One Man’s Nuclear Brinkmanship

Don’t court nuclear trouble

 

The U.S.-India nuclear deal will institutionalize India’s status in an anomalous third category — neither a nuclear power nor a non-nuclear-weapons state, but an errant nation with a rudimentary arsenal to be tethered to the non-proliferation regime in order to tame its nuclear waywardness. Civil nuclear cooperation is the lure to achieve that aim.

 

Brahma Chellaney

Asian Age, July 21, 2008

 

 

 

Two issues stand out on the partisan battle to push through the knotty US-India nuclear deal. The first is New Delhi’s agreement to place its entire civilian nuclear programme under NPT-system safeguards designed for non-nuclear-weapons states (NNWSs), with none of the rights the five established nuclear-weapons states (NWSs) have vis-à-vis the International Atomic Energy Agency. India is embracing not the voluntary, token and revocable inspections the NWSs accept on a few facilities. Rather, India is the first nuclear-armed state to agree to perpetual, legally immutable inspections covering its full civilian programme.

 

Contrast this with the Prime Minister’s assurances to the Lok Sabha on July 29, 2005: “We shall undertake the same responsibilities and obligations as other advanced nuclear states like the US”; “we expect the same rights and benefits” as the US; and “India will never accept discrimination”.

 

The second issue centres on New Delhi’s blithe readiness to import high-priced, foreign fuel-dependent reactors without securing any definite fuel-supply guarantee, or an unequivocal right to build a strategic fuel reserve to guard against a Tarapur-style cut-off, or an enforceable right to take specific corrective steps in case fuel supplies were unilaterally suspended. Had such rights undeniably been built into the deal, India’s placing of a host of indigenous facilities under permanent external inspection, including eight power reactors, three heavy water plants and six fuel-fabrication installations, could have been somewhat justifiable.

The India-IAEA “framework” safeguards accord is modelled not just on the INFCIRC/66 system (which was designed for NNWSs to cover individual plants and shipments of fuel), but also on the INFCIRC/153 inspections applicable to all NNWSs party to the NPT. For example, the clause on “subsidiary arrangements” between India and the Agency has been picked up from the INFCIRC/153 system.

Since it was first unveiled in 1972, the NPT-system INFCIRC/153 has been strengthened and expanded, including through the Agency’s “Programme 93+2”. The India-IAEA framework accord — read with the Hyde Act — meshes with key provisions of this upgraded NPT-system safeguards, now known as INFCIRC/153 (Corrected), with one major exception: Unlike the “full-scope” safeguards of the INFCIRC/153 system covering all nuclear facilities and materials in a state, the IAEA inspections in India will extend only to the facilities and materials designated by New Delhi as civilian.

The IAEA has fashioned three instruments to ensure not just the non-diversion of declared nuclear materials, but also to prevent undeclared nuclear activity. The Agency, oddly, will have all these three instruments available against a nuclear-armed India: (i) “special inspections”, also known as “challenge” inspections; (ii) the early provision of design information by the state to deter the secret building of a facility, as has been alleged in the recent case of Syria; and (iii) the Additional Protocol, which greatly expands the IAEA’s rights of access to information and locations in a NNWS.

 

Special inspections and the early provision of design information are part of both the INFCIRC/66 and the INFCIRC/153 systems, while the “model” Additional Protocol, published as INFCIRC/540, has been fashioned to further strengthen the INFCIRC/153 system in NNWSs. While the shape of the Additional Protocol for India will be known only after it has been negotiated, the Hyde Act demands that it be “based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540”. Indeed, one of the conditions the Act stipulates for the deal to win congressional ratification is presidential determination that “India and the IAEA are making substantial progress toward concluding an Additional Protocol”.

 

By hastily taking the safeguards accord to the IAEA board for approval before the contours of India’s Additional Protocol with the Agency have been clarified, the Prime Minister is only undermining the country’s leverage and making it more likely that the final product will be close to INFCIRC/540.

 

In fact, with the India-IAEA framework accord incorporating the standard provisions designed for NNWSs — from special inspections and the early provision of design information, to the upholding of the GOV/1621 (1973) document that enshrines the “perpetuity” and “pursuit” clauses and asserts the Agency’s overriding authority on termination matters — it will be little surprise if the Additional Protocol India concludes resembles the one for NNWSs.

 

Such an Additional Protocol will offer the Agency the means to create civil-military “firewalls” in India and deter the transfer of specialized equipment, trained personnel, designs and operating manuals to the strategic programme. With the invasive access it grants, the Additional Protocol is a much-more useful tool for the IAEA than special inspections, which have been formally invoked only twice up until now, including once at Romania’s request to clear up outstanding discrepancies from Nicolae Ceausescu’s regime. 

