
situation concerning collaborative ventures possible even
today.
Of the other promises made to India, that of "full" nuclear
co-operation has not been kept. The 123 Agreement expressly
excludes dual-use processes as well as technologies related
to reprocessing, heavy water production and major critical
components connected with such facilities.
A cursory reading of the 123 Agreement reveals a document
deliberately loosely- worded so as to leave itself open to
multiple interpretations. More than the formulations that
it contains, however, the proposed bi-lateral deal is a
masterpiece of purposeful omission. It is a well known
legal practice that when a particular agreement is
contested, interpretations will be made in consonance with
the specific laws that govern it. In this context, separate
from the wording of the 123 Agreement, India's acceptance
of any Agreement automatically implies acceptance of the
Hyde Act and its attendant requirements.
Before attempting to go into what is omitted, it is
worthwhile to consider what it actually contains. As it
stands, the draft 123 Agreement is an understanding
intended primarily to facilitate the import of foreign
nuclear reactors with foreign uranium fuel and aspects of
associated technologies that are allowed under the Hyde Act
and the US Atomic Energy Act. All imports will be under the
watchful monitoring of the IAEA including US, Chinese and
other inspectors who can roam our facilities following
"consultations" -- in this case a euphemism for invoking
the relevant verification mechanisms provided through the
Hyde Act . Safeguards will in all likelihood be numerous
and intrusive, in conformity to those offered to non-
nuclear weapons states, and in perpetuity without any
similar commitment on the part of the US in ensuring
uninterrupted fuel supplies over the lifetime of the
purchased reactors. A few palliative statements about joint
research and development are included but continue to be
restricted to the narrow scope of the Hyde Act and other
existing US legislation and therefore do not substantially
alter the situation concerning collaborative ventures
possible even today. Indeed, the import of foreign reactors
and fuel remains the only certainty that this Agreement
gives. However, in exchange, the costs are far out of
proportion to the benefits of sticking to tested indigenous
technologies.
Of the other promises made to India, that of "full" nuclear
co-operation has not been kept. The 123 Agreement expressly
excludes dual-use processes as well as technologies related
to reprocessing, heavy water production and major critical
components connected with such facilities. Under the
current writing, Section 5.2 states that "sensitive nuclear
technology, heavy water production technology, sensitive
nuclear facilities, heavy water production facilities and
major critical components of such facilities may be
transferred under this agreement pursuant to an amendment
to this agreement." If indeed such an amendment is
possible, it is an open question as to why it couldn't have
become a part of this writing since both leaders have
promised "full" cooperation.
With respect to reprocessing, the same section further
states that "transfers of dual-use items that could be used
in enrichment, reprocessing or heavy water production
facilities will be subject to the parties' respective
applicable laws, regulations and license policies." Under
the US Atomic Energy Act, it is amply clear that such
technologies will not be shared with India. In fact,
Article 6(iii) clearly states that the right to reprocess
will only be given following the dedication of a special
facility, presumably at Indian expense.
The most likely scenario would be that India will get
sucked into the inequitious GNEP (Global Nuclear Energy
Partnership) initiative as a "recipient" nation and make
itself a willing receptable to the "supplier" countries
willing to dump their toxic waste. Where the US Congress
itself has refused to place faith in the cost-effective
viability of such a venture in that advanced and wealthy
country, the dedicated Indian re-processing facility will
serve as a useful test case, all at our expense. According
to Manmohan Singh, India has been given "prior consent" to
re-process spent fuel. Neither the words nor the intent are
however reflected in the 123 Agreement.
Another marked deviation from promises made to the Indian
people is the promise of uninterrupted fuel over the
lifetime of imported reactors in exchange for safeguards in
perpetuity as set out in the separation plan of 2006 and as
promised by George bush during his official visit in March
last year. Seen as the deal clincher then, this significant
departure from what has been agreed may be seen in the
context of the Indian government substantially changing its
earlier position where the Hyde Act was dismissed as
internal US legislation and non-binding on India, to having
acknowledged that it is in fact the governing legislation.
