The controversy over the Indo-US Civilian Nuclear Cooperation Agreement has in recent weeks caused much political turmoil in India. The fate of India's coalition Government and its historic nuclear deal with the United States is hanging in the balance today as voting is going on for a confidence motion in the Indian parliament at the time of writing this article. Considering the fact that not much has happened in terms of debates and discussion in the entire country on a matter of vast national interest, it is worthwhile for all to understand various implications of operationalizing the Agreement. Towards that end this article presents some information extracted primarily from the public domain.
The Agreement of Cooperation between the Government of the United States of America and the Government of India concerning peaceful uses of nuclear energy, commonly known as the 123 Agreement, refers to Section 123 of the U.S. Atomic Energy Act (AEA) of 1954 which governs all civilian nuclear cooperation agreement with the US. This Act, as amended, requires U.S. reactor and reactor fuel exports to be subject to the terms of a Section 123 Agreement. Section 129 of the same act states that
“No nuclear materials and equipment or sensitive nuclear technology shall be exported to
(1) any non-nuclear-weapon state that is found by the President to have, at any time after the effective date of this section, detonated a nuclear explosive device;” etc.
The above stipulation regarding a non-nuclear-weapon state has created a hurdle for India since India is a non-nuclear-weapon state according to the provisions of the Nuclear Non-Proliferation Treaty (NPT) - a landmark international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament. According to this Treaty that became effective in 1970, a nuclear-weapon state is one that has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967. Since India exploded its first nuclear device in 1974 after the cut-off date, it was not included in the select group of five nuclear weapon states - USA, UK, France, Russia and China. India is not a signatory of the NPT because India considers it to be discriminatory. India has an indigenous strategic nuclear program and it is a de facto nuclear-weapon- state. India also has an impeccable record of non-proliferation of nuclear materials and technology. Soon after India exploded its “peaceful nuclear device” in 1974, the US led a nuclear ban on India and all foreign assistance immediately stopped, crippling its indigenous nuclear program, most visibly at Tarapur nuclear plant.
India, a “rising Asian giant” and an emerging economic power, is in dire need for energy to run its economic growth machine much like China. Nuclear energy offers a very attractive option to meet part of the country’s energy needs. It is renewable, does not produce carbon and cost effective and, therefore, it is a desirable component of the country’s overall energy program. But to generate nuclear energy, India needs nuclear fuel that is uranium based. India has only limited supply of uranium and it has to depend on foreign supply of this nuclear fuel, which it is barred from getting in the international market because of the sanctions imposed after the first nuclear test in 1974. India’s civilian nuclear energy development is embodied in a three-stage strategy of which the final stage is based on thorium fuel cycle, which is in the process of development and finalization. India has the second largest reserve of thorium and about a fourth of the world’s supply. But it has very limited supply of uranium. Until thorium based fuel cycle is rolled out completely, India has to depend on supply of uranium based nuclear fuel.
During the last three decades or so, realities of geopolitics have changed. The rise of China and India as two Asian economic giants has given rise to new imperatives on the part of the US - the only superpower in a multi-polar world. India being the biggest democracy has close affinity politically with the US and US fear for China’s rise requires it to have an Asian counterweight for balance of power. Additionally, nuclear trade of material and technology has a lot to gain from for both the US and India. India’s strength can well be perceived to be in the best interests of the USA. The confluence of varied interests in different circles eventually led to the overture by the US to lift India out of the post-Pokhran nuclear isolation. This was expressed by Prime Minister Manmohan Singh and President Bush in their joint statement on July 18, 2005. In March 2006, President Bush and Prime minister Manmohan Singh inked the historic 123 Agreement draft that has been negotiated back and forth and finally released on August 03, 2007. Towards operationalizing this agreement a Nuclear Safeguards Agreement has been ironed out with the IAEA-Nuclear watchdog of the United Nations and released on August 10, 2008. Following this, India will have to work out a deal with the 45 member Nuclear Suppliers Group (NSG) and eventually the agreement will have to be approved by the US Congress.
