22 May 2008

Diplomatic Notebook: India, the NSG and cluster bombs

The U.S. probably has a pretty good idea of what India and the IAEA secretariat have negotiated. But India is still in the dark about what Washington plans to do at the Nuclear Suppliers Group.

22 May 2008
The Hindu


India, the NSG and cluster bombs

Siddharth Varadarajan

The Indo-U.S. nuclear deal is not part of the principal agenda of the Nuclear Suppliers Group which is meeting this week in Berlin for its annual plenary. Though Indian negotiators have finalised the draft of an India-specific safeguards agreement, the lack of domestic political consensus means the government is not yet in a position to submit the agreement to the International Atomic Energy Agency Board for formal approval. Vienna being a porous place, one can safely assu me the United States has a pretty good idea of what India and the IAEA secretariat have negotiated. New Delhi, on the other hand, is completely in the dark about what kind of exemption the Bush administration is prepared to seek from the nuclear cartel’s export guidelines for India.

Washington circulated a short “pre-decisional” draft in March 2006 but that text has since undergone substantial revision. According to the February 2008 report of the Congressional Research Service, U.S. Nuclear Cooperation with India: Issues for Congress, the United States has now developed a second draft incorporating the suggestions of other NSG members. “However, Washington has not yet circulated the proposal to the NSG Consultative Group out of concern that it would leak, thereby enabling the Indian leftist parties to use the draft to raise additional objections to the deal and stop discussions between New Delhi and the IAEA,” the CRS report states. The source it quotes is a “personal communication” by an unidentified State Department official.

Indian officials have no idea what changes the U.S. has incorporated in its first draft, which envisaged a fairly clean exemption for India without any of restrictions or conditions on the sale of components for safeguarded enrichment and reprocessing plants, reprocessing spent fuel and the like envisaged by the Henry Hyde Act of December 2006 and the U.S.-India bilateral nuclear cooperation agreement (i.e. the 123 agreement) finalised last July. The CRS report notes that the U.S. intends to unveil its new draft at an NSG Consultative Group meeting only after the IAEA Board of Governors has approved India’s safeguards agreement.

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This secrecy is of a piece with the gag order the State Department has imposed on members of the House Committee on Foreign Affairs to ensure its answers to a number of detailed clarifications sought by Congressmen on the nuclear deal do not leak out. The questions were framed by the Committee after House Resolution 711 “expressing the sense of the House of Representatives concerning the U.S.-India nuclear cooperation agreement” was referred to it last October. The resolution states that it is in the U.S. interest to ensure the NSG does not approve an exemption for India “that allows other countries to engage in civil nuclear commerce with India that is prohibited under U.S. law, thus putting U.S. firms at a competitive disadvantage.” The operative part of H.R.711 is that the administration should not move for any revision of the NSG’s guidelines until it has (1) answered “all outstanding questions raised by Congress” on “apparent inconsistencies” between the Hyde Act and the 123 agreement, and (2) resolved “all differences of interpretation” of the 123 agreement’s provisions with India.

What does this mean for India, assuming the nuclear deal is able to pass the gauntlet of Left opposition and move on to the next stage? For one, that the U.S. will likely attempt to claw back the concessions it made in the 123 agreement and close the window on India getting at the international level what U.S. vendors are unable to provide under domestic law. India, for example, does not need enrichment and reprocessing technology from others but would like to import components for safeguarded fuel cycle facilities. The 123 agreement excludes this but the NSG at present has no separate bar on the sale of such components. Second, the Indian interpretation of many of the 123 agreement’s provisions — especially on the right of return — differ significantly from the American one. Since it is this deliberate ambiguity of language which allowed the 123 text to be sold by the two governments to their respective publics, any attempt to resolve these “differences of interpretation” could well lead to the agreement itself unravelling.

Until now, India was willing to swallow some of the unpleasant provisions of the 123 agreement because it knew that what mattered in the final analysis were the NSG guidelines. After all, the 123 agreement gets “operationalised” only when India buys nuclear equipment and fuel from the U.S. And so long as the NSG guidelines allow India to buy what it wants from other countries, a prudential strategy would be one which postpones this operationalisation for a few years. It is precisely this sequencing loophole in the nuclear deal that the U.S. is now trying to plug by denying India the "clean exemption" it wants from the NSG. All indications are that the NSG hurdle will be the hardest of all. But India will always have the option of walking away from the table if the nuclear cartel seeks to impose unreasonable restrictions on the country.