Having accepted the rigidly constraining parameters of the
Hyde Act and other internal US legislation, India has had
no option but to give up assurances for life-time fuel
supplies since the request was specifically discussed and
struck down by the US Congress before passing the Hyde Act.
This has been adequately detailed in the writings of Dr. A.
Gopalakrishnan and we will not deal with it here. However,
with the US retaining a unilaterally enforceable right of
termination followed by the right of return, the future of
strategic fuel reserves that the US seeks to assist India
in maintaining also remain questionable and may possibly
become a matter for "consultation". It is likely that these
reserves will be reduced to an amount "commensurate with
reasonable reactor operating requirements" as provided for
under Section 103(b)(10) of the Hyde Act. At any rate,
there is no fail-safe built in to safeguard future uranium
fuel supplies or reserves.
Next is the contention that India's right to test remains
intact since it is not explicitly mentioned in the text of
the 123. Most worryingly, what is contained is an entire
section warning India of the serious and extreme
consequences of precisely this through the use of
euphemisms. Where the UPA government has touted the absence
of an explicit statement to the effect as a victory for
India -- (it is indeed a minor victory) -- while repeatedly
stating that the US was not insisting on a bi-laterally
enforceable moratorium on nuclear tests, they have chosen
to overlook that the fact that such loose wording may be
interpreted to include any act of non-cooperation by India
upon which the US reserves the unilateral right to suspend
cooperation and introduce sanctions. This could include
India being shy about "isolating, containing and
sanctioning" Iran, not toeing the line of the PSI (having
already agreed to its precursor, the container security
initiative) Australia Group etc and any and all future
American whims and fancies that are often thinly disguised
as "foreign policy" but enshrined in the Hyde Act. The
concession made is that through "consultations" the exact
nature of forthcoming sanctions could be delayed or waived,
but the course of action would be ultimately governed by
the Hyde Act and India would have to rely on the good
offices of future US leaders. Apart from sanctions and in
the event of a suspension of exports to India, the right of
return clause (solely applicable to NNWS under the US
Atomic Energy Act and therefore not applicable to China)
includes compensation to India at "fair market value" for
the items returned including costs. This is a joke, for the
compensation will only be for the much lower costs of the
fuel supply, rather than the huge price of the reactor
itself which India would have imported at a substantial
value addition over indigenous technology.
Coming back to the exclusion of this point from the 123
agreement and the apparent confidence with which both sides
believe the Agreement will find favour with US Congress,
the change of sequencing must be addressed. In yet another
departure from the promises made to the Indian Parliament,
Manmohan Singh in his new found acceptance of the supremacy
of the Hyde Act and its dictates, has paved the way for us
to negotiate India-specific safeguards with the IAEA and
get an "unconditional exemption" from the NSG, prior to
final US approval. Quite apart from the duplicity of such
an act, it appears that this move is quite consistent with
the plan of action that appears to be unfolding. It appears
that if required, the USS will work through the NSG (and
the IAEA) to fulfill what has been set out in the Hyde Act
-- the roll-back and termination of India's military
programme to fulfill non-proliferation requirements. It is
feared that the NSG may insist upon India agreeing to the
FMCT and the MCTR as a condition for allowing international
trade in civilian nuclear materials. Without a contingency
plan in place and having agreed to the 123, India would
find it hard not to accept such terms. Manmohan Singh could
then throw up his hands before the Indian parliament and
state that where the 123 Agreement met his commitments
(although the truth is far from this) India had no choice
but to follow through on NSG requirements. This fait
accompli would assist the US Congress in making a
determination that the terms when taken together are
consistent with the enabling legislation and may pass their
vote in favour. India will be left with a loosely worded
123 Agreement furiously negotiated in 5-days with no
obvious legal help, while subscribing to the alphabet soup
in toto without an exit clause. Indeed, the only way out
would be if India had the gumption to pass legislation
retroactively at a future date cancelling the effect of the
123 Agreement and attendant incursions into sovereignty
knowing full well that we will be bound by the one-year
termination notice and attendant clauses as agreed. This
would appear to be highly unlikely especially after we have
commenced purchases. A more suitable plan of action would
be to defer implementing the 123 Agreement until all terms
are met. Such a course, for reasons that are not clear,
seems anathema to Sonia Gandhi's men.
