India & Iran:
US double
standards on nuclear weapons
The week beginning 18 December 2006 witnessed
another fine example of US double standards on nuclear weapons.
On Monday 18 December 2006,
President Bush signed into law an Act paving the way for the lifting of
sanctions against India, a nuclear-armed state that never signed the Treaty on
the Non-Proliferation of Nuclear Weapons (NPT), sanctions which have banned
India from importing nuclear material and equipment for civil purposes for over
30 years, since its first nuclear test in 1974.
India
is not required to give up its nuclear weapons (or anything else) in order to
get these sanctions lifted.
On Saturday 23 December 2006, at the instigation
of the US, the Security
Council imposed (albeit nugatory) sanctions on Iran for refusing to halt its
uranium enrichment programme, a programme that is supposed to be its
“inalienable right” as a signatory to the NPT.
Iran
has no nuclear weapons and the IAEA has found no evidence that its nuclear
activities are for anything other than peaceful purposes.
A potential ally with nuclear
weapons is rewarded in an attempt to make it a firm ally. A perceived enemy without nuclear weapons is
punished.
United States-India Peaceful
Atomic Energy Cooperation Act 2006
On 18 December 2006, President Bush signed into US law
the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act
2006 [1],
which had earlier been passed overwhelmingly by the US Congress. This Act paves the way for the reversal of
the 30-year old US policy of
banning the export of nuclear material and equipment to India, a policy that was prompted by India’s
first nuclear weapons test in 1974.
Before the passage of this Act, US policy
and law conformed to the international rules for the export of nuclear material
and equipment, which are laid down in the Guidelines of the Nuclear Suppliers
Group (NSG) of exporting states [2]. The formation of the NSG, which now has 45
members, was prompted by India’s use of fissile material, generated by reactors
imported for civil purposes from the US and Canada, to create the nuclear
weapon it tested in 1974. The objective
of the NSG was to prevent this sort of thing recurring and its Guidelines are therefore
a key instrument in countering the proliferation of nuclear weapons, as
prescribed by the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT).
The Guidelines apply to the export
of nuclear material and equipment to all states, whether or not they are
signatories of the NPT, apart from the five states (China,
France, Russia, the UK
and the US)
that are allowed to have nuclear weapons under the NPT. Nowadays, only a handful of states (notably, India, Israel
and Pakistan)
are not signatories to the NPT, but this was not the case when the NSG was
established in the mid 70s.
“Full-scope”
IAEA safeguards
Since 1992, the Guidelines have
required a receiving state to have “full-scope” IAEA safeguards, that is, to
have an agreement with the IAEA to monitor all
the nuclear facilities under its jurisdiction.
All states that have signed the NPT as “non-nuclear-weapon” states
should automatically satisfy the NSG Guidelines, since they are obliged to have
“full-scope” IAEA safeguards under Article III of the NPT, which states [3]:
“The safeguards required
by this Article shall be applied on all source or special fissionable material
in all peaceful nuclear activities within the territory of such State, under
its jurisdiction, or carried out under its control anywhere.”
Surprisingly, about 30 (out of the
183) “non-nuclear-weapon” signatories to the NPT, for instance, Saudi Arabia,
don’t have comprehensive safeguards agreements with the IAEA in force [4].
But India
opted not to sign the NPT and developed nuclear weapons, as did Israel and Pakistan. Since India was never a signatory to the
NPT, it didn’t breach any international obligations by doing so. But, there was a price to pay. With only a few exceptions, India’s nuclear facilities are not under IAEA
safeguards and it has been very difficult for India to import nuclear material
and equipment. After 1992, when the NSG
Guidelines were tightened to require importing states to have “full-scope” IAEA
safeguards, it became next to impossible.
US-India
nuclear agreement
Understandably, India is very keen to get the international
rules changed so that it has access to the world market in nuclear goods in
order to develop its nuclear power programme.
The US has agreed to
facilitate India, in a
transparent attempt to draw it into the US
sphere of influence as a counterweight to China.
