October 27, 2020
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Explicit Departures

In the Senate and Congress Drafts from the Original Agreement

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Explicit Departures

1. Prime Minister: India will not compromise its strategic interests.

A sense of the House resolution states India "has a foreign policy congruent to that of the US, and is working with the US in key foreign policy initiatives related to non-proliferation." . "such cooperation will induce the country to give greater political and material support to the achievement of US global and regional non-proliferation objectives, especially with respect to dissuading, isolating and, if necessary, sanctioning and containing states that sponsor terrorism and terrorist groups; that are seeking to acquire a nuclear weapons capability or other weapons of mass destruction capability and the means to deliver such weapons."

Further, it states that the US "secure India's full and active participation in US efforts to dissuade, isolate and if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability (including the capability to enrich or process nuclear materials), and the means to deliver weapons of mass destruction."

While these sections are non-binding, taken together with Presidential certification and Congress and Senate approval for the 123 Agreement, imposes serious restrictions on India's independent foreign policy.

2. Prime Minister's Statement in Parliament: Full co-operation on civilian nuclear technology, which should include the complete fuel cycle.

Senate: Section 6 prohibits exports of equipment, materials or technology related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water. The Senate version enunciates the need to further restrict such equipment and technologies to India which means that the current sanctions on a host of technologies considered as dual use would be still under embargo.

3. Prime Minister's suo motu statement on July 29 last year: "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."

Senate and Congress: There is an annual certification clause that can stop the co-operation. More importantly, India has to negotiate its agreement with IAEA before the final agreement for transfer of civilian technology is passed by the Congress. The current Bills enable the President to propose such a Bill to the Congress and Senate under the Section 123 of the Atomic Energy Act of the US, who have to both pass it for cooperation in civilian nuclear energy to take place.

a) Section 8 requires annual Presidential certifications (written determination to the Congress) that India is meeting its commitments under the July 2005 Joint Statement, its Separation Plan, New Delhi's Safeguards Agreement and Additional Protocol with the IAEA, the 123 Agreement, and applicable U.S. laws regarding U.S. exports to India. [and also that it is cooperating with the US to prevent spread of fuel enrichment and reprocessing technology to countries that do not already have "full scale, functioning enrichment of reprocessing plants" (obvious target Iran). So continued good certificate on Iran is a requirement here] The bill is an important step toward implementing the nuclear agreement with India, but is not the final step in the process. This legislation sets the rules for subsequent Congressional consideration of a so-called "123 Agreement" between the U.S. and India. A "123 Agreement" is the term for a peaceful nuclear cooperation pact with a foreign country under the conditions outlined in Section 123 of the Atomic Energy Act.

4. The March Agreement: US would take necessary steps to change its laws and also align the NSG rules to fulfil the terms of the Indo-US Nuclear Deal.

Senate: It is now contingent on a unanimous resolution of the NSG on this issue.

"In addition, we require that decisions in the Nuclear Suppliers Group enabling nuclear trade with India are made by consensus and consistent with its rules."

5. The original agreement talked of an Additional protocol which the Prime Minister's statement made clear was an India Specific Protocol not covered under the protocols for weapon states or non-weapon states.

In the Congress and Senate reading of the Agreement, they have been made into far more intrusive Model Additional Protocols of IAEA, which are currently, only accepted by some of the countries. India's civilian program will be safeguarded under this Additional Protocol as a non-nuclear weapons state. Under this protocol, IAEA can be used to delve into the past of each of the activities that have gone to build the civilian facilities, effectively allowing others to use IAEA to find out about India's strategic program and also our technology capabilities.

6. Assurance given by the Prime Minister on March 7, 2006 was that we are placing our facilities in perpetuity as reciprocally US is also guaranteeing fuel supply in perpetuity. In case the US defaults on its fuel supply agreement (as it did in Tarapur), it will ensure that other members of the NSG will take over its obligations.

The Obama amendment to the Senate Bill passed on June 29, 2006, though a Sense of the House Amendment, states in Section 102(6): "The US should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party if such exports are terminated under US law." The House Bill goes a step further. In Section 4(d)-3 it states, "If nuclear transfers to India are restricted pursuant to this Act - the President should seek to prevent the transfer to India of equipment, materials or technology from other participating governments in the NSG or from any other source."

7. In the original agreement, India had agreed to work with the US for a Fissile Material Cut off Treaty (FMCT).

This is now being used to restrict India's fissile material stockpile. This is also reiterated in the two bills.

Section 103 Declaration of Policy Concerning United States India Peaceful Atomic Energy Cooperation states:

To achieve as quickly as possible a cessation of the production by India and Pakistan of all fissile materials for nuclear weapons and other nuclear explosives devices;

Also the President has to report the efforts it has made with India and Pakistan for "disclosing, securing, capping and reducing their fissile material stockpiles"

8. In the original agreement, only IAEA safeguards were considered.

In the Senate Bill, Section 107 End-Use Monitoring Program states that in case IAEA is unable to fulfil its safeguards obligations the President take Measures to ensure all material and its use is in conformity with it declared purpose. This includes physical verification and suitable access to be provided by India to US inspectors.

9. The military program had no monitoring requirement from IAEA or the US.

In the Senate Bill, Section 108 Implementation and Compliance, the President to report to the Congress "significant changes in the production by India of nuclear weapons or in the types and amounts of fissile material produced." Further, under the Additional Protocol, an inventory of uranium from the mining stage has to be provided to the IAEA.

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