- The India-specific Agreement with the IAEA

The India-specific Agreement with the IAEA

(An Aspect of the 123 Agreement)
Part VII

By Shiva Kant Jha

The Hyde Act provides a mandatory legal framework for a pact between the United States and India . It provides that the United States will grant India an access to civilian nuclear technology and to nuclear fuel ‘in exchange for IAEA -safeguards on civilian Indian reactors.' The 123 Agreement, which prescribes the details of the consensual obligation between the US and India, requires a separate U.S. congressional approval. The preamble to the 123Agreement says in uncertain terms:

“Affirming their support for the objectives of the IAEA, and its safeguards system, as applicable to India and the USA, and its importance in ensuring that international cooperation in development and use of nuclear energy for peaceful purposes is carried out under arrangements that will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices;”

The IAEA would determine periodically the range and province of ‘Nuclear Materials [Art 1 (L)]. The US is supposed to join “India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.” Art 6, is a precise, but involved statement of the objectives of the IAEA, spelt out in detail in the Statute of the IAEA, the Nobel Lectureby IAEA Director General Dr. Mohamed ElBaradei, IAEA Annual Report for 2006, and in its approches as revealed in the discharge of its functions as illustrated through its interactions with Iran. The IAEA exists,to great extent, as an UN watch-dog, seeking to “to promote the peaceful use of nuclear energy and to inhibit its use for military purposes ”. The IAEA's objectives are: (i) to encourage the development of the peaceful applications of nuclear technology, (ii) to provide and implement the safeguards against misuse, and (iii) to facilitate the application of safety measures in its use. Art. II of the Statute of IAEA articulates its objective thus:

“The Agency shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world. It shall ensure, so far as it is able, that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose.”

It exists to provide a regime to ensure the availability of input and technology for atoms for peace, to establish an infallible system of safety and secrity, to operate a fool-proof system of verification, and to ensure a system for coperation committed to the peaceful uses of nuclear energy. Art. 5(c ) of the Agreement says that India “will place its civilinean nuclear facilities under India-specific safeguards in perpetuaity and negotiate an appropriate safeguards agreement to this end with IAEA.” Reprocessing/enrichment of the safeuarded materials will be under the IAEA spervision. Their storage facilities would also have to be IAEA-compliant. Art. 10 contemplates a comprehesive ‘IAEA Safeguards' operative extra-territorially. It is true that explorations and advancements in nuclear energy for defence purpose are not under the IAEA inspection and interdiction, but the reach of the 123 Agreement, the Hyde Act, and possible terms of the India-specific Agreement, would provide more and more scope for interventions. It will be possible for the IAEA to raise disputes asserting that knowledge gained through the permissible segment of research and utilization, has been used in the excluded segment (military/defence puroses)because, whatever is theoretically divisible on paper, gets mixed up in the cerebral cortex the nuggets of knowdge cross fertilise under creative chemistry. “The main concern of the IAEA is that uranium not be enriched beyond what is necessary for commercial civil plants, and that plutonium which is produced by nuclear reactors not be refined into a form that would be suitable for bomb production”. After all “the same plants and technology used to enrich uranium for power generation can be used to make the highly enriched uranium needed to build a bomb”.

In India-specific Agreement with the IAEA there is bound to be provisions of Disputes Settlement. Surely this would be crafted in the mandatory context of Art XVII of the Statute of IAEA which contemplates even to a reference to the the International Court of Justice, unless the parties concerned agree on another mode of settlement.Besides, the e General Conference and the Board of Governors are separately empowered, subject to authorization from the General Assembly of the United Nations, to request the ICJ to give an advisory opinion on any legal question arising within the scope of the Agency's activities . It is a matter of vital importance to see in what terms the provisions as to the Disputes Settlement are incorporate when the India-specific Agreement with IAEA is framed.

The 123 Agreement states that the national laws will govern the acts of the concerned contracting party. Why not allow the national apex court a jurisdiction over disputes in matters agititated by the IAEA? Why take a contracting party to the vortex of international bodies when international law is now a mere instrument of the US policies to promote strategic and commercial interests? Think over.

One thing deserves to be stated. No sane man,who wishes humanity to survive, would differ from the good things stated in aphoristic anf hortatory style by the U.S. President Dwight D. Eisenhower in 1953 in his speech on " Atoms for Peace " delivered in the UN General Assembly , or in the embellished speech of the IAEA's Director General, Mohamed ElBaradei , in his Nobel Peace Prize lecture on 7 October 2005 .

It deserves to be noted that as (a) the 123 Agreement is subject to ‘national laws' (domestic law); and as (ii) [in my considered view despite some discordant voice] , the treaty done by Executive cannot dispense with or override Parliamentary enactment, it will be essential either to amend our Atomic Energy Act, 1962 as amended by the Atomic Energy (Amendment) Act, 1986; OR (better still to frame an independent statute, on the analogy of the Hyde Act). It is appropriate to consider the congruence of several Sections in our Atomic Energy Act with the 123 Agreement read in the context of the Hyde Act which has some vital referents to the US Atomic Energy Act 1954. Attention is drawn to certain provisions of our Act to highlight contradictions, and ambiguities inter se the Act and the Agreement. Vide Sections2. 1(b); 3; 8; 11; 14; 17; 18(1), 30, and 31. Section 31 very crisply says: “The provisions of this Act shall be binding on Government.” Rules to be framed are to be placed before Parliament [Section 30 (4)). Many of the provisions under 123 Agreement will have great domestic impact. This would require Parliamentary enactment.

As the issue of having an India-specific Agreement with IAEA (an also an Additional Protocol) is too important to be left to the Executive government to be hammered out in secret chambers, it would be proper that our Parliament should give a controlled mandate to the Executive government.


The best way to save humanity from war and to promote the cause of peace for the weal of mankind is total nuclear diasrmament. We must realise that worms are bred in the minds of our greedy and lusty generations which have developed an enormous hubris learning nothing from history. When all is said, the world cannot evade the following four issues:

(i) the dangerous “clash of civilizations” when certain countries come together on thisor that pretence against militant Islam and an imperial China;

(ii) the inevitable ‘chaos' on account of strivings of the deprived humans invade the secretive islands of wealth protected by persuaders and ultr-modern technology;

(iii) the ecological and demographic diasters wrought by us; and

(iv)the spread of nuclear and missile technlogy, making strides for the Star Wars.

Unless we work for a gobal regime to effect total disarmament, and unless we work for eliminationg the breeding grounds of hatred, suspicion and conflicts, no international agreement, imposed or consensual, can be of any effect. - Links on Shivakantjha - Links on Shivakantjha

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