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123 Agreement – US not legally bound to supply nuclear fuel to India |
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Harjit Singh
Even before the dust had settled on a State Department letter, leaked by US Congressman Howard Berman which said America has the right to terminate the nuclear deal if India carried out a nuclear weapon test, President Bush has created another political storm. In a covering letter to the US Congress while sending it a copy of the 123 Agreement with India, Bush said the American commitment on a reliable supply of nuclear fuel to India was “not legally binding”. In a clear move to allay the fears of some lawmakers, Bush went on to say that the agreement does not permit transfer of any restricted sensitive nuclear technology, heavy water production technology and production facilities and major critical components of such facilities.
Political observers wonder if the state-of-the-art technologies and equipment and nuclear fuel can be stopped unilaterally. Is the 123 Agreement worth more than the paper on which it is written? Read with another revelation by the WASHINGTON POST that is described as a “deal within deal”, before giving a India waiver, NSG countries privately reached a secret agreement not to sell sensitive technologies to India. The waiver makes a mockery of India’s claim that it has been freed of the 34-year old ban on the supply of all kinds of nuclear technology and equipment and India can hope to be self-sufficient in nuclear energy by 2020 with all the restrictions gone. Citing a senior US official, the WASHINGTON POST said, no NSG member has a plan to sell enrichment and reprocessing technology. The paper further said it was this understanding that helped persuade several skeptical member-States to finally fall in line and support the waiver to India.
As if this was not sufficient, it is now reported that the Nuclear Suppliers Group is nearing consensus on a total ban on sensitive sales to countries such as India that have not signed the Nuclear Non-Proliferation Treaty. Australian Foreign Minister Smith, on a visit to New Delhi also ruled out uranium supply to India if New Delhi refuses to sign the NPT. Australia was among the six hold-out countries at the NSG which until the last tried to block consensus on the NSG waiver.
The NSG’s purported private agreement would appear to be in tandem with the US’s own position, set out in clear terms in President Bush’s communication to Congress on the 123 Agreement on ‘Wednesday.
No wonder, the letter by President Bush has caused a political uproar in New Delhi and a delegation of Opposition leaders called on President Pratibha Patil to urge her to call a session of Parliament to discuss the new developments. Citing Bush’s letter which said the fuel supply assurances under the Indo-US nuclear deal were “not binding”, the BJP and Left parties accused the UPA Government of compromising on India’s interests. The CPI said, the letter is a vindication of its stand that the 123 deal was a trap.
Apparently irked by Bush’s communication to the US Congress, the Manmohan Singh Government has asserted that the 123 Agreement, when operated, will be a “legal document” in accordance with “well recognized principles” of international law. But, Government officials in New Delhi concede that they were intrigued and mystified by Bush’s Presidential determination to the US Congress which stated that the 123 Agreement records certain political commitments concerning reliable nuclear fuel supply assurances to India, but at the same time, says 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”.
In a nutshell, while India has committed itself to the most stringent non-proliferation legalities of the NSG and the IAEA, it has failed to, in return, secure any legal commitment on uninterrupted fuel supplies or even access to sensitive nuclear technologies.
New Delhi has vowed to take up this “different interpretation” of the 123 pact with Washington to seek clarity on the matter that has created uncertainty over assured fuel supplies for reactors’ lifetime. From India’s point of view, the agreement clearly specifies the responsibility of the US to ensure uninterrupted fuel supplies by working with “friends and allies” even if it terminates its own cooperation with India due to some reasons.
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