21 August 2007

“Delay in safeguards talks will not affect nuclear deal”

Despite the orchestrated campaign of panic -- according to which a delay of even a few weeks in negotiating India's safeguards agreement with the International Atomic Energy Agency will end up scuttling the entire nuclear deal -- it is clear that there is no deadline or timeframe for the next steps to be completed. In other words, there is plenty of scope for the Government to take a pause, address the Left and Opposition's concerns, and then proceed.

21 August 2007
The Hindu

“Delay in safeguards talks will not affect nuclear deal”

Siddharth Varadarajan

New Delhi: There is no deadline for the conclusion of a safeguards agreement with the International Atomic Energy Agency (IAEA) and any delay in negotiations caused by differences between the United Progressive Alliance and the Left parties will not affect the outcome of the India-U.S. civil nuclear initiative, senior officials told The Hindu on Monday.

“Right from the start, people have tried to impose artificial timetables of one kind or another but India has never agreed to these,” said an official.

Though Chairman of the Atomic Energy Commission Anil Kakodkar was scheduled to travel to the IAEA’s headquarters in Vienna next month to attend a scientific forum, no decision had been taken about whether he would enter into detailed discussions with the IAEA Secretariat on the contours of India’s proposed safeguards agreement at that time.

In the two rounds of talks between India and the IAEA that have been held so far, a broad conceptual framework has been discussed. Both sides understand that the agreement will build upon the INFCIRC 66 facility-specific safeguards agreements India has already signed for Tarapur 1 and 2, RAPP 1 and 2 and Koodankulam, with the added elements of fuel supply assurances and the right to take corrective measures in the event of a fuel disruption.

However, officials insist there is as yet no draft text, let alone an agreement that has to be presented before the IAEA’s Board of Governors before a particular date. Indeed, say the officials, India does not intend to place its draft safeguards agreement before the IAEA Board for approval until the Nuclear Suppliers Group (NSG) has altered its guidelines to allow nuclear commerce with the country and the United States Congress approves the bilateral civil nuclear agreement known as the ‘123 agreement.’

Only when both those steps have been completed will India seek the Board’s approval and follow that up with its signature.

As for the NSG, the 45-nation cartel’s next plenary session is scheduled for May 2008. Though the U.S. has said it is prepared to convene an extraordinary meeting of the NSG to approve an India-specific exception to its guidelines, there is no reason why this meeting has to be convened by October, November or any other month prior to May.

“There is no reason for anyone to panic if things are delayed or put on hold for a bit,” said an official.

“It is better for the government and Prime Minister to carry everyone along and if this takes a little time, it’s not the end of the world.” Timing becomes relevant for the Congressional vote on the 123 agreement. But once the NSG approves the deal, the U.S. legislature is unlikely to stand in the way.

8 comments:

Anonymous said...

there will be lot of delays from the american side in passing the 123 agreement because they will be pre-occupied with a lot of domestic issues, iraq war etc . and to mention the primaries for Nov 2008 elections which will begin in January 2008. The Indian side should probably also get the timetable/schedule of the American congress for its planning. And don't forget that the the non-proliferation and arms control lobby are going to be doing their best to scuttle the deal. So India should take its time and think and look at all aspects. There is no hurry.

Anonymous said...

123 agreement is full of forward looking farse. We can trust this 123 agreement only if US fixes the mistakes they commited with the old "Tarapore 123 agreement". So far we don't have rights for Tarapore used fuel even though they have violated the agreement. Why should we trust US for our future?

Anonymous said...

World's energy resources are controlled by selected few. Uranium is controlled by NSG cartel. Oil by OPEC and US. US did nothing they made the rules like NSG & NPT to punish India and they are just diluting slightly to tease India. Only fools will get sucked into this 123 deal. The best option for India is to build 1000 coal power power plants. Even our PM Manmohan singh has no other explanation other than coal causes environmental damage. Trust me World is not a rational place and the more you act in a don't care atitude the better for you. China acts in a unilateral way and gets away with it. Once India goes about building coal powered plants in a massive scale then there is a chance of rationality to prevail. There is no need for India to bend like this. When the rationality prevails we will see fair deals not like the beggers deal like 123.

Anonymous said...