In fact, the only right India has retained through the 123
Agreement is the right to terminate albeit without any
recourse to other remedies. This is perhaps the most
telling aspect of the entire writing, putting India
squarely in the position of a recipient nation rather than
a future supplier nation, putting us at a huge disadvantage
even in comparison with the present. Any wording seeking to
grant equality as two states possessing advanced technology
is negated through such implications. In fact the absence
of suitable legal phrasing to make the deal more equal is
noticeably lacking throughout the documentv .
It comes as no surprise that what remains unmentioned
throughout the entire debate is that the impractical and
ruinously expensive separation plan that Sonia and her team
have forced down the throat of the Indian scientific
establishment as already been revised in the course of the
above saga -- a fact that the Prime Minister is unlikely to
reveal. That we have agreed to safeguards in perpetuity
without assurances of permanent fuel supplies strikes at
the very root of the principles that guided the separation
of Indian facilities. It is also clear that contrary to
attestations by the AEC Chairman and other bureaucrats, all
future breeder reactors will fall under these safeguards.
Hence, the technology developed by us will become known to
our comnpetitors, especially in the absence of suitable
changes in Indian law to protect the intellectual property
rights of the processes developed by our scientists
As Sonia Gandhi drives her government towards taking the
decisions required to effectively endorse the FMCT and
other three and four letter acronyms all signifying the
emasculation of nuclear India, the thorium programme and
the security it offers may forever remain a distant dream,
as also the prospect of an adequate nuclear deterrent .
Meanwhile, while India gets hobbled, China gives Pakistan
wings.
More at:
http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=201&page=7
Jai Maharaj
http://tinyurl.com/24fq83
http://www.mantra.com/jai
http://www.mantra.com/jyotish
Om Shanti
Hindu Holocaust Museum
http://www.mantra.com/holocaust
Hindu life, principles, spirituality and philosophy
http://www.hindu.org
http://www.hindunet.org
The truth about Islam and Muslims
http://www.flex.com/~jai/satyamevajayate
o Not for commercial use. Solely to be fairly used for the educational
purposes of research and open discussion. The contents of this post may not
have been authored by, and do not necessarily represent the opinion of the
poster. The contents are protected by copyright law and the exemption for
fair use of copyrighted works.
o If you send private e-mail to me, it will likely not be read,
considered or answered if it does not contain your full legal name, current
e-mail and postal addresses, and live-voice telephone number.
o Posted for information and discussion. Views expressed by others are
not necessarily those of the poster who may or may not have read the article.
FAIR USE NOTICE: This article may contain copyrighted material the use of
which may or may not have been specifically authorized by the copyright
owner. This material is being made available in efforts to advance the
understanding of environmental, political, human rights, economic,
democratic, scientific, social, and cultural, etc., issues. It is believed
that this constitutes a 'fair use' of any such copyrighted material as
provided for in section 107 of the US Copyright Law. In accordance with Title
17 U.S.C. Section 107, the material on this site is distributed without
profit to those who have expressed a prior interest in receiving the included
information for research, comment, discussion and educational purposes by
subscribing to USENET newsgroups or visiting web sites. For more information
go to: http://www.law.cornell.edu/uscode/17/107.shtml
If you wish to use copyrighted material from this article for purposes of
your own that go beyond 'fair use', you must obtain permission from the
copyright owner.
The 123 Agreement: An analysis
By M. D. Nalapat
THE ORGANISER
Page 7/45
September 16, 2007 issue
Safeguards will in all likelihood be numerous and
intrusive, in conformity to those offered to non-nuclear
weapon states, and in perpetuity without any similar
commitment on the part of the US in ensuring uninterrupted
fuel supplies over the lifetime of the purchased reactors.
