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]

Why IAEA is such a huge issue in India?

Once there was a time when Mumbai used to come to standstill at the roar of the tiger, Bal Thackeray. But things have not remained the same. A few days back (or even a fortnight), Mumbai halted because of El Baradei. Does that name ring any bells? Or who is he?

Well, he is the chief of the dreaded-word IAEA, which has been amidst the centre point of the ongoing controversy and drama in the Indian parliament. The Left conceptualizes him and the organization he represents as a harbinger, resounding clutches on India's progress. Why? Because he and his organization is at the centre point of the Nuclear Deal which India has signed with the United States. [click here for full list of events.]

Still no clues??? Alright, I will disclose now who he is. He is the Director General of the International Atomic Energy Agency, the UN's nuclear watchdog. And the reason why his organization is dreaded because of the Nuclear deal whereunder India agreed to allow IAEA to supervise its nuclear plants, therefore technically amounting to an external control over hitherto India's foreign-influence-free nuclear policy. This is the biggest reasons for the Left's hue and cry over the issue; that India's freedom has been restricted under the Nuclear deal and its opposition to IAEA.

But is the issue really that big to rock Indian Parliament for more than a quarter-year now??? (since August 03, remember ???) What would be the consequences if the events do lead out to an IAEA supervision on Indian nuclear reactors???

Well, under the terms of the Nuclear deal, India is obliged to use the nuclear materials etc. supplied by US only for non-military purposes (which indirectly means a ban on conducting further tests on nuclear bombs etc.) and in the event India does decide to go with the military uses, the deal would be suspended. But who decides whether India has in fact used the material for non-military purposes. Well, if the IAEA deal goes through, IAEA would be the sole determinant of this.

This would mean that if IAEA says so, India has used the nuclear material for non-military purposes even if it hasn't. The position of IAEA is singular. It reports as a special agency of the United Nations and submits reports, which are acted upon pretty quickly. (Heard about its report on Iran and the later turn of events with the US even threatening about going ahead with an exercise similar to Iraq???)

Then, further, India will be obliged to grant full access and know-how to IAEA officials of its nuclear programme, something out of the ordinary for the Indian nuclear policy. In order to fulfill its mandate, IAEA may even be required to examine the Indian civilian nuclear power plants and so goes off our vision for energy security, the Left and others cry.

So we know what are the costs of this. And proposed benefits??? Well unless India goes on to allow IAEA to have a seat and inspection rights to its nuclear reactors, the Indo-US nuclear deal will not go through. Unless the deal goes through, India will not get uranium and other nuclear-energy assistance required to go ahead with its energy programme. The entire load, therefore, will be on our indigenous energy resources (i.e. coal majorly and to some extent hydro-power), which definitely are not capable enough to meet our present energy needs, forget even contemplating about our future needs.

So what do we do? Say yes to IAEA and allow our energy requirements to be met with a contingency of foreign/external control over our works or say No and goodbye to IAEA and strive without energy to maintain a growth-rate of 8-9 percent. The answer is for you to decide. But do let me know your views on this.

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')