There has been lot of talk going around Indo-US nuclear deal in recent past, people are confused whats happening today I found interesting article on Rediff which is explaining almost all the points of concern.
A. The nuclear cooperation agreement should not be seen in isolation from the overall strategic tie-up with the United States — the Logistics Support Agreement, the steadily escalating joint exercises and the inevitable demand that India purchase expensive weaponry from the United States ties India to the US
Government: India has its own sovereign tendering and purchase systems. Interoperability of defense services — which is what the Logistics Support Agreement is all about — is the requirement of the day and boosts the ability of the armed forces to deal with common threats.
B. The bilateral agreement is bound by the Hyde Act. The Hyde Act is a “national law” which is there, at present, and will be there, in the future.
Government: The US has its national laws, as does India. This does not make Indian laws applicable to the US, or vice versa.
C. Serious concern about various conditions of the Hyde Act.
These issues are:
(i) Annual certification and reporting to the US Congress by the President on a variety of foreign policy issues such as India’s foreign policy being “congruent to that of the United States” and more specifically India joining US efforts in isolating and even sanctioning Iran [Section 104g(2) E(i)].
Government: India has its own independent foreign policy. Reporting by US President to his Congress is the US system of checks and balances.
(ii) Indian participation and formal declaration of support for the US’s highly controversial Proliferation Security Initiative including the illegal policy of interdiction of vessels in international waters [Section 104g(2) K]
Government: India is yet to formulate a view on the Proliferation Security Initiative. The government will do nothing that is not consistent with international law.
(iii) India will have to conform to various bilateral/multilateral agreements to which it is not currently a signatory such as the US Missile Technology Control Regime (MTCR), the Australia Group, etc [Section 104C, E,F,G]
Government: MTCR is still under discussion.
(iv) The provisions of the Hyde Act could be used to terminate the 123 Agreement not only in the eventuality of a nuclear test but also for India not conforming to US foreign policy. India would be back to complete nuclear isolation, while accepting IAEA safeguards in perpetuity.
Government: The Hyde Act is a domestic law and has no bearing on India’s foreign policy.
D. The US is curbing India’s sovereign right to further nuclear testing. The direction in the Hyde Act with regard to the Fissile Material Cut-off Treaty (FMCT) is unacceptable.
Government: As the separation plan given by the Government of India between military and civil installations has been accepted, what India does in its military installations is nobody else’s business.
E. India’s leading role in advocating nuclear disarmament as a major country of the non-aligned community is being given the go-by.
Government: On the contrary, it is being strengthened. It is India and India alone which has refused to sign the discriminatory NPT and is yet being treated as a nuclear state with weapons.
F. The proposed 123 Agreement while superficially using the original wording of the Joint Statement of 2005 — “full civilian nuclear co-operation” — denies co-operation or access in any form whatsoever to fuel enrichment, reprocessing and heavy water production technologies. This denial (made explicit in Art 5.2 of the proposed agreement) also extends to transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities.
Government: This nuclear apartheid is precisely what India is trying to overcome through a civilian nuclear agreement.
G. The fast breeder reactors under this agreement would be treated as a part of the fuel cycle and any technology required for this would also come under the dual use technology sanctions. This would be true even if future Fast Breeder Reactors were put in the civilian sector and under safeguards.
Government: Till India’s indigenous Thorium-power nuclear programme can be fully rolled out, we will need sanctions on dual use technology to be lifted. This is what the nuclear agreement will do.
H. The assurance that the United States would enable India to build a strategic fuel reserve to guard against disruption of supplies for a duration covering the lifetime of the nuclear reactors in operation appears to have been accepted in the agreement. The agreement also assures that in the event of termination of co-operation with the United States, compensation would be paid for the return of nuclear materials and related equipment. However, whether the fuel supply will continue even after cessation or termination of the agreement depends solely on the US Congress.
Government: The US Administration is bound under domestic laws, to speak to other nuclear powers to guard against disruption of nuclear material supply.
I. The Indian 123 Agreement does not contain a sentence found in Article 2.1 of China’s 123 agreement with the US, namely that “the parties recognise, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Thus, the US administration can always claim the Hyde Act’s restrictions trump the 123 Agreement commitments.
Government: India had an identical line in all the drafts and tried till the end to incorporate it in the final agreed text. But the US remained unyielding, claiming that Congress would shoot it down. But the Indian side did manage to push through another article, 16.4, that the agreement “shall be implemented in good faith and in accordance with the principles of international law.”
The phrase “principles of international law” is a clear reference to the Vienna Convention on the Law of Treaties. Article 27 of the Convention, which, as a part of customary international law, does not have to be cited to be applicable, states: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”