A few palliative statements about joint research and
development are included but continue to be restricted to
the narrow scope of the Hyde Act and other existing US
legislation and therefore do not substantially alter the
situation concerning collaborative ventures possible even
today.
Of the other promises made to India, that of "full" nuclear
co-operation has not been kept. The 123 Agreement expressly
excludes dual-use processes as well as technologies related
to reprocessing, heavy water production and major critical
components connected with such facilities.
A cursory reading of the 123 Agreement reveals a document
deliberately loosely- worded so as to leave itself open to
multiple interpretations. More than the formulations that
it contains, however, the proposed bi-lateral deal is a
masterpiece of purposeful omission. It is a well known
legal practice that when a particular agreement is
contested, interpretations will be made in consonance with
the specific laws that govern it. In this context, separate
from the wording of the 123 Agreement, India's acceptance
of any Agreement automatically implies acceptance of the
Hyde Act and its attendant requirements.
Before attempting to go into what is omitted, it is
worthwhile to consider what it actually contains. As it
stands, the draft 123 Agreement is an understanding
intended primarily to facilitate the import of foreign
nuclear reactors with foreign uranium fuel and aspects of
associated technologies that are allowed under the Hyde Act
and the US Atomic Energy Act. All imports will be under the
watchful monitoring of the IAEA including US, Chinese and
other inspectors who can roam our facilities following
"consultations" -- in this case a euphemism for invoking
the relevant verification mechanisms provided through the
Hyde Act . Safeguards will in all likelihood be numerous
and intrusive, in conformity to those offered to non-
nuclear weapons states, and in perpetuity without any
similar commitment on the part of the US in ensuring
uninterrupted fuel supplies over the lifetime of the
purchased reactors. A few palliative statements about joint
research and development are included but continue to be
restricted to the narrow scope of the Hyde Act and other
existing US legislation and therefore do not substantially
alter the situation concerning collaborative ventures
possible even today. Indeed, the import of foreign reactors
and fuel remains the only certainty that this Agreement
gives. However, in exchange, the costs are far out of
proportion to the benefits of sticking to tested indigenous
technologies.
Of the other promises made to India, that of "full" nuclear
co-operation has not been kept. The 123 Agreement expressly
excludes dual-use processes as well as technologies related
to reprocessing, heavy water production and major critical
components connected with such facilities. Under the
current writing, Section 5.2 states that "sensitive nuclear
technology, heavy water production technology, sensitive
nuclear facilities, heavy water production facilities and
major critical components of such facilities may be
transferred under this agreement pursuant to an amendment
to this agreement." If indeed such an amendment is
possible, it is an open question as to why it couldn't have
become a part of this writing since both leaders have
promised "full" cooperation.
With respect to reprocessing, the same section further
states that "transfers of dual-use items that could be used
in enrichment, reprocessing or heavy water production
facilities will be subject to the parties' respective
applicable laws, regulations and license policies." Under
the US Atomic Energy Act, it is amply clear that such
technologies will not be shared with India. In fact,
Article 6(iii) clearly states that the right to reprocess
will only be given following the dedication of a special
facility, presumably at Indian expense.
The most likely scenario would be that India will get
sucked into the inequitious GNEP (Global Nuclear Energy
Partnership) initiative as a "recipient" nation and make
itself a willing receptable to the "supplier" countries
willing to dump their toxic waste. Where the US Congress
itself has refused to place faith in the cost-effective
viability of such a venture in that advanced and wealthy
country, the dedicated Indian re-processing facility will
serve as a useful test case, all at our expense. According
to Manmohan Singh, India has been given "prior consent" to
re-process spent fuel. Neither the words nor the intent are
however reflected in the 123 Agreement.