 

Against this background, the safeguards arrangements India is entering into are far-reaching and cannot be compared with the facility-specific agreements it currently has with the IAEA over the reactors at Kundakulam, Tarapur and Rajasthan, even though the 1988 Kundakulam safeguards accord is a typical INFCIRC/66 accord.  The new framework accord, designed to supersede all these individual agreements, opens the path to drafting India into the NPT regime as a de facto party, without recognizing its nuclear-armed status.

 

The only deviation from a standard safeguards agreement with a NNWS found in this accord — apart from the preambular contextual noting that the necessity of safeguards application flows from India’s “understandings” with the US (as opposed to NPT requirements) — is the “general principle” that the Agency’s safeguards-related work shall not “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”.

 

Given the standardized NNWS safeguards model this agreement represents, one wonders why it took Indian negotiators nearly six months to finalize the text with the IAEA. Were the negotiations largely about preambular references to help New Delhi save face? When a country with nuclear weapons, without utilizing the leverage emanating from its readiness to place an array of indigenous facilities under safeguards, initials a comprehensive agreement that is a virtual replica of a standard safeguards accord for NNWSs, can it then credibly claim — on the basis of mere preambular references — to have won special rights unavailable to NNWSs?

 

The Vienna Convention on the Law of Treaties precludes India from seeking any right not defined in the agreement just because the preambular language notes New Delhi’s point that an “essential basis” of its “concurrence to accept Agency safeguards” is the “conclusion of international cooperation arrangements creating the necessary conditions for India to obtain … 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…” Whether such purported international arrangements have been concluded or not is merely an assertion by India with no attempt to tie the Agency to them.

 

Also, by holding New Delhi to everlasting obligations, the accord leaves no room for any corrective step, even if India is faced with a fuel cut-off. Once India has voluntarily opened indigenous facilities to IAEA inspections, it is unlikely to be able to withdraw any from safeguards.

 

Not only are the accord’s terms stringent, with inspections to continue until “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards”, such attempted withdrawal would unacceptably turn the original US-India bargain on its head. The US agreed to give India limited access to imported uranium in return for New Delhi’s decision to place 20 indigenous nuclear facilities (plus nine research institutions) under safeguards and to shut down by 2010 the Cirus research reactor, which produces one-third of the country’s weapons-grade plutonium.

 

If the official claim is that the safeguards accord has been cleverly worded to help India take “unspecified sovereign actions” in a contingency — as nuclear chief Anil Kakodkar has contended — such ingenuity in fashioning ambiguities could carry serious long-term strategic costs. The equivocation indeed may be spring-loaded to produce tragedy later. If India will not learn from its Tarapur experience, despite the clearly worded 123 agreement with the US in 1963 and an equally good safeguards accord with the IAEA in 1971, it is bound to court bigger trouble. In fact, the greater the Indian investments in imported power reactors, the greater will be the risks and constraints New Delhi will face.

 

The risks of misunderstandings and hard times later have only been underscored by the polar-opposite US and Indian public stance today on some key aspects of the deal. The wide gap in the Indian and American positions, even if partly geared toward garnering political support at home, would stand exposed if the US government, for example, lifted its gag order on the written answers it submitted to the House Committee on Foreign Affairs on critical questions, such as whether India will be permitted to stockpile nuclear fuel.

 

The safeguards accord shows that the deal will institutionalize India’s status in an anomalous third category — neither a NWS nor a NNWS, but an errant nation with a rudimentary arsenal to be tethered to the non-proliferation system through stringent international inspections and other fetters designed to tame its nuclear waywardness. Civil nuclear cooperation is the lure to help retard the Indian nuclear-weapons capability while reaping billions of dollars in reactor sales, with the Hyde Act openly targeting India’s arsenal for “reduction and eventual elimination”.

 

Once all the Indian facilities currently classified as “civilian” come permanently in the IAEA-inspection grip it would actually bring under safeguards the majority of the present “unsafeguarded” nuclear facilities in operation worldwide outside the Club of Nuclear Five — a huge gain for the U.S.-led international non-proliferation regime.

 

The deal poses one of the most divisive challenges India has ever faced. Whether the government survives the vote of confidence in Parliament or not, the partisan rancour will only deepen unless genuine efforts are made to bridge the divide over an issue that centres on the future of India’s nuclear programme and strategic autonomy. Thanks to the crusading zeal with which it has been pushed and the furtive way it was taken to the IAEA board, the deal will haunt India for long.

 

(c) Asian Age, 2008.

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