The US
concluded a nuclear agreement with India
in Washington
on 18 July 2005. The key element in this agreement is that an
exception be made for India
in the international rules governing nuclear trade, so that unlike any other
state in the world (apart from the five “official” nuclear states) India
will be allowed to import nuclear material and equipment without having “full-scope” IAEA safeguards.
The Act, signed by President Bush on
18 December 2006,
changes the US Atomic Energy Act of 1954 to make such an exception for India in US domestic legislation. But, the US
is also seeking to persuade the NSG to amend its Guidelines to make an
equivalent exception, so that all supplier states will be free to export
nuclear material and equipment to India. In fact, the exception for India in the 2006 Act only comes
into effect if the NSG makes such an amendment.
It should be emphasised that the US is not proposing that the exception for India
be conditional upon its joining the NPT or restricting its nuclear weapons
programme. As the Indian Government
stated bluntly on 29 July
2005 [5], shortly after the original
agreement was signed:
“The issue of India’s nuclear weapons or NPT has not been
raised in our dialogue with the United
States. Our dialogue is predicated on India
maintaining its strategic [weapons] programme. Our nuclear deterrent cannot be
[the] subject of negotiations with foreign governments and is strictly within
our sovereign domain. India
has rejected demands for joining the NPT as a non-nuclear weapon State.”
(The NPT is a most unusual treaty,
in that there are two classes of signatory with very different rights and
duties: (i) “nuclear-weapon” states, which are allowed to keep their weapons,
and (ii) “non-nuclear-weapon” states, which are not allowed to acquire nuclear
weapons. However, Article IX(3) of the
treaty limits the states allowed to sign as a “nuclear-weapon” state to those
that “manufactured and exploded a nuclear weapon or other nuclear explosive
device prior to 1 January 1967”, in other words, China, France, Russia, the UK
and the US. India cannot sign the NPT as
a “nuclear-weapon” state since it didn’t explode a nuclear device until 1974,
so, if it were to join the NPT now, it would have to sign as a
“non-nuclear-weapon” state, and give up its nuclear weapons in order to do so -
which it is not going to do.)
The formal legal basis for the US to
export nuclear material and equipment is an Agreement for Nuclear Cooperation under
Section 123 of the 1954 Atomic Energy Act, popularly known as a 123 Agreement. Section 104(a) of the 2006 Act exempts such
an Agreement with India, and
India
alone, from the requirement that it have “full-scope” IAEA safeguards. Section 104(b) of the 2006 Act specifies a
number of other hurdles (see below) that have to be overcome before such an Agreement
with India
can be concluded.
Under the 2006 Act, Congress retains
considerable control over nuclear exports to India. Thus, Section 104(e) requires that a 123
Agreement made by the President with India has to be approved by a joint
resolution of the two Houses of Congress (unlike Agreements with other states). Section 104(f) allows Congress to terminate
an Agreement by a joint resolution of the two Houses of Congress. (By Section 106, an Agreement will
automatically terminate if India
explodes a nuclear device).
IAEA
safeguards
The first three hurdles in Section
104(b) are concerned with India’s
arrangements with the IAEA. Under the
original US-India agreement, India was required to separate its nuclear
facilities into “civilian” and “military” and put those deemed “civilian” under
IAEA safeguards (and to sign up to an Additional Protocol with IAEA). In March 2006, when President Bush visited India, the US
and India agreed such a
separation plan (see my article The
US-India nuclear agreement: A triumph for India [6]).
The application of “full-scope” IAEA
safeguards in a “non-nuclear-weapon” state, as required by the NPT, has the
well-defined purpose of ensuring that the state doesn’t develop nuclear
weapons, or help any other state to do so, in other words, it’s an
anti-proliferation measure. But, the
purpose of “partial-scope” IAEA safeguards in states like India that already possess nuclear
weapons is not obvious. Manifestly, it
cannot be to prevent the state developing an indigenous nuclear weapons
capability, since one already exists.
Nor can it play any role in monitoring, let alone restraining, nuclear
weapons production – since oversight of military facilities is always outside
the scope of such safeguards. As an anti-proliferation
measure, it is useless, since, if the state decides to assist another in
developing nuclear weapons, it will do so from facilities that are not subject
to IAEA safeguards.
