This article was published as Pugwash India Backgrounder in the Indian Pugwash Society's in-house journal Proliferation and Arms Control, Vol IV, 6, August 2007
I) What is the 123 Agreement?
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| President Bush and Prime Minister Singh (WPR) |
2) Does the agreement prohibit India from conducting a nuclear test in the future?
No. India has not given up its right to conduct a nuclear test anywhere in the 123 agreement. Article 14(2) of the 123 agreement says:
”The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.”
The above cited paragraph is an interpretation of the possible consequences of testing. It can be interpreted as making a differentiation between an ‘unprovoked’ test by India and an Indian nuclear test that follows similar actions by other states (viz. US, China or Pakistan) which “impacts national security or due to ‘serious concerns about a changed security environment.
3) What does the agreement say about fuel supply assurances?
Ensuring a fool-proof guarantee assuring uninterrupted fuel supply was one of the major sticking points in course of negotiations on the 123 agreement. This was all the more relevant due to the fact that India had previously suffered when the US had cut off nuclear fuel supplies to Tarapur in the wake of the 1974 Indian Peaceful Nuclear Explosion (PNE).
Articles 2.2(e), 4.1, 5.6, 14.5 and 14.8 of the 123 agreement deal with various aspects of fuel supply assurance.
Article 2.2 (e) says that the parties to enable full civil nuclear cooperation will cooperate in the “development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors.” This is much more than the US has granted several other states with which it has entered into similar 123 agreements. In case of other countries the US has said that it “ensures a reliable supply of fuel and provides a reserve of fuel as may be required to operate the reactor for a reasonable amount of time.”
Article 4.1 deals with the Nuclear Trade. It says that, “[snip] The Parties recognize that reliability of supplies is essential to ensure smooth and uninterrupted operation of nuclear facilities and that industry in both the Parties needs continuing reassurance that deliveries can be made on time in order to plan for the efficient operation of nuclear installations.”
Article 5.6 (a), (b), (c) specifically deals with the issue of reliable supply of fuel to India.
Article 5.6 (a) states that “[snip] the United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. “ It further talks of the US seeking agreement from the U.S. Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations.
Article 5.6 (b) talks of additional steps that the US is prepared to take to “guard against any disruption of fuel supplies.” Here the agreement lists out four steps that the US would talk to ensure that fuel supplies are not disrupted. It says that the US would incorporate assurances regarding fuel supply in the bilateral India-US agreement on civil nuclear cooperation submitted to the US Congress. Secondly, the US will support 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. Thirdly, in case of disruption of fuel supply despite these arrangements, India and the US would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.
Over and above the above listed assurances of fuel supply, under Article 5.6 (c) India would have the right to take “corrective measures” in case of a disruption of foreign fuel supplies, to ensure uninterrupted operation of its civil nuclear reactors. As outline in this Article, the India specific safeguards agreement that India would negotiate with the IAEA would have a provision for such “corrective measures.”
Assurance of uninterrupted fuel supplies is built into even the termination clauses. Article 14.5 states that in case of right of return being exercised “the parties shall give special consideration to the importance of uninterrupted operation of nuclear reactors of the Party concerned with respect to the availability of nuclear energy for peaceful purposes.”
4) Does the agreement give India the right to reprocess spent fuel?
Yes. Article 6 (iii) of the agreement gives India the right to reprocess. However, this right will come into effect after India establishes a new reprocessing facility under IAEA safeguards. Once India is ready to reprocess the spent fuel it has to request for consultations on arrangements and procedures. Such consultations will begin within six months of any such request and will be concluded within one year.
