The
US-India nuclear agreement
A triumph
for India
US President George Bush visited
If implemented as signed, the
US-India nuclear agreement will exempt India from the existing international
rules for the export of nuclear material and equipment. As a result, India will acquire the
privileges of the five official “nuclear-weapon” states defined by the NPT [1]
(the US, the UK, Russia, France and China) without having to sign up to the
NPT. Like the official “nuclear-weapon”
states, India will be allowed to keep its nuclear arsenal.
As the Indian Government stated
bluntly on 29 July 2005 [2]:
“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 [ie 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
international rules
The international rules for the
export of nuclear material and equipment are laid down in the Guidelines of the
Nuclear Supplier Group (NSG) of exporting states (45 in all, today) [3]. Since 1995, these Guidelines have required a
receiving state (apart from the five official “nuclear-weapon” states) to have
“full-scope” IAEA safeguards, that is, to have an agreement with the IAEA to
monitor all the nuclear facilities
under its jurisdiction. The purpose of
this requirement is to seek to prevent such exports being used by the receiving
state, or being exported to another state, for military purposes.
India does not have full-scope IAEA
safeguards at the moment – only a few of its facilities are subject to IAEA
safeguards. As a consequence, in recent
years India has had great difficulty importing material and equipment for its
nuclear power programme. In particular, it has great difficulty
getting hold of enriched uranium fuel for power reactors at Tarapur,
which were supplied by the US in the 1960s.
Since the first Indian nuclear test in 1974, the US has refused to
supply additional fuel for them. In the
recent past, Russia has been the only state willing to stretch the NSG Guidelines
in order to do business with India – it has supplied fuel for the Tarapur reactors – but it has been widely criticised by other NSG members including the US for doing
so, on the grounds that this action breached the Guidelines (see my article US
entices India with nuclear bribe [4]). Understandably therefore, India is very keen
to get the rules changed so that it has access to the world market in nuclear
goods.
Under the US-India nuclear agreement,
the
US is proposing that the rules be changed dramatically – but only for
India. If the US gets its way, India alone
(apart from the five official “nuclear-weapon” states) will be permitted to
import nuclear material and equipment without having full-scope IAEA
safeguards. As we will see, under the separation plan
agreed with the US in March, whereas India will have to subject more of its
nuclear facilities to IAEA monitoring, it will be free to exempt any facilities
that it deems “military”.
Different
standards
India is being proposed by the US
for this extraordinary privilege, even though it has never signed the NPT, has
developed nuclear weapons and the means of delivering them, and is not going to
sign the NPT now – it can’t without giving up its nuclear weapons.
John Bolton, the US Ambassador to
the UN, was asked recently what case could be made that Iran is a threat to
peace and therefore deserving of sanction by Security Council. He replied [5]:
“I think that the
evidence of Iran’s efforts to acquire nuclear weapons, its extensive program to
achieve a ballistic missile capability of longer and longer range and greater
accuracy, constitutes a classic threat to international peace and security …”
By this definition, India
constitutes “a classic threat to international peace and security”, and then some,
since it isn’t just making efforts to acquire nuclear weapons – it has already
acquired them. But, instead of
threatening India with sanctions, not excluding military sanctions, the US
proposes that the existing international rules be dramatically loosened for
India, and India alone, so that it can import nuclear material and equipment.
It would appear that the US is
applying different standards to Iran and India.
“Non-nuclear weapon” states
All states that signed up to the NPT
as “non-nuclear-weapon” states should be eligible for importing nuclear
material and equipment under NSG Guidelines – since they are required by
Article III(1) of the Treaty to have IAEA safeguards
that “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”.
In other words, full-scope safeguards.
Under Article III(2),
NPT signatories agree not to export nuclear material or equipment unless the
receiving state has such safeguards in place:
“Each State Party to the
Treaty undertakes not to provide: (a) source or special fissionable material,
or (b) equipment or material especially designed or prepared for the
processing, use or production of special fissionable material, to any
non-nuclear-weapon State for peaceful purposes, unless the source or special
fissionable material shall be subject to the safeguards required by this
Article.”
However, the NPT itself doesn’t specify
the material and equipment that should not be exported to states without
full-scope safeguards.
Nuclear Suppliers Group
It was to fill this gap that, just after the NPT came into
force in 1970, international guidelines were established specifying a “trigger
list” of materials and equipment falling within the ambit of Article
III(2). In 1975, in response to India’s explosion of a nuclear device the
previous year, the NSG was set up (see Arms Control Association fact sheet on
it here [6]). It now has 45 member states, including all
the major nuclear powers.
