A Flawed Safeguards Accord
Brahma Chellaney, Asian Age, July 11, 2008
It must have been doubly embarrassing for New Delhi that the Vienna-based International Atomic Energy Agency let the cat out of the bag even before Prime Minister Manmohan Singh had returned home from the G-8 summit. By revealing that “at the request of the Government of India” it had circulated the safeguards accord’s text to its board members and begun the process for an extraordinary board meeting, the IAEA belied New Delhi’s assurance to the nation not to approach the Agency before Dr. Singh had won a vote of confidence in Parliament.
Also, in helping to make the text public, the IAEA only mocked New Delhi’s claim that it cannot share the text even in confidence with “third parties”, like the Left, which had been propping up the governing coalition. In fact, after the text had appeared on various international websites since Wednesday night, New Delhi claimed credit on Thursday afternoon for “unveiling” it!
Now we know why the accord was shrouded in such secrecy. A careful reading of its text raises several red flags:
■ Far from it being an India-specific agreement, the accord resembles IAEA agreements with non-nuclear-weapons states. With the exclusion of the first two pages that contain the preamble, the accord starting from Section I, “General Directions,” on Page 3 to the very end, is largely modelled on IAEA safeguards agreements with non-nuclear-weapons state. In fact, there is no direct reference in this accord to the existence of an Indian nuclear military programme or an acknowledgement of India’s special status — a nuclear-weapons state uniquely doing what no other nuclear power has done: putting its entire civilian nuclear programme under permanent, legally irrevocable international inspections.
All the accord contains is a oblique reference in the preamble in the following words: “Noting the relevance for this Agreement of the understandings between India and the United States of America expressed in the India-U.S. Joint Statement of 18 July 2005, in which India, inter alia, has stated its willingness: to identify and separate its civilian and military nuclear facilities and programmes in a phased manner”. In fact, the accord lays the ground for IAEA inspectors to enforce safeguards with the same stringency applicable to non-nuclear-weapons states.
■ It carries a cosmetic reference to “corrective measures” in the preamble, but gives India no actual right to take corrective measures. The earlier 123 agreement with the US, instead of granting India the right to take corrective measures in response to a fuel-supply disruption, merely recorded that New Delhi will seek such a right in the IAEA accord. But in the India-IAEA accord, no such right has been secured in definable terms. There is only one reference to “corrective measures” in the entire text of the India-IAEA accord, and that reference occurs in the preamble. That reference reads: “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies”. The use of the term “may” instead of “shall” shows there is no legal entitlement.
Moreover, far from “corrective measures” being defined, the accord explicitly forecloses that option by making it clear that, under no circumstance, will India be allowed to withdraw from its safeguards obligations, which are legally immutable.
■ Not only is there no guaranteed fuel supply, but the accord also discredits what Dr. Singh had pledged in Parliament — to link perpetual IAEA inspections to perpetual fuel supply. Put simply, India has willingly forfeited the right to enforce lifelong fuel supply for safeguarded reactors by agreeing to remain powerless in a Tarapur-style fuel cut-off situation.
Indeed, the only reference to fuel supply occurs in the preamble, in the form of a note by India. It reads: “An essential basis of India’s concurrence to accept Agency safeguards under an India-specific safeguards agreement (hereinafter referred to as “this Agreement”) is the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors”. There is, however, no reference in the body of the text to “fuel supply” or to a “strategic reserve of nuclear fuel”.
The ornamental reference in the preamble was inserted to save face because its language makes explicit that India is not tying the IAEA to assured fuel supply but merely recording that the safeguards accord follows the “conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access” to assured fuel supply and to receive support to build a strategic fuel supply. But the harsh truth is that no such international arrangements have thus far been concluded.
This attempt to pull the wool on public eyes flows from India’s failure to secure its rights in the 123 agreement, which confers enforceable powers only on the supplier-state. In fact, the Indian fuel supply-related claims about the 123 agreement have bordered on comedy: The US assurances in Article 5.6 are all prospective, not present-day, with the US “committed to seeking agreement from the U.S. Congress to amend its domestic laws” and “prepared to take” additional steps.