In fact, contrary to most of the debate which took place prior to the agreement being arrived at the US AEA, 1954 does have provisions whereby by it grants reprocessing rights under agreements for cooperation with other countries. Sec 131(a)(3), 131(b)(2) and 131(d) of the US AEA, 1954 and in particular, Section 131 clause (d) talks about reprocessing rights. This article states that, “Nothing in this section is intended to prohibit, permanently or unconditionally, the reprocessing of spent fuel owned by a foreign nation which fuel has been supplied by the United States, to preclude the United States from full participation in the International Nuclear Fuel cycle Evaluation provided for in section 105 of the Nuclear Non-Proliferation Act of 1978…” It is important to note that, wherever the US has granted reprocessing rights to countries under the agreement for cooperation, the countries have placed the reprocessing facility under IAEA safeguards.
5) Currently how much nuclear waste does India generate annually? What would be the time required for construction of a new reprocessing facility and what would be its optimum capacity?
Each of India’s 220MWe Pressurised Heavy Water Reactors (PHWR) generate about 1.3m3 of intermediate-level waste every year.[2] Under the separation plan India has placed about 14 nuclear reactors under the civilian list. The Kudankulam Atomic Power Project (KAPS 1&2) which are of 1000MWe each would generate about 11 m3 of intermediate-level waste.[3] Thus the amount of intermediate-level waste (which would be fit for reprocessing) that these reactors will generate annually will be roughly about 27m3. However, the PHWR spent fuel is cooled for a minimum period of 430 days. Thus, one can assume that on an average, the PHWR spent fuel would be cooled for about 2 years before it is fit for reprocessing.
With the finalisation nuclear deal and the construction of new nuclear power reactors in the future, one can safely assume that the amount of waste that India will generate annually will increase. However, the minimum time required for new reactors to be constructed and achieve criticality would be about 10 years. A new safeguarded reprocessing facility with a capacity of about 125MT/year like in the case of the Kalpakkam Reprocessing Plant would be sufficient to meet current and future Indian reprocessing requirements. The time required for constructing such a facility would be about 3 to 5 years.
6) What does the agreement say about termination of cooperation and what are the procedures laid out in the agreement?
Article 14.1 gives either party the right to terminate the agreement on one year’s written notice to the other party. The notice should also provide the reasons for seeking termination of the agreement. One year from the date of the written notice, the agreement shall be terminated.
7) What does the right say about the US’s ‘right of return’? How is this right operationalised?
Article 14.4 talks about either party having the “right to require return” following cessation of cooperation under the agreement. Article 14.5 says that in case of either party exercising the right to return, there would be prior consultations with the other party “giving special consideration to the importance of uninterrupted operation of nuclear reactors of the party concerned with respect to the availability of nuclear energy for peaceful purposes as a means of achieving energy security. Both Parties shall take into account the potential negative consequences of such termination on the on-going contracts and projects initiated under this Agreement of significance for the respective nuclear programmes of either Party.”
Article 14.6 says that in case of either party exercising the right of return it shall prior to the removal from the territory [snip] compensate promptly that Party for the fair market value thereof and for the costs incurred as a consequence of such removal.”
8) What are fall-back safeguards and what does the agreement say about it?
Fall-back safeguards come into place only when IAEA is unable to fulfil its safeguard duties required under the agreement. The likely arrangement that India and the US will enter into with respect to fall-back safeguards can be extrapolated by studying previous Agreements for cooperation entered into by the US with other countries. For example in the US agreement with EURATOM as well as with Japan, the text of the agreement states that “in the event that IAEA Safeguards is not being applied [snip] the parties shall immediately establish safeguards arrangements for the application of safeguards which provide for effectiveness and coverage equivalent to that provided by the safeguards Agreement required by the agreement for cooperation.”
Under the 123 Agreement, India is committed to IAEA safeguards “in perpetuity” in return for “assured fuel supplies.” The 123 agreement does not talk of fall back safeguards. Instead, Article 10.4 talks of consultations between parties to arrive at “appropriate verification measures” in case of a breakdown of the existing arrangement.
It has been pointed out that budgetary constraints could prevent the IAEA from implementing the safeguards. Mr. M.K. Narayanan has accepted that this could be a possibility. He however has said that India will leave such a determination to the IAEA Director General and the Board of Governors. He has also said that in such a scenario India might decide to contribute to the IAEA fund in order to enable the agency to implement the safeguards.[4]
9) Does the agreement hinder in anyway whatsoever with India’s strategic nuclear program?
