Abhishek Singhvi
The Indo-US 123 agreement is such an amalgam of law, politics, technical jargon, economic nuance and statistical analysis that it requires an open and inquiring, albeit critical, mind to understand and appreciate it. Such minds have to jettison preconceived notions and premeditated biases, rely on light rather than heat, on fusion instead of fission and on the power of reason and logic rather than rhetoric to arrive at objective conclusions.
The 123 is a key that unlocks a new room which is virtually as large as the community of nations itself. It turns us from nuclear outcastes to mainstream decision makers. It converts decades of isolation and ostracism into vibrant, participatory inclusion. It has to be judged on the basis of what India is getting against the touchstone of where we have stood for the past several decades. To judge it against some unattainable ideal is to commit the classic folly of letting the perfect be the enemy of the good.
Indeed, by allowing India to be the first and only country in the world to be a de facto and de jure nuclear power, with supply of uranium and equipment, grant of reprocessing rights in principle, on terms more favourable than any other 123 agreement (as, for example, with China) without having to sign either the NPT or the CTBT, India has been allowed to have its cake and eat it too.
The agreement is historic for a variety of reasons.
Energy Security: Nuclear power scores on all three counts of reducing our huge energy deficit, cost and efficiency. India has amongst the world’s lowest per capita consumption of electricity in the world: 515 kgoe against UK’s 3,982, USA’s 7,996 and Japan’s 4,099. Out of 30 nuclear energy users, we rank 27. We are going through a miracle of 8-9% growth despite a huge energy deficit. But miracles do not recur and do not last. Published reports state that after the next five five-year plans ending 2032, even a 8% average annual GDP requires 1 million MW. If we add all possible sources of generati on — domestic & imported coal, gas, oil and hydro — we cannot cross a maximum of 4 lakh MW. Thus, our deficit is going to be a minimum of half of our needs. These are published figures of the ministry of power and the Planning Commission.
Even if we increase our present dismal 3% share of nuclear power to 7% (with a good possibility of crossing 10%) by 2032, we would be producing around 30,000 MW from nuclear sources, ie about eight times our current 4,000 MW. In any case, does our current 3% look respectable against even the 20% for UK, 21% of USA and 31% of Japan, not to mention the 79% of France and the 60% of Belgium? If, as projected, India will become the world’s third largest economy, behind USA and China and ahead of Japan, is it possible without energy sufficiency? No wonder, each five-year plan projection of capacity addition has fallen short by half.
Those who complain of excessive costs do not ask the same question about unaffordable and scarce oil which is mostly imported by India. The 1973 crude price of $2 per barrel today stands at $75.31.
The cost of an indigenous nuclear power reactor is approximately Rs 6.5 crore per MW, with a gestation lag of 5-6 years which generates power at approximately Rs 2-50 per unit. A hydro unit would cost approximately the same per MW with the same construction period and a cost of Rs 2 per unit. Coal would cost around Rs 4 crore, take four years and supply power at the load centre at approximately Rs 2.75 per unit.
Finally, gas based units cost Rs 2.5 crore per MW and supply power at Rs 5 per unit if it is oil based and at Rs 2 or so if gas based.
However, a nuclear as also a hydro plant has a life of 40-50 years whereas a gas plant has a life of only 15-20 years. The nuclear one is environmentally the cleanest — if these costs were added for a coal or oil plant, the per unit electricity cost would be very high. The single most important point is that despite the high initial capital cost of a nuclear plant — and imported ones under the 123 would cost approximately Rs 9-10 crores — the running cost is infinitesimal compared to all other types of plants, so that the nuclear plant turns out to be much cheaper even in the medium term, much less the long term.
Published papers on the economics of nuclear plants give cost ratios of all kinds of power plants and conclude that nuclear plants are cheaper even without comparing the emissions of coal plants.
Unlike coal plants, nuclear ones are also distance neutral — the cost per unit of coal based electricity can be more than double at the load centre in comparison to the pit head — and unlike hydro ones, do not need alignment with rivers. Finally, where 1 ton of uranium generates 1,000 MW of energy, it would take 3 million tons of black coal to generate the same. But the crucial point remains: our strategy has to be holistic, multipronged and multifaceted, where all kinds of energy generation techniques are simultaneously pursued and not one at the cost of the other.