I wonder if there is a major paycheck after this deal:

The point is not what Mr Sen has said. The point is why does even a little criticism of the deal drive Mr Sen, national security adviser M.K. Narayanan and Prime Minister Singh mad? Why is it that a hint of opposition has them mouthing words and using phrases that are not usually heard from them, with Dr Manmohan Singh claiming that those who supported the deal were patriots (meaning those who opposed it were not), the NSA wondering at those who opposed the nuclear deal, with "sources" describing the critics as insecure and paranoid, and now Mr Sen setting Parliament on fire with his ill-advised criticism of those opposed to the deal? Why are they taking criticism so personally? After all, it was just an agreement that the Prime Minister reached with US President George W. Bush, and an agreement that the Prime Minister can just as easily drop, now that most of India has made it clear that it does not want this agreement to be signed within the framework of the Hyde Act.

Mayurdas Bholanath said...

What is in it and what is not

1. I agree that the words "Hyde" and "test" are not to be seen in the present 123 Agreement text (the 123). Eminent lawyer Mr Kapil Sibal and his ilk say that :

* because the word "Hyde" is not mentioned, India is not bound by its provisions. It does not matter to us if the present and future Presidents of the US are required to meet the Hyde conditions in order to keep the civil nuclear cooperation with India alive.

* because the word "test" is not mentioned, India's right to carry out test of a nuclear device in future has not been taken away in the 123.

2. Article 2.1 which is there in the 123 says "Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes." Nevertheless:

* Mr A.G Noorani says that this is ejusdem generis and that Article 2.1 cannot be used to nullify the 'precise undertakings recorded in the accord', bringing Mr Hyde by the back door. He goes on to add that indeed, under Article 5.6 (a) the US is committed to seeking agreement from the US Congress to amend its domestic laws in order to ensure for India assured and full access to fuel for its reactors.

* Incidentally, Article 12.3 of the 123 also refers to "national laws, regulations and practices" in the context of entry of the (US as well as Indian) experts to their territory (India / US respectively) and their stay therein. I am not sure if this is also ejusdem generis and hence inapplicable as per the canons of international law.

3. I find that the identification number "INFCIRC/66" for the India-specific IAEA Agreement is not mentioned in the 123. Yet in this blog Mr Siddharth Varadarajan says that based upon the two rounds of discussions with IAEA regarding this issue, India expects to "build upon the INFCIRC 66 facility-specific safeguards agreements India has already signed for Tarapur 1 and 2, RAPP 1 and 2 and Koodankulam". This is perhaps as a result of a tacit understanding between Indian and US the negotiators. If so, are there any more such unwritten / secret understandings? This is a worrisome thought.

4. Article 15.5 says "The Parties may consult, at the request of either Party, on possible amendments to this Agreement. This Agreement may be amended if the Parties so agree."

* Yet, you-know-who and many others, want us, headless chickens to believe that because the 123 has been approved / signed, it cannot be modified now.

5. Reverting back to the subject of safeguards agreement, Article 10.2 of the 123 says:

* ". . . India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of nuclear material, non-nuclear material, equipment or components so transferred shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA [identifying data] and an Additional Protocol, when in force."

It is not clear what the words "[identifying data]" mean; I feel that it may be sloppy drafting which has remained in the approved and signed Agreement.

6. Again, Article 10.2 of the 123, quoted above, says India must sign an "Additional Protocol". The corresponding INFCIRC number has not been indicated.

According to Sec.104(b)(3) of the Hyde Act, the US President is required to determine that India has complied with this requirement of having an additional protocol. If not, the cooperation agreement cannot proceed.

The Hyde Act, in Sec.110. (1) defines Additional Protocol to mean INFCIRC 540 which is intrusive and is applicable to non-nuclear weapons countries, which India is not.

* Will India be allowed to wish away the applicability of the Hyde act in this regard?

* Nobody in India, is at the moment (at least) publicly indicating what INFCIRC identification will it be for the Additional Protocol.

7. IAEA Safeguards Agreements come in many flavours, some of which are:

* Flavour INFCIRC/153(Corrected) applicable for "all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere." Note the use of the word "all" two places indicating that nothing is exempt from safeguards (full scope)

* Flavour INFCIRC/66/Rev 2 is applicable to the nuclear material, facilities, equipment and non-nuclear material and with regard to certain technological information specified in them. Note the word "all" is missing here and that only "certain technological information" is covered.

* Flavour ??? (Voluntary-offer) in force with the 5 nuclear weapons states (including of course US) and is applicable to only designated facilities. Safeguards agreements do not provide for safeguards on all nuclear material, and these States have unsafeguarded nuclear facilities. In the case of US, even this is not in force yet.

