India-Specific Safeguards Agreement

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1 Mainstream, Vol XLVI No 32 July 26, 2008 India-Specific Safeguards Agreement Indian and American Responses Since the signing of the Indo-US nuclear deal, the bilateral agreement has attracted serious scrutiny from various sources. The most recent source of contention surfaced on July 9, 2008, when the India-specific Safeguards Agreement was made public. This document the first of three steps India must take to operationalise the 123 Agreement drew a deafening response from nuclear analysts in India and the United States. Although statements were issued by the Indian and American governments, the bulk of responses came from members of the Indian Opposition, mainly the Left parties and the BJP, and the non-proliferation lobby in the US, the two most vocal groups on this issue. Each group offered their points of view on what the document meant for their respective countries interests and the future of the international nonproliferation regime. What are the major contentions and criticisms? Where do the US and India stand on this issue? Where will this deal go from here? This analysis answers the aforementioned questions by highlighting the debates surrounding the Agreement in India and the United States. Indian Responses The India-specific Safeguards Agreement is a 23-page text consisting of a preamble, 130 numbered clauses and an annex listing the facilities that will be subject to IAEA safeguards under the Agreement. In India, the positions of the Congress, the Left and the BJP for the India- Specific Safeguards Agreement mirror their views on the deal itself. The Congress values the deal and deems itself committed to it. The Left parties and the BJP remain obstinately opposed. The central issue about the Safeguards Agreement, as pointed out by three eminent scientists P.K. Iyengar (former Chairman, Atomic Energy Commission), A. Gopalakrishnan (former Chairman, Atomic Energy Regulatory Board) and A.N. Prasad (former Director, Bhabha Atomic Research Centre), has been the doubt as to how India-specific the draft is. The argument over the contents of the Agreement stems from two concerns. The first is over the uninterrupted supply of fuel to the reactors that India has agreed to place under IAEA safeguards in perpetuity. The second is over the ambiguity of corrective measures, stated in the preamble, that India can take in the event of fuel disruption. Regarding fuel supply, the preamble makes reference to the effect that,

2 an essential basis of India s concurrence to accept this Agency safeguards is the conclusion of international cooperation arrangements including reliable, uninterrupted and continuous access to fuel supplies as well as support for an Indian effort to develop strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India s reactors. The Department of Atomic Energy, which led the negotiations with the IAEA Secretariat, believes that the Agreement gives India enough elbow room by way of taking corrective measures in case fuel supplies are interrupted. The Opposition, however, has argued that a reference in the preamble of the Agreement to reliable, uninterrupted and continuous fuel supply is not legally binding, as it is not mentioned in the operational sections of the Agreement. Moreover, the opposition sees no assurance for uninterrupted fuel supply because the IAEA is not an agency that can guarantee fuel supply. Addressing a press conference on July 12, Anil Kakodkar, Chairman of the Atomic Energy Commission, stated that the underlying principle of the Agreement is permanent safeguards if the permanence of fuel supplies is assured. Corrective measures, he explained, are unspecified sovereign rights that arise if this understanding is breached. Dr Grover, who, along with Dr K. Ramakumar and Dr D.B. Venkatesh Varma, negotiated the draft text with the IAEA, responded by stating that India, through this Agreement, will have to create conditions that would enable it to proceed in importing fuel. Fuel supply assurances, according to him, have to be embedded when India purchases imported reactors from supplier countries. Kakodkar added that since fuel supply arrangements will be between India and supplier nations, India will have to obtain a strong commitment from the supplier nations for fuel supply. He also pointed out that, in the draft, India has linked its decision to place civilian facilities under safeguards with fuel supply agreements from supplier countries. In other words, India has accepted the IAEA safeguards because of the in-built arrangements for uninterrupted fuel supply. In addition, another concern raised by the Opposition is whether India can withdraw imported and indigenous civilian reactors from the IAEA safeguards in the event of fuel disruption. As per Article 29, the termination of safeguards on items subject to this agreement shall be implemented taking into account the provision of GOV/1621 (20 August 1973). GOV/1621 is a restricted IAEA document which deals with the duration and termination of INFCIRC/66 agreements. The latter are agreements for IAEA safeguards for the facilities of non-npt signatories and India s draft Agreement belongs to INFCIRC/66-type safeguards agreement. The perpetuity of safeguards for imported reactors is ensured by GOV/1621, which is also mentioned in the Hyde Act. There is, however, a broad disagreement over withdrawing indigenous facilities subjected to permanent safeguards. According to Dr Grover, India can raise this as a material violation of the agreement under Article 52 and then take further steps under the combination of (Articles) 29, 30f, 10, 4 and the preamble. In essence, the assurance provided is that indigenous safeguards, which are voluntarily placed under safeguards by India, will be subjected to safeguards as long as they use only imported fuel. However, there are no assurances for continued operation of imported reactors in the event of fuel disruption. Moreover, fuel supplies can be disrupted if India decides to conduct a nuclear test again. Regarding corrective measures, critics have questioned its ambiguity because the measures have not been clearly specified. Moreover, they have pointed out that its reference in the preamble,

