LET FACTS SPEAK FOR THEMSELVES
The safeguards accord with the Vienna-based International Atomic Energy Agency (IAEA) was initialled by India on July 7, 2008, and thereafter the IAEA set in motion the process for the ratification of the agreement by its governing board. According to an IAEA press release dated July 9, 2008: “The Chairman of the Board is consulting with Board Members to agree on a date for a Board meeting when the Agreement would be considered”. Titled, “An Agreement with the Government of India for the Application of Safeguards to Civilian Nuclear Facilities”, the accord brings out the following facts:
■ The accord largely resembles IAEA agreements with non-nuclear-weapons states and incorporates few India-specific features. With the exclusion of the first two pages that contain the preamble, and an acknowledgement in the General Principles that the “application of safeguards under this agreement is intended to facilitate implementation of relevant bilateral or multilateral arrangements to which India is a party” (in other words, arrangements unrelated to the Nuclear Non-Proliferation Treaty), the text is largely modelled on IAEA safeguards agreements with non-nuclear-weapons states. The text has been drawn from the strengthened INFCIRC-66/Rev.2 (16 September 1968) model, available at: http://www.iaea.org/Publications/Documents/Infcircs/Others/inf66r2.shtml
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 that 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.
Contrast this with the repeated assurances the Prime Minister had given to Parliament. For example, speaking in Parliament on March 7, 2006, the Prime Minister had said: “India will approach the IAEA to discuss and fashion an India-specific safeguards agreement, which will reflect the unique character of this arrangement”.
■ India will have none of the rights that the five established nuclear-weapons states have vis-à-vis the IAEA. Nuclear-weapons states accept only voluntary, revocable inspections, with just a total of 11 facilities in the U.S., China, Britain, France and Russia currently open to IAEA inspection. The IAEA conducts only token inspections on these facilities offered for safeguards. Moreover, these five nuclear powers have the sovereign right to terminate their safeguards agreement with the IAEA.
The India-IAEA safeguards accord comes with perpetual, legally irrevocable obligations, which India cannot suspend or end, even if the supplier-states cut off supply of fuel and replacement parts. The IAEA inspections in India will not be nominal but stringent and invasive, of the type applicable to non-nuclear-weapons states.
While the five established nuclear powers have offered only 11 facilities in total for IAEA safeguards, India has agreed to place 35 of its facilities under IAEA inspection, according to the civil-military separation plan presented to Parliament by the Prime Minister in 2006. These facilities include 14 power reactors; three heavy-water plants at Thal-Vaishet, Hazira and Tuticorin; six installations at the Nuclear Fuel Complex in Hyderabad; the PREFRE reprocessing plant at Tarapur; and nine research facilities, such as the Tata Institute of Fundamental Research, Board of Radiation and Isotope Technology and Saha Institute of Nuclear Physics. In addition, the Prime Minister has agreed to shut down by 2010 the Cirus research reactor, which is one of the two research reactors in India producing weapons-grade plutonium.
The provisions of the safeguards accord contradict Dr. Manmohan Singh’s assurances to Parliament that India will accept only the “same responsibilities and obligations as other advanced nuclear states like the U.S.” For example, speaking in the Lok Sabha on July 29, 2005, the Prime Minister said: “We shall undertake the same responsibilities and obligations as … the US”; “we expect the same rights and benefits” as the US; and “India will never accept discrimination”.
Unlike the five established nuclear-weapons states, India will have no right under the safeguards accord to take any facility out of IAEA inspections merely by changing its classification from “civilian” to “military”. Contrast this with the confident claim the Prime Minister’s Office made in its July 29, 2005 “Backgrounder” on the deal: “Nuclear weapon states, including the U.S., have the right to shift facilities from civilian category to military and there is no reason why this should not apply to India”.
■ The accord 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 U.S., 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. In fact, the agreement makes that India’s safeguards obligations will be irrevocably final once it enters into force.
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.
The term, “corrective measures”, indeed does not figure in the accord’s Section XI on “Definitions”. So, is it any surprise that not one corrective measure has been identified in the accord even by way of a preambular statement?
