China’s (no big) deal

Parliament will most likely debate the 123 text next week. One big talking point: did China get a better deal? Trawling through both 123 texts, Pranab Dhal Samanta explains why the opposite is true

National Laws

China: Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes (Article 2.1).

India: Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements concerning the use of nuclear energy for peaceful purposes (Article 2.1).

Reality Check: There is considerable opposition here on the question of the emphasis on “national laws” in the India 123 agreement, thereby underlining the supremacy of the Hyde Act. As is clear, the formulation is identical in China’s case and Beijing is not complaining nor experiencing difficulty.

International Law

China: The parties recognise, with respect to the observance of this agreement, the principle of international law that provides that the party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty (Article 2.1). Each proposed export pursuant to the agreement shall be subject to United States’ laws and regulations in effect at the time of each such export (Congressional Joint Resolution, Public Law 99-183, 16 December 1985).

India: This agreement shall be implemented in good faith and in accordance with the principles of international law (Article 16.4). No violation may be considered as being material unless corresponding to the definition of material violation or breach in the Vienna Convention on the Law of Treaties (Article 14.3).

Reality Check: This above provision in the China agreement led to a major debate in the US Congress forcing the then Reagan Administration to concede, as is reflected in the Congressional joint resolution which led to a separate agreement on implementation arrangements. There is particular emphasis on laws in effect “at the time of each export”. There is no such rider for India. Instead, there is correlation drawn to international law and the Vienna convention, which the US agreed despite not being a signatory to this convention.

Certification Issues

China: No export licenses or transfers to China until that country has provided additional information concerning its nuclear non-proliferation policies and the US President certifies that China is not in violation of Section 129 (2) of the US Atomic Energy Act of 1954 regarding assistance to any non-nuclear weapon state in its weapons programme (Congressional Joint Resolution, Public Law 99-183, 16 December 1985). President certifies that China has provided such information (Presidential Determination No.98-10, 12 January 1998).

India: No such provision regarding India’s relations with third countries nor any requirement for certification.

Reality Check: Clearly, China has to consistently prove its non-proliferation credentials which has to be certified by the US President before grant of export licenses. No such provision in India’s agreement.

Verification

China: Establish mutually acceptable arrangements for exchanges of information and visits to material, facilities and components subject to this agreement (Article 8.2). Reciprocal arrangements made pursuant to Article 8 have been designed to be effective in ensuring that any nuclear material, facilities or components provided under this agreement shall be utilised solely for intended peaceful purposes (Presidential Determination No.98-10, 12 January 1998).

India: Safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA (Article 10.2).

Reality Check: China has agreed to allow American inspectors to visit its sites while the agreement with India is limited to only IAEA safeguards and inspections.

Fuel Supply Assurances

China: The quantity of material transferred under this Agreement shall be the quantity which the parties agree is necessary for any of the following purposes: the loading of reactors... the efficient and continuous operation of such reactors (Article 4.3).

India: Development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors (Article 2.2 e). Support an Indian effort to develop a strategic reserve; if despite these arrangements, a disruption of fuel supplies to India occurs, jointly convene a group of friendly supplier countries to pursue such measures as would restore fuel supply to India (Article 5.6 b).

Reality Check: The India 123 agreement clearly goes beyond the Hyde Act provision (Section 103-b) that fuel reserve should be “commensurate with reasonable reactor operating requirements”. As is evident this insertion in the Hyde Act was inspired by the China 123 agreement where the quantity must not exceed what is needed for “efficient and continuous operation”.

Reprocessing

China: Parties undertake the obligation to consider such activities favourably and agree to provide pertinent information on the plans during the consultations. Agree to refrain from actions which either party believes would pre-judge the long-term arrangements for undertaking such activities (Article 5.2). Obligation to consider favourably shall not prejudice the decision of the US to approve or disapprove such a request (Congressional Joint Resolution, Public Law 99-183, 16 December 1985).

India: Parties grant each other consent to reprocess. To bring these rights into effect, India will establish a new national reprocessing facility. Consultations and arrangements will begin within six months of a request and will be concluded within one year (Article 6.iii).

Reality Check: While US only promises to consider a Chinese request for reprocessing in the future, India has a clear and explicit consent. Incidentally, China still hasn’t got this consent.

Cessation of Cooperation

China: Shall endeavour to avoid taking any actions that affect cooperation. If either party at any time does not comply with the provisions of this agreement, the parties shall promptly hold consultations on the problem, it being understood that the other party shall have the rights to cease further cooperation (Article 7.1).

India: Right to terminate this agreement on one year’s written notice and shall provide reasons for seeking such termination. Shall consider the relevant circumstances and promptly hold consultations to address the reasons. Party seeking termination has the right to cease further cooperation if it determines that a mutually acceptable resolution has not been possible or cannot be achieved. Agree to consider carefully the circumstances that may lead to termination or cessation and take into account whether they 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 (Articles 14.1 and 14.2).

Reality Check: Both agreements extend this right to either party. However, unlike in the case of China, there are provisions of one-year notice period and consultation on circumstances built into the agreement with India. In China’s case, cooperation can be stopped immediately.