3 similar to that of uninterrupted fuel supplies, is not legally binding. Foreign Secretary Shiv Shankar Menon responded by pointing out that Article 31 of the Vienna Convention on the Law of Treaties made it clear that preambles and annexes are a part of the text. Further, the weight of these initial words carry through to the operational section, as evidenced by the statement at the end of the preamble, that taking into account the above, India and the Agency have agreed as follows to whatever follows thereafter. However, placing these conditions in the operational section could possibly provide India with a stronger case to defend in the event of fuel disruption; it is more a matter of implicit versus explicit reference. Yet, the functional utility of the preamble has been questioned on the grounds that it does not provide India rights and obligations with an authority like the operational section or the main body of the Agreement would. The Bharatiya Janata Party (BJP) has also expressed concern that the Safeguards Agreement does not recognise India as a nuclear weapons state. The government has responded by explaining that India is not seeking a formal recognition of its nuclear weapon status. Further, the preamble s reference to India identify[ing] and separat[ing] its civilian and military nuclear facilities, makes the Agreement India-specific, and is very different from the IAEA agreements signed with non-nuclear weapon states. American Responses In the United States, support for the India-specific Safeguards Agreement is largely found in the same group of government aides and consultants who have long backed the Indo-US nuclear deal. Standing by their original argument, the proponents continue to stress that bringing India into the non-proliferation framework is, in fact, a coup by the non-proliferation regime. (Venkatesan Vembu and Uttara Choudhury, With luck, we should see the deal through, Daily News and Analysis, July 12, 2008) Pointing to India s pristine record of non-proliferation, its voluntary application of IAEA safeguards and moratorium on nuclear testing, these individuals argue that India has already shown that it is a responsible nuclear power. The proponents also point out that all this good behaviour took place outside a legally binding framework and argue that India should be receive the same benefits of other responsible nuclear powers. When the Safeguards Agreement was made public on July 9, not surprisingly, vaguely positive statements were released in response. The focus of these responses was largely restricted to praising the Indian Government in taking this important step. The majority of US officials remain focused on building a coalition of support for the Agreement, prior to the Nuclear Suppliers Group meeting. But, not all American lawmakers are working towards building a coalition for the Indian-specific Safeguards Agreement. In a July 10 press release, Democratic Congressman Edward Markey, a well- known critic of the 123 Agreement, blasted the India-specific Safeguards Agreement stating that the document is unacceptable given the skilful insertion of loopholes that make the Agreement far from permanent. Of great concern is India s ability to take corrective actions in response to a disruption in the fuel cycle. In his statement, Markey argued that US lawmakers were not made aware of such liberties when they were signing the Hyde Act into law. To illustrate his point, he recalled Secretary of State Condoleezza Rice s 2006 testimony before the