* According to the Indo-US Joint Statement of July 18, 2005, publicised at the time with much fanfare, India was to acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States ("no more, no less"). Apparently adopting the same template as that of the US's Voluntary-offer (Flavour ???) had to be abandoned by the Indian negotiating team.

iyermr2007 said...

Indo-US Nuclear Co-operation 123 Agreement and beyond.


After 24 months of incubation, the 123 Agreement on the Indo US nuclear cooperation has finally arrived. Only future will make it clear as to how far it will meet the aspirations of the nuclear scientific community in making India come out of the nuclear apartheid. When the deal was first proposed in June 2005 all were euphoric about it. But as further discussions opened up culminating in the passing of the Hyde Act, many started having reservations about the ultimate aim of the deal. With the release of the 123 co-operation Agreement some of the concerns have been addressed to while apprehensions are lingering mainly on the uncertain implications of the Hyde Act which gets a mention in article 2(1) of the Agreement. Some believe that this will be the overriding consideration in interpreting the various features in the Agreement and that concern remains. That is what was expected from the time Hyde Act was passed. The need for squaring the circle arises because of the contradictory national compulsions of both the parties. Safeguard requirements and acceptance of the weapons program are two contradictory aspects. Naturally that involves compromises on both sides. It is naïve to believe that an agreement can incorporate a clause implying that it need not go by the domestic laws of the parties. If after judicious analysis of the pros and cons we find it against our national interests and domestic laws then we should not enter into the agreement at all. In case the Agreement is finally approved by both Governments, great diligence in formulating the various follow-up steps such as the agreements with IAEA and NSG is required to avoid pitfalls, learning from the lessons of the last two years. Hard bargaining is called for. Here is the unique need for IAEA to recognize the weapons program of a non-NPT country. Unfortunately the goings on in India is mired in opportunistic politics and personal mud-slinging, rather than an enlightened debate. As of now, on India’s 60th Independence Day, the situation regarding the very co-operation agreement is fluid necessitated by the domestic compulsions of both the parties. The 123 Agreement itself is the culmination of intense diplomatic exercises and is couched in legalistic Delphic language. In having an enlightened discussion we have also to consider what exactly the advantages and disadvantages in not having this Agreement at this point of time. Pointing out the disadvantages in having this Agreement will alone not be enough - a careful balance taking is required. And that is what is attempted in this article.

In an exercise like this, though our cherished dream is to get accepted as a nuclear power, it will take several steps to reach that pinnacle and we only hope that we are perhaps at the initial steps. As the PM stated, there is no point in India continuing like a frog in the well secluded from the international nuclear community except at a huge disadvantage. And if anybody expects that India can get access to that pedestal by isolating ourselves and not taking bold steps, it is a wild dream in the context of today’s ground realities. The effect of 33 years of isolation, in my opinion, has manifested in many ways on the technological front. Though some of the most difficult technology have been mastered by our technologists, at least a few of those are yet to attain industrial perfection partly due to the denial regimes operating against us today and partly due to the insulated nature of our programs. Fifty years of efforts have lead to some remarkable achievements. Nevertheless the growth of the Indian nuclear fuel cycle capabilities, at least in some areas has been tortuous and to some extent has a stunted growth like a good seedling devoid of manure. It is high time opening up of resources comes by, if the Indian technology has to meet world standards to exploit its excellence in technical manpower. The much trumpeted 3 stage nuclear power program which needs inputs from several salient features of the nuclear fuel cycle could also suffer from this lack of oxygen. Compounding this is the fact that we have problems with the limited uranium resources in the country. In spite of the best efforts the present uranium resources cannot sustain more than 10,000 MW installed nuclear power capacity (increasing this many fold by recycled fuel is possible but still far away), despite the fact that technical excellence in design and construction of the Indian Pressurized Heavy Water Reactors (PHWRs) has been achieved. Sustaining the 3 stage thorium program to increase the fuel potential, at present calls development of new technologies and fraught with many a slippery ground. The desired pace of this programme will also be easily attainable if resources are opened up. In today’s world, research and development is more of International cooperation and one cannot expect smooth progress by a closed-society approach. Countries which have been following this closed-society approach in the past have already made mid-course corrections. This is well demonstrated by the co-ordinated efforts of USA and Russia in space programs and the nuclear programs of countries like China, Japan etc.