In its attempt to overcome the obstacles presented by the existing laws of the land barring India from receiving civil nuclear cooperation, the US congress passed the Hyde Act clearing the way to do nuclear business with India. This essentially facilitates a special status to India to avail certain benefits, which it would not be able, get as a non-nuclear-weapon state. However, certain stipulations of the Hyde Act have been a source of controversy on their implications especially on the sovereignty of India with respect to conduct of India’s independent foreign policy.
A major apprehension with respect to the provisions of the Nuclear Safeguards Agreement with the IAEA concerns India’s strategic nuclear program and nuclear testing should there be a need for it in the future. However, under the embedded separation plan, the agreement pertains only to civilian nuclear reactors leaving aside military reactors completely out of the safeguards agreement. India also is free to do nuclear testing as it wishes. Hyde Act requires the US president to provide annual certification. But the prerogative remains with the President of the USA. Moreover, Hyde Act is a domestic act and not binding on India. Article 16.4 of the agreement states that the agreement shall be implemented in good faith and in accordance with the “principles of international law” which is a clear reference to the Vienna Convention on the Laws of Treaties. Article 27 of the Convention states that a party may not invoke the provisions of internal law as justification for its failure to perform a treaty.
Regarding the continuity of fuel supply over the period of the 40 year life span of a safeguarded nuclear reactor, Dr. Anil Kakodkar, Secretary, Department of Atomic Energy said “the permanence of safeguards is coupled with the perpetuity of supply of fuel. So in case there is a disruption of fuel, the safeguards agreement will cease to hold”. The preamble to the draft Safeguards Agreement with the IAEA made public on July 10, 2008 notes that the Safeguards Agreement is an “essential basis” for India to gain “uninterrupted” access to the International nuclear fuel, including uninterrupted access, and support of its effort to develop a strategic fuel reserve to guard against any disruption of supply. The preamble recognizes India’s right to take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors if foreign supplies are disrupted. It also takes note of separation of civilian and military nuclear facilities.
It is worthwhile to look at the 123 Agreement against the backdrop of India’s energy scenario. In 2007, India had only 3.7 GWe from nuclear energy out of a total of 110 GWe from all sources and generated 2.5% of the total energy. The plan is to have 20 Gwen of nuclear energy capacity by 2020. It is not expected to generate more than 25% of India’s electricity requirement even by 2050. In the short run, it does not seem that nuclear energy will make a big dent in the country’s overall energy situation. However, looking further into the middle of the current century, a significant contribution will be made by nuclear energy. Long before 2050, the indigenous fuel cycle based on abundant supply of indigenous thorium should be rolled out giving India independence on nuclear fuel. The question then is why is the country rushing so much for uranium fuel with so much controversy. The answer perhaps lies in the fact that a whole gamut of new technologies will be made available to India as a result of lifting of ban on dual use technology. From Avionics to Agriculture, the country will benefit from the latest technology with which Indian science and Technology will take a quantum leap. Legal ramifications of the transfer of such technologies if indeed that occurs need expert analysis and should be debated fully.
Amidst all the discussions and debates, one aspect of development of nuclear energy at a massive scale has eluded the media and political circles. Although the latest nuclear reactor designs are understood to be lot safer than the last generation reactors, there is still a question regarding safety of reactors that has to be considered in power plant setting. The memory of the core meltdown accident at Three Mile Island nuclear power plant in Pennsylvania, USA and at Chernobyl Nuclear Power Plant, Russia is still alive. There is a limit to how far you can go in developing and taking the risk of nuclear power plants. Of course there will always be a tradeoff between risk and benefit in the country’s onward journey to growth and prosperity.
The controversy over the passage of the 123 Agreement can perhaps be attributed to the political process and complacence of the civil society in India. The government should have encouraged a transparent approach for countrywide debate. It is doubtful whether the 542 MPs who determine the future of country themselves fully understand the issues and their ramification. Once again an issue of immense interest for the country’s future will be determined by political horse-trading within the Indian Parliament. This is a sad commentary on the sate of Indian democracy.
Dr. Umesh C. Tahbildar, Ph.D. P.E.
New York
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