■ The safeguards accord, like the 123 agreement, is consistent with the provisions of the Hyde Act. Section 104(b)(2) of the Hyde Act stipulates that the US Congress can consider ratifying the final deal only after, inter-alia, “India and the IAEA have concluded all legal steps required prior to signature by the parties of an agreement requiring the application of IAEA safeguards in perpetuity in accordance with IAEA standards, principles and practices (including IAEA Board of Governors Document GOV/1621 (1973)) to India’s civil nuclear facilities, materials, and programmes…”
The safeguards accord, as mandated by the Hyde Act, is firmly anchored in the GOV/1621 (1973) document. For example, the safeguards accord’s Clause 29 reads: “The termination of safeguards on items subject to this Agreement shall be implemented taking into account the provisions of GOV/1621 (20 August 1973).”
Although the text of the GOV/1621 document is not public, its stipulation is well-known — that facility-specific safeguards shall be “in perpetuity”, allowing for no suspension of international safeguards and shutting out room for corrective measures.
Clause 29, however, raises the question whether India, faced with a fuel cut-off, will have the right to withdraw from safeguards the eight indigenous power reactors it is opening to outside inspection. According to papers published by two legal experts on GOV/1621, Antonio F. Perez and Laura Rockwood, the answer may be yes, if India first removes, to IAEA’s satisfaction, supplied fissionable material used or processed in those reactors.
■ India will not only open its entire civil programme to external safeguards, but also help pay for such inspections. India additionally has agreed to protect the Agency and its inspectors against “third-party liability, including any insurance or other financial security, in respect of a nuclear incident”, even though the IAEA is to vet the design of new facilities.
The accord lays out the cost of inspection of each Indian facility at 1.2 million euro annually. India is to place more than two dozen facilities under safeguards in a phased manner. Without making clear what will be New Delhi’s share, Clause 101 says: “India and the Agency shall each bear any expense incurred in the implementation of their responsibilities under this agreement”. But with the Hyde Act mandating “fallback US safeguards” in case “budget or personnel strains in the IAEA” render it “unable” to fully enforce inspections, India may be compelled to pick up most of the IAEA expenses to avoid parallel US inspections.
The costs of IAEA inspections will be high because, under the accord, India has agreed to be subject to rigorous safeguards, not the token inspections the Agency carries out in nuclear-weapons states.
India indeed has granted the IAEA the right to carry out “special inspections” at will. While civil nuclear research institutions bereft of atomic material will escape inspection, commercial power reactors, reprocessing and other facilities with an annual throughput of more than 60 kilograms of nuclear material are to be subject to “continuous inspection”, with the IAEA having the right of access at all times. The Agency, however, has agreed to implement the accord in a manner not to hamper “India’s economic or technological development, and not to hinder or otherwise interfere with any activities involving the use by India of nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by India independent of this agreement for its own purposes”.
Contrast the accord’s provisions with Dr. Singh’s solemn assurances to Parliament on several occasions. For example, speaking in Parliament on March 7, 2006, the PM had given the following assurance: “In essence, an India-specific safeguards would … permit India to take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA”.
The deal has progressively picked up such tougher conditions that today few remember that the July 18, 2005, agreement-in-principle had promised India “the same benefits and advantages” as the US. What is on offer now is restricted cooperation tied to intrusive conditions, to the extent that the G-8, in its chair’s summary this week, put the focus on advancing “India’s non-proliferation commitments and progress so as to facilitate a more robust approach to civil nuclear cooperation…” The deal is the means to tether India to the non-proliferation regime.
The India-IAEA safeguards accord compounds the mistakes Indian diplomacy made on the civil-military separation plan and the 123 agreement. Its operative parts mirror the clauses found in the IAEA agreements with non-nuclear-weapons states.