Much has been said about the strategic applications and the freedom for the country to decide its shaping. In today’s world this is synonymous more with deterrent capability. With or without the 123 Agreement the strategic part of the nuclear program has to be sustained by 100% indigenous efforts and one should not expect any country to provide support to another. That is the case also with all the accepted nuclear powers today. It is not a small gain for the Indian negotiators, at least on paper, that this part is conceded in the Agreement. Article 2(4) of the Agreement affirms that the purpose of the Agreement is “not to affect the un-safeguarded nuclear activities of either Party and not affecting the rights of the parties to use the technology/materials developed by them independently for such purposes”. In fact this article acknowledges the military use of nuclear energy in India and mentions that “the agreement will be implemented in such a manner as not to hinder or otherwise interfere with the military nuclear facilities”. This in a way acknowledges the weapon status of the country. Such clauses do not exist with agreements entered by US with any other country. The staunch critics of the agreement expect the US to accept and sustain India’s strategic program and that is perhaps impractical and too much to expect. On the other hand whether we like it or not, our technological progress does not centre around isolating ourselves but having active interaction with other courtiers – even China, European countries, Japan, do it. The Chinese affluence attained today is centered on engaging USA and having direct dialogue, not by isolation. To agitate for distancing with the international community only smacks of age old inhibitions which are out of tune with the times.

123 or not, in today’s ground realities, International compulsions and implications will certainly weigh against India carrying out a nuclear test and it is too naïve to except that an international agreement will document reserving our right for carrying out tests. Much hair has been split on the subject of the Agreement being rolled back in case of India conducting a nuclear test. This is a hypothetical scenario, though plausible. India has rightly or wrongly declared that it does not need any further tests for its weapons program and those who vociferously protested against the deal in the Parliament were primarily responsible for making this brave decision. As a matter of fact it is difficult for any country including the weapon countries to carry out a nuclear test in today’s scenario without earning the wrath of the whole world. In case of the remote chance of any such scenario emerging in the future, other checks and balances will come into play. As such the testing scenario is more of a theoretical exercise, but the access to reprocessing technology and equipments is of more concern in the context of its application to our fast reactor programme.

The contingency of not meeting the safeguards objectives of IAEA in the safeguarded facilities is also far fetched, as India is a responsible state with clean non-proliferation record, though it will involve additional resources to meet those objectives. We should also keep in mind that India is member of Board of Governors of the IAEA. In this respect the agreement with IAEA will be crucial and has to take into account that India is a State with dual technologies. How this intra-national safeguard aspect will be dealt with a non-NPT country with weapons program by IAEA remains to be seen.

The other possibility for the Agreement getting abrogated is political in nature, involving any future souring of relationships with USA. In today’s unipolar world such considerations will still be present even without the 123 Agreement and most countries in the world face such ground realities of today.

Regarding the exercising of the reprocessing option, reprocessing the Indian fuel in safeguarded facilities is more straightforward which is required for our fast reactor program. In any case without the 123 Agreement and with no external uranium resources we would have been doing only just that. Only difference would be that the plutonium from the Indian fuel would have now to go into safeguarded fast reactors only. Some suspect that having safeguard surveillance in the fast reactor programme will inhibit its development. On the other hand as a result of this Agreement if some international collaboration is forthcoming in developing the fast reactor program, despite it being safeguarded, it would be a welcome relief to the already strained resources in such programs. The 123 Agreement requires amendment for transfer of dual use technologies like reprocessing. Perhaps the real intention in this case it to ensure safeguardability. Having set up the first Indian reprocessing plant as early as 1965 followed up by two more reprocessing plants, India has the know-how to set up such a safeguarded facility. But the indigenous reprocessing technology has still to graduate to large industrial scales to match the excellent technology development on the power reactor front. Again possible slackening of restriction for import of equipments for this program from any of the NSG countries would be a welcome relief for this. If as a result of the further negotiations the imported fuel is allowed to be reprocessed in a safeguarded reprocessing facility that would certainly accelerate the fast reactor program. But for India to set up such an industrial facility with its current know-how is going to involve a very long incubation period and it is here that removal of embargo would be of help to speed up the project. A provision for setting up such a dedicated safeguarded reprocessing facility is provided in Article 6(iii) of the Agreement. In so far as the complexities of safeguarding such a facility is concerned, the experiences of the Japanese safeguarded reprocessing plant would be useful. One of our reprocessing plants has also the experience of its being under limited IAEA safeguards when fuel from the already safeguarded reactors (RAPS) were being reprocessed.