Note, however, that the NSG is
voluntary association of states – it was not established by international
treaty and it has no enforcement mechanism to ensure that members adhere to its
Guidelines.
Although the NSG Guidelines provide
a necessary supplement to the NPT, NSG members represent a small subset of the
190 states or so that have signed the NPT – nearly every state in the world
apart from Israel, India and Pakistan has done so. These states meet as a body every five years
to review the operation of the NPT, but the NSG Guidelines, which affect how
the NPT operates, are not determined by the NPT signatories, but by the 45
members of the NSG, who have a commercial interest in expanding the market for
nuclear material and equipment. This
greatly improves the chances of the US getting the NSG Guidelines changed in
India’s favour.
(To add to the confusion, the agency
responsible for policing the NPT – the IAEA – is a different body again, with
139 affiliated states, including Israel, India and Pakistan.)
NSG
Guidelines
As I have said, the key feature of
the existing NSG Guidelines [7]
is that a recipient state must have full-scope IAEA safeguards. This is specified in paragraph 4(a) of the
Guidelines:
“Suppliers should
transfer trigger list items or related technology to a non-nuclear-weapon State
only when the receiving State has brought into force an agreement with
the IAEA requiring the application of safeguards on all source and
special fissionable material in its current and future peaceful activities [my
emphasis].”
Here, the phrase “non-nuclear-weapon
State” has the meaning laid down in the NPT.
In Article IX(3) of it, a “nuclear-weapon
State” is defined as “one which has manufactured and exploded a nuclear weapon
or other nuclear explosive device prior to
Endorsed by
NPT conferences
The NPT Review and Extension
Conference in 1995 endorsed the NSG’s decision to
require full-scope safeguards for nuclear exports (Decision 2 [8],
paragraph 12) and the NPT Review Conference in 2000 again supported this
principle ([9],
paragraph 48).
Norman Wulf,
the US representative at the 2000 Conference, wrote the following in Arms Control Today in November 2000
about its conclusions:
“The conference
emphasized the central importance of nuclear export controls and reinforced the
requirement in the Nuclear Suppliers Group (NSG) Guidelines for full-scope IAEA
safeguards in non-nuclear-weapon states as a condition of nuclear supply. By
doing so, NPT parties again supported the principle that non-NPT parties should
not be eligible for the same degree of assistance to civil nuclear programs as
NPT parties in good standing. Reinforcement of this guideline is important
given some who have questioned whether this principle should be relaxed for
India and Pakistan, which have not accepted full-scope IAEA safeguards. The
answer from NPT parties is clearly no. In that regard, the United States is
seriously concerned about the recent Russian decision to supply fuel to India's
Tarapur reactors. This decision … runs counter to the
sentiment expressed at the NPT review conference ….” [10]
Plainly, the US stance today towards
India is the converse of its stance, and the stance of the NPT review
conference, in 2000.
“Nuclear-weapon”
states
Having exploded a nuclear weapon
before 1 January 1967, five states – the US, the UK, Russia, France and China –
qualify to sign up to the NPT as “nuclear-weapon” states and are allowed by the
NPT to keep their nuclear weapons. The
only significant obligation placed upon them is in Article I of the Treaty,
which says:
“Each nuclear-weapon
State Party to the Treaty undertakes not to transfer to any recipient
whatsoever nuclear weapons or other nuclear explosive devices or control over
such weapons or explosive devices directly, or indirectly; and 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, or
control over such weapons or explosive devices.”
This is not an onerous obligation,
since they have an interest in preventing other states acquiring the ultimate
weapon of self-defence, that is, nuclear weapons.
Also, in stark contrast to
“non-nuclear-weapon” states, they have no obligation to place any of their nuclear facilities under
IAEA safeguards. True, each of the
“nuclear-weapon” states has a voluntary safeguards agreement with the
IAEA. The IAEA Safeguards Statement for
2002 [11]
explains:
“Voluntary offer
safeguards agreements have been concluded with the five nuclear-weapon States.
Each State offers some or all of its civilian nuclear material and/or
facilities from which the Agency may select some for the application of
safeguards.”
Note that the materials and
facilities within the scope of the agreement are “offered” for inspection by
the “nuclear-weapon” state and the “offer” can be withdrawn at any time. Needless to say, materials and facilities
with a military purpose are not offered for inspection. The IAEA carried out no inspections at all in
Russia in 2002, because “no facilities were designated for inspection” by
Russia [11].