As IAEA Director-General Mohamed ElBaradei noted on August 1, 2008, in his introductory statement to the Governing Board meeting, "the agreement is of indefinite duration. There are no conditions for the discontinuation of safeguards other than those provided by the safeguards agreement itself. The termination provisions contained in the agreement are the same as for other 66-type agreements. Naturally — as with all safeguards agreements — this agreement is subject to the general rules of international law. Therefore, the agreement should be read as an integral whole. The preamble provides for contextual background and safeguards are implemented in accordance with the terms of the agreement" [emphasis added].
Contrast this with the Prime Minister’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”. Then, on August 17, 2006, the PM said in Parliament: “In the event of disruption of fuel supplies despite the assurances, India will have a right to take corrective measure to ensure the operation of its nuclear reactors”.
■ The accord provides for no guaranteed fuel supply and, contrary to the PM’s assurances in Parliament, has no link between perpetual IAEA inspections and 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 U.S. assurances in Article 5.6 are all prospective, not present-day, with the U.S. “committed to seeking agreement from the U.S. Congress to amend its domestic laws” and “prepared to take” additional steps.
Contrast all this with the repeated assurances the PM gave to Parliament since March 2006 that the perpetual safeguards would be tied to perpetual fuel supply. In August 2006, he told Parliament, for instance, that: “An important assurance is the commitment of support for India’s right to build up strategic reserves of nuclear fuel over the lifetime of India’s reactors”.
The accord carries no reference to the continuation of India’s safeguards obligations being contingent on perpetual fuel supply. The agreement indeed explicitly blocks India from ever undertaking real correction in response to a fuel supply cut-off — the lifting of IAEA safeguards.
■ Preambular references confer no entitlement on India. Just because the preambular language takes note of India’s point that the “basis” of its “concurrence to accept Agency safeguards” is the “conclusion of international cooperation arrangements” does not give India any right not specified in the agreement.
It is well-established in international law that no rights to any party flow from preambular references — which are usually intended to provide background or context to an agreement — unless any such reference is spelled out in the body of the accord or treaty to confer a definable entitlement or to impose a specific obligation. As IAEA Director-General Mohamed ElBaradei pointed out on August 1, 2008, the agreement’s "preamble provides for contextual background".
Thus, the mere appearance in the preamble of the terms, “reliable, uninterrupted and continuous access to fuel supplies”, “a strategic reserve of nuclear fuel” and “corrective measures” (to record professed arrangements other than with the IAEA), cannot be used to claim rights or obligations not contained in the operative parts of the agreement.
In any case, the safeguards accord identifies the IAEA board as the final arbiter of any dispute over interpretation or compliance, with India entitled only to make its submission to the board.
It is significant that after having trashed the Hyde Act’s Sections 102 and 103, titled “Sense of Congress” and “Statements of Policy”, as preambular references not binding on the US president, New Delhi has taken refuge in the preamble of its safeguards accord with the IAEA. While most of the Hyde Act’s Section 102 and Section 103 items have been spelled out in the body of the legislation, the preambular references in the safeguards accord that New Delhi cites have not been defined or elaborated in the text.
The key point is that the safeguards accord enforces no obligation on the Agency to guarantee uninterrupted fuel supply for the lifetime of India’s safeguarded reactors or to underwrite the building of an Indian strategic fuel reserve. The IAEA, under its statute, does not, in any event, have a role to play in providing fuel-supply or strategic-reserve assurances.
■ 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 U.S. 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…”
While India’s desire was for a special, “India-specific” safeguards arrangement with the IAEA, the Hyde Act’s stipulation was for India to embrace the same standards and practices as applicable to non-nuclear-weapons states. In addition to the safeguards accord, India will have to separately negotiate and conclude an “Additional Protocol” with the IAEA. The “Additional Protocol” will seek to ensure that specialized equipment, trained personnel, and designs and operating manuals are not transferred from the civilian programme to the military programme. The Hyde Act demands that the “Additional Protocol” for India be “based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540” — that is, the Protocol applicable to non-nuclear-weapons states. In contrast, the Prime Minister had assured Parliament on August 17, 2006, that, “As a country with nuclear weapons, there is no question of India agreeing to a safeguards agreement or an Additional Protocol applicable to non-nuclear-weapons states of the NPT”.
As mandated by the Hyde Act, the India-IAEA safeguards accord is firmly anchored in the GOV/1621 (1973) document. For example, the safeguards accord’s Paragraph 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 central 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. Such are the known conditions of GOV/1621 that the rights and obligations of the parties continue perpetually on all nuclear materials until the materials have been returned or all the fissionable material supplied, produced or processed goes out of the inventory.