“Partial-scope”
IAEA safeguards
What then is the purpose of requiring
India
to have “partial-scope” IAEA safeguards, since it is clearly not an
anti-proliferation measure? The answer is
to ensure that imported nuclear material and equipment isn’t used directly for
weapons purposes, for instance, imported reactors could be a source of fissile
material for India’s
weapons programme (which was how the programme got started in the first place). If that happened, “nuclear-weapon” states
would be in breach of their obligations under Article I of the NPT, which states:
“Each nuclear-weapon
State Party to the Treaty undertakes ... not in any way to assist, encourage,
or induce any non-nuclear-weapon State to manufacture or otherwise acquire
nuclear weapons or other nuclear explosive devices ... .”
(In this context, India is a “non-nuclear-weapon”
state, since it’s not one of the five defined by the NPT to be a
“nuclear-weapon” states).
So, if the deal goes through, reactors
supplied and/or fuelled from abroad will be deemed “civilian”, and therefore be
subject to IAEA inspection, to ensure that India doesn’t get fissile material
for its weapons programme from them.
However, India has made it perfectly plain
that it will retain the sole right to decide the designation of existing and
future facilities built without foreign input, and the designation of such
facilities will be guided by the needs of its weapons programme. As Prime Minister Manmohan Singh said
in his report
to the Lok Sabha on 7 March
2006 [7]:
“... the separation
plan will not adversely effect our strategic [ie military] programme. There
will be no capping of our strategic programme, and the separation plan ensures
adequacy of fissile material and other inputs to meet the current and future
requirements of our strategic programme, based on our assessment of the threat
scenarios. No constraint has been placed on our right to construct new
facilities for strategic purposes.”
So, it may be that the proposed IAEA
safeguards for India will ensure that nuclear material and equipment imported
by India, and any nuclear material generated by imported equipment, is not used
for weapons production. However, if India
is able to import nuclear material for civilian purposes, then indigenous
material, which would otherwise have to be used for civilian purposes, will be
available for weapons production. The
prime example of this is uranium, of which India has a limited supply. So, “nuclear-weapon” states that supply
India with nuclear material and equipment will arguably be in breach of their
Article I duty “not in any way to assist” India with its weapons programmes,
even if the imports are used for civilian purposes only.
One thing is certain: India’s nuclear weapons programme will not be
restrained one whit by IAEA safeguards on those nuclear facilities that India’s
deems “civilian”.
Section 104(b) of the 2006 Act does
not require these arrangements between India and the IAEA to be in place
before a formal Section 123 agreement can be concluded, merely that:
“India has provided the United States and the IAEA with a
credible plan to separate civil and military nuclear facilities, materials, and
programs, and has filed a declaration regarding its civil facilities and
materials with the IAEA.” (Section 104(b)(1))
Nor does the 2006 Act require an
Additional Protocol between India
and the IAEA to be in place, merely that:
“India and the IAEA are making substantial
progress toward concluding an Additional Protocol consistent with IAEA principles,
practices, and policies that would apply to India’s civil nuclear program.” (Section
104(b)(3))
Amending
the NSG Guidelines
However, the 2006 Act does require
that, before
a 123 Agreement can be concluded, “the NSG has decided by consensus to
permit supply to India
of nuclear items covered by the guidelines of the NSG” (Section
104(b)(7)).
As the above implies, the NSG is a
body that operates by consensus, and theoretically the opposition of just one
of its 45 member states would be sufficient to prevent a change in its Guidelines
to give India
the unique privilege of being permitted to import nuclear material and
equipment without having “full-scope” IAEA safeguards.
Most likely, however, none of the 45
members of the NSG (with the possible exception of China
-see below) will hold out against the US.
They are, to a greater or lesser extent, suppliers of nuclear material
and equipment, so they have a commercial interest in seeing the market for
their goods expanded to include India. France
and Russia, which are major
suppliers of nuclear material and equipment, have publicly expressed enthusiasm
for the US
proposal. And the US administration has claimed from the outset
that Britain is onside (see,
for example [8])
but, to the best of my knowledge, the British government has yet to inform
Parliament of our support for granting India this unique privilege.
