India - IAEA - Part - II

My earlier post on IAEA had evoked quiet a few responses to which I replied to as well. I think it would be in better perspective to put those comments as a seperate post in itself as they are not only a continuation of the earlier post but as well as my reflections on the issue, though not purely legal. So here goes.

Abhinav Goel said...
is this the only post u;ve written about the nuclear deal on ur blog or was there anything else i missed too..? also,the hyde act/law whatever.. doesn't that grant the US too much power to act against India if it does use the nuclear stuff for military purposes. also, if we just need to buy uranium etc, why do we have to lick US boots for that? why can;t we just buy them from iran, china, russia etc.. on the other hand, if US congress passes the deal, aren;t they afraid that india might just turn out to be another iran? how is india diff from iran such that it is granted a special status? shouldn't india thus sign the NPT to establish itself as a serious contender for nuclear energy? and how can we be sure that pakistan won't follow suit, atleast to obtain the nuclear stuff from US?sorry mate, just got tired of sitting at work and doing nothing.. :P
09 December 2007 16:29

Tarun Jain said...
hey nothing to be sorry about. in fact i really would like to give a suitable solution to your queries.

1. my earlier post was this http://legalperspectives.blogspot.com/2007/12/indian-nuclear-dilemma.html.

2. you can read the Indo-US agreement at http://www.state.gov/r/pa/prs/ps/2007/aug/90050.htm

3. the law made by US on this agreement (the Hyde Act) can be found here http://www.theorator.com/bills109/hr5682.html

4. As for the issue whether US has too much power under this Hyde Act, I do not think so. Legally, as this is based upon an international trade, US can at the most suspend the agreement or revoke it or invoke dispute settlement measures. It cannot go beyond that.

5. Even if India goes beyond the agreement and conducts nuclear tests in future, there is no right on US, under this Agreement atleast to initiate proceedings against India.

6. However, there is a right with US, being a permanent member of Security Council of the UN, to bring the matter to be decided by the Security Council (as it did in case of Afghanistan and Iraq) and deal with the matter accordingly.

7. As regards buying Uranium with other countries, most of the suppliers of uranium have signed CTBT.[check this for details], there is an agreement between the nuclear suppliers group not to supply uranium or other fissionable material to non-group members. So there is a problem obtaining nuclear material from them. Further the problem is also complimented by the fact that US as a dictator of world political power keeps a tab on these countries from supplying uranium etc. against its wishes. I don't say here that it is correct or wrong, but the fact has to be acknowledged.

8. as regards the deal, its not just the question of buying uranium, its the question of getting technological aid to develop our own nuclear reactors which can guarantee us an uninterrupted supply of energy. The issue of uranium is only a meagre one. the energy needs are the main thrust and reason for this deal.

9. as regards the fear for India turning another Iran, i think its whimsical. the trade position which India occupies and the only strategic option available with US in Asia, in case it is required to take on China and Pakistan, makes US always take a stand on the better side of India. further, the Indian lobby in the US congress is really strong. So there does not seem any possibility of such a situation.

10. as far as ur comparison of India with Iran is concerned, i think that is based upon an incorrect premise. the reason is that India is being required of to enter into the agreement with IAEA only because of the reason that it is not a signatory to CTBT. Had India been one, this IAEA requirement would not have been imposed under the US nuclear deal. But it seems like India is opposed to the CTBT because of many factors, the intricacies of which I am not sure as of now but this much is sure that India does not look forward to signing the treaty in near future. (dont ask me why, as i dont know the reason)

11. as regards ensuring pakistan not following the suit, i dont think that is legally possible. every country is sovereign and legally equaly. so to ensure that some other country does not do what we dont want it to do, is really a political and practical question, not a legal one!!!

09 December 2007 16:56

Sanatanan said...
Hi Tarun Jain, Your readers and yourself may like peruse http://sanatanan.blogspot.com/2007/09/india-and-bush-doctrine_6698.html where I have given my reasons as to why India must walk away from the deal.

Mere addition of about six or eight thousand MWe through imported reactors is not going to solve the "projected" energy problem. As many others have already pointed out, energy security does not lie in importing fuel. It only comes with technological strength - India must be able to sell nearly as many dollars worth of high-technology products as it imports.

According to me, the real reason why DAE is now pushing for the deal is that they think it might give them a way out of their inability to take indigenisation of critical equipment and items required for a modern nuclear power plant, any further than at present (when a rather "porous" technology control regime imposed by US/NSG is in force). They have shouted themselves hoarse all this while about their ability to build nuclear power plants indigenously in spite of denial of supply of critical items and technologies by the US and NSG. The real truth seems to be otherwise and so they are desperately looking to finalise this deal before the screw is tightened any further by US/NSG. If the deal goes through we may very well see that all "post-deal" nuclear power plants that India builds (including FBRs, PHWRs and AHWRs) will be "categorised" as "civilian" so as make them eligible to receive imported designs, components, equipment and systems.

The best strategy, according to me, is for India to pursue with greater vigour the pre-deal self–reliance oritented path it has followed over the last 50 or so years and stay away from the temptation to seek quick-fix solutions which are detrimental to our country's long-term interests.