■ Even the accord’s termination and non-compliance provisions are identical to those for non-nuclear-weapons states, creating potential risks since India possesses a nuclear military programme.
India has accepted the IAEA board as the final arbiter on any issue of non-compliance. Paragraph 103 states, “If the Board determines in accordance with Article XII.C of the Statute of the Agency that there has been any non-compliance by India with this Agreement, the Board shall call upon India to remedy such non-compliance forthwith, and shall make such reports as it deems appropriate. In the event of failure by India to take full remedial action within a reasonable time, the Board may take any other measures provided for in Article XII.C of the Statute”.
Such measures include what the IAEA board has done in the case of Iran — refer the case to the UN Security Council for sanctions — although the Agency thus far has found no clear evidence of Iran’s pursuit of a nuclear-weapons programme in violation of its legal obligations. The Iran case has shown that the IAEA, although a technical body, is open to political pressures and can be pressed to take political action. The IAEA board, however, has a record of staying conservative on most matters, by erring on the side of caution.
Under Paragraph 32 of the India-IAEA accord, New Delhi can withdraw a facility from safeguards with the prior consent of the IAEA but only after “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards,” which means the installation’s nuclear capability has been dismantled or permanently disabled to the Agency’s satisfaction.
That is in keeping with the fact that all INFCIRC/66/Rev.2 agreements since 1974 have been tied to the actual use in the recipient-state of supplied material or items, rather than to fixed periods of time. The safeguards, however, extend to all subsequent generations of produced nuclear material derived from original supplies. The INFCIRC/66.Rev.2 standard also precludes a country withdrawing any designated civilian facility from safeguards on national security grounds.
Once the India-IAEA safeguards accord enters into force, its “pursuit” and “perpetuity” clauses would irreversibly come into play, with inspections chasing the by-products wherever they go.
Paragraph 29 of the India-IAEA accord (“the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards"), however, raises the interesting 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 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 full satisfaction, all supplied fissionable material used or processed in those reactors.
However, the answer may be no, if one goes by the safeguards accord’s stringent termination proviso (“the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards”) and the American intent in getting India to place eight indigenous power reactors under safeguards in return for opening up limited access to imported uranium. It would turn that bargain on its head if India withdrew those power reactors from safeguards.
■ A nuclear-armed India has agreed to be subject to intrusive “challenge” inspections of the type the IAEA is empowered to carry out in non-nuclear-weapons states. “Challenge” inspections are officially known as “special inspections” (as distinct from systematic or routine inspections).
Refusal to allow a special inspection could lead to an IAEA report to the UN Security Council on non-compliance, as happened in the North Korean case. However, till date, the IAEA has formally invoked special inspections only twice — in 1992, at Romania’s request to clear up outstanding discrepancies that occurred under Nicolae Ceausescu’s regime, and in 1993, when the IAEA, with the aid of information provided by the U.S., became aware of inaccuracies in North Korea’s initial report.
In his book, Arms control: The New Guide to Negotiations and Agreements (Sage, 2002), Jozef Goldblat states, “An inspection is considered ‘special’ when it is either additional to routine inspection or involves access to information or locations in addition to the access specified for routine inspections in the agreement”.
Paragraph 63 of the India-IAEA accord states the “Agency may carry out special inspections if: (a) the study of a report indicates that such inspection is desirable; or (b) any unforeseen circumstance requires immediate action. The Board shall subsequently be informed of the reasons for and the results of each such inspection”.
In other words, the Agency will have the right to carry out “special inspections” if it believed any activity at a safeguarded Indian facility or any report raised questions. In the North Korean case, the board had approved the special inspections which the Pyongyang refused to allow. But India, in its accord with the IAEA, has consented to be subject to special inspections without the board’s prior consent.
■ In addition to special inspections, India has consented to another provision intended to preclude undeclared activity in a non-nuclear-weapons state — the early provision of design information.
IAEA safeguards in non-nuclear-weapons states are not just about the non-diversion of declared nuclear materials. They are also designed to credibly ensure that there no undeclared nuclear materials or activities in the state concerned. Toward that end, the Agency has fashioned three instruments that are now part of the INFCIRC/153 agreements that apply “full-scope” or comprehensive safeguards to cover all facilities and materials in non-nuclear-weapons states: (i) “special inspections”; (ii) the early provision of design information to deter the secret building of a facility, as has been alleged in the recent case of Syria; and (iii) Additional Protocol, which greatly expands the IAEA’s rights of access to information and locations in a state.