These arrangements are a far cry
from the full-scope IAEA safeguards required of all “non-nuclear-weapon” states
that have signed the NPT. These
safeguards have the well-defined purpose of seeking to ensure that “non-nuclear-weapon”
states are not developing nuclear weapons.
However, the purpose of partial-scope IAEA safeguards in states that
already possess nuclear weapons is not obvious.
Manifestly, it cannot be to prevent the development of a nuclear weapons
capability. Nor can it play any role in
monitoring, let alone restraining, nuclear weapons production – since oversight
of military installations is always outside the scope of the safeguards.
Why do “nuclear-weapon” states enter
into these “voluntary offer safeguards agreements”? The IAEA Safeguards
Glossary [12]
says that they do so “inter alia, to allay
concerns that the application of IAEA safeguards could lead to commercial
disadvantages for the nuclear industries of non-nuclear-weapon States”
(paragraph 1.21). Can it be that they
are merely to add to the overheads of the nuclear industries in the official “nuclear-weapon”
states?
The
separation plan
The safeguards arrangement that the
US has agreed with India bears some similarity to these “voluntary offer
safeguards agreements”. India’s nuclear
facilities are to be divided into “civilian” and “military”, with a view to
placing the “civilian” under IAEA safeguards, so that material originating from
“civilian” facilities is not used for military purposes by India.
Robert Joseph, the Under Secretary
for Arms Control and International Security in the State Department, spelt out
the US requirements for the split to the House International Relations Committee
on 8 September 2005, as follows [13]:
“… the
civil/military split must be comprehensive enough … to provide strong
assurances to supplier states and the IAEA that materials and equipment
provided as part of civil cooperation will not be diverted to the military
sphere.”
This means that all foreign-supplied
reactors, and all reactors fuelled from abroad, will have to be deemed
“civilian” on a permanent basis.
For domestic consumption, India has
sought to present the additional IAEA oversight as the result of India
accepting “the
same responsibilities and practices as other states with advanced nuclear
technology”, in other words, that the new arrangements amounted to a “voluntary offer
safeguards agreement”, like those entered into by official “nuclear-weapon”
states. See, for example, the Indian
Government statement of 29 July 2005 [2], which went so far as to
say:
“Nuclear weapon states,
including the US, have the right to shift facilities from civilian category to
military and there is no reason why this should not apply to India.”
However, it is clear that India will
not enjoy the complete flexibility of a “voluntary offer safeguards
agreement”, in particular, the ability to move facilities in and out of
safeguards at will. Facilities that are
declared “civilian” will have to stay “civilian”, certainly those that are
imported. Reporting to the Lok
Sabha on
“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 [my emphasis].”
However, India will retain great
flexibility in the designation of Indian-built facilities. The Indian Government document entitled Implementation of the
India-United States Joint Statement of July 18, 2005: India’s Separation Plan [15]
sets out the principles on which this
designation is based. They are:
“Include in the civilian list only those facilities offered for
safeguards that, after separation,
will no longer be engaged in activities of strategic [ie
military] significance.
“The overarching criterion would be a judgement whether subjecting a facility to IAEA safeguards
would impact adversely on India’s national security.
“However, a facility will be excluded from the
civilian list if it is located in a larger hub of strategic significance,
notwithstanding the fact that it may not be normally engaged in activities of
strategic significance.
“A civilian facility would therefore, be one that
India has determined not to be relevant to its strategic programme.”
In practice, therefore Indian-built facilities
that are essentially civilian in nature, but may have a subsidiary military
function, will be deemed “military”, for example, power reactors producing
electricity for the national grid will be deemed “military” if plutonium for
military purposes is going to be extracted from their spent fuel.
Civilian/military
split
India has 22 “thermal” nuclear power
reactors in operation or under construction.
The 6 foreign-supplied reactors (2 by US at Tarapur,
2 by Canada and 2 under construction by Russia) are, or are scheduled to be,
under IAEA safeguards. India has decided
that these 6, and 8 other Indian-built reactors (as yet unspecified), are going
to be designated “civilian” and put under IAEA safeguards by 2014. This leaves a further 8 Indian-built power
reactors that will be designated “military”, presumably to allow plutonium for
weapons production to be extracted.
India also has a couple of “breeder”
reactors, which are important for the production of plutonium. India has designated these as “military”.