Another marked deviation from promises made to the Indian
people is the promise of uninterrupted fuel over the
lifetime of imported reactors in exchange for safeguards in
perpetuity as set out in the separation plan of 2006 and as
promised by George bush during his official visit in March
last year. Seen as the deal clincher then, this significant
departure from what has been agreed may be seen in the
context of the Indian government substantially changing its
earlier position where the Hyde Act was dismissed as
internal US legislation and non-binding on India, to having
acknowledged that it is in fact the governing legislation.
Having accepted the rigidly constraining parameters of the
Hyde Act and other internal US legislation, India has had
no option but to give up assurances for life-time fuel
supplies since the request was specifically discussed and
struck down by the US Congress before passing the Hyde Act.
This has been adequately detailed in the writings of Dr. A.
Gopalakrishnan and we will not deal with it here. However,
with the US retaining a unilaterally enforceable right of
termination followed by the right of return, the future of
strategic fuel reserves that the US seeks to assist India
in maintaining also remain questionable and may possibly
become a matter for "consultation". It is likely that these
reserves will be reduced to an amount "commensurate with
reasonable reactor operating requirements" as provided for
under Section 103(b)(10) of the Hyde Act. At any rate,
there is no fail-safe built in to safeguard future uranium
fuel supplies or reserves.
Next is the contention that India's right to test remains
intact since it is not explicitly mentioned in the text of
the 123. Most worryingly, what is contained is an entire
section warning India of the serious and extreme
consequences of precisely this through the use of
euphemisms. Where the UPA government has touted the absence
of an explicit statement to the effect as a victory for
India -- (it is indeed a minor victory) -- while repeatedly
stating that the US was not insisting on a bi-laterally
enforceable moratorium on nuclear tests, they have chosen
to overlook that the fact that such loose wording may be
interpreted to include any act of non-cooperation by India
upon which the US reserves the unilateral right to suspend
cooperation and introduce sanctions. This could include
India being shy about "isolating, containing and
sanctioning" Iran, not toeing the line of the PSI (having
already agreed to its precursor, the container security
initiative) Australia Group etc and any and all future
American whims and fancies that are often thinly disguised
as "foreign policy" but enshrined in the Hyde Act. The
concession made is that through "consultations" the exact
nature of forthcoming sanctions could be delayed or waived,
but the course of action would be ultimately governed by
the Hyde Act and India would have to rely on the good
offices of future US leaders. Apart from sanctions and in
the event of a suspension of exports to India, the right of
return clause (solely applicable to NNWS under the US
Atomic Energy Act and therefore not applicable to China)
includes compensation to India at "fair market value" for
the items returned including costs. This is a joke, for the
compensation will only be for the much lower costs of the
fuel supply, rather than the huge price of the reactor
itself which India would have imported at a substantial
value addition over indigenous technology.
Coming back to the exclusion of this point from the 123
agreement and the apparent confidence with which both sides
believe the Agreement will find favour with US Congress,
the change of sequencing must be addressed. In yet another
departure from the promises made to the Indian Parliament,
Manmohan Singh in his new found acceptance of the supremacy
of the Hyde Act and its dictates, has paved the way for us
to negotiate India-specific safeguards with the IAEA and
get an "unconditional exemption" from the NSG, prior to
final US approval. Quite apart from the duplicity of such
an act, it appears that this move is quite consistent with
the plan of action that appears to be unfolding. It appears
that if required, the USS will work through the NSG (and
the IAEA) to fulfill what has been set out in the Hyde Act
-- the roll-back and termination of India's military
programme to fulfill non-proliferation requirements. It is
feared that the NSG may insist upon India agreeing to the
FMCT and the MCTR as a condition for allowing international
trade in civilian nuclear materials. Without a contingency
plan in place and having agreed to the 123, India would
find it hard not to accept such terms. Manmohan Singh could
then throw up his hands before the Indian parliament and
state that where the 123 Agreement met his commitments
(although the truth is far from this) India had no choice
but to follow through on NSG requirements. This fait
accompli would assist the US Congress in making a
determination that the terms when taken together are
consistent with the enabling legislation and may pass their
vote in favour. India will be left with a loosely worded
123 Agreement furiously negotiated in 5-days with no
obvious legal help, while subscribing to the alphabet soup
in toto without an exit clause. Indeed, the only way out
would be if India had the gumption to pass legislation
retroactively at a future date cancelling the effect of the
123 Agreement and attendant incursions into sovereignty
knowing full well that we will be bound by the one-year
termination notice and attendant clauses as agreed. This
would appear to be highly unlikely especially after we have
commenced purchases. A more suitable plan of action would
be to defer implementing the 123 Agreement until all terms
are met. Such a course, for reasons that are not clear,
seems anathema to Sonia Gandhi's men.