Oddly, the Agency will have all the three instruments vis-à-vis India, even though the safeguards accord is based on India’s sovereign decision to segregate its civil and military nuclear facilities and open the civilian part to IAEA inspection in perpetuity. Given that undeclared activity in a country with a nuclear military programme is an oxymoron, it is remarkable that the IAEA is applying to India the very standards designed for non-nuclear-weapons states.
India’s commitment to the early provision of design information to the IAEA is contained in Paragraphs 34 and 39-42 of the accord. The idea behind these paragraphs is to secure preliminary information — in the name of effectively applying safeguards later — as soon as India makes a decision to build or modify a facility.
Just as the India-IAEA safeguards accord has been largely modelled on INFCIRC-66/Rev.2 standards and principles, as expanded by the GOV/1621 (1973) document, the Additional Protocol is also likely to follow the prescription of the U.S. Congress. The Hyde Act has stipulated that the Additional Protocol for India be “based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540” — that is, the Protocol applicable to non-nuclear-weapons states.
■ India will not only open its entire civil programme to external safeguards, but also help pay for such 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.
The accord estimates the cost of inspection of each Indian facility at 1.2 million euro annually. India is to place 26 nuclear facilities under safeguards in a phased manner. (This figure excludes the nine research institutions listed on the civil side of the separation plan. There may be no reason for the IAEA to inspect them if they contain no nuclear material.)
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”. It has also agreed that the “number, duration and intensity of inspections actually carried out shall be kept to the minimum consistent with the effective implementation of safeguards…” (Paragraph 57).
Without making clear what will be New Delhi’s share of the costs, Paragraph 101 of the accord 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 — a possibility National Security Adviser M.K. Narayanan has already alluded to.
■ The key benchmarks enshrined in the original July 18, 2005, deal today stand jettisoned.
Those benchmarks, in the Prime Minister’s own words in the Lok Sabha on July 29, 2005, include India acquiring “the same benefits and advantages as other states with advanced nuclear technology” and undertaking “the same responsibilities and obligations as such countries, including the United States.” The PM had said: “Reciprocity is the key to the implementation of all the steps… Indian actions will be contingent at every stage on actions taken by the other side.”
The PM, however, has acquiesced to the shifting of the July 18, 2005, goalposts despite his unequivocal assurances to Parliament that the principles embodied in the original accord were inviolable and constitute the sole criteria. After pledging that “we will never accept discrimination”, the PM has ended up doing just that.
The blunt fact is that the deal has got mangled beyond recognition since it was unveiled three years ago. Indeed, 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 America. While the five main nuclear-weapons states have the unfettered right to shift facilities from the civilian sector to the military, India has agreed to lock its entire civilian programme in legally immutable safeguards.
Once all the currently designated Indian civilian facilities come under IAEA inspection it would mean the majority of the present “unsafeguarded” nuclear facilities in operation worldwide outside the Club of Nuclear Five becoming “safeguarded” — a huge gain for the U.S.-led international non-proliferation regime.
 IAEA press release at: http://www.iaea.org/NewsCenter/PressReleases/2008/prn200808.html
 Full text of the India-IAEA agreement is available at:
 The IAEA’s first model safeguards document (INFCIRC/26) was adopted in January 1961. A completely revised document applicable to larger reactors was approved by the board in September 1965 and became known as INFCIRC/66. Annex I to INFCIRC/66, containing provisions for reprocessing plants, was adopted in 1966, and Annex II, incorporating provisions for safeguarded nuclear material in conversion and fuel fabrication plants, was agreed to in 1968. With its two annexes, the strengthened safeguards document (INFCIRC/66/Rev.2) was adopted by the board after the NPT opened for signature on July 1, 1968. Under an INFCIRC/66/Rev.2 agreement, a recipient-state is barred from suspending or terminating its safeguards obligations, even if the supplier-state reneges on its commitments.
