Author: Seema Mustafa
Publication: Asian Age
Date: August 17, 2007
New Delhi, Aug. 16: Prime Minister Manmohan
Singh and now external affairs minister Pranab Mukherjee have completely misled
Parliament in stating, and then repeating, that India has retained its sovereign
right to conduct a nuclear test while negotiating the civil nuclear energy
deal with the United States. The sovereignty has been taken away by imposing
exorbitant costs on India - which experts place as high as Rs 250,000 crores
for the imported power reactors and Rs 800,000 crores for the downstream industries
that will be adversely affected - through the US "right to return".
Mr Mukherjee added to the deliberate misinformation
on Thursday by insisting that the Hyde Act had many "extraneous and prescriptive
provisions" that are "not acceptable" to India. The 123 agreement
is governed by the Hyde Act, which has specifically directed the US President
to ensure that India abides by the strict provisions detailed in the enabling
legislation.
The government is continuing with the strange
and, as a nuclear scientist put it, "childish" campaign that only
the 123 agreement applies to India, and that the Hyde Act is for the US to
deal with. The facts speak otherwise.
* STATEMENT: "Let me hence reiterate
once again that a decision to undertake a future nuclear test would be our
sovereign decision, one that rests solely with the government" - Prime
Minister Manmohan Singh
* FACT: "As per Section 106 of the Hyde
Act, the US shall cease the nuclear cooperation if India conducts a nuclear
test. It is strengthened by Section 104(a)(3)(B), which denies the President
the power to waive Section 129 of the US Atomic Energy Act, which also calls
for identical action." - Former AERB chief A. Gopalakrishnan
If India decides to test an explosive nuclear
device, "all materials including reprocessed material covered by the
agreement would have to be returned," US state department spokesperson
Sean McCormack had repeated once again on Wednesday, something which undersecretary
of state Nicholas Burns had spelt out earlier.
Said Dr Gopalakrishnan: "The assertion
that there is nothing in this agreement which would tie the hands of a future
government from testing or acting as the nation sees fit in certain foreign
policy matters is totally incorrect. This is so because both the 123 agreement
and the Hyde Act deny India any assured nuclear fuel if the US has to terminate
or suspend this deal." He added: "In spite of layers of consultations
built into it, the fact remains that the US government is mandated by Congress
to abide by Sections 102(13), 103(a)(4), 103(a)(6), 103(b)(10), 104(b)(7)
and 104(g)(2)(F)(iii) of the Hyde Act, which individually and collectively
squarely prevent India from getting any nuclear fuel from anywhere if the
deal with the US is terminated or suspended. It does not take any legal genius
to understand this, and all negotiators and concerned officials of the PMO
and MEA are certainly aware of this as well."
So what happens if India tests, what does
the "right to return" imply in real terms?
"Reactors, materials, stockpile of fuel,
reprocessed fuel, spares, technology will all have to be returned to the US,"
according to a former Barc director, Dr A.N. Prasad. In effect the civil nuclear
energy agreement will come to a halt, crores of rupees will be lost, with
major losses also for the industries built around the nuclear energy programme,
he said, pointing towards the "snowballing effect" of such an action.
"Which government will take this extreme step, who will be able to test
at such high costs, it will never happen," Dr Prasad said. India's right
to test has been completely curtailed by the exorbitant price it is being
asked to pay if it decides to explode a nuclear device. Dr Prasad said the
123 agreement was all about "fixing" the language, and since testing
was a highly contentious issue, it had been left out of the agreement altogether.
But while pointing this out, the Indian government has not bothered to inform
Parliament that on areas where the agreement is silent, the provisions of
the Hyde Act and the US Atomic Energy Act will apply.
Dr Gopalakrishnan detailed the repercussions
for India, "after investing in imported power reactors worth Rs 250,000
crores, and downstream industries possibly worth an additional Rs 800, 000
crores which rely on this power, which future Indian government thereafter
can withstand the economic shock of curtailment of this deal, irrespective
of whether it results from a nuclear test or our refusal to obey US diktats
in areas impinging on our sovereignty and national dignity?"
STATEMENT: "Whatever is stated in the
Hyde Act is not binding on us. How they (the US) deal with it is their problem."
- Pranab Mukherjee
FACT: Prime Minister Manmohan Singh has maintained
that the 123 agreement is now frozen, and "signed and sealed."
If this is so, then the Hyde Act is binding
on both parties entering the civil nuclear energy agreement, as in Article
2.1 of the bilateral agreement India has agreed that the US will implement
the 123 agreement in accordance with applicable US laws. The most relevant
of these laws are the Hyde Act 2006 and the US Atomic Energy Act 1954. US
secretary of state Condoleezza Rice and the senior officials of the Bush administration
are all on record as having said that the Hyde Act will prevail, and that
they have taken exceptional care to ensure that not a single provision of
this law has been overturned by the 123 agreement. This is necessary because
the bilateral agreement has to go back to the US Congress for final approval.
The Hyde Act deals with the civil nuclear
energy agreement between India and the US. It details certain steps that India
has to take, and that the US President has to verify through annual and periodic
assessments, before the deal can be honoured. It makes it amply clear that
failure on the part of India to meet the provisions laid out in the Hyde Act
will spell an end to nuclear cooperation.
For instance, the US President has to determine
that India has provided the US and the IAEA with a credible plan to separate
civil and military nuclear facilities; that India and the IAEA have concluded
all legal steps required prior to signature by the parties of an agreement
requiring the application of IAEA safeguards in perpetuity. Again, under the
Hyde Act, the US President has to report to Congress his determination of
the above and many other issues concerning India's adherence to a strict non-proliferation
regime; copies of the separation plan and agreements reached with the IAEA
and NSG; and also the specific measures that India has taken to actively participate
in US and international efforts to dissuade, isolate and if necessary sanction
and contain Iran.
Mr Mukherjee must explain to Parliament how
such reports can be presented by the US President to the US Congress without
the Hyde Act impacting directly on India. For if the report suggests that
India has not followed the provisions of the Hyde Act, the US reserves the
right to end the agreement. This has been also endorsed by the 123 agreement
that provides for an immediate termination of the agreement. Consultations
of some kind have been provided for, but as former Barc director A.N. Prasad
said: "Who will arbitrate if there is a disagreement?" He said the
government was just "fixing" the language, and there were no two
views that the Hyde Act would govern the 123 agreement.