There is nothing in the Agreement directly to hinder the reprocessing part in the strategic applications. However it is possible that augmentation of that capability may have its own implications in view of the reference to the Hyde Act. But we should better be looking at what Article 2(4) of the 123 Agreement has to say in this context which is what has been agreed upon therein.

This is not to indicate that all is well with the Agreement. Reference to Hyde Act is brought in through Article 2(1) of the Agreement which states that “each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations …”. Thus we have to tread on a slippery ground unless handled properly by diplomatic and technological maturity to formulate the agreements with IAEA and NSG. Continuing the analogy of the Prime Minister, the frog in the well will have limited exposure to sunlight but when it jumps out it should not end up in a cage. But then it is clear that we cannot have everything 100% to our likening but some smart maneuvering can ease the situation. But as the Chairman AEC remarked, it is satisfactory under the circumstances and one can live with it.

In so far as the fuel security is concerned, unless some of the limiting boundary conditions are reached, it may not be of much concern. Some tortuous clauses are however included in the 123 Agreement to take care of that situation. One can only hope that the breaking point will never be reached. The Agreement in some way bridges this concern by indicating that other NSG countries can be induced to take care of that remote possibility. In fact such a via media was arrived at when fuel for the Tarapur reactor was denied by USA in the wake of the nuclear test carried out by India in 1974 and Americans did not object when the reactors continued to operate with supply of uranium fuel from Russia and France. Already welcome indications are emanating from some NSG countries like Australia that they might consider lifting the embargo of uranium sales to India for civil applications.

The alternative is not to go in for this Agreement. This will maintain the status quo and we can have all our cherished options. But we have to continue to live with embargos and with the limited fuel resources. Even then we will be tied up by the self imposed uni-lateral ban on testing with practically no elbow space to go against it without great political and economic consequences. Most of the analysis on implications of testing on the Agreement presume that India has the freedom to test at will if we do not enter into this agreement. In practical terms this is not so. In any case the Government has emphatically stated that there is no need for further testing. So we can conclude that the position in this respect will be more or less same with or without the Agreement. That the growth of the civil nuclear industry had been limited is testified by the fact that none of the projected predictions made in the past on the installed nuclear capacity has materialized till now and one of the reasons sited for this is the control regimes operating against us. The present Agreement can be considered as a gamble in retrieving the situation.

The opening up will throw lot of challenges to the nuclear technical community. Enhanced transparency, increased accountability and target oriented indigenous efforts resulting from this can alone bring out our technological excellence. The possibility of Indian nuclear trade and commerce to outside world would offer an added incentive. The challenges may also involve eroding of the trained manpower to the outside world as has happened in other areas. As in other areas this should be looked upon as a source of strength rather than brain drain. The dormant manpower resource in the country is infinite. Complacency resulting from the long drawn insulation of the industry should give way to attaining technical excellence, realistic planning and competitive performance. The great transformation that had happened to the insulated telecommunication industry in India in the last decade is an example of the possibilities that lie ahead. As stated earlier, the problem arises due to the need for accommodating the weapon programme of a non-NPT country. In the final analysis this might involve some trade of mainly relating to the strategic applications. Whether it is acceptable or not is a matter to be decided by the policy makers and certainly will involve other considerations.

By
Dr.M.R.Iyer
Former Head, RSSD, BARC &
Ex-IAEA Safeguards Inspector)

Anonymous said...

"With or without the 123 Agreement the strategic part of the nuclear program has to be sustained by 100% indigenous efforts and one should not expect any country to provide support to another. That is the case also with all the accepted nuclear powers today"

I disagree with the above statement/conclusion. There is lot of cross-breeding internally in the west by "outsourcing" and developing "un-classified" and "key technology components" of strategic & classified technology/research to civilian industry and university. So they do provide support to the strategic doman by strengthening the civilian domain indirectly. That is why there is so much hue an cry on american competitiveness initiative, defence industry-university colloboration and many more such. This is the way they make strategic a research sustainable and profitable.

Anonymous said...

three arguments by president bush in support of the deal
- the nuclear deal will unlock India for American commerce.
- India will be a natural strategic partner for the U.S.
-the deal will be a net plus for global proliferation

are very nicely broken down in this argument bu the vocal critic deal Democratic Congressman
Hon. Edward J. Markey ( Sep 13, 2007 )

http://www.cfr.org/publication/14213/courses_of_action_for_congress_and_the_nuclear_suppliers_group.html?breadcrumb=%2Fregion%2F282%2Findia