For the future, to quote Prime
Minister Singh in his report to the Lok Sabha on 6 March 2006 [14]:
“India has decided to place under
safeguards all future civilian thermal power reactors and civilian breeder
reactors, and the Government of India retains the sole right to determine such
reactors as civilian. This means that India will not be constrained in any way
in building future nuclear facilities, whether civilian or military, as per our
national requirements.”
He also announced that there would
be no IAEA oversight of the Bhabha Atomic Research
Centre (which he described as “a nuclear facility of high national security
importance”) or of “reprocessing and enrichment capabilities and other
facilities associated with the fuel cycle for our strategic programme”.
He was adamant that the separation plan
would “not adversely affect our strategic programme” saying:
“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. The integrity of our Nuclear Doctrine and our ability to
sustain a Minimum Credible Nuclear Deterrent is adequately protected. Our
nuclear policy will continue to be guided by the principles of restraint and
responsibility.”
Breaking
the NPT?
Article I of the NPT requires:
“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 “nuclear-weapon” states.
The proposed IAEA safeguards for
India may ensure that nuclear material and equipment imported by India, and any
nuclear material generated by imported equipment, is not used for weapons
production. However, India’s ability to
import nuclear material for civilian purposes may mean that indigenous
material, which would otherwise have to be used for civilian purposes, is
available for weapons production. The
prime example of this is uranium, of which India has a limited supply.
In other words, “nuclear-weapon” states
that supply India with nuclear material and equipment may actually be in breach
of their Article I duty “not in any way to assist” India with its weapons programmes.
Amending
US law
The implementation of the agreement
requires that the US Congress amend US law (the Atomic Energy Act 1954 as
amended by the Nuclear Nonproliferation Act 1978) to make an
exception for India and that the NSG do likewise in respect of its Guidelines.
There is opposition to the agreement
in Congress – on the grounds that the agreement rewards India for failing to
sign the NPT and because the US is not getting much in return (apart from the
possibility of business for the US nuclear industry). However, it is expected that an appropriate
amendment to US law will eventually be passed – an amendment drawn up by the
White House has been formally proposed in the House and Senate.
Last autumn, India’s lack of
enthusiasm for the US demand that Iran be reported to the Security Council bolstered
the opposition to the agreement in Congress, but this is no longer a factor
since India voted for the IAEA Board resolution of 6 February 2006 that reported
Iran to the Security Council. (In one of
the many ironies that surround these matters, because its nuclear industry is
technically advanced, India is always a member of the IAEA Board and, despite
not being a signatory to the NPT itself, acts as a judge about whether signatories
to the NPT are abiding by it).
There is little doubt that India’s
vote was motivated by a desire to dampen opposition to the agreement in the US
Congress. Back in January, David Mulford,
the US Ambassador in New Delhi, stated publicly that the nuclear deal was off,
unless India voted to refer Iran to the Security Council. On
But, this is the only obvious policy
shift by India so far at the behest of the US. The US has also been very keen that India pull
out of deals with Iran for a gas pipeline to India through Pakistan and for the
purchase of vast quantities of liquefied natural gas over 25 years beginning in
2009. However, after a visit by Dr Mehdi
Safari, Iran’s Deputy
Foreign Minister to New Delhi on 23 February 2006, a statement from the Indian
Ministry of Foreign Affairs said [17]:
“The two sides …
reaffirmed their commitment to the Iran-Pakistan-India gas pipeline and an
early ratification of the LNG deal already signed between the two countries.”
Amending
NSG guidelines
The US administration has said
publicly that it will not go ahead with the agreement unless the NSG, which
operates by consensus, agrees to an appropriate amendment to its Guidelines. Under Secretary Joseph stated this
categorically in evidence to the House International Relations Committee on 8
September 2005 [13]
in response to the committee chairman, Henry Hyde, who asked:
“I was hoping you can
assure us today, no matter
what else happens, the Administration will continue to abide by NSG guidelines,
and if you are unable to gain consensus within the NSG for the amendment you
need, you will not implement the new India policy in violation of NSG
guidelines. Can
you give us that assurance?”
Joseph replied:
“Mr.
Chairman, we can certainly assure you that we intend to take no action that
would undercut the effectiveness of the NSG. It is a very important
nonproliferation tool. Our intention is
not to change either the consensus procedure of the NSG or to even change the
NSG commitment to full scope safeguards as a condition of supply.”