4 Senate Foreign Relations Committee where she promised that once a reactor is under IAEA oversight, safeguards will be in place permanently and without any conditions. Markey argued that the India-specific Safeguards Agreement is a far cry from this original promise as this agreement lays out a path for India to unilaterally remove international safeguards from reactors. Non-proliferation advocates echo Markey s criticisms regarding the chameleonic nature of the text. In a recent article, co-written by Darryl Kimball of the Arms Control Association and former UN Under-Secretary-General for Disarmament Affairs, Jayantha Dhanapala, the authors explain that India could indeed remove IAEA safeguards if it chooses to exercise the right to take corrective actions. They explain that such an event would be a non-proliferation disaster as nuclear weapons testing could be one reason for fuel interruption. (Carnegie Proliferation Analysis, July 10, 2008) The authors explain that nuclear weapons testing is a very real possibility as India continues to produce fissile material and expand its arsenal. To prevent such an event from occurring, they argue that the IAEA should ask India to clarify the meaning of corrective measures and ensure that India s safeguards are permanent. Other analysts are concerned with India s true intentions for the proposed fuel reserve. Indian lawmakers argue that this clause is designed to prevent a situation similar to the one that arose in the aftermath of its peaceful nuclear explosion in However, this argument does not comfort non-proliferation experts who see to this as evidence, once more, given the ambiguous language, that India plans to test again. In a recent op-ed, Henry Sokolski wrote that this proposition would allow the democratic state to stockpile uranium fuel against future nuclear fuel supplier cutoffs that might occur following a future nuclear test. ( Negotiating India s Next Nuclear Explosion. Wall Street Journal, July 10, 2008) Further, it isn t currently clear whether India is able to transfer civilian fuel to unsafeguarded reactors; so the possibility of India using the fungible fuel for purposes other than energy does exist. Former Bush aide and proponent of the Indo-US nuclear deal, Ashley J. Tellis of the Carnegie Endowment for International Peace, argues that such an event is highly unlikely. Tellis explains that India has so much more to lose than gain by testing. (India Defence, Report 3899, July 9, 2008) Tellis certainly has a point. At the present time, India is the only nuclear power outside the Nuclear Non-Proliferation Treaty to be offered such a unique proposal and have international treaties re-written in its honour. For India to conduct a nuclear test in the face of all that has been done for its benefit, it would need to be willing to throw away thirty years of hard work to regain the confidence of the international community and, also, greatly damage its relations with a host of countries. Assuming that India is a rational power, such an event is, as Tellis argues, highly unlikely. Finally, one concern in the non-proliferation community that is unlikely to go away is the worry that bringing India into the exclusive nuclear club will cause serious problems down the road. As the Iran and North Korea debacles have yet to be solved, the issue of timing is certainly a viable concern. Especially, considering that India was the original rule-breaker, whose atomic actions prompted the creation of many of today s nuclear laws. It is true that India never engaged in any of the proliferation prone activities of its neighbours, China and Pakistan; but, as pointed out by Darryl Kimball, the inherent concern is that this deal [continues to] draw a dangerous

5 distinction between good proliferators and bad proliferators. (Howard LaFranchi, US, India Revive Sweeping Nuke Deal, Christian Science Monitor, July 10, 2008) Former National Security Advisor to Presidents Gerald Ford and George H.W. Bush, Brent Scowcroft, also sees a problem with the nature of the agreement. In an article that appeared in The Australian, he explains that he is concerned about a trend that we see reflected in the US-India nuclear deal where we try to address proliferation risks by assessing the character of regimes and governments. Such an approach also opens up divisions, with each making a list of friends who can be trusted with nuclear technology and foes who are dangerous risks. ( Don t Get Belligerent About Iran, April 13, 2006) Non-proliferation analysts argue that the current Agreement with India sets an unhealthy precedent, as it illustrates to current problem countries, such as North Korea and Iran, that political penalties for failing to abide by terms agreed upon are only temporary. Conclusion Although the sources of concern for each side are very different, there are certainly some common themes. The issues of permanence, a fuel supply bank, and weapons testing do arise in the parallel discussions. The IAEA has yet to issue a statement on the proposed Indian framework. It will be interesting to see how it addresses the many concerns that exist on both sides of the fence. The latest report from The Hindu states that when Foreign Secretary Shi Shankar Menon briefed the IAEA Board of Governors and members of the Nuclear Suppliers Group (NSG) on the safeguards Agreement on July 18, 2008, there were no signs of opposition. The Board is scheduled to meet on August 1 to consider approving the drafts safeguards text. Meanwhile, the UPA Government is getting ready to face the trust vote on July 21-22, In the event that the government fails to secure a majority and becomes a caretaker government, the Prime Minister may halt the approval process with the IAEA. Technically, there is no law that prevents the government from carrying out its policy decisions. At this point, it is very difficult to predict the outcome of the trust vote and what the government would do in case it fails. In the event that the government emerges a victor, the draft Agreement may be approved by the Board of Governors without making any changes. However, it should be noted that of the 32 members of the IAEA Board, 26 also belong to NSG. It is, therefore, possible that the Board may ask India to make some changes or provide clarifications in the draft; including but not exclusive to specifying the corrective measures that India would take in the event of fuel disruption. So, if the IAEA approves the draft, with or without changes, an important step in operationalising the nuclear deal will be taken; allowing it to move to step two securing a clean exemption from the NSG. But, before any of these steps can be taken, the Congress-led UPA must win the trust vote. Rekha Chakravarthi is a Research Officer, Institute of Peace and Conflict Studies, New Delhi, and Gretchen Smith is a Research Intern, Institute of Peace and Conflict Studies, New Delhi.

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