Regards

Sanatanan
09 December 2007 19:52

Tarun Jain said...
well Sanathanan, really nice piece of thought on your blog. I thought of putting the reply there but since you wrote, it was in this perspective that I am replying here. Hope thats fine with you. I have a lot to say on the link you posted and also on your comment.

Firstly, i liked the title 'Views on development of technologies in India for nuclear electricity generation'. I am not much of a scientist but a lawyer and therefore not an expert on policy planning for meeting energy needs of India in the forthcoming times. I had only made a legal analysis of the agreement and its implications. but since that you have put in the practical side of things, i feel it relevant to put my thoughts on that.

i just want to put a few propositions in picture. let us say the deal was finalized with Russia instead of US. would there have been so much hullabaloo. I dont think so. since our independence most of our defense technology has been borrowed from Russia. the MIGs we fly are made with their support. the ships our navy carries is made with their aid. where was our self-pride when Nehru decided to choose Russia instead of US for a relationship, which we have been maintaining since.

And if borrowing from Russia is correct, practically speaking there should not be a problem with borrowing from US. so much for the indigenous-development argument.

further i would like to point out that the rate of growth with self-development is not the same as the rate of growth with a strategic alliance. remember India took about a decade to build a super-computer of its own. I am not against this self-development part but the thing is, I am being practical. you no doubt (I think) would agree that Indian economy is growing fast. here sitting in London I can tell that the approach to Indian markets is one of booming sector. And no doubt any nationalist would be hurt if we cannot translate our vision of India making a developed country by 2020 unless we maintain this pace of growth.

our success till date has not been by avoiding competition but by making competition as a reason to strive and go ahead. remember there was a "swadeshi-drive" long back (i suppose starting of 1990s) when we actually stopped using imported stuff etc. a way of development by confinement. but when we opened our markets, we faced competition. dwindled a bit and then came back to hit them hard. and now we have overtaken.

there is no reason to assume, therefore, that if we take aid now, we will never be able to develop in future. there is no reason to have such low faith in Indian intellect. we will learn from this interaction and support we reach and bring out our own products which will no doubt be superior. I am really proud of my country that it has suffered so much, always to come back resoundedly.

As regards as your argument of quick-fix, I don't agree with your view. The thing is, if you analyze the joint-statement and 123 Agreement correctly, there is no such commitment of part of either US or India that US will go a long way to provide assistance to India. there is no such thing in that.Its purely upon India to decide how much and when does it want what. I think we got to respect the judgment of the Indian scientist community on that, that they will act in the best interests of the country and act in a manner which is not only conducive of India's development plan but is also meeting the India's existing energy needs.

when the majority of Indian intellectual group had publicly come out in support of the deal, there is no reason for us lesser mortals (atleast in the field where they are experts and we are novices) to hold that this would be bad for India's interests. I really acknowledge that this does not mean we do not carry opinions on the issue or dont put our views on the perspective but I only mean that we do not carry the capacity to possess superior judgmental skills on that count.

as a lawyer's perspective and from a nationalist citizen(but surely not a politician), I think the deal is really a good one to go by and would only be a milestone for India's path to growth and development.
10 December 2007 00:39

ruthwik said...
Having read tarun's post and the responses entailed by the same there arise certain views of my own. There are however certain facts one needs to remind themselves of.

Firstly the cooperation between India and the US in the nuclear arena is definitely a big step forward for India especially in the backdrop of the India's nuclear tests conducted in 1998. At a time when India was heavily criticized for conducting the tests and consequently heavy sanctions imposed by several developed nations, such a deal with US is surely a turnaround for India. The need for the deal however arises from the fact that India does not have necessary reserves of Uranium and other Elements that can be used to run nuclear reactors efficiently. Hence India has to look outside its borders for fuel to run its reactors.

Secondly, if one would recollect, the deal that now has become the epicenter of discussions in the parliament, was reached after much deliberation by both India and the US. Both countries had overcome many disagreements before the actual deal was reached. One such disagreement between the parties was on the separation of nuclear plants. India at present has 22 functioning nuclear reactors many of which are used for peaceful energy needs and some used for military and strategic purposes. Some of these reactors are used both for Civilian and Military purposes. On March 03, 2006, both countries reached a deal whereby the Fast Breeder Reactor programme which India has developed indigenously and 35% of Nuclear Capacity shall be out of IAEA safeguards. IAEA safeguards are necessary because India is neither a party to the CTBT (Comprehensive Test Ban Treaty) nor NPT (Nuclear Non-Proliferation Treaty).

Another aspect that needs to be considered is that the nuclear deal in its text does not mention that India should not conduct nuclear tests or should not continue with research in the nuclear field for strategic purposes.

Keeping these points in view one cannot say that it is an agreement that acts only in the benefit of the US. And it is also not a stop-gap solution to counter problems with indigenization of technology in the country as pointed out by one of the members above. On a neutral note the agreement is surely a well conceived one and will pave way for future cooperation with other nations in the very rigid nuclear market and help India in harnessing a cleaner fuel.
12 December 2007 14:57

[the original posts can be viewed by clicking here]