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One of the issues being discussed in the Berlin NSG plenary is a U.S.-initiated proposal to adopt new rules governing the export of enrichment and reprocessing (ENR) technology and equipment. Altering the Nuclear Non-Proliferation Treaty and NSG rules governing ENR has been an American priority for several years now. At present, neither the NPT nor the NSG envisage separate restrictions. The NSG guidelines only prescribe full-scope safeguards as a condition for the sale of nuclear material and equipment and do not impose additional conditions on ENR equipment. Until now, the U.S. has advocated a complete international ban on the sale of ENR technology to countries which did not already posses it, something NSG members have always resisted.

Last month, the U.S. changed tack to propose that the NSG adopt separate rules for such exports. Among the restrictions the U.S. envisages are (1) NPT membership (thereby ruling out India), (2) adherence to the Additional Protocol providing for snap inspections (something India will not allow since it possesses nuclear weapons), and (3) “black box” technology, whereby importing countries would not be able to replicate the safeguarded equipment they buy for use in some hidden facility.

At a meeting of NSG officials in Vienna in April, the U.S. clashed with Canada, Brazil and South Africa over the “black box” proposal.

With enriched uranium emerging as a fuel of the future, countries like Canada (with large uranium deposits) and South Africa (with enrichment technology) do not want the energy market to be cornered by the handful of countries which today supply nuclear fuel. However, it is more than likely that the NSG will adopt an "NPT only" rule for ENR sales. And that the exemption the U.S. seeks for India will not relax the proposed new rules on enrichment and reprocessing.

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A major arms control initiative gets underway this week in Ireland with the convening of the Dublin Diplomatic Conference on Cluster Munitions. A cluster munition is a bomb which contains multiple explosive submunitions that disperse deadly bomblets over a wider area after the principal detonation occurs. Such munitions violate the norms of war because they spread over a wide target area, causing civilian casualties. During Israel’s invasion of Lebanon in 2006, for example, thousands of cluster bombs were dropped in heavily populated areas causing hundreds of civilian deaths and injuries. At the end of the war, one million unexploded bomblets lay strewn across southern Lebanon.

Prompted by the international outcry that Israel’s indiscriminate use of cluster munitions provoked — and the failure of the U.N. Convention on Certain Conventional Weapons (CCW) to move towards prohibiting these deadly bombs — Norway invited concerned countries at the end of 2006 to attend a conference to work towards a ban. The Oslo process led to subsequent meetings, most recently in Wellington, where a Declaration on Cluster Munitions was adopted. The Dublin Conference, at which more than 100 countries are participating, is aimed at drafting a Convention prohibiting the use, production, transfer and stockpiling of cluster munitions. The U.S. is officially staying away. So is India.

Though India is a party to Protocol V of the CCW dealing with explosive remnants of war and is thereby committed to the “responsible use” of cluster munitions, it is wary of the Dublin process. First, it would rather deal with the issue through the U.N. And second, it believes cluster bombs serve a useful military purpose. So as with Ottawa process, which led to an international convention against landmines, India prefers to sit outside. This is unfortunate. Every weapon serves a “useful military purpose” but when it causes unacceptable damage to the civilian population its use should be banned.


Mayurdas Bholanath said...

0. Welcome "home"!! Long time, no hear! By the way, it would be nice to have a link to any document on the lecture on the nuclear deal you had given in a seminar in UCLA some time in Nov 2007.

India, for example, does not need enrichment and reprocessing technology from others but would like to import components for safeguarded fuel cycle facilities. The 123 Agreement excludes this but the NSG at present has no separate bar on the sale of such components.

I presume the reference is to components for safeguarded enrichment and reprocessing facilities. As has been rightly pointed out, the 123 Agreement excludes this. It says:

Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties’ respective applicable laws, regulations and licnse policies.

That is, an amendment to the current 123 Agreement under discussion would be required which seems unlikely any time soon.

However, as I understand, the Hyde Act (which is a part of USA's "respective applicable laws, regulations and license policies"), vide Section 103, enjoins that issue of licenses for the export or re-export to India of any equipment, components, or materials related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water, . . . , must only be to: (A) a multinational facility (constructed on Indian soil) participating in an IAEA-approved program to provide alternatives to national fuel cycle capabilities; or (B) a facility participating in .... a bilateral or multinational program to develop a proliferation-resistant fuel cycle.

In other words, since construction of enrichment or reprocessing facilities on Indian soil, meeting the restrictive requirements of (A) or (B) above is not on the cards, I feel that India's attempt to get just the components by obfuscating between a full-fledged equipment and its parts may not be successful.

NSG has two classifications for export control (vide INFCIRC/254) -- one for "Dual Use" items and the second, a more restrictive "Trigger List" which covers equipment as well as parts for enrichment plants, reprocessing plants and heavy water plants. These two protocols are being enforced against India (as a Non-Nuclear Weapons State) by NSG at the moment. It seems to me rather doubtful that NSG would modify its guidelines (pursuant to the US-India 123 Agreement) such that vital parts of "sensitive equipment" may be exported to India while the full-fledged equipment / technology itself is not.

