Senior nuclear scientists say unless the United States makes substantial changes in its civil nuclear deal with India, back
and forth negotiations on the bilateral 123 Agreement to implement the deal are meaningless.
The tough terms and conditions for the civilian nuclear engagement with India as laid out in the Henry Hyde Act passed by US Congress in December 2006 and intent of the July 18, 2005 statement are at complete divergence with each other and so it is important to resolve it soon, they say.
Most of the senior scientists did not want to be quoted barring two former chairmen of the Atomic Energy Commission -- M R Srinivasan and P K Iyengar.
Srinivasan, Atomic Energy Commission member, said 'now it is the US which has to find a way to resolve the issue as the 123 agreement is only the operational arm of Henry Hyde Act'.
Asked about Prime Minister Manmohan Singh's recent suggestion on creating a national reprocessing facility for spent fuel as a civilian facility, he said "those issues can wait and they are matter of details. But what is important at this juncture is for the Americans to comply by the July 18, 2005 and March 2, 2006 joint statements and for India it is the Prime Minister's promise on the floor of Parliament, he said.
According to the agreement of March 2, 2006, the reprocessing of spent fuel from foreign plants and Indian plants was
based on an 'assay mode' or 'double mode'.
That is not possible without revisions in the Hyde Act, some of the Department of Atomic Energy scientists said.
Iyengar said, "Notwithstanding the fact that in the July 18, 2005 statement the US had recognised India as a developed
country with a strategic programme and that the US had to come out with a separation plan for nuclear facilities in March 2006, the US knew that India was very strong.
"Therefore, the negotiations that took place between March and November 2006 have evolved into a modification of the Atomic Energy Act of the US which was not so rigid in November. However, the conciliation committee when making it final, made it very rigid in complete disregard to any of India's objection, which were on the table," Iyengar said.
"It takes years to understand the intricacies and nuances of nuclear policy and why should we get into the often whimsical and partisan non-proliferation aspects as promoted by the US from time to time? It is quite clear that the US under secretary Nicholas Burns, who claimed 90 percent completion of the bilateral 123 Agreement talks successfully, seems to have burnt himself," he said.
Scientists and policy experts have noted with some amusement the predictable constitution of the "expert committee"
intended to examine in detail issues governing non-proliferation, India's deterrent and other related subjects.
The very composition of this handpicked group (a committee of three) and the fact that they have been asked to look into these issues in the few weeks leading up to the July visit to India by US Secretary of State Condolezza Rice, 'is the only aspect of the entire saga that is patently transparent', a senior DAE scientist stated.
If indeed the Prime Minister intends to make good his numerous promises to Parliament, no choice remains but to press for substantial changes in the Hyde Act.
Officials in the MEA examining the deal have commented in December 2006 that "the Hyde Act is law and supercedes any bi-lateral agreement. If anything within the 123 Agreement contradicts the Hyde Act, the act will supercede any and all terms of the agreement.
A known parallel in the case is of the Taiwan Relations Act which supercedes three previous joint communiques with China which is well aware that ultimately the US government will be bound by the terms of the Act, MEA officials had pointed out.
"We have hurriedly suggested a national reprocessing facility under international safeguards in an attempt to win the 'up-down' vote and appease the US Congress," DAE officials said.
The very fact that the US has not responded to India's offer only implies that it does not serve their purpose. Such attempts at subterfuge only highlight that reprocessing is not a right the US wishes to allow India to retain and the Hyde Act can be invoked at any time to override this 'concession', DAE officials added.
Following the footsteps of the latest offer, there is a real fear that bizarre 'concessions', including invoking US Presidential certifications for reprocessing Tarapur fuel (which India can do by right) may be proposed to push through the 123 Agreement entirely on US terms, DAE officials said.
If such certifications are allowed, not only does it set a dangerous precedent for the Indian nuclear programme but it puts India squarely in the path of future US Presidential retractions, they warn.
"Indian negotiators were attempting to convince us that the Hyde Act is an internal US legislation, not binding on India. Here is another example that the US remains bound by its terms and intends to invoke them to bludgeon India into agreeing (to their terms)," a few senior scientists said.
"Why is India running around trying to engage the IAEA and the NSG when the ball is squarely in the US court to deliver as promised?" said a few veteran nuclear scientists.
Rather than deliver on their promises and to cover up the fact that they are already welshing, India is made to run around in futility even as the US goes about changing its mind with impunity, DAE officials noted.
"If India has to engage in business with US seriously, then New Delhi has to tell the US to revise or modify the Hyde Act," they said.
Answering a query on wordings of the bilateral agreement which would take care of future problems based on the Taiwan experience of bilateral agreement with US, he said, "India understands the nuances and we do not lack any expertise in doing so."
A veteran nuclear engineer said, "It is not the question of life and death situation for India to go in a hurry to sign the
agreement. Why this hurry when US legislation is against us?"
Iyengar said, "It is surprising that although the Prime Minister has said during his very brief meeting with Bush that India will build a dedicated national facility, he never uttered a word about the Henry Hyde Act of December 2006 which is very much linked to 123 Agreement."
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