Misconceptions about the Hyde Act: An understandable unfamiliarity with US constitutional law permits the generation of much confusion regarding the Hyde Act. Firstly, Article 6 of the US Constitution clearly declares that US treaties are as much part of the “supreme law of the land” as are US laws.
Hence, a treaty like the 123 is not in any way inferior to domestic US statute. Secondly, US law gives utmost weight to treaties and will rarely, if ever, construe a treaty to be in violation or conflict with domestic law. Thirdly, in the unlikely event of irreconciliable conflict between a treaty and a domestic law like the Hyde Act, several US Supreme Court judgments assert that “the duty of the courts is to give effect to the latest expression of the sovereign will. (Whitney v Robertson, 1888)”.
That is why a treaty goes back to the US Congress for ratification, as will hopefully happen to the 123 in an up down vote in the near future. It is the same US legislature which ratifies the 123 as has passed the Hyde Act. Hence, the same legislature’s “latest expression of the sovereign will” will be the (future) vote and must make the 123 prevail over any other law.
Fourthly, what makes some see red in the Hyde Act (pun intended) are exhortatory, hortatory, declarations of policy which are admittedly non binding. These include sections 101, 103 and 109 which contain the sense of the House, statements of policy and observations regarding nuclear non-proliferation, relations with Iran and Iraq and so on. Fifthly, both the US President and the US ambassador to India, as far back as mid-2006, had declared this position in writing.
Surely Indian critics must defer to the US President’s understanding of his country’s law!
Sixthly, clause 16.4 of the 123 mandates the implementation of the agreement “in accordance with the principles of international law”. One such fundamental, unalterable, and immanent principle of international law — called jus cogens and akin to our basic structure rule in domestic law — is that every treaty has binding force and must be performed by parties in good faith (“pacta sunt servanda”). Under this also, the 123 would have full primacy.
Reference by critics to Article 2(1) of the 123 which talks of implementation as per “national laws” is misleading since that article applies domestic laws to the operation of the agreement. Naturally, if certain procedures, rules and regulations are required to be fulfilled by either India or USA under their respective domestic laws for import or export of material or equipment, those formalities have to be observed.
India gets unique advantages: No part of our three stage nuclear cycle is compromised. The 123 is also to be seen as a transitional, bridging arrangement because if we get the third stage of our integrated cycle going — and brilliant Indian scientists are likely to do it sooner rather than later — we will need no NSG and no 123 since our (largest in the world) thorium reserves will make us one of the largest producers of nuclear power. China has done a 123 on remarkably inferior terms compared to India.
China gets no uranium from USA (only reactors) and has to source uranium from Australia. China agrees to both US and Australian inspectors without a whimper! India gets uranium from USA but no inspectors. Only IAEA can inspect. India draws up its own separation plan — as to which facility to submit to civilian inspection and which to keep aside for its military programme — whereas China has to draw it up mutually with Australia. There is a clear advance consent to India to reprocess, subject to drawing up procedures and arrangements, whereas the same is denied to China.
India has linked perpetual civilian safeguards to perpetual supplies, whereas Australia has no such guarantee of supplies to China, while safeguards will operate in perpetuity. Additionally, several US laws oblige China to provide all information on nonproliferation, compel China to supply lists of detainees and have a US Congressional Commission to monitor China’s human rights record.
China’s communists happily signed their 123 because of a pragmatic programme of establishing two reactors every year till 2020 (total 31 by then) and to reach 150 reactors by 2050 with total capacity of 150,000 MW. Today, China has 8,500 MW. No wonder China and Pakistan are the two nations most vociferously opposing the Indian 123.