No. In fact, Article 2.4 of the agreement very clearly states that the purpose of the agreement is not to affect the unsafeguarded nuclear activities of either party.
It goes on to state that “nothing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. This Agreement shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes.”
10) What are the next steps that the US and India have to take before the 123 Agreement is placed before the US Congress?
Before the agreement is placed before the US Congress, the Nuclear Supplier Group (NSG) should have modified its Guidelines by consensus, thereby enabling full civil nuclear trade between India and the NSG countries.[5] Several important countries like Brazil, South Africa, and possibly Australia have already pledged their support to India’s case at the NSG.[6]
Secondly, “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 in accordance with IAEA standards, principles, and practices to India’s civil nuclear facilities, materials and programs.”[7]
Thus, before the agreement is placed before the US Congress for approval, the NSG should have modified its guidelines and India and the IAEA should have negotiated an India-specific safeguards agreement, but not necessarily have signed the same.
11) What are the steps that have to be effectuated in the US Congress in order for the civil nuclear cooperation to begin?
After the 123 agreement is reached between India and US, the proposed agreement along with the Nuclear Proliferation Assessment Statement (NPAS) will be submitted by the President to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs. The NPAS consists of two parts: a classified annex prepared by the Director of the Central Intelligence Agency; and an unclassified part prepared by the Secretary of State which a) analyses the consistency of the text of the proposed agreement for cooperation with all the requirements of this Act, with specific attention to whether the proposed agreement is consistent with each of the criteria set forth in this subsection, and b) analyses the adequacy of the safeguards and other control mechanisms and the peaceful use assurances contained in the agreement for cooperation to ensure that any assistance furnished there under will not be used to further any military or nuclear explosive purpose.
The Committees of the Congress will then consider the proposed agreement for a period of thirty days of continuous session once they receive the proposed agreement for cooperation together with the approval and determination of the President. (Emphasis added) After, the committees of the Congress make their recommendations within the thirty day period, the proposed agreement is sent to the House and the Senate which then deliberate on the agreement for a sixty day period.
As specified in the Conference Report “…nuclear cooperation with countries, such as India, that do not satisfy all the conditions of 123(a), such as full scope safeguards, can come into effect only if both Houses of Congress pass a joint resolution of approval within 90 days. If either chamber does not approve the resolution, the agreement does not enter into force.”
(The author can be contacted at arun.vishwanathan@gmail.com)
Endnotes
[1] “Agreement for cooperation between the Government of India and the Government of the United States of America concerning peaceful uses of nuclear energy,” 1 August 2007, available at http://meaindia.nic.in/
[2] M.V. Ramanna, Dennis George Thomas and Susy Verghese, “Estimating nuclear waste production in India,” Current Science, Vol. 81, no. 11, December 2001, pp. 1460-1461.
[3] “Atomic Energy in India: A perspective,” Department of Atomic Energy, September 2003, p. 10.
[4] Siddharth Varadarajan, “Interview with National Security Advisor, MK Narayanan,” The Hindu, 28 July 2007, available at http://www.hindu.com/2007/07/28/stories/2007072855121300.htm
[5] Henry J. Hyde United States – India Peaceful Atomic Energy Cooperation Act of 2006, 7 Decemeber 2006, Section 104 (b) (7)
[6] Sandeep Dikshit, “IBSA to team up in nuclear field,” The Hindu, 18 July 2007, available at http://www.hindu.com/2007/07/18/stories/2007071862101200.htm ; “Australia supports India at NSG,” The Economic Times, 1 August 2007, available at http://economictimes.indiatimes.com/Australia_to_support_India_in_NSG/articleshow/2247243.cms
[7] Henry J. Hyde United States – India Peaceful Atomic Energy Cooperation Act of 2006, 7 Decemeber 2006, Section 104 (b) (2)
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