The Politics of 123

The Politics of 123
*-Dr Vijay K. Sazawal, Ph.D.

Washington, DC
August 22, 2007

There is an interesting book out in Britain these days. Titled, “Gandhi: A Political and Spiritual Life” by Kathryn Tidrick, the book traces a typical expatriate student’s arrival and transformation in London. In this case, the year is 1888, and the student is Mohandas Gandhi.

The book details some of the experiences that young Gandhi went through, not the least of which was the transformation from having no particular knowledge of Hinduism (beyond unexplained daily rituals that he had picked up from his family in Gujarat), into a budding Hindu philosopher who nurtured his mind on the works of Annie Besant and Madame Blavatsky.

Today, many expatriates from India, who never knew much about India, Indian history or even their own religion while in the land of their birth have become “more Indian” and “more religious” than their compatriots living in India. This is probably a natural outcome driven by human ability to adapt and over compensate for having moved away from one’s own ethnic roots to alien lands and culture.

No recent situation has led to a deeper chasm among Indian-Americans than the recently concluded bilateral agreement on the U.S.-India nuclear deal initialed by the two countries on July 20, 2007. The situation is exacerbated by lingering spite in the Indian Parliament where unlikely allies are joining hands in supporting or denouncing the deal. Unfortunately, a lot of what is being said is just plain demagoguery.

Consider the following statement by a community leader (living in the USA) who invests considerable time and resources to ensure his true credentials as being more Indian than a resident of India, “Kindly refrain from such a cause …. There are vested interested involved here ….waiting to loot India once again …. remember the East India Company …”. It so happens that the Indian-American organization of which he is a leader campaigned very hard for the Henry Hyde Act to be passed by the U.S. Congress, which was voted on, not once but multiple times as votes were taken during the House and Senate Foreign Relations Committees, in full House and Senate sessions, during the reconciliation vote through the House and finally by a voice vote in the Senate. The President signed the Henry Hyde Act on December 18, 2006.

The Henry Hyde Act was followed by glowing self-congratulatory announcements by leaders of the Indian-American community with everyone taking credit for what was perceived by all to be an unexpected success considering the lopsided nature of the vote in the U.S. Congress.

There were complaints by some parliamentarians in India about the Hyde Act but while some of the concerns expressed were valid, there was a lack of sincerity in those comments as these comments came mostly from anti-American leftists and the opportunist opposition party. Of greater concern was that a large number of nuclear specialists, including the Chairman of the Atomic Energy Commission (AEC), some former Chairmen, and many retired foreign service diplomats, expressed their apprehension about cementing any ties on the nuclear deal.

This was the deck of cards that was dealt to Indian negotiators when they began their discussions with the U.S. for the “123 Agreement”, so called because under the U.S. law, no nuclear commerce can be conducted with another nation without such a bilateral agreement. The Section 123 of the U.S. Atomic Energy Act (and all attendant export sections of the Act) were substantially revised by the 1978 Nuclear Nonproliferation Act (NNPA) to make it nearly impossible for non-signatories to the global Non Proliferation Treaty (NPT) to receive any nuclear related assistance from the U.S. Section 123 details requirements for an agreement for nuclear cooperation between the U.S. and another country. No nuclear cooperation agreement is possible with India, under the U.S. law, until it signs the NPT. But the Hyde Act, with all its faults, is the piece of legislation that granted India – and only India – an exception to the U.S. law, allowing negotiations to proceed for the 123 Agreement.

The Hyde Act specifies mandatory and some non-mandatory requirements in granting the exemption. Clearly, some of the legal requirements were deemed restrictive, but both the U.S. and India had good reasons to finalize the deal. While there is a continuing speculation on why the U.S. wanted the agreement (some of the reasons noted in the press are: to cement a strategic partnership, to contain China, to increase bilateral trade, to stabilize global fossil fuel prices, and to reduce global greenhouse gases), India had practically no choice. As much as the Indian nuclear weapons program is a source of pride for most Indians, its civilian nuclear program is at best limping.

As India suffers frequent blackouts and brownouts (a pain that my Indian-American colleagues do not have to endure), its future hopes on improving the quality of life of its citizens and of becoming an economic powerhouse depends, among other things, on expanding power generation. All first world nations rely on nuclear power for base load power generation. India also started on the road to nuclear power but its isolation from global nuclear commerce and its poor uranium resources (both in quantity and quality) have adversely affected its power generation. Denied of nuclear cooperation with the rest of the world, India had to adopt a different fuel cycle which is both technically elegant and extremely challenging on cost and schedule. The original plan of producing 10 GWe of nuclear power by 2000 was not realized and even today when production capacity has been built to just above 4 GWe, the actual electricity produced in Indian nuclear power plants is considerably below that figure because of a lack of adequate indigenously produced fuel supply. The country has revised its production plans on the basis that its isolation will end, and now hopes to achieve 40 GWe by the year 2030 to meet its growing power needs. But today’s reality is that nuclear only contributes a meager 3% to the national electricity grid.

