The 35-nation Board of Governors approved India's safeguards agreement by consensus but it is clear from the statements many countries made that the can of opposition has essentially been kicked further down the road. India won a battle on Friday. But the big war still lies ahead...2 August 2008
The Hindu
IAEA board approves India safeguards agreement
Consensus prevails, but some countries warn of taking battle to NSG
As Pakistan hails ‘precedent,’ other IAEA members express doubts, fears
Siddharth Varadarajan
Vienna: With the words “It is so decided” and the bang of the chairman’s gavel, the India safeguards agreement was adopted by the Board of Governors of the International Atomic Energy Agency on Friday evening.
In an indication of how significant the decision is for the arcane and often opaque world of nuclear politics, virtually every one of the 35 countries which make up the IAEA’s apex body took the floor to make statements either endorsing India’s case or, in the case of the majority, expressing reservations and qualifications of one kind or another. Three countries — Austria, Ireland and Switzerland — could barely disguise their unhappiness. But in the end, the hard sell indulged in by the U.S. and India —and the strong backing the agreement received from IAEA Director General Mohammed ElBaradei — ensured that the text sailed through without a vote.
The meeting began at 10.40 a.m. and ran until lunch, by when all board members who wished to make statements prior to the adoption had spoken.
When the meeting reconvened two hours later, the BoG’s Chilean chair, Milenko E. Skoknic, summed up the discussion and suggested that the Director General be authorised to “conclude and implement” the safeguards agreement with India. He then looked around the room quickly to make sure that no delegation was raising its flag to call for a vote and reached for his gavel.
If those few seconds before the gavel sounded provided the only moments of tension for the Indian delegation during the day, the statement made by several countries at the meeting made it clear the battle to end India’s nuclear isolation has only been postponed to the Nuclear Suppliers Group.
Ireland, Austria, Japan and even Brazil pointedly declared that their going along with the consensus at the IAEA did not mean they would sit quiet when the 45-nation nuclear cartel discusses India’s case next month. New Zealand, which spoke as an observer, said it did not wish to say much about the safeguards agreement since it was not a member of the BoG. But it said it would make its stand on India clear at the NSG.
The approval of the agreement pushes the Indo-U.S. nuclear deal one step closer towards the finishing line and paves the way for as many as eight additional Indian nuclear power reactors to come under international safeguards in phases once lifetime fuel supply arrangements for them are concluded. In all, India has undertaken to place 14 reactors under safeguards, six of which are already subject to inspections.
In a statement to the press after the Board meeting, Dr. Baradei expressed the hope that the agreement “would also be certified by the Suppliers Group.”
Speaking to reporters outside the boardroom, Department of Atomic Energy chairman Anil Kakodkar said every country in Board may have expressed its national position but “the significant point is that the safeguards agreement has been adopted by consensus.” He hoped the NSG would now give a clean and unconditional waiver to India.
In his remarks, the Pakistani ambassador tempered his criticisms of the Indian agreement and emphasised his belief that the Board had “set a ‘new’ precedent”. He also expressed his confidence that the IAEA members “will demonstrate their ‘political’ and ‘moral’ authority to apply it in future ‘equitably’ and on a ‘non-discriminatory’ basis”.
Pakistan turnaround
After publicly opposing the India safeguards agreement, Pakistan on Friday did a turnaround, describing the IAEA’s approval of the draft as “a historic decision". "A step has been taken towards accommodating the interests of a non-NPT nuclear weapon state by evolving an innovative and new model. A significant departure has been made from the standard norms pertaining to verification and global non-proliferation, which, inter alia take into account the imperatives of promoting civilian nuclear cooperation,” its Ambassador, Shahbaz, said. “This constitutes an acknowledgement of ‘new realities’,” he added.
Though Pakistan stressed the importance of the ‘new’ precedent that had been set, Mr. Shahbaz, who took the floor after the Indian agreement was adopted, said he wished to enter into the record the “considered position” Pakistan’s National Command Authority (NCA) had taken on the India-U.S. nuclear deal. The NCA had criticised the agreement, called on the NSG to adopt a criteria-based exemption to its rules rather than an India-specific exemption and warned of the negative implications the deal would have on “strategic stability” in South Asia.
But if India got unexpected support from unwelcome quarters, it also had to contend with a raft of unsolicited advice from member countries who were expected to adopt a more uncritical stance towards the agreement as well as from well-known critics.
The debate over the India safeguards agreement in the International Atomic Energy Agency was never expected to be easy but even hardened veterans of the nuclear watchdog’s politics were taken aback by the vehemence with which Austria railed against the draft.
In his opening remarks, IAEA chief Mohammed El Baradei emphasised that the Indian draft was “an Infcirc/66-type safeguards agreement based on the Agency’s standard safeguards practices and procedures” for states that are not party to the Nuclear Non-proliferation Treaty. Though many states, including India, stressed the importance of the IAEA’s “guidance documents,” Austria would have none of it. Its Ambassador said he disagreed with those who argued the Indian text was simply an “umbrella agreement” based on the standard template. Describing the draft as “an empty shell,” he declared that it was only out of respect for the DG and the Secretariat that Austria had decided to join the consensus in favour of the draft. The Irish Ambassador, too, expressed strong reservations about the agreement and said that if the matter had come to a vote, he would have been forced to abstain.