 Full text of India’s Separation Plan available at: http://chellaney.spaces.live.com/Blog/cns!4913C7C8A2EA4A30!429.entry
 The decision to shut down Cirus goes against the official contention that the deal has no bearing on the strategic programme. Before the Separation Plan was negotiated with the U.S., the Prime Minister had committed himself in the Lok Sabha on August 3, 2005 in the following words: “This separation will be decided voluntarily, solely on the basis of our own judgement. Nobody can from outside, say: ‘Well, this is civilian, this is nuclear’. That determination will be made by the people of India, by our government, by our atomic energy establishment…” On August 4, 2005, he was equally emphatic in Rajya Sabha: “It will be an autonomous Indian decision as to what is ‘civilian’ and what is ‘military’. Nobody outside will tell us what is ‘civilian’ and what is ‘military’.” But although Dr Singh had foresworn actions “limiting or inhibiting our strategic nuclear-weapons programme”, he decided to shut down by 2010 the research reactor that contributes one-third of India’s annual weapons-grade plutonium production. Tellingly, no replacement reactor has come under construction thus far.
 Antonio F. Perez, “Survival of Rights Under The Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards”, 34 Va. J. Int’l L. 749 (Summer 1994).
 Laura Rockwood, “Legal Instruments Related to the Application of the Safeguards”, available at: http://www.opanal.org/Articles/Jamaica/jam-Rockwood.htm
 Relevant excerpt from Jozef Goldbat’s book at: http://books.google.co.in/books?id=XW7sediIGVsC&pg=PA321&lpg=PA321&dq=%22challenge%22+inspections+IAEA&source=web&ots=GcOHN8k8-K&sig=3Yml_u4KIoMG-71DJXs2GPdcNmY&hl=en&sa=X&oi=book_result&resnum=10&ct=result
 Fiona Simpson, “IAEA Special Inspections After Israel’s Raid on Syria”, Bulletin of the Atomic Scientists, February 10, 2008.
America’s NSG proposal: Implications for India
The cleverly worded U.S. draft to the Nuclear Suppliers’ Group (NSG) for carving out an exemption for India from the NSG rules (called “guidelines”) seeks to irrevocably tether New Delhi to the nuclear non-proliferation regime. What is significant is that this draft proposal was submitted on August 8, 2008, to the NSG chair, Germany, after consultations with the Indian government.
Although New Delhi may have expressed satisfaction with its inoffensively packaged wording, the draft proposal carries serious implications for India. The draft is likely to attract even more India-specific conditions when it is taken up for consideration by the NSG, given the cartel’s consensual decision-making process. But consider the following implications of the existing draft, which in essence conforms to the Hyde Act provisions:
1. India is being brought under a wider non-proliferation net, with the US draft tying it to compliance with the entire set of NSG rules. Apart from being allowed to retain some nuclear facilities in the military realm, India will be treated, for all intents and purposes, as a non-nuclear-weapons state by the NSG and thus subject to the non-proliferation conditionalities applicable to such states. India, in other words, is to be drafted into the NPT as a de facto party.
Except for exempting India from one key NSG provision, the draft permits exports to “safeguarded” Indian facilities “provided the transfer satisfies all other provisions” of Part 1 & 2 of the NSG Guidelines — that is, all the rules pertinent to non-nuclear-weapons state.
The exemption relates to the “full-scope” (comprehensive) safeguards rule listed in paragraphs 4(a), 4(b), 4(c) of Part 1 and 4(b) of Part 2 of the NSG Guidelines, which have been published by the International Atomic Energy Agency as document INFCIRC/254. India had to be exempted from the application of safeguards on each and every nuclear facility, given the fact that it has some nuclear military facilities.
2. India is acquiescing to its unilateral test moratorium being turned into a multilateral legality. The draft US proposal, in Section 2, first lists India’s commitments, including to “continuing its unilateral moratorium to nuclear tests”. Then, in Section 3, it recommends permitting exports to India for peaceful purposes for use in safeguarded civilian nuclear facilities, “provided that the transfer satisfies all other provisions” of Part 1 & 2 of the NSG Guidelines.
Bearing in mind that the NSG Guidelines relate to transfers to non-nuclear-weapons states, India will have to live up to all the stipulated non-proliferation commitments and abjure activities proscribed for non-nuclear-weapons states. What was a unilateral test moratorium is to become, in effect, a requirement for civil nuclear cooperation with other states. The implication of treating India as a non-nuclear-weapons state and of implicitly “multilateralizing” its voluntary test moratorium is that India will face a fuel supply cut-off if it ever dared to test, leaving its imported power reactors high and dry.