In fact, the only right India has retained through the 123
Agreement is the right to terminate albeit without any
recourse to other remedies. This is perhaps the most
telling aspect of the entire writing, putting India
squarely in the position of a recipient nation rather than
a future supplier nation, putting us at a huge disadvantage
even in comparison with the present. Any wording seeking to
grant equality as two states possessing advanced technology
is negated through such implications. In fact the absence
of suitable legal phrasing to make the deal more equal is
noticeably lacking throughout the documentv .
It comes as no surprise that what remains unmentioned
throughout the entire debate is that the impractical and
ruinously expensive separation plan that Sonia and her team
have forced down the throat of the Indian scientific
establishment as already been revised in the course of the
above saga -- a fact that the Prime Minister is unlikely to
reveal. That we have agreed to safeguards in perpetuity
without assurances of permanent fuel supplies strikes at
the very root of the principles that guided the separation
of Indian facilities. It is also clear that contrary to
attestations by the AEC Chairman and other bureaucrats, all
future breeder reactors will fall under these safeguards.
Hence, the technology developed by us will become known to
our comnpetitors, especially in the absence of suitable
changes in Indian law to protect the intellectual property
rights of the processes developed by our scientists
As Sonia Gandhi drives her government towards taking the
decisions required to effectively endorse the FMCT and
other three and four letter acronyms all signifying the
emasculation of nuclear India, the thorium programme and
the security it offers may forever remain a distant dream,
as also the prospect of an adequate nuclear deterrent .
Meanwhile, while India gets hobbled, China gives Pakistan
wings.
More at:
http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=201&page=7
Jai Maharaj
http://tinyurl.com/24fq83
http://www.mantra.com/jai
http://www.mantra.com/jyotish
Om Shanti
Hindu Holocaust Museum
http://www.mantra.com/holocaust
Hindu life, principles, spirituality and philosophy
http://www.hindu.org
http://www.hindunet.org
The truth about Islam and Muslims
http://www.flex.com/~jai/satyamevajayate
o Not for commercial use. Solely to be fairly used for the educational
purposes of research and open discussion. The contents of this post may not
have been authored by, and do not necessarily represent the opinion of the
poster. The contents are protected by copyright law and the exemption for
fair use of copyrighted works.
o If you send private e-mail to me, it will likely not be read,
considered or answered if it does not contain your full legal name, current
e-mail and postal addresses, and live-voice telephone number.
o Posted for information and discussion. Views expressed by others are
not necessarily those of the poster who may or may not have read the article.
FAIR USE NOTICE: This article may contain copyrighted material the use of
which may or may not have been specifically authorized by the copyright
owner. This material is being made available in efforts to advance the
understanding of environmental, political, human rights, economic,
democratic, scientific, social, and cultural, etc., issues. It is believed
that this constitutes a 'fair use' of any such copyrighted material as
provided for in section 107 of the US Copyright Law. In accordance with Title
17 U.S.C. Section 107, the material on this site is distributed without
profit to those who have expressed a prior interest in receiving the included
information for research, comment, discussion and educational purposes by
subscribing to USENET newsgroups or visiting web sites. For more information
go to: http://www.law.cornell.edu/uscode/17/107.shtml
If you wish to use copyrighted material from this article for purposes of
your own that go beyond 'fair use', you must obtain permission from the
copyright owner.