India and the Additional Protocol

The IAEA and its Board of Governors have reinforced the key principle that nuclear activities within India are not a proliferation concern... [My analysis of the Indian Additional Protocol... I will post the actual PDF text in a day or two after I finish scanning the document]


7 March 2009
The Hindu

India and the Additional Protocol

The IAEA and its Board of Governors have reinforced the key principle that nuclear activities within India are not a proliferation concern.

Siddharth Varadarajan

Virtually unnoticed by non-proliferation critics abroad, the International Atomic Energy Agency this week formally approved an Additional Protocol to the safeguards agreement whose passage last year helped set the stage for India’s re-entry into the world of nuclear commerce after nearly two decades of isolation.

Ever since it was first mooted in the mid-1990s, the Additional Protocol (AP) has been seen by the IAEA and the non-proliferation community at large as a tool to strengthen international monitoring of all nuclear activities in countries that have committed themselves to the pursuit of nuclear technology for purely peaceful purposes. Broadly speaking, the AP vastly expands the obligation of signatories to provide complete information about their nuclear programme to the Agency and allows international inspectors much greater physical access to locations within a country than an ordinary safeguards agreement.

The AP was an outgrowth of international concern over the IAEA’s failure to detect the clandestine nuclear programme that Iraq was running throughout the 1980s, all of which came to light at the end of the first Gulf War in 1991. Its purpose, therefore, is to help detect undeclared nuclear activities. Though non-nuclear weapon states (NNWS) are obliged to sign a comprehensive safeguards agreement with the IAEA, the protocol is not compulsory. The Bush administration wanted the Nuclear Suppliers Group to ban nuclear sales to countries that did not accede to the AP but failed to generate a consensus. Today, more than 80 states, including Brazil and many in Europe, have yet to ratify it.

In the foreword to the text of the model AP, circulated in 1997 as INFCIRC/540, the IAEA Director General noted that the Board of Governors had asked him to use the text “as the standard for additional protocols” with states that were party to comprehensive safeguards agreements with the Agency, that is, NNWS. Nuclear weapon states (NWS), on the other hand, could conclude protocols incorporating those measures from the model “that each NWS has identified as capable of contributing to the non-proliferation and efficiency aims of the protocol.” The Board also authorised the DG to negotiate protocols with “other states” — those like India who are not signatories to the Nuclear Non-proliferation Treaty (NPT) — “that are prepared to accept measures provided for in the Model Protocol in pursuance of safeguards effectiveness and efficiency objectives.”

In an act of farsightedness, the formulation on “other states” in the foreword to INFCIRC/540 was actually introduced by the Indian delegate during the negotiations preceding its adoption. What this meant was that the IAEA Board allowed “other states” to join the NWS in cherry-picking those measures from the model text that they wanted to while negotiating their individual APs. Twelve years later, this is precisely what India has done.

In a nutshell, the Indian additional protocol limits the provision of additional information to just nuclear exports from India and grants no extra physical access to the IAEA. Thus, none of the model protocol’s burdensome reporting requirements on nuclear installations and activities, mining, reprocessing and enrichment within the country will apply. Since domestic activities have been kept entirely out of the AP’s purview, the model protocol’s provisions for intrusive ‘complementary access’ and environmental sampling have also been excluded. In its safeguards agreement, India committed itself to allowing the IAEA access to specified civilian facilities where imported nuclear fuel was being used. All the AP adds to this obligation is a commitment to provide IAEA inspectors multiple-entry visas and to allow the IAEA “free communications … including attended and unattended transmission of information generated by Agency containment and/or surveillance or measurement devices” which will already be put in place in India’s safeguarded facilities. What this means is that the IAEA will have access to real-time information generated by its on-site devices rather than physically accessing that information during a visit to a safeguarded site. Over time, it is hoped, free communications would allow the IAEA to reduce the number and intensity of its physical visits, thereby saving itself and India both time and money.

The Indian AP departs from the model protocol in a number of other ways. Two new paragraphs have been added to the preamble. The first stresses the voluntary nature of the country’s accession, recognising that India “in the exercise of its sovereign rights, is prepared to cooperate with the Agency in further development of peaceful uses of nuclear energy.” The second describes India as “a State with advanced nuclear technology,” the phrase New Delhi has consistently used since the July 2005 agreement to stress its status as a country with nuclear weapons outside the NPT system. Para 1(b) also introduces an explicit non-hindrance clause — that the protocol shall be implemented in such a way that it does not hamper, hinder or interfere with any activities involving the use of non-safeguarded material and equipment. All told, India has managed to reduce the AP’s intrusiveness to such an extent that it involves virtually no burden.

Less onerous

It is a tribute to the Indian negotiating team that the protocol it finalised is even less onerous than the APs of the five nuclear weapon states. The raison d’etre for protocols with the N-5 is greater transparency and efficient export monitoring. The U.S., which finally ratified its AP last January, accepted the model protocol with a catch-all “national security exclusion.” But while it will deny the IAEA information on and access to sites connected to national security, its reporting requirement is still voluminous. Though the British and French APs are similar to the American one, Russia and China limited their APs to exports, multiple-entry visas for inspectors and free communications. But these also include a reporting obligation about physical locations within the country involved in mining, fuel fabrication, enrichment and reprocessing, whenever these operations are conducted for an NNWS. India, on the other hand, is only obliged to provide export data and not any information on how these exports are manufactured. In case the IAEA seeks a clarification about the export information, the Indian AP commits India to cooperate “insofar as relevant for the purpose of safeguards in a State that has accepted comprehensive safeguards.”

Like the ‘India-specific’ safeguards agreement, the Indian Additional Protocol bears little resemblance to the standard protocols in force for NNWS. More significantly, it firmly establishes the principle that non-safeguarded nuclear activities taking place inside India are no longer of any proliferation concern to the international community. India already has nuclear weapons and the world has reconciled itself to the reality that there will be “undeclared” and unsafeguarded nuclear activities there. At the same time, the AP makes it clear that India is willing to play by global rules to ensure it never becomes an inadvertent source of proliferation to others. As a responsible state with advanced nuclear capabilities, India is likely to emerge as an exporter of nuclear technology, equipment and material to other countries. Accordingly, all the AP does is oblige New Delhi to provide the IAEA with information about its nuclear exports.

The July 18, 2005 joint statement with the United States committed India, inter alia, to concluding “an additional protocol” with the IAEA. With this step, India has now fulfilled all of the major nuclear and non-proliferation obligations it undertook at that time. How the Obama administration and the U.S. Congress will react to the text is another matter. The July 2005 agreement did not require Washington’s concurrence on the provisions of the Indian AP, though Congress insisted it would scrutinise the text. Capitol Hill’s disapproval, however, is of little consequence. Even if the bilateral ‘123 agreement’ or reprocessing procedures agreement is blocked by misplaced non-proliferationist zeal, India will remain free to buy nuclear supplies from other countries.