Much will depend on the conditions imposed on India in the Additional Protocol which is yet to be negotiated with the IAEA. As usual, right now Indian citizens are kept in the dark on this issue too (as is the case with the India-specific Safeguards Agreement), and will have to wait for the usual fait accompli.

A lot of discussion has taken place on the sequencing of various events and agreements associated with this deal. Yet, for me, there still is no clarity. True to form, GoI has not cared to share with its citizens, any document that clearly shows the logical sequence of initiation and completion of every event pertaining to this deal -- a PERT chart as it were, perhaps even without specific numbers for the time scale, but clearly showing the logical sequence. For example, what would be the scenario if India were to indicate to the IAEA Board its acceptance of the presently arrived at text of the Safeguards Agreement, but NSG does not give a "clean waiver" - a distinct possibility? I reckon the "damage" would have been done, even if India were to walk out of the deal at that time. Just like the "voluntary moratorium on testing" that had been unthinkingly announced by India earlier, signifying acceptance of the Safeguards Agreement to the IAEA Board of Governors now might become a millstone around India's neck for all time to come.

Mayurdas Bholanath said...

In my previous comment I had said:

It seems to me rather doubtful that NSG would modify its guidelines (pursuant to the US-India 123 Agreement) such that vital parts of "sensitive equipment" may be exported to India while the full-fledged equipment / technology itself is not.

I find that INFCIRC/254/Rev.7/Part 2 of February 2006 has, in fact, a specific clause in this regard.

It says:
The following paragraphs are applied to the List of Nuclear-Related Dual-Use Equipment, Material, Software,and Related Technology.

. . . .

4. The object of these controls should not be defeated by the transfer of component parts. Each government will take such action as it can to achieve this aim and will continue to seek a workable definition for component parts, which could be used by all the suppliers.


Anonymous said...

From your article it makes me wonder as to what exactly do you mean by "nuclear trade" with the NSG countries ? It seems nuclear trade=nuclear fuel; thats all ?What nuclear technology is India really allowed to trade in besides the fuel and buy nuclear reactors ?

Just as the Americans want their industry to be competitive against the French and Russians shouldn't, the Indian nuclear industry have the freedom to rise up the value chain instead of just buying ?
And even with the nuclear reactor technology has anybody really mde an inventory of the American/French/Russian technology that we need and those countries are willing to sell or license to be manafactured in India. Or is it again that we will be only "users" of this nuclear reactor technology ?

Anonymous said...

If as in the comment above the trade in components for safeguarded enrichment and reprocessing facilities has been excluded by 123 and any enrichment or reprocessing technology is only to be used in a safeguarded multinational facility then why does Dary Kimball from Arms Control Today keep saying that

"...To improve its fuel production and spent fuel reprocessing capabilities, the Singh government has fought tooth and nail to secure access to enrichment and reprocessing technologies from the United States and other nuclear suppliers for its long-planned fast-breeder reactor program, but which could also be used to improve its military nuclear program.."


Why is there a risk of transfer of technology to arsenal building when it is safeguarded ?

And what will India do with the accumulating amount of spent fuel ? Shouldn't it also have the reprocessing option as one of the means for managing the waste ? Otherwise it will it have to pay for exporting the spent fuel/nuclear waste to other countries. From a purely economic perspective where is the Indian nuclear industry going to be benefitted if it has to just keep buying or paying for consumption without any value addition ?

Anonymous said...

In jest and with due apologies to Leigh Hunt:
Daryl Kimball (may his tribe increase!) :-}.

He is considered to be a chief amongst Non Proliferation Ayatollahs (= non-proliferation lobby, shortened to NPA). If on account of his pontification, the sellout deal gets derailed - at the US end itself - then Indians should welcome that particular outcome (while firmly rejecting other pronouncements and propositions of the NPA that are not in India's interest).

In any case, while under the heading "India’s Unreasonable Demands" Kimball indicates "Singh government has fought tooth and nail . . ." etc as quoted in the comment above, he does not say in the article cited that the Singh Government was successful in its efforts in this particular regard.

DR vidyardhi said...

Intellectually hollowed Society-has less future
NECESSTY: Better wisdom should prevail in advance before falling into a trapped mode
Identify Intellectuals in time of need
CURIOSITY: Many developing nations look towards INDIA
A delicate balance is created by Whims-fancy modes.
India should come out of this rut-rat situation
Vidyardhi Nanduri
Cosmology World Peace