Wednesday, May 28, 2008

Not one concern has registered

Arun Shourie : Wednesday, November 29, 2006

Every single element that the prime minister had listed as unacceptable in the Indo-US nuclear deal is still there. Is the deal acceptable in spite of these provisions that are ‘not acceptable to us’?

After assuring the Rajya Sabha that no law that seeks to bind our foreign policy would be accepted; after spelling out in detail that “full” must mean “full”, the prime minister referred to the requirement in the Senate Bill that the president report every year to the Congress and certify that India is in full compliance with its non-proliferation and other commitments. He then declared, “We have made it clear to the United States our opposition to these provisions, even if they are projected as non-binding on India, as being contrary to the letter and spirit of the July Statement.” He said that the dilution and uncertainty that such annual certification would entail are “not acceptable to us.” Categorical. One may even say, bold.

But the bill retains the provision — Section 108 — requiring the same, very comprehensive and equally detailed, annual report. The report must certify every year, among other things, that India is in compliance with its non-proliferation commitments; it must inform the US Congress about any new construction by India of nuclear facilities; about any significant changes in the production by India of nuclear weapons or in the types and amounts of fissile material; about changes in the purpose or operational status of any military nuclear fuel cycle activity; about any significant nuclear commerce between India and any other country. Furthermore, the US president must report the result of “United States efforts to promote national or regional progress by India and Pakistan in disclosing, securing, capping, and reducing their fissile material stockpiles, pending creation of a world-wide fissile material cut-off regime, including the institution of a Fissile Material Cut-off Treaty.”

Every single element which the prime minister had listed as unacceptable is still there. Is the deal acceptable in spite of these provisions that are “not acceptable to us”?

Conditional upon uninterrupted supplies of fuel

The fourth point that the prime minister emphasised was made much of — by him as well as by Congress benches. He said that India would be placing the civilian reactors under IAEA safeguards “with assurances of uninterrupted supply of fuel to reactors... together with India’s right to take all corrective measures in the event fuel supplies are interrupted.” Again, “We, of course, have the sovereign right to take all appropriate measures to fully safeguard our interests,” he added.

In responding to questions that were raised after he had spoken, he said again, “The nuclear agreement will not be allowed to be used as a backdoor method of introducing NPT type restrictions on India. Our offer to put nuclear facilities under safeguards in perpetuity is conditional upon these facilities securing fuel from international sources for their lifetime. If the fuel supply assurances as enumerated in Separation Plan are disrupted, then India will have the right to take corrective measures to ensure the continued operation of these reactors.” And yet again, “These safeguarded facilities will be eligible for and will receive fuel materials and technology from international sources. If such supplies cease, then India will be free to protect its interests through corrective measures.”

Three operational points flow from what he said. First, the US and the Nuclear Suppliers Group will commit themselves to supplying fuel without interruption to the reactors that are being placed under safeguards. Second, India’s offer of placing all our civilian reactors under safeguards “is conditional” upon this assurance being fulfilled. Third, should the US and others renege on this commitment — as happened in the case of Tarapur — India would exercise its sovereign right to take “all corrective measures”, to take “all appropriate measures”.

Officials of the US Administration have told the Congress time and again, and the Senate Bill builds on the fact that India is accepting safeguards (1) in perpetuity, and (2) without condition. To recall just a few observations from what the Secretary of State Condoleezza Rice told the Senate Committee on Foreign Relations, “Once a reactor is under IAEA oversight, safeguards will be in place permanently and without any conditions.” “We have been very clear with the Indians that the permanence of the safeguards is permanence of the safeguards without condition.” A little later, “The government of India has agreed that these safeguards will be in place in perpetuity...” Yet again, “Importantly, for the safeguards to be meaningful, India had to commit itself to apply IAEA safeguards in perpetuity; it did so. Once a reactor is under IAEA safeguards, those safeguards will remain there permanently and on an unconditional basis...”

What could the “corrective measures” be? Either that we will somehow get fuel from other members of the Nuclear Suppliers Group. Or that we will withdraw those reactors from safeguards. The first option is stamped out by the Senate Bill providing that the US president coordinate actions with other members of the Nuclear Suppliers Group so that, in the event of the US stopping supplies of fuel, equipment, technologies to India, no other member shall provide them. The second option is put down even more decisively: India is to put its reactors under safeguards in perpetuity and without condition — were it to go back on either of these features, the entire deal will be off, and all sorts of consequences — including the obligation to return to the US all plant, equipment, fuels, spares, etc. that it has obtained under the agreement as

well as all fuel, etc. that has been generated as a result of using these plants, equipment, etc.

So, what “corrective measures”, what “appropriate measures” does the Indian government have in mind, the Senators repeatedly asked administration officials. That is for the Indian government to spell out, they said. But two things are clear, they said: India will place all its civilian reactors under safeguards in perpetuity, and without condition — otherwise there is no deal. The Senate Bill proceeds on this basis. Where does that leave the “sovereign right” to which the prime minister referred? If all that the prime minister meant was that we can always withdraw our reactors from IAEA safeguards and take the consequences, well we could do that without the deal too!

Another obfuscation nailed

There is a related obfuscation that spokesmen of the government have been trying to feed us — that, by acknowledging in the 18 July Joint Statement India as “a responsible State with advanced nuclear technology,” the US in effect recognised us as a Nuclear Weapon State. This insinuation was sought to be reinforced by the expression that followed: “India would reciprocally agree that it would be ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States.” This was also given as the reason for the expression in the Separation Plan — namely, that India will “voluntarily” place two-thirds of its reactors under IAEA safeguards. That is how the Nuclear Weapon States place theirs, it was suggested.