Once the two sovereign nations decided to proceed with the completion of the 123 Agreement, both parties were acutely aware of strictures imposed by the Hyde Act and India’s sovereign rights to control its own destiny. On the surface, the differences seemed too far to bridge. But negotiators had four things going for them. First, both countries had agreed that the agreement will not address India’s strategic program. Nevertheless, India still insisted on a written expression of that affirmation which is not usually included in such agreements. In fact, the U.S. agreed (at India’s request) to go a step further and exclude any explicit mention of nuclear testing. Second, both parties agreed that India’s insular three-stage civilian nuclear program will not be altered, meaning that foreign reactor purchases will always be treated as incremental additions to meet domestic electric power needs that can not be met by indigenous civil nuclear industry. Third, India was determined not to repeat the Tarapur experience and therefore sought and received fuel assurances in return for IAEA safeguards through perpetuity, an unprecedented gesture on behalf of Americans and one that would require the most deft wordsmithing to go around the Hyde Act restrictions. And, finally, a recognition by both sides that India had a closed fuel cycle meaning that India would be reprocessing some or all of the spent fuel from foreign reactors for generating new fuel to be used in stages II and III of the Indian nuclear program (these stages are still under development in India). The U.S. negotiating team did not have the authority to grant imbedded reprocessing rights at the beginning of the negotiations. As the negotiations got underway, both countries were fully cognizant of the “red lines” that constrained both sides from securing significant negotiating advantage over the other.

As an outsider with long standing knowledge about the nuclear fuel cycle and rigorous nature of negotiations and diplomacy necessary to bring such complex agreements to a closure, I must acknowledge that the final agreement is unique in the annals of the U.S. diplomacy which has executed numerous 123 Agreements with many countries. In fact, the U.S. and Russia have just signed a 123 Agreement (waiting for review by the U.S. Congress), which is more or less the same as signed with many nations in Eastern Europe. Unlike the Indian 123 Agreement, no agreement has been made public until it is formally approved by the President. Again, the way U.S. and India agreed to disclose the bilateral 123 Agreement is an exception, rather than the norm. What is unique about the Indian 123 Agreement is that it was written to give considerable leeway in its interpretation as deliberate dislocations had to be created to accommodate conflicting nature of domestic laws in the two sovereign nations. An analogy would be that instead of exchanging a full glass of water they exchanged two glasses half full. But India made “trust” a major issue in seeking a satisfactory closure and this agreement is written with the spirit of mutual trust, respect and admiration between two sovereign nations. It is the desire to build a strategic partnership that led India and the U.S. to this agreement, and it is in that spirit the final deal was made.

The Indian negotiating team consisted of an apex group of veteran experts drawn from national security, foreign service, nuclear policy and legal affairs. Most of the team members would have been the same if the past coalition government headed by BJP, instead of the current coalition government headed by Congress, had been at the helm in New Delhi at this point in the history. I believe the last major concession by the U.S. on granting programmatic consent on reprocessing came through a coordinated effort by India to have heads from Germany, France and Russia speak to the U.S. President during the last G-8 Summit in Germany on June 7, 2007. But the point is that India got a better than expected deal because its negotiators were skillful and worked hard for two years to make a successful deal. It should be recalled that India’s diplomats and nuclear scientists were the ones that initially thought a deal would be impossible. Today, Indian diplomats and scientists are on board. If now India rejects this Agreement, it will be a laughing stock of the world. I do not need to say, but you can guess how Chinese and Pakistani governments will feel about such a rejection.

Now opportunists and communists are raising Cain in New Delhi and Indian-Americans are wondering if it is better to keep out of the fray. Worse, they are behaving xenophobically after having lived in this country at their free will. But the issue is not whether one supports party X or viewpoint Y in India. The real issue is whether Indian-Americans have a role to play in promoting closer relationship between the two countries. Today, the U.S. and India are poised to collaborate on a different kind of relationship. Since the 123 Agreement was initialed, both Australia and Canada have held cabinet level meetings to create administrative and legislative pathways to supply uranium fuel to India. India desperately needs uranium for its indigenous three stage program, but both Australia and Canada are waiting for the final closure on the U.S.-India deal before authorizing such sales.

For those Indian-Americans who have suddenly become more nationalistic than India’s Prime Minister (and I do not mean any individual, I am referring to the office), my advice is do what Mahatma Gandhi did after rediscovering his Indian roots in London. That is, go out and banish those U.S. lawmakers who made controversial additions to the original bill that the Administration submitted to the U.S. Congress in the summer of 2006. You can not settle scores with Mr. Henry Hyde (R-IL, who has since retired), but the two other main culprits who created the huge mountain of difficulty that 123 Agreement negotiators had to surmount: Representative Tom Lantos (D-CA) and Senator Joe Biden (D- DE). These three honorable gentlemen were less than honorable in their back room deals and tried their best to hang an albatross around India’s neck. What the 123 Agreement and the debate in the Indian Parliament has demonstrated is (a) smart diplomats know how to go around edges without turning a corner, and (b) India too has legislators who can match the demagoguery and insensitivity that some U.S. lawmakers are capable of. I hope Mr. Lantos and Mr. Biden are wiser by now, and that they will be considerate and thoughtful when the U.S.-India nuclear deal again comes before the U.S. Congress later this year or early next year.

I conclude by reiterating my firm belief that the 123 Agreement between the U.S. and India is an exceptional accomplishment, meets all U.S. laws, and provides unprecedented level of cooperation with India in developing its civilian nuclear sector. The agreement opens new doors of nuclear cooperation between India and many other nations. As far as the nuclear commerce is concerned, India will benefit far more than the U.S. But that is what friends are for.

*Dr. Vijay K Sazawal is a nuclear policy specialist by profession, having worked for over three decades in the U.S. nuclear industry. His professional experience covers the entire nuclear fuel cycle, having worked on breeder reactors, space based reactors, advanced reactor designs, spent fuel management, reprocessing, and nuclear enrichment. He is currently a senior executive in a global energy company.

Dr. Sazawal also writes on regional security issues in South Asia with primary focus on Kashmir. His papers have been published in both U.S. and foreign publications.

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