123 Agreement stipulates transfer of sensitive nuclear facilities, major critical components of such facilities and the like, including transfer of dual use items

Having set out the essential terms of the Agreement, let me now meet with each of the objections raised by those who oppose it.

1. Mr Arun Shourie’s first argument based on the 123 Agreement is related to Article 2, which states: “Each party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the peaceful uses of nuclear energy for peaceful purposes.”

Mr Shourie fails to appreciate the fact that the 123 Agreement is not subject to national laws. It is not subject to either the Atomic Energy Act of 1954 or, for that matter, the Hyde Act of December, 2006. Article 2 in the 123 Agreement says that the implementation of this Agreement will be in accordance with the respective applicable treaties, national laws, regulations, and licence requirements concerning the peaceful uses of nuclear energy for peaceful purposes. It follows that the export of source materials, use of that source material in India for generation of civil nuclear energy, controls in respect of exports, the manner of importation, the setting up of a dedicated reprocessing facility, will all be mandated by the laws of the respective nations. There is clearly a difference between treaties being subject to the laws of a country and a treaty being implemented according to the laws of the respective countries. Once this distinction is appreciated, the foundation of the argument falls apart. The implementation of the Agreement by two sovereign states must be in accordance with the respective national laws and international obligations. Article 2.1 of the Agreement between the US and China contains a similar clause without having the effect of Chinese determinations under the Agreement being subject to US laws.