Spin-doctors have been taking advantage of public innocence in these matters. Nuclear Weapon States enter into “Voluntary Safeguards”. These have two features, as Under Secretary Joseph observed during the Senate Foreign Relations Committee hearings: they “do not obligate the IAEA to actually apply safeguards and do allow for the removal of facilities or material from safeguards.” The second category is of “full-scope safeguards” by which a country places all its reactors under safeguards. This is what Non-Nuclear Weapon States undertake to do. India would fall in a third category: as in the case of Non-Nuclear Weapon States, the safeguards would apply in perpetuity — that is, once reactors are placed under safeguards, they would remain under safeguards for their entire life; and they would remain there without condition. But these safeguards would apply only to those reactors which India voluntarily declares to be civilian. This latter is the only sense in which the safeguards would be “India specific”.

The distinction is clear from what Under Secretary Joseph told the Senate Foreign Relations Committee: “We heard from other states at the recent NSG meeting that they would not support a ‘voluntary offer’ arrangement as, in their view, it would be tantamount to granting de facto Nuclear Weapon State status to India. We have similarly indicated to India that we would not view such an arrangement as defensible from a non-proliferation standpoint. We therefore believe that the logical approach to . . . a safeguards agreement for India is to use INFCIRC/66, which is currently used at India’s four safeguarded reactors.”

Condoleezza Rice too was asked about the status that India would have under US law as well as in regard to the IAEA. She said categorically, “While India has nuclear weapons and we must deal with this fact in a realistic, pragmatic manner, we do not recognise India as a Nuclear Weapon State

or seek to legitimise India’s nuclear weapons programme.”

“The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) defines a ‘Nuclear Weapon State’ as ‘one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.’ India does not meet this definition, and we do not seek to amend the Treaty to provide otherwise. US law adopts the NPT definition, so India is a Non-Nuclear Weapon State for purposes of US law.”

And this fact would determine the type of Additional Protocol that India would have to sign with the IAEA, Burns and Joseph explained. They were asked how this protocol would compare with “the very limited Protocol” that China has signed. They answered, “India pledged in the July 2005 Joint Statement to conclude an Additional Protocol with respect to its civil nuclear facilities. This goes beyond what is included in China’s Additional Protocol, which covers only certain cooperation with other countries. China, of course, is recognised as a Nuclear Weapon State, while India is not.”

The Senate Committee while forwarding the bill to the full Senate left no doubt on this score. It drew attention to Section 105(3) of the bill which requires that the safeguards be in perpetuity, and observed, “Subsection (3) adds the words ‘in perpetuity’ to the language proposed by the administration in Section 1(b) (2) of S. 2429 because permanent safeguards are vital to any assurance that civil nuclear commerce with a facility will not assist India’s nuclear weapons program. Safeguards in perpetuity are also key to not according India the status of a Nuclear Weapon State under the NPT, since only the NPT-recognised Nuclear Weapon States have heretofore been allowed to exclude (or selectively apply) the application of safeguards, in time or scope, to any facilities, materials and programs under their control. India will be allowed to determine which facilities are to be safeguarded, but will not be allowed later to remove those facilities from safeguards, as the recognised Nuclear Weapon States are permitted to do.”

During the debate on the floor of the Senate, senators went farther — not only is there a distinction between Nuclear Weapon States and Non-Nuclear Weapon States, they said; there will be a distinction between Non-Nuclear Weapon States that are signatories to the NPT and Non-Nuclear Weapon States, like India, that have not signed the Treaty. As Senator Biden, one of the co-sponsors of the bill, told the Senate, “The NSG is not likely to single out India as an exception to its guidelines. Rather, it will create tests that a non-NPT State must meet before nuclear commerce with the country may take place. The committee believes that such a test should be substantial, so that the countries outside the NPT are not all given the same benefits as the Non-Nuclear Weapon States inside the treaty. Thus, the bill before us today is designed to maintain important non-proliferation policies that have served our country well.”

And yet we are being sought to be fooled — “in effect recognised as a Nuclear Weapon State with all the rights and advantages that a country like the US has...”

Strategic reserves

Next, the prime minister told the Rajya Sabha, “An important assurance is the commitment of support for India’s right to build up strategic reserves of nuclear fuel over the lifetime of India’s reactors.” The clear implication was that India would be able to stock up fuel for these reactors beyond their immediate requirements so that, in case fuel supplies are interrupted, we can continue to operate the reactors.

American officials, on the other hand, were completely candid about what is contemplated. In written answers to the Senate Foreign Relations Committee, the two Under Secretaries handling negotiations with India, Joseph and Burns, stated, “Our negotiators were very clear that, while the US would be willing to provide reasonable fuel assurances designed to counter market imperfections, fuel assurances are not a ‘condition’ to any of India’s commitments under the plan — including, in particular, safeguards in perpetuity.”

And now, a formal clause has been incorporated by the Senate into the bill: “It is the policy of the United States that any nuclear power reactor fuel reserve provided to the Government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements.”

In a word, we will be allowed only as much fuel as is “commensurate with reasonable reactor operating requirements.” Where does that leave the assurance about building “strategic reserves” to which the prime minister attached such importance?

(To be concluded)

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