The interests of NSG members are not
the same as the other 150 or so NPT signatories, many of whom will not be
pleased to see India, which stayed outside the NPT in order to develop nuclear
weapons, being given this unique privilege.
But, as things stand, if the NSG supplier states unanimously agree to
change the rules so that they can do business with India, then the rules will be
changed – and there is nothing other NPT members as a body can do about it.
The NSG makes its decisions at
annual plenary meetings. The last one took
place in Brasilia
on 1-2 June 2006, where the US-India deal was discussed. A statement issued afterwards said:
“Participating
Governments continued to examine the issues raised by the US-India Joint
Statement of July 2005. They discussed, in this context, a possible NSG-India
relationship regarding civilian nuclear co-operation. They decided to continue
their consultations and agreed to return to this matter at the next regular
Consultative Group meeting, when further information might be available.”
According to Wade Boese, writing in
the July/August edition of Arms Control
Today [9],
the meeting declined a US
request to include a more positive reference to the US-India deal. Boese singles out Sweden
and Ireland
as strong critics of the proposal, but says that most members haven’t committed
themselves.
Chinese fly
One possible fly in the ointment for
the US is China, which has an interest in Pakistan
also being able to import nuclear material and equipment. Like India,
Pakistan
is precluded from doing so under the existing NSG Guidelines, because it
doesn’t have “full-scope” IAEA safeguards.
China has ongoing
nuclear projects with Pakistan,
projects which started before China
joined the NSG in 2004 and which under NSG rules it is allowed to complete. However, after that, it will be banned from
engaging in nuclear exports to Pakistan
- unless the NSG rules are changed.
Because of this, according to Boese, at the NSG meeting last June:
“China, for the first time, declared it would
prefer establishing a criteria-based approach for determining whether countries
not meeting the 1992 [“full-scope” IAEA safeguards] condition should be allowed
to engage in nuclear trade, rather than singling out India for special exemption.”
In other words, China wants a change in the rules, so that Pakistan, as well as India, can engage in nuclear trade,
if they meet certain defined criteria.
The latter might be the separation of nuclear facilities into “civilian”
and “military”, with the former being put under IAEA safeguards, as the US is requiring India to do.
If China
insists, it can stop the US-India nuclear deal in its tracks, unless Pakistan is accorded the same privilege as India. The latter would cause problems for the US administration, which has made it clear to
Congress that India is a
special case, with no record of supplying nuclear weapons technology to other
states, unlike Pakistan
(see, for example, Robert Joseph of the State Department in evidence to the
House International Relations Committee on 8 September 2005 [8]). So, if China
were to force the US to
choose between both India and
Pakistan,
or neither, being allowed to engage in nuclear trade, it might have to choose
neither - and the US-India nuclear deal would run into the sand.
A safer
world?
When he signed the United
States-India Peaceful Atomic Energy Cooperation Act 2006 on 18 December 2006,
President Bush declared [10]:
“... the bill
will help keep America safe
by paving the way for India
to join the global effort to stop the spread of nuclear weapons. India
has conducted its civilian nuclear energy program in a safe and responsible way
for decades. Now, in return for access to American technology, India
has agreed to open its civilian nuclear power program to international
inspection. This is an important achievement for the whole world. After 30
years outside the system, India
will now operate its civilian nuclear energy program under internationally
accepted guidelines - and the world is going to be safer as a result.”
This is a piece of
self-contradictory gibberish. Is India not already committed to “the global
effort to stop the spread of nuclear weapons”, outside India, at least? And, if not, how will the US-India nuclear
deal encourage it to “join”? As for India’s
civilian nuclear programme, if it has been conducted “in a safe and responsible
way for decades”, what difference will subjecting it to IAEA inspection
make? And, why is “the world is going to
be safer as a result”, particularly when its military facilities will not be
subject to IAEA inspection? If India
did choose to help another state develop nuclear weapons, then it would obviously
do so with material and equipment from its military facilities that will not be
subject to IAEA inspection.
