The U.S. wants a decisive say in the scripting of India's safeguards and additional protocol agreements with the IAEA but is withholding "full" civil nuclear cooperation.
7 July 2006
Assessing the nuclear balance sheet
WHEN INDIA signed a landmark agreement in July 2005 for "full civil nuclear cooperation" with the United States in exchange for a specific set of commitments, there were three sets of concerns that analysts on the Indian side raised. The first related to technology. Would the deal hamper India's indigenous three-stage plans in the civil nuclear field by increasing our import dependence and subjecting our reactors and research facilities to intrusive international inspections? The second set of concerns was linked to `national security.' To the extent to which nuclear weapons — rightly or wrongly — have come to occupy a central position in the country's security calculus, would the deal weaken or cap the Indian nuclear weapons capability? Finally, there were political and strategic concerns. What hidden costs did the U.S. offer of nuclear cooperation bring with it? Was India running the risk of getting drawn into a web of alliances the U.S. is building in Asia, thereby compromising its own strategic autonomy?
These questions — especially on the fast-breeder — were intensively debated in the past year and were perhaps a useful input into the difficult negotiations India and the U.S. had on the question of implementation. But with the deal now entering its final phases, it is useful to assess whether the three sets of concerns raised last year retain any validity.
Last week, a draft law allowing the U.S. President to authorise nuclear sales to India sailed comfortably through key Congressional committees in both the House and Senate. Its passage by a full sitting of the two Houses of Congress is now more or less assured. Simply put, the draft law envisages the President waiving existing restrictions on nuclear trade once he makes a "determination" that India has fulfilled a number of conditions. These conditions — which differ slightly and crucially in the Senate and House versions of the Bill — ostensibly spring from the July 2005 agreement but contain some additionalities that the Indian side might find problematic. Moreover, the grant of presidential waiver authority comes interwoven with other legislative directives to the President, some of which are harmless as far as India is concerned but some of which are definitely cause for concern.
To get a better sense of the additionalities, it is instructive to compare the operational section of the original draft of the proposed law — shared with India as part of the agreement on its separation plan, and tabled in both Houses in March as S2429 and HR 4974 — with the versions currently marked up. These spell out the conditions India must fulfil for the President to authorise nuclear commerce.
On at least four counts, the changes made are problematic. Whereas the first draft spoke of India filing a declaration with the IAEA regarding its civil nuclear facilities, the Senate Bill says the declaration must be "complete" and include nuclear "materials" as well. The insistence on "complete" is odd since the word has been used internationally only in respect of the IAEA declarations filed by Iraq and Iran — countries accused of having a clandestine nuclear programme. Since the basis of the India-U.S. agreement is the de facto acceptance of India's military nuclear programme, it is meaningless to speak of a "complete" declaration. Perhaps the intention is to bring nuclear "materials" produced in the past by facilities going on the civilian list under the purview of safeguards. Either way, the wording of this clause is troubling.
Secondly, on safeguards, the original draft spoke of India accepting "IAEA practices." The Senate has amended this to add acceptance by India of IAEA "standards and principles" as well. Until now, the assumption was that the country would sign an "India-specific" safeguards agreement which would reflect the fact that India is not a non-nuclear weapons state (NNWS) under the NPT. Thus, not all nuclear facilities would be safeguarded and those that were offered would be on the basis of IAEA "practices" whose precise contours would be the subject of negotiation with the agency. The new insistence on adherence to IAEA "standards and principles," however, is intended to push India towards a tighter inspections regime for the facilities to be safeguarded, presumably in line with the intensity reserved for NNWS.
Thirdly, the original draft spoke of India making "satisfactory progress toward implementing an Additional Protocol that would apply to India's civil nuclear program." In the new Senate version, the reference to "India's civil nuclear program" has been deleted and "satisfactory progress" has been changed to "substantial progress." In the Senate Bill, the term "Additional Protocol" has been defined as a "protocol ... based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540." Until now, the Manmohan Singh Government has insisted it would sign only "an" additional protocol rather than "the" additional protocol. But the Senate committee, by deleting the reference to India's civil nuclear programme, has raised a question mark over Washington's willingness to allow India to invoke — as the U.S. itself has done — national security exclusions to override the intrusiveness of INFCIRC 540.
Fourthly, in the original draft, India was expected, in line with the July 2005 agreement, to support "international efforts" to limit the spread of enrichment technology. The House version has changed this to "supporting United States and international efforts." One of "efforts" the U.S. is considering to limit the spread of enrichment technology, for example, is to sanction or bomb Iran. Another is the Global Nuclear Energy Partnership (GNEP), in which President Bush told the Asia Society in February that India would be treated not as a "fuel cycle state" but as a "recipient." Is India expected to support such efforts?
In any event, the reference to enrichment technology is especially problematic because of the Senate's insistence on explicitly ruling out the sale of enrichment-related technologies to India. The July 2005 agreement had spoken of the U.S. adjusting its laws to enable "full civil nuclear energy cooperation and trade with India" but what is being proposed is something less than "full." Indeed, in its `Declaration of Policy,' the Senate Bill decrees that it shall be U.S. policy "to work with members of the NSG, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India." Elsewhere, the Bill explicitly prohibits the sale to India "of any equipment, materials or technology related to the enrichment of uranium, the reprocessing of spent fuel, or the production of heavy water" except if India joins the GNEP or a similar IAEA-sponsored programme.
Taken together, what does the addition and subtraction of a few words in the operational section of the Bill mean? It represents an attempt by the U.S. to dictate the parameters of the safeguards agreement and additional protocol India is to sign with the IAEA. Indeed, to underscore the point and ensure real-time monitoring of the evolving safeguards agreement, the House Bill explicitly tasks the President with not just submitting the final agreement to Congress for approval but also giving monthly reports to it on the "status of the negotiations ... between the IAEA and India."
Apart from safeguards, the Senate version of the Bill has grafted on a separate layer of supervision under the rubric of end-use monitoring. Any nuclear material, equipment and technology exported to India by the U.S. would be subject to not just IAEA safeguards but an end-use monitoring programme to be run by the U.S. The Senate is also insisting that this end-use monitoring should involve U.S. inspectors acquiring the same degree of access as IAEA inspectors "in the event [that] the IAEA is unable to implement safeguards."
The IAEA has a limited budget and would normally prefer to deploy its surveillance resources not in a country like India — which is known to possess nuclear weapons — but in NNWS suspected of having a clandestine nuclear programme. Thus, over a period of time, the periodicity and intensity of active safeguards implementation by the IAEA in India will likely come down. For example, hundreds of facilities in the five NPT-defined nuclear weapons states are safeguarded but the IAEA actively inspects no more than a dozen. It is precisely to guard against such an eventuality that the U.S. is insisting on a parallel unilateral inspections mechanism for any nuclear material it exports to India. And by insisting that the President prepare an annual report on third country nuclear exports to India which do "not meet the standards applied to [U.S.] exports," the attempt will be to force other suppliers and perhaps the NSG as a whole to insist on similar conditions just in case India decides not to purchase equipment from American vendors.
So far, the separation plan prepared by India has managed to exclude civilian experimental and research work vital for the success of the three-stage nuclear programme from the crippling purview of inspections. But the entire effort will come to naught if the country is forced to negotiate a rigid safeguards agreement and additional protocol with intrusive complementary access as the U.S. would like. In the home stretch, India must insist on its sovereign prerogative to negotiate a sui generis safeguards agreement that will not hamper civilian research.
And it must ensure its Additional Protocol mirrors that of the U.S., including a national security exclusion and all the reservations outlined in the "Brill letter" attached by the U.S. to its own protocol.