Also known as the 123 Agreement or Indo-US nuclear deal, this agreement was signed between the United States of America and the Republic of India in 2008. The framework for this agreement was a July 18, 2005, joint statement by then Indian Prime Minister Manmohan Singh and then U.S. President George W. Bush, under which India agreed to separate its civil and military nuclear facilities and to place all its civil nuclear facilities under International Atomic Energy Agency (IAEA) safeguards and, in exchange, the United States agreed to work toward full civil nuclear cooperation with India.
The deal places under permanent safeguards those nuclear facilities that India has identified as “civil” and permits broad civil nuclear cooperation, while excluding the transfer of “sensitive” equipment and technologies, including civil enrichment and reprocessing items even under IAEA safeguards. On August 18, 2008 the IAEA Board of Governors approved, and on February 2, 2009, India signed an India-specific safeguards agreement with the IAEA.
The deal is seen as a watershed in U.S.-India relations and introduces a new aspect to international nonproliferation efforts. On August 1, 2008, the IAEA approved the safeguards agreement with India, after which the United States approached the Nuclear Suppliers Group (NSG) to grant a waiver to India to commence civilian nuclear trade. The 48-nation NSG granted the waiver to India on September 6, 2008 allowing it to access civilian nuclear technology and fuel from other countries. The implementation of this waiver made India the only known country with nuclear weapons which is not a party to the Non-Proliferation Treaty (NPT) but is still allowed to carry out nuclear commerce with the rest of the world.
The U.S. House of Representatives passed the bill to approve the deal on September 28, 2008. Two days later, India and France inked a similar nuclear pact making France the first country to have such an agreement with India. On October 1, 2008 the U.S. Senate also approved the civilian nuclear agreement allowing India to purchase nuclear fuel and technology from—and sell them to—the United States. U.S. President, George W. Bush, signed the legislation on the Indo-US nuclear deal, approved by the U.S. Congress, into law, now called the United States-India Nuclear Cooperation Approval and Non-proliferation Enhancement Act, on October 8, 2008. The agreement was signed by then Indian External Affairs Minister Pranab Mukherjee and his counterpart then Secretary of State Condoleezza Rice, on October 10.
The major point of this deal was that India places its nuclear power reactors under the International Atomic Energy Association’s (IAEA) safeguards permanently. IAEA is a United Nations’ nuclear watchdog group.
In addition, India agrees to sign an additional protocol which gives the IAEA the power to subject the India’s civilian nuclear facilities to more intrusive inspections.
India commits to establish a national reprocessing facility to re-process the safeguarded nuclear material and this agreement allows prior consent to re- process and transfer nuclear materials and its products.
India continues its voluntary moratorium on nuclear weapons testing.
India commits to strengthening the security of its nuclear arsenals.
U.S. companies will be allowed to build nuclear reactors in India and provide nuclear fuel for its civilian energy program. (An approval by the Nuclear Suppliers Group lifting the ban on India has also cleared the way for other countries to make nuclear fuel and technology sales to India.)
Challenges the deal faced followed by the provisions made in the deal to navigate these questions and challenges:
India’s right to conduct nuclear tests was one thing the Indian negotiators fought for. Although India pledged in July 2005 to continue a nuclear testing moratorium, New Delhi opposed any explicit provision in the 123 agreement terminating cooperation if it conducts a nuclear test in the future. Such termination provisions are standard features of U.S. agreements with non-nuclear-weapon states. The India-U.S. agreement does not contain the word ‘test’ and it is suggested that countries will maintain cooperation in “accordance with its national laws.”
Another major point on which discussions were held was the point of fuel re-processing. Re-processing involves separation of plutonium from nuclear fuel after it has been used in a reactor and plutonium can be used to make nuclear weapons and is as such considered a proliferation risk. The agreement does grant consent to India for fuel reprocessing although, as mentioned before, it has to be under IAEA safeguards in a new national reprocessing facility.
One of the unique points of this 123 agreement was the feature of inclusion of fuel assurances for India. In this deal, US has assured India on fuel supply in case of a fuel disruption and negotiating with IAEA on India specific fuel supply agreement. This is an important feature of the India-US agreement as generally, 123 agreements do not contain fuel guarantees.
Important terms associated with the Agreement
An agreement which establishes co-operation as a prerequisite for nuclear deals between the United States and any other nation as described under the Section 123 of the United States Atomic Energy Act of 1954 is called a “123 Agreement”.
The 123 agreement defines the terms and conditions for bilateral civilian nuclear cooperation, and requires separate approvals by the U.S. Congress and by Indian cabinet ministers.
The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, also known as the Hyde Act, is the U.S. domestic law that modifies the requirements of Section 123 of the U.S. Atomic Energy Act to permit nuclear cooperation with India and in particular to negotiate a 123 Agreement to operationalise the 2005 Joint Statement (by George Bush and Manmohan Singh).
As a domestic U.S. law, the Hyde Act is binding on the United States. The Hyde Act cannot be binding on India’s sovereign decisions although it can be construed as prescriptive for future U.S. reactions. As per the Vienna Convention, an international agreement such as the 123 Agreement cannot be superseded by an internal law such as the Hyde Act.
*Wikipedia and an article in Stanford University website (article link) are the major sources of this post.