While Austria, Ireland and Switzerland were outliers in terms of the depth of their criticism of the nuclear deal, diplomats present in the board meeting told The Hindu that a range of countries gave free vent to their views on the wider context, stressing, variously, that India give up nuclear weapons, join the NPT, and sign the Comprehensive Test Ban Treaty. Brazil took the floor early to express its reservations about the implications of the safeguards agreement for the NPT system. Mexico and Japan also voiced their concerns. Iran, which took the floor as an observer, said it respected India’s sovereign decision not to join the NPT as well as its desire to develop civilian nuclear energy. But it blasted the U.S. for “double standards” and warned that the Indian agreement should not become a precedent for legitimising Israel’s possession of nuclear weapons.
China noted that many countries had raised questions and concerns about the safeguards agreement and said these should be addressed. The Chinese Ambassador added that international non-proliferation norms should be respected and, in a nod to Pakistan’s case, stressed that the IAEA should not have a discriminatory approach towards other states which might come forward to negotiate a similar agreement.
Indian diplomats characterised the South African intervention as one of the most supportive they had heard from a country that had been at the forefront of the non-proliferation lobby internationally.
Just before the lunch break, after all delegations had had their say, Dr. El Baradei took on the arguments raised by Austria and others. The agreement was not an empty shell, he said, urging member states not to lose sight of the fact that India was not obliged to safeguard its facilities and was coming forward voluntarily. As a lawyer, he said, he saw no problems with the text. Referring to questions raised by some about “corrective measures” compromising the perpetuity of safeguards, he said the termination and duration provisions in the agreement were standard and that the principle of rebus sic stantibus ('things thus standing') in international treaty law itself provided for the end of obligations if the fundamental conditions of an agreement changed.
“Perpetuity is a misnomer. There is no such thing in international law,” he said.
In his opening remarks, he described the Indian draft as an “umbrella agreement” providing for any facility notified by India to become subject to Agency safeguards in the future. The IAEA DG said he expected to begin implementation of safeguards at new Indian facilities in 2009. The “umbrella” nature of the agreement provides for a “more efficient mechanism for ensuring that safeguards requirements can be met,” he argued, adding, “It satisfies India’s needs while maintaining all the Agency’s legal requirements.”
In a reference to Pakistan’s request to be treated the same as India, the IAEA chief said “such an ‘umbrella’ approach could also be used for the conclusion of other 66-type safeguards agreements.”
Attempting to allay the fears of several European states that India may invoke the agreement’s preambular references to “corrective measures” in order to withdraw facilities from safeguards at some point in the future, Dr. El Baradei insisted there were no conditions for the discontinuation of safeguards other than those provided by the safeguards agreement itself.
“The termination provisions contained in the agreement are the same for other 66-type agreements,” he said.
But in a nod to the Indian interpretation of the agreement, he added: “Naturally, as with all safeguards agreements, this agreement is subject to the general rules of international law. Therefore, the agreement should be read as an integral whole. The preamble provides for contextual background and safeguards are implemented in accordance with the terms of the agreement.”
In a brief statement, U.S. Ambassador Gregory Schulte said the agreement was “little different than those of other agreements based on Infcirc/66” and that under it, “safeguards would be applied to nuclear facilities in India using the same methods applied elsewhere in the world.”
Urging approval of the draft, he said that “without this agreement, the safeguards activities, and the assurance of peaceful use provided by them, will not be possible.”
Speaking on behalf of the European Union, France noted the EU’s understanding that the Indian agreement followed standard IAEA safeguards procedures and provisions, including on the duration of safeguards. France said it supported the agreement since it was fully consistent with international non-proliferation norms.
Diplomatic sources told The Hindu that Austria had opposed this formulation and delayed the framing of the EU statement for several hours before backing off. Austria also tried to garner support for a joint statement by several countries with reservations about the Indian agreement. However, this attempt fizzled out when it became clear that most members preferred to make their own individual statements rather than creating the impression of a “gang up” on the question.
Indian statement
In a statement to the Board right after the Indian safeguards agreement was approved, Atomic Energy Commission chairman Anil Kakodkar pledged India’s support to the further strengthening of the IAEA’s role “in promoting international cooperation and the peaceful use of nuclear energy.”
India, he said, “looked forward to cooperating with the Agency to facilitate the implementation of [the safeguards] agreement in accordance with the provisions of this agreement which, as the Director-General has pointed out, should be read as an integral whole.”
Dr. Kakodkar noted that the safeguards text approved had been negotiated by India and the IAEA “also using the guidance documents adopted by the Board for the purposes of concluding and implementing Infcirc/66 type agreements.”
The safeguards agreement “speaks for itself,” he said, adding, “we see no difficulty in implementing this agreement on the basis of what is stated therein.” India, he stressed, “will implement this agreement in strict accordance with its provisions.”
Describing India’s capabilities in the civilian nuclear sphere, the chairman said nuclear energy had an important role to play in fulfilling the country’s long-term need for electricity.
He also stressed the positive impact India would have on the global climate change once the doors for international civilian nuclear cooperation were opened for it. “We live in an interdependent world and we share the common global concerns on the need to tackle the problem of greenhouse gas emissions and global warming. Nuclear energy, which is recognised today as a clean and environmentally-friendly source of energy that can meet the twin challenges of sustainability and climate change, is indispensable to addressing our common energy future.”
[In the print edition of The Hindu, this story was split into three and carried here and here.]
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