NDA’s Hypocrisy: The opposition’s double standards are unprecedented. The previous government “tangoed” with Strobe Talbott for years (read his memoirs) for something half as good as 123. PM Vajpayee in September 1998 and foreign minister Jaswant Singh exactly one year later, on the floor of the UN, formally committed India to a de jure voluntary permanent moratorium on all future testing. Indeed, they came dangerously close to signing the CTBT. Today, they are crying hoarse about bartering away India’s testing rights when this PM has fought tooth and nail, through a dedicated team of skilled Indian negotiators, to retain Indian flexibility in this regard. Sometimes, NDA asks for voting on the 123; on other days, it seeks a JPC.
Sometimes, Advani wants only amendments to Indian law; at others he is persuaded to parrot the hardliners view. Will the NDA answer to this nation as to when, over 60 years of Congress and non-Congress governments, have international treaties been put to parliamentary vote or referred to the JPC? The NDA in power would never dream of it for the simple reason that it is neither good law nor practice nor convention. But everything is made grist to the political mill. Transparency: The PM has demonstrated exemplary transparency. Since July 2005, he has made five statements in Parliament.
There have been several rounds of negotiations over 26 months. Additionally, there have been over five joint written statements by Indo-US negotiators. No other government has shown a fraction of the participatory spirit as this one on an international agreement. The Hyde Act is itself over nine months old. Nothing new or unknown has happened.
Testing: is an overstated concern. The NDA’s hypocrisy on the subject has been summarised above. Fifity years of isolation did not stop our testing; how can an additional window, a new key like the 123 make us worse off ? If we source most of our supplies from non-USA NSG countries, the testing issue would anyway become irrelevant.
The 1954 US Atomic Act predates the 123 by 50 years — USA can never be expected to affirmatively support our testing or military plans. Reference to testing has been nevertheless been scrupulously avoided in the 123. The termination clause itself requires the circumstances of India’s testing (eg China or Pakistan testing) to be sympathetically taken into account.
Military Programme Untouched: We decide how many of our current or future plants will be for military and how many for civilian purposes. Clause 12.3 specifically mandates non hindrance by USA. Incidentally, current estimates suggest that our eight military facilities, even without future augmentation, can produce 200 bombs. We do not need more to survive or self destruct!
(The author is an MP and national spokesperson of Congress)
The Times of India
The Indo-US 123 agreement is such an amalgam of law, politics, technical jargon, economic nuance and statistical analysis that it requires an open and inquiring, albeit critical, mind to understand and appreciate it. Such minds have to jettison preconceived notions and premeditated biases, rely on light rather than heat, on fusion instead of fission and on the power of reason and logic rather than rhetoric to arrive at objective conclusions.
The 123 is a key that unlocks a new room which is virtually as large as the community of nations itself. It turns us from nuclear outcastes to mainstream decision makers. It converts decades of isolation and ostracism into vibrant, participatory inclusion. It has to be judged on the basis of what India is getting against the touchstone of where we have stood for the past several decades. To judge it against some unattainable ideal is to commit the classic folly of letting the perfect be the enemy of the good.
Indeed, by allowing India to be the first and only country in the world to be a de facto and de jure nuclear power, with supply of uranium and equipment, grant of reprocessing rights in principle, on terms more favourable than any other 123 agreement (as, for example, with China) without having to sign either the NPT or the CTBT, India has been allowed to have its cake and eat it too.
The agreement is historic for a variety of reasons.
Energy Security: Nuclear power scores on all three counts of reducing our huge energy deficit, cost and efficiency. India has amongst the world’s lowest per capita consumption of electricity in the world: 515 kgoe against UK’s 3,982, USA’s 7,996 and Japan’s 4,099. Out of 30 nuclear energy users, we rank 27. We are going through a miracle of 8-9% growth despite a huge energy deficit. But miracles do not recur and do not last. Published reports state that after the next five five-year plans ending 2032, even a 8% average annual GDP requires 1 million MW. If we add all possible sources of generati on — domestic & imported coal, gas, oil and hydro — we cannot cross a maximum of 4 lakh MW. Thus, our deficit is going to be a minimum of half of our needs. These are published figures of the ministry of power and the Planning Commission.
