People's Democracy

'REPUDIATE THE 123 AGREEMENT'

The Polit Bureau of the Communist Party of India (Marxist) issued the following statement on September 17, 2008

THE documents submitted to the US Congress by the US president along with the Presidential Determination on India-US civil nuclear cooperation have made it amply clear that the terms of the 123 agreement are fully in conformity with the Hyde Act and violate the crucial commitments made by the Indian prime minister in parliament. The time has come for the Indian government to repudiate the 123 agreement, which is not in India's national interest. The government has no other option, as the argument that India has a different interpretation of the 123 Agreement is meaningless. The US as a supplier of nuclear equipment and materials will undertake such supply only under the terms of what it calls a "framework agreement." A different interpretation of the 123 agreement by India will in no way bind the US as a supplier.

The Left parties have repeatedly pointed out the provisions of the 123 agreement, which are inimical to India's interests:

• India will not have any uninterrupted fuel supply assurance;

• India will have to place its civilian reactors under IAEA safeguards in perpetuity without such a fuel supply assurance;

• India will not have any assurance regarding stock piling fuel reserve for the life time of the reactors;

• Whatever corrective measures India may contemplate vis-�-vis fuel supply disruption, taking the reactors out of IAEA safeguards will be impermissible;

• India will not have access to full civilian nuclear technology;

• The consent to India's reprocessing of spent fuel is only notional;

• The US can terminate the 123 agreement at will and stop all supplies immediately;

• India will have to align its foreign policy to that of the US, particularly on Iran.

All these points raised by the Left parties have been confirmed by the documents accompanying the US Presidential Determination and have exposed the hollowness of the claims made by prime minister Manmohan Singh in parliament.

Fuel Supply Assurance and IAEA Safeguards

Prime minister Manmohan Singh had made a solemn commitment in parliament on March 7, 2006 that India would place its civilian nuclear facilities under IAEA safeguards in perpetuity only on the basis of strict reciprocity vis-�-vis the US guaranteeing uninterrupted fuel supply in perpetuity. In case the US defaults on its fuel supply agreement (as it did in Tarapur), it would ensure that other members of the NSG would take over its obligations. In a signed covering note to the Presidential Determination (President's Transmittal of Text to Congress) George Bush has made it clear that the fuel supply assurance in the 123 Agreement is not legally binding. It states:

"In Article 5(6) the Agreement records certain political commitments concerning reliable supply of nuclear fuel given to India in March 2006. The text of the Agreement does not, however, transform these political commitments into legally binding commitments because the Agreement, like other US agreements of its type, is intended as a framework agreement."

This categorical denial of any legally binding fuel supply assurance in the 123 Agreement by the US president is accompanied by a specific observation contained in the Report Pursuant to Section 104(c) of Hyde Act Regarding Civil Nuclear Cooperation with India accompanying the Presidential Determination, which states:

"Once a facility is listed in the Annex, safeguards will continue indefinitely unless 'India and the Agency have jointly determined that the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards'.Thus the facilities and materials subject to safeguards are under 'safeguards in perpetuity in accordance with IAEA standards, principles, and practices'."

This clearly shows that India can never withdraw its civilian nuclear facilities from IAEA safeguards unilaterally, even the indigenously built reactors, in the event of a disruption of fuel supply or if the 123 agreement is itself terminated. The Report Pursuant to Section 104(c) of Hyde Act has also left the quantity of nuclear material transferred under the 123 Agreement undefined. Therefore the US is under no obligation to help India build up adequate fuel reserves for life time operations of the reactors.

Full Co-Operation in Civilian Nuclear Technology

The prime minister in a suo moto statement to parliament on July 29, 2006 had stated:

"...we committed ourselves to separating the civilian and strategic programme. However this was to be conditional upon, and reciprocal to, the United States fulfilling its side of the understanding. steps to be taken by India would be conditional upon and contingent on action taken by the United States...Before voluntarily placing our civilian facilities under IAEA safeguards, we will ensure that all restrictions on India have been lifted."

However, the signed covering note to the Presidential Determination clearly states:

"It (the 123 agreement) does not permit transfers of any restricted data. Sensitive nuclear technology, heavy-water production technology and production facilities, sensitive nuclear facilities, and major critical components of such facilities may not be transferred under the Agreement unless the Agreement is amended."

This is also reiterated in the Report Pursuant to Section 104(c) of Hyde Act. Clearly, India will not have access to the full fuel cycle and all sensitive technologies are denied under the above. The bar on access to the full nuclear fuel cycle technology is still very much a part of the technology denial regime of the US. Thus India is being asked to place its civilian reactors under IAEA safeguards in perpetuity without all restrictions being lifted.

Consent to Reprocess

The Nuclear Proliferation Assessment Statement accompanying the Presidential Determination states:

"Subsequent to India's March 2006 separation plan, the Indian government decided to pursue development of a new civil facility dedicated to reprocessing material under safeguards. Development of this facility (and agreement with the United States on arrangements and procedures related thereto) will be required to bring into effect the "programmatic consent" in Article 6 of the Agreement."'

Therefore, the supposed consent for India's right to reprocess spent fuel contained in the 123 agreement is only a "programmatic consent" as per the US. It clearly states that till the arrangements and procedures are agreed to by the US in the subsequent period, this consent cannot be brought into effect. This also belies the claims made by the government in this regard.

Extraneous Issues Tied with Nuclear Cooperation

The prime minister had categorically stated that tying any extraneous issues with civil nuclear cooperation will not be accepted to India. It is clear from the documents accompanying the Presidential Determination that extraneous issues have been coupled with the nuclear deal, which have also been accepted by India.

Iran: The Report Pursuant to Section 104(c) of Hyde Act approvingly talks about India aligning with the US on the Iran question both in the IAEA and the UN and that India "maintained a strong public line of support for P5+1 and US diplomatic efforts to resolve international concerns with Iran's nuclear program". This is contradictory to the position stated earlier that India supports the right of Iran to the full nuclear fuel cycle. The issue of nuclear weapons and the right to enrichment are two different issues and India has always maintained a public distinction between the two. However, with the external affairs minister's statement, India has formally changed its position and opposed Iran's fuel enrichment, a right which Iran has under Article IV of the NPT.

Missile Technology Control Regime

India has already pledged its unilateral adherence to the MTCR regime of which it is not a part. According to the Report Pursuant to Section 104(c) of Hyde Act mentions that India has written a letter stating its "adherence to the MTCR and its annex in a letter dated September, 9, 2008, to Jacques Audibert, the MTCR Point of Contact in Paris".

All this makes the 123 agreement almost identical to the Tarapur one, where India had been forced to run from pillar to post for fuel after the US unilaterally terminated the Tarapur 123 agreement. India still continues to hold spent fuel as the US has never given its consent to reprocessing, even though such a "programmatic consent" was there in the Tarapur 123 agreement also. It is with the experience of Tarapur that India had sought fuel supply assurances and various other terms including the right to reprocess spent fuel. With the documents accompanying the Presidential Determination, the US has made its intentions clear - this 123 Agreement is no different from the earlier Tarapur one, with all the Tarapur problems. And India can again land into the Tarapur mess, as the right of the US to terminate the agreement is an unfettered one.

The Polit Bureau of the CPI(M) demands that the prime minister fulfil his pledge to the nation that he will walk away from the Nuclear Deal if it does not meet India's expectations.