This Presidential gibberish is a
futile attempt to demonstrate that the proliferation of nuclear weapons will be
deterred by giving a unique privilege to a state that has stood outside the NPT
and developed nuclear weapons. In
reality, it is an encouragement to states to leave the NPT and develop nuclear
weapons as India has done
(and, if possible, contrive to become an object of Washington’s heart’s desire). Hence, the Presidential gibberish about
making the world a safer place.
ElBaradei
backs Bush
But, it is somewhat surprising to
hear Dr Mohamed ElBaradei, the Director General of the IAEA, the body charged
with preventing nuclear proliferation, spouting similar gibberish in support of
the US-India agreement. On 20 July 2005, two days
after the agreement was signed he issued a press statement, which began [11]:
“IAEA
Director General, Mohamed ElBaradei has welcomed the US-India agreement to
embark on full civil nuclear energy cooperation and to work to enhance nuclear
non-proliferation and security.”
It sounds like the President,
doesn’t it? He went on to describe the deal as “out of the box thinking”. His statement concluded:
“Dr.
ElBaradei said that India’s intention to identify and place all its civilian
nuclear facilities under IAEA safeguards and sign and adhere to an Additional
Protocol with respect to civilian nuclear facilities is a welcome development.
‘I have always advocated concrete and practical steps towards the universal application
of IAEA safeguards’, Dr. ElBaradei said.”
But, inspecting nuclear facilities
that are never going to be used as a source for nuclear proliferation - because
other facilities not subject to inspection are available - is simply a waste of
IAEA resources. And, it is difficult to
believe that ElBaradei doesn’t know this.
(On 30 May 2006, he gave a wide-ranging interview at
the Monterey Institute for International Studies in California [12], in
which he was questioned at length about his support for the deal. His response was an incoherent restatement of
the US
position.)
In the past, ElBaradei was not well
regarded by this US
administration. Prior to the US invasion of Iraq,
he maintained an unwelcome (and wholly justified) scepticism about Iraq’s nuclear weapons programme, and his refusal
to conclude that Iran
has a nuclear weapons programme has not been to the administration’s taste
either. As a result, it was widely
believed that US
opposition would prevent him being reappointed for a third 4-year term, when
his second expired at the end of 2005.
Could it be that his enthusiasm for
the US-India deal was motivated by a desire to get into Washington’s good books? He was reappointed for a third term in
September 2005.
Congruent
foreign policy
Section 102 of 2006 Act is entitled SENSE OF CONGRESS. It has no legal effect, but sets out the Congress’s
reasoning for passing the Act.
Specifically, it attempts to reconcile what it states to be a critical US foreign
policy objective of nuclear non-proliferation - and the central role of the NPT
in achieving that objective - with conferring a unique privilege on a state
that has refused to sign the NPT and has developed nuclear weapons. The key reasoning is set out in Section
102(6) which says:
“it is in the interest of the United States to enter into an
agreement for nuclear cooperation ... with a country that has never been a
State Party to the NPT if— ...
the country ... has a foreign policy that is congruent
to that of the United States, and is working with the United States on key foreign
policy initiatives related to nonproliferation; ...
such cooperation will induce the country to give greater
political and material support to the achievement of United States global and
regional nonproliferation objectives, especially with respect to dissuading,
isolating, and, if necessary, sanctioning and containing states that sponsor terrorism
and terrorist groups that are seeking to acquire a nuclear weapons capability
or other weapons of mass destruction capability and the means to deliver such weapons;
...”
Surprise, surprise, having a foreign policy in line
with that of the US
is a sine qua non of special treatment for states outside the NPT.
Section 103 of the 2006 Act sets out the Congress’s
view of what US
policy should be in this area. One
element of it is to:
“Secure India’s full and active participation in United States efforts to dissuade, isolate, and,
if necessary, sanction and contain Iran for its efforts to acquire
weapons of mass destruction, including a nuclear weapons capability and the capability
to enrich uranium or reprocess nuclear fuel, and the means to deliver weapons
of mass destruction.” (Section 103(4))
However, India’s
support for the US over Iran,
or any other issue, is not an explicit condition in the Act for the US-India
deal going forward. However, if India persistently failed to back, or opposed, US foreign policy over Iran or other issues, then it is
conceivable that Congress would terminate any 123 Agreement - which means that
Indian foreign policy will be constrained to a degree.