Even if we increase our present dismal 3% share of nuclear power to 7% (with a good possibility of crossing 10%) by 2032, we would be producing around 30,000 MW from nuclear sources, ie about eight times our current 4,000 MW. In any case, does our current 3% look respectable against even the 20% for UK, 21% of USA and 31% of Japan, not to mention the 79% of France and the 60% of Belgium? If, as projected, India will become the world’s third largest economy, behind USA and China and ahead of Japan, is it possible without energy sufficiency? No wonder, each five-year plan projection of capacity addition has fallen short by half.
Those who complain of excessive costs do not ask the same question about unaffordable and scarce oil which is mostly imported by India. The 1973 crude price of $2 per barrel today stands at $75.31.
The cost of an indigenous nuclear power reactor is approximately Rs 6.5 crore per MW, with a gestation lag of 5-6 years which generates power at approximately Rs 2-50 per unit. A hydro unit would cost approximately the same per MW with the same construction period and a cost of Rs 2 per unit. Coal would cost around Rs 4 crore, take four years and supply power at the load centre at approximately Rs 2.75 per unit.
Finally, gas based units cost Rs 2.5 crore per MW and supply power at Rs 5 per unit if it is oil based and at Rs 2 or so if gas based.
However, a nuclear as also a hydro plant has a life of 40-50 years whereas a gas plant has a life of only 15-20 years. The nuclear one is environmentally the cleanest — if these costs were added for a coal or oil plant, the per unit electricity cost would be very high. The single most important point is that despite the high initial capital cost of a nuclear plant — and imported ones under the 123 would cost approximately Rs 9-10 crores — the running cost is infinitesimal compared to all other types of plants, so that the nuclear plant turns out to be much cheaper even in the medium term, much less the long term.
Published papers on the economics of nuclear plants give cost ratios of all kinds of power plants and conclude that nuclear plants are cheaper even without comparing the emissions of coal plants.
Unlike coal plants, nuclear ones are also distance neutral — the cost per unit of coal based electricity can be more than double at the load centre in comparison to the pit head — and unlike hydro ones, do not need alignment with rivers. Finally, where 1 ton of uranium generates 1,000 MW of energy, it would take 3 million tons of black coal to generate the same. But the crucial point remains: our strategy has to be holistic, multipronged and multifaceted, where all kinds of energy generation techniques are simultaneously pursued and not one at the cost of the other.
Misconceptions about the Hyde Act: An understandable unfamiliarity with US constitutional law permits the generation of much confusion regarding the Hyde Act. Firstly, Article 6 of the US Constitution clearly declares that US treaties are as much part of the “supreme law of the land” as are US laws.
Hence, a treaty like the 123 is not in any way inferior to domestic US statute. Secondly, US law gives utmost weight to treaties and will rarely, if ever, construe a treaty to be in violation or conflict with domestic law. Thirdly, in the unlikely event of irreconciliable conflict between a treaty and a domestic law like the Hyde Act, several US Supreme Court judgments assert that “the duty of the courts is to give effect to the latest expression of the sovereign will. (Whitney v Robertson, 1888)”.
That is why a treaty goes back to the US Congress for ratification, as will hopefully happen to the 123 in an up down vote in the near future. It is the same US legislature which ratifies the 123 as has passed the Hyde Act. Hence, the same legislature’s “latest expression of the sovereign will” will be the (future) vote and must make the 123 prevail over any other law.
Fourthly, what makes some see red in the Hyde Act (pun intended) are exhortatory, hortatory, declarations of policy which are admittedly non binding. These include sections 101, 103 and 109 which contain the sense of the House, statements of policy and observations regarding nuclear non-proliferation, relations with Iran and Iraq and so on. Fifthly, both the US President and the US ambassador to India, as far back as mid-2006, had declared this position in writing.
Surely Indian critics must defer to the US President’s understanding of his country’s law!
Sixthly, clause 16.4 of the 123 mandates the implementation of the agreement “in accordance with the principles of international law”. One such fundamental, unalterable, and immanent principle of international law — called jus cogens and akin to our basic structure rule in domestic law — is that every treaty has binding force and must be performed by parties in good faith (“pacta sunt servanda”). Under this also, the 123 would have full primacy.
