N-deal: Does the IAEA know about 123?

Arvind Lavakare may be 71, but the fire in his belly burns stronger than in many people half his age. The economics post-graduate worked with the Reserve Bank of India and several private and public sector companies before retiring in 1997. His first love, however, remains sports. An accredited cricket umpire in Mumbai, he has reported and commented on cricket matches for newspapers, Doordarshan and AIR. Lavakare has also been regularly writing on politics since 1997, and published a monograph, The Truth About Article 370, in 2005.

The draft agreement for safeguards on India’s civil nuclear facilities put up for the approval of Board of Governors of the International Atomic Energy Agency must probably be one of the quaintest contracts in the legal world.

In the draft, submitted by IAEA Secretariat, India affirms that its acceptance of the agreement is conditional to factors beyond the control of the IAEA.

Special: Indo-US nuclear deal | Full coverage

The agreement is silent on the nature of the “corrective action” India can take in the event of fuel supplies being interrupted. It leaves a blank on the listing of nuclear facilities on which the stipulated safeguards are to be put, and it allows India the freedom to request termination of the agreement.

All these ingredients of the draft, which has passed the muster of the IAEA Secretary General, gives the impression that the UN Agency has just not heard of the US Congress’s 123 Agreement of 2007, that ties up the Indian government in knots but has been accepted by our Prime Minister and his cabinet.

'N-deal is not in America's interest'

This impression is reinforced by the fact that the IAEA draft admits drawing up the safeguards on the basis of the July 18, 2005 joint statement of Prime Minister Manmohan Singh and President Bush instead of on our 123 Agreement with the US on the civilian nuclear deal. One simply cannot believe that the IAEA has acted as a body of the United Nations, which has been known as a stickler for the exactness of its language and content of its innumerable resolutions.

Take a look at the preambular portion of the draft agreement, now freely available on the worldwide web. Here are certain excerpts that reflect the apparent unconcern of the IAEA for the strenuous efforts both the Houses of the US Congress made to hammer out a stiff carrot-and stick 123 Agreement and the Hyde Act to allow India get uranium from abroad to boost its nuclear energy generation.

UPA employs life support for nuclear deal

Quote: “Noting the relevance for this Agreement of the understandings between India and the United States of America expressed in the India-U.S. Joint Statement of 18 July 2005, in which India, inter alia, has stated its willingness: to identify and separate its civilian and military nuclear facilities and programmes in a phased manner;

to file with the Agency a declaration regarding its civilian nuclear facilities

to take a decision to place voluntarily its civilian nuclear facilities under Agency safeguards;

N-deal serves the US better

Noting also for the purposes of this Agreement that:

India will place its civilian nuclear facilities under Agency safeguards so as to facilitate full civil nuclear cooperation between India and Member States of the Agency and to provide assurance against withdrawal of safeguarded nuclear material from civilian use at any time.

An essential basis of India's concurrence to accept Agency safeguards under an India-specific safeguards agreement is the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors; and

India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies;." Unquote

Was tech apartheid good for India?

Take the so-called Final Clauses, 107, 108 and 109, of the IAEA's draft safeguards agreement:

“107. India and the Agency (IAEA) shall, at the request of either of them, consult about amending this Agreement 108. This Agreement shall enter into force on the date on which the Agency receives from India written notification that India’s statutory and/or constitutional requirements have been met 109. This Agreement shall remain in force until, in accordance with its provisions, safeguards have been terminated on all items subject to this Agreement, or until terminated by mutual agreement of the parties to this Agreement.”

These clauses in the IAEA’s draft agreement clearly show that the IAEA Secretary General and his team almost totally sidestepped and bypassed the US 123 Agreement (including the Hyde Act) wherein

(a) a nuclear test by India would require justification by Uncle Sam
(b) any breach of the pact would entitle the USA to demand return of all nuclear fuel, technology and reactors given to India under the pact
(c) dual technology restrictions would be removed only if there is a separate agreement
(d) nuclear power reactor fuel reserve provided to the government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements and not be “lifetime reserves” and
(e) Termination of the 123 Agreement would require a year’s notice and even its consent to that would not stop the IAEA safeguards from operating till perpetuity.

N-deal: Killing India with kindness

Under these circumstances, will the US approve the present draft safeguards agreement which the IAEA is considering shortly?

For that matter, will the 45-nation Nuclear Suppliers’ Group okay this draft IAEA safeguards agreement and start supplying nuclear fuel, nuclear reactors and nuclear technology to India?

Remember, the NSG is, to a large extent, controlled by the US.

As it is, the India-US civil nuclear energy deal (123 Agreement) can become operational only after the draft IAEA safeguards agreement is first approved by the IAEA before it is tabled before the Nuclear Suppliers Group (NSG), an informal club of 45 nations that keeps a stern eye on activities related to nuclear commerce around the world in an attempt to avoid proliferation.

There is, therefore, no reason at all to echo our media’s euphoria over the IAEA’s draft agreement with India. Unless, of course, the NSG itself is going to overrule the US’s 123 Agreement with us. If that happens, it would be a miracle and Manmohan Singh would have done a Houdini.

Uncle Sam's nuclear hardsell

Meanwhile, with so many grey areas surrounding the Indo-US nuclear deal, how will our Members of Parliament cast their ballot in the trust vote next week?

You can bet your last rupee that the deciding factor will not be ideology alone. It will be swung with “incentives” as well.

The views expressed in the article are the author’s and not of Sify.com