(President Bush made it clear in his
formal signing statement [13]
that approving the Act did not mean acceptance of Section 103 as foreign policy
“given the Constitution's commitment to the presidency of the authority to
conduct the Nation's foreign affairs”.)
India shifted ground?
Has India shifted ground on foreign
policy as a consequence of the deal? In
one specific instance YES - by voting for the IAEA Board resolution of 6 February 2006 that
reported Iran
to the Security Council. That action was
contrary to India’s
traditional position of sticking up for the rights of small nations under the
NPT. But, had India
not supported the US
on this issue, the Congress would probably not have passed the 2006 Act - and
the deal would have been aborted.
It remains to be seen if India makes
other foreign policy adjustments. The US may
be disappointed.
Iran sanctioned
On 31 July 2006, having remained silent
for three weeks about Israel’s ongoing assault on Lebanon, the Security Council
declared Iran, not Israel, a threat to the peace of the world and passed a
Chapter VII resolution against it. The resolution (number 1696) demanded that
[14]:
“Iran shall suspend all
enrichment-related and reprocessing activities, including research and
development” (Paragraph 2)
activities that are
supposed to be Iran’s
“inalienable right” as a signatory to the NPT, as long as they are for peaceful
purposes. The IAEA has not found
otherwise.
Resolution 1696 also threatened economic
sanctions against Iran
if it failed to suspend these activities by 31 August 2006 and expressed the Security
Council’s intention:
“in the event that Iran
has not by that date complied with this resolution, then to adopt appropriate
measures under Article 41 of Chapter VII of the Charter of the United Nations
to persuade Iran to comply with this resolution and the requirements of the
IAEA” (Paragraph 8).
The deadline came and went, without Iran
suspending enrichment and related activity.
It was nearly four months after the deadline passed before the Security
Council adopted “measures under Article 41” by passing resolution 1737 [15]
on 23 December 2006.
The intervening months were taken up
with the US/EU pressing for a meaningful sanctions resolution, and Russia and China resisting. The US/EU have continually
trumpeted the international consensus on this issue and the successful
“isolation” of Iran
as a result, so they were reluctant to see the consensus at the Security
Council broken. Like ships in a convoy
that have to go at the speed of the slowest, they have had little choice but to
settle for the nugatory sanctions that Russia and China have been prepared to
put their name to.
The sanctions contained in
resolution 1737 don’t amount to a hill of beans. The resolution merely bans the supply of
specified materials and technology that could contribute to Iran's nuclear and
missile programmes and imposes an asset freeze on named companies and
individuals allegedly involved in Iran’s nuclear and missile programs. If, as expected, Iran fails to suspend uranium
enrichment within 60 days, the resolution threatens further sanctions.
David Morrison
8 January 2007
Labour & Trade Union Review
www.david-morrison.org.uk
References:
[1] www.david-morrison.org.uk/other-documents/us-india-act.pdf
[2] www.nuclearsuppliersgroup.org/
[3] www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf
[4] www.iaea.org/Publications/Factsheets/English/nptstatus_overview.html
[5] pmindia.nic.in/pressrel.htm (29 July 2005)
[6] www.david-morrison.org.uk/india/indian-triumph.htm
[7] pmindia.nic.in/speeches.htm (7 March 2006)
[8] usinfo.state.gov/sa/Archive/2005/Sep/09-968262.html
[9] www.armscontrol.org/act/2006_07-08/NuclearSuppliers.asp
[10] www.whitehouse.gov/news/releases/2006/12/20061218-1.html
[11] www.iaea.org/NewsCenter/PressReleases/2005/prn200504.html
[12] cns.miis.edu/cns/media/pr060531_transcript.htm
[13] www.whitehouse.gov/news/releases/2006/12/20061218-12.html
[14] daccessdds.un.org/doc/UNDOC/GEN/N06/450/22/PDF/N0645022.pdf
[15] daccessdds.un.org/doc/UNDOC/GEN/N06/681/42/PDF/N0668142.pdf