Except for
A draft US amendment to the NSG guidelines
to make an exception for India was discussed at an NSG meeting on 22-23 March
2006, but didn’t meet with universal approval and no decision was taken (see [18]
for text of amendment and an account of the meeting). It should be emphasised
that the amendment is country-specific, applying to India alone, the key
element being:
“Notwithstanding
paragraphs 4(a), 4(b), and 4(c), of INFCIRC/254/Part 1 as revised [the existing
NSG guidelines], Participating Governments [in the NSG] may transfer trigger
list items and/or related technology to the safeguarded civil nuclear
facilities in India (a State not party, and never having been a party, to the
NPT) as long as the participating Government intending to make the transfer is
satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other
requirements of the NSG Guidelines.”
If this is passed, there will be one
set of rules for all states in the world bar India and a very different set for
India.
Most likely, none of the 45 members
of the NSG 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 [19])
but, to the best of my knowledge, the British government has yet to state this
publicly.
The interests of NSG members are not
the same as the other 150 or so NPT signatories, some of whom will not be
pleased to see India, which stayed outside the NPT in order to develop nuclear
weapons, being permitted to import nuclear goods without having full-scope IAEA
safeguards – a requirement endorsed by NPT members at their 1995 and 2000
conferences. 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.
Bush
gibbers
At a press conference in New Delhi
on 2 March 2006 [20], Jim Axelrod
of CBS News had the temerity to ask President Bush:
“… what kind of message, sir, does
it send to the world that India, which has been testing [nuclear weapons] as
late as 1998 … and … has not signed the Nuclear Nonproliferation Treaty -- is
this a reward for bad behavior, as some critics suggest? And what kind of
message does it send to other countries that are in the process of developing
nuclear technology? Why should they sign the NPT if India is getting a deal
without doing so, sir?”
There is
no presentable answer to this. Particularly,
for a President whose National Security Strategy published in March 2006 [21] declares:
“The
proliferation of nuclear weapons poses the greatest threat to our national
security.”
and sets an objective of
“closing a loophole in the Non-Proliferation
Treaty that permits regimes to
produce fissile material that can be used to make nuclear weapons under cover
of a civilian nuclear power program”.
So adherence to (a tightened) NPT is
apparently a sine qua non of countering the greatest threat to US national
security – but India is an exception which is to be rewarded for not adhering
(while Iran which is adhering is to be denied what is supposed to be its
“inalienable right” under the NPT to nuclear technology for peaceful purposes).
The President had no presentable
answer and he gibbered for a full two minutes.
It’s worth viewing on the White House website [20]. It begins with the following insights:
“What this agreement says is
things change, times change, that leadership can make a difference, and telling
the world -- sending the world a different message from that which is -- what
used to exist in people's minds.
“I -- listen, I've always said
this was going to be a difficult deal for the Prime Minister to sell to his
parliament, but he showed great courage and leadership. And it's difficult for
the American President to sell to our Congress, because some people just don't
want to change and change with the times. I understand that. But this agreement
is in our interests, and therefore, Jim, I'm confident we can sell this to our
Congress as in the interest of the United States, and at the same time make it
clear that there's a way forward for other nations to participate in a -- in
civilian nuclear power in such a way as to address nonproliferation concerns.”
In fact,
the Indian Prime Minister has required little or no courage in arguing for the
deal – because the deal required India to do very little, and required it to do
absolutely nothing to restrain its nuclear weapons programme. As the Prime Minister told the Lok Sabha on 6 March 2006 [14]:
“There will be no capping
of our strategic [ie nuclear weapons] programme, … . No constraint has
been placed on our right to construct new facilities for strategic purposes.”
Both sides
to the deal are agreed on this: for example, Condoleezza Rice stated it plainly
to the House International Relations Committee on 5
April 2006, saying [22]:
“The initiative does not cap Indian nuclear weapons production …”
This was India’s bottom line, and it
has achieved its bottom line. Without
having its nuclear weapons capability restrained in any way, it will gain access
to nuclear materials and equipment for the expansion of its nuclear power
programme, access that has been almost completely denied to it for more than 30
years. It will acquire the privileges of
a “nuclear-weapon” state recognised by the NPT without having to sign up the
NPT. The deal is a triumph for India.
The interesting question is: will the
28 May 2006
Labour
& Trade Union Review
www.david-morrison.org.uk
References:
[22] wwwc.house.gov/international_relations/109/ric040506.pdf