Reference by critics to Article 2(1) of the 123 which talks of implementation as per “national laws” is misleading since that article applies domestic laws to the operation of the agreement. Naturally, if certain procedures, rules and regulations are required to be fulfilled by either India or USA under their respective domestic laws for import or export of material or equipment, those formalities have to be observed.
India gets unique advantages: No part of our three stage nuclear cycle is compromised. The 123 is also to be seen as a transitional, bridging arrangement because if we get the third stage of our integrated cycle going — and brilliant Indian scientists are likely to do it sooner rather than later — we will need no NSG and no 123 since our (largest in the world) thorium reserves will make us one of the largest producers of nuclear power. China has done a 123 on remarkably inferior terms compared to India.
China gets no uranium from USA (only reactors) and has to source uranium from Australia. China agrees to both US and Australian inspectors without a whimper! India gets uranium from USA but no inspectors. Only IAEA can inspect. India draws up its own separation plan — as to which facility to submit to civilian inspection and which to keep aside for its military programme — whereas China has to draw it up mutually with Australia. There is a clear advance consent to India to reprocess, subject to drawing up procedures and arrangements, whereas the same is denied to China.
India has linked perpetual civilian safeguards to perpetual supplies, whereas Australia has no such guarantee of supplies to China, while safeguards will operate in perpetuity. Additionally, several US laws oblige China to provide all information on nonproliferation, compel China to supply lists of detainees and have a US Congressional Commission to monitor China’s human rights record.
China’s communists happily signed their 123 because of a pragmatic programme of establishing two reactors every year till 2020 (total 31 by then) and to reach 150 reactors by 2050 with total capacity of 150,000 MW. Today, China has 8,500 MW. No wonder China and Pakistan are the two nations most vociferously opposing the Indian 123.
NDA’s Hypocrisy: The opposition’s double standards are unprecedented. The previous government “tangoed” with Strobe Talbott for years (read his memoirs) for something half as good as 123. PM Vajpayee in September 1998 and foreign minister Jaswant Singh exactly one year later, on the floor of the UN, formally committed India to a de jure voluntary permanent moratorium on all future testing. Indeed, they came dangerously close to signing the CTBT. Today, they are crying hoarse about bartering away India’s testing rights when this PM has fought tooth and nail, through a dedicated team of skilled Indian negotiators, to retain Indian flexibility in this regard. Sometimes, NDA asks for voting on the 123; on other days, it seeks a JPC.
Sometimes, Advani wants only amendments to Indian law; at others he is persuaded to parrot the hardliners view. Will the NDA answer to this nation as to when, over 60 years of Congress and non-Congress governments, have international treaties been put to parliamentary vote or referred to the JPC? The NDA in power would never dream of it for the simple reason that it is neither good law nor practice nor convention. But everything is made grist to the political mill. Transparency: The PM has demonstrated exemplary transparency. Since July 2005, he has made five statements in Parliament.
There have been several rounds of negotiations over 26 months. Additionally, there have been over five joint written statements by Indo-US negotiators. No other government has shown a fraction of the participatory spirit as this one on an international agreement. The Hyde Act is itself over nine months old. Nothing new or unknown has happened.
Testing: is an overstated concern. The NDA’s hypocrisy on the subject has been summarised above. Fifity years of isolation did not stop our testing; how can an additional window, a new key like the 123 make us worse off ? If we source most of our supplies from non-USA NSG countries, the testing issue would anyway become irrelevant.
The 1954 US Atomic Act predates the 123 by 50 years — USA can never be expected to affirmatively support our testing or military plans. Reference to testing has been nevertheless been scrupulously avoided in the 123. The termination clause itself requires the circumstances of India’s testing (eg China or Pakistan testing) to be sympathetically taken into account.
Military Programme Untouched: We decide how many of our current or future plants will be for military and how many for civilian purposes. Clause 12.3 specifically mandates non hindrance by USA. Incidentally, current estimates suggest that our eight military facilities, even without future augmentation, can produce 200 bombs. We do not need more to survive or self destruct!
(The author is an MP and national spokesperson of Congress)
The Times of India