This has to be seen against the backdrop of the Hyde Act and the so-called 123 Agreement. The 123 Agreement incorporates an implicit test ban by: (i) granting the U.S. the right to seek the return of supplied items and materials on account of a US-determined Indian non-compliance with non-proliferation conditions; and (ii) arming the U.S. with an open-ended right to suspend supplies forthwith simply by issuing a one-year termination notice on any ground, however extraneous.
The Hyde Act’s Section 106 explicitly bans Indian testing forever. That section is the mother of all prohibitions.
In effect, India is being dragged through the backdoor into the Comprehensive Test Ban Treaty (CTBT).
3. Instead of the “full” civil nuclear cooperation that the original July 18, 2005 deal promised, India access to civil enrichment and reprocessing technologies will be restricted through the proposed NSG waiver. The US draft to the NSG, in Section 3b, states that transfers may take place to safeguarded facilities in India, “provided that the transfer satisfies all other provisions of Part 2”. But Part 2 of the NSG Guidelines incorporates a presumption of denial of reprocessing and enrichment equipment and technology even under safeguards.
The presumption of denial in Part 2 of the Guidelines is contained in the following words in its Section 4: A supplier-state “should exercise prudence in order to carry out the basic principle and should take relevant factors into account, including … Whether the equipment, materials, software, or related technology to be transferred is to be used in research on or development, design, manufacture, construction, operation, or maintenance of any reprocessing or enrichment facility”.
That India will face a continued embargo on importing equipment and components related to reprocessing and enrichment, even when such activities are under IAEA inspections and for peaceful purposes, has been underscored both by the 123 Agreement and the Hyde Act.
Not only does the Hyde Act debar transfer to India of any “sensitive” civil nuclear equipment or technology, but also its Section 105(a)(5) directs Washington to “work with members of the NSG, individually and collectively, to further restrict the transfers” of reprocessing, enrichment and heavy-water technologies to India. And to underscore the primacy of the Hyde Act, the 123 Agreement’s Article 5(2) states, “Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties’ respective applicable laws, regulations and license policies.”
Contrast such restriction with what the Prime Minister had pledged in Parliament on August 17, 2006 — that India will only settle for the “removal of restrictions on all aspects of cooperation and technology transfers pertaining to civil nuclear energy, ranging from nuclear fuel, nuclear reactors, to reprocessing spent fuel”.
4. The various good-faith declarations made by India in the July 18, 2005 joint statement with the U.S. are all being turned into binding, enforceable commitments multilaterally through the NSG, after having been incorporated into the Hyde Act. In other words, the NSG is being asked to allow exports to “safeguarded” Indian facilities as long as India continues to fully meet the non-proliferation and safeguards commitments it voluntarily made on July 18, 2005. Those commitments have been listed in Section 2 of the US draft.
Furthermore, by additionally linking transfers to India to compliance with Part 1 and Part 2 of the NSG Guidelines, the US draft enlarges the non-proliferation net. For example, paragraph 4(e) of Part 2 of the NSG Guidelines demands that a supplier-state first consider, before making any transfer, “Whether governmental actions, statements, and policies of the recipient state are supportive of nuclear non-proliferation and whether the recipient state is in compliance with its international obligations in the field of non-proliferation”.
5. The good-faith commitments being multilateralized include the following: India’s adhere to the NSG rules unilaterally, although the NSG will not admit India as a member. The implication for India of entering into cooperation on the basis of unilateral adherence to the NSG guidelines is that this cartel could change its guidelines in the future to impose new conditions on India — and India would have no recourse to being at the receiving end, after having invested billions of dollars in imported reactors.
The Hyde Act actually holds out the threat of termination of cooperation if NSG amends its rules by saying, “No item subject to the transfer guidelines of the NSG may be transferred to India if such transfer would be inconsistent with the guidelines in effect on the date of the transfer”.
The US draft to the NSG merely suggests consultations with India on future amendments to the NSG guidelines, but gives India no say in the final decisions. As stated in Section 4 of the draft proposal, the NSG will “solicit such comments” from a non-member like India on proposed new amendments as to “facilitate their implementation by India”. The objective of soliciting “comments” would be to ensure India’s acceptance and compliance with a future amendment.