Indian Nuclear Dilemma

Ok, that I have been asked to write on some flashy topics, one which would entice people to think and comment, I think its good to write on something comtemporary, something which really affects people. So I thought why not the proposed Nuclear Deal with the United States, which though is not really contemporary, but has been affecting the politics of India for quiet some time now and that too in a serious way.

So whats the deal for India? Lets put that in objective terms and discuss the legal implications first;

• It started with the 'Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006' or simply the 'Hyde Act' being passed by the United States Congress (this Act explains the approach of the United States' nuclear program towards India and South Asia as well), which gave the power to the US President to enter into an agreement with India on the aspect of nuclear cooperation. This led to the 123 Agreement that India and United States signed.

• As a lawyer will put it, it is an international treaty, which binds the parties to it in terms of the Vienna Convention on the Law of Treaties (1963). Taking into account the fact that the United States is a monist and India is a dualist state, the ratification by the Congress of the Agreement makes it enforcible as the domestic law of the United States but for making the Agreement as enforcible as the domestic law of India, the Indian Parliament needs to enact a legislation making the Agreement enforcible in India. If both are done, the citizens of United States and India, respectively, can approach the courts for enforcement of the provisions of the Agreement.

• But what if the United State Congress does not ratify or that the Indian Parliament does not enact a legislation to enforce it in India? What implications does it carry? Practically not much, as far as the terms of the Agreement go. The Agreement remains binding on the governments of both India and the United States and both the countries can approach the courts, if they so decide that way, on the failure of others to carry into effect the Agreement (see Article 15 of the 123 Agreement).

So the fact that Indian government has yet been unable to implement the provisions of the Agreement, given the stand-off at the Parliament, is not of any consequence, in so far as the nuances and obligations under the Agreement go.

Now let us analyze what this Agreement does? Why it is so heatedly being debated in India? Is it so badly worded against India or what the hell has gone wrong?

• Article 2 states that "The Parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this Agreement". Therefore whatever may be done by both the countries in this area, can be done only under the framework of the Agreement and not otherwise. [Principle of pacta sunt servanda, which requires an international treaty to be read in good faith and in the context of the treaty]

• But then the same Article 2 provides that the parties remain free in terms of the various measures not agreed upon in the Agreement. It states, "4. The Parties affirm that the purpose of this Agreement is to provide for peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party. Accordingly, nothing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. 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."

• Applying this same reasoning of pacta sunt servanda, it is clear that nuclear and other non-nuclear activities which are worked upon by the two countries are not dictated by either of the two countries. In order to examine the true implication of this provision, let us find out as to what is covered under the Agreement, so that the scope of activities left out from the coverage of the Agreement may be known. It;
• gives India the entitlement to engage in nuclear trade with citizens of US and third countries (sic) via Article 4;
• devises a mechanism for the transfer of nuclear material, non-nuclear material, equipments, components and related technology between the parties (Article 5);
• authorises India to carry out nuclear fuel cycle activities (Article 6) i.e. engage in production of nuclear power;
• allows storage and re-transfer of nuclear material by India (Article 7);
• requires India to maintain physical protection of the fissionable material (Article 8);
• ensure environmental protection (Article 11); et. al.

The key points, or rather the contentious ones seems to be the provisions which oblige India to;

• use the material only for peaceful use, requiring it not to use for nuclear explosive device, for research on or development of any nuclear explosive device or for any military purposes (Article 9);

• subject the materials etc. transferred by the United States to perpetual safeguards, as may be dictated by the IAEA (International Atomic Energy Agency) under an agreement, which India is again obliged to enter (under Article 5.6 of the 123 Agreement) with the IAEA (which in itself is another Pandora's Box altogether);

• So it seems that the nuclear materials, which are not transferred from the United States can be worked upon by India, without subjecting them to IAEA safeguard (therefore, the entire debate that even the private nuclear reactors would be subject to IAEA safeguard is really non est in terms of the Agreement);
• India is liable only to keep an account of the nuclear material transferred by the United States and render it to IAEA. Therefore India is free to negotiate agreements with other countries, notably Russia and Australia which have shown interest to that regard, to keep the materials supplied by them away from IAEA safeguard, and that would be perfectly legitimate in terms of the 123 Agreement;

• both the countries are free to terminate the Agreement by giving a one year's notice (sounds nice but how much really feasible, subject to intense debate); subject to this being done, the 123 Agreement will remain in force for 40 years (Article 16).

Now so what are our political parties cribbing about when;

1. under the Agreement we are guaranteed the supply of nuclear material for 40 years,
2. material which can solve India's growing demands for electricity in a way bigger than conceived,
3. material which can bring India's reliance of fossil fuels on a minimal level, thus also reducing the pollution levels we are encountered with daily,
4. strengthen our economy with improved infrastructure (it all starts from electricity really, which nuclear energy is the best option to provide), and
5. attainable of goals unimaginable as of now, with the smooth and steady ride to development.

when this requires;

1. compromising our sovereignty??? when in today's era sovereignty has already been compromised a lot with institutions like WTO (and EU in the Europe) really dictating terms to the member states;
2. opening our civilian reactors to IAEA safeguards??? but what are we afraid of really: exposing ourselves to using sub-standards technology? I don't think thats a good argument. Today when we are looking forward to making our country a better place to live in, taking advice from an international body with 144 states membership, on how to conduct smart and efficient utilization of resources does not seem to be a bad idea.
3. oh come on man, its US, un-trustworthy !!! Ya right. I don't think its a good time to think with our brains than our hearts. We all know that even the United States would not have engaged itself in this exercise of altering its foreign policy to such a great extent (since the unilateral ban imposed in 1998 when we tested our nuclear facilities for the second time) unless it finds it has got something in return for itself. It is getting a big trading partner, afterall. It wants an Asian giant to deal with the China-factor, which the US is very keen to counter. So the US does have some perspectives for entering into such a deal. But the point for us is that, if we are capable of becoming a huge economy (more than what we really are moving at the current pace), with a slight improvement in the resources we use, I don't really think that the move is unplaced.

Come on people, grow up. When there is no need of a political consensus and its all a self gain exercise (like the Office of Profits bill or over-turning the Supreme Court decision requiring the candidates to declare their assets and give other information at the time of contesting for elections such that the public could get the correct picture of their candidates), the members of our Hon'ble Parliament will always find themselves in consensus.
However whenever there is a national issue which requires the public to think big, and with future in mind (I don't want to open another Pandora's Box here but can't resist from mentioning 'reservation' issue here), they never seem to be on the same boat. Always cribbing (with a hidden motive that the other party will win the laurels if the thing goes through) and acting childish, fighting over non-starters really and in the end stalling the whole process (like this Nuclear deal) and making a I-lose-no-problem-you-lose-as-well situation restructure all the time.

I do not want to impose my views but really request all the responsible citizens of India to think and make attempt in placing the country in the right perspective as it they would want to portray it to the world, or atleast want it to be...



(By the way, for the really curious ones, as to why it is called 123 Agreement, this is because of the United States Atomic Energy Act of 1954, Section 123 of which providing for "Cooperation with Other Nations" makes a mechanism whereby the United States Government can have an agreement for 'nuclear cooperation' with another country. So any agreement which the United States enters into with another country on the aspect of nuclear cooperation, is called as the '123 Agreement')