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13 July 2008

India-US Unclear Deal II

Scrap it. The messengers being wrong does not make the message wrong
Surajit Dasgupta
Guess who is lying! On 8 August 2008, the IAEA uploads this statement on its website: “Note to editors: The text of the draft Agreement is not public. IAEA Officials will not be giving interviews at this time.” That very night two blogs upload a portable document format file of the India-specific safeguard agreement along with the Additional Protocol, as agreed by the Government of India.

Guess who is lying! Now the Government of India admits that this country's draft safeguards agreement with the IAEA was initialled on July 7 and moved to the Board of Governors for its approval on July 8 "soon after the Left parties said they did not wish to have the meeting scheduled for July 10," says National Security Adviser MK Narayanan.

This national 'insecurity' adviser needs immediate treatment for his foot-in-the-mouth disease. As if his embarrassing or shocking disclosures of terrorists sneaking into the Indian Army and blaming Pakistan for every terrorist attack on Indian interests before collecting enough pieces of evidence were not enough, now he's got a child-like "who said... ?" riposte in his repertoire. Perhaps considering the journalists facing him a credulous lot that can be silenced with counter-questions, Narayanan thunders at the press conference, "Who said we had initialled the draft on the 7th (before the Left had withdrawn support)?" He is told that Atomic Energy Commission Chairman Anil Kakodkar, his colleague in the Department of Atomic Energy, RB Grover, and Foreign Secretary Shiv Shankar Menon had said so earlier — with all of these men seated next to him — and a drop of sweat trickles down his temple. Menon comes to his rescue to clarify that "initialling" a draft in such a forum means no more than a formality to show that "this is the document they (both the negotiators) have agreed (upon)".

Guess who is lying! In the introductory part of the India-specific draft agreement on safeguards, we have: “B. 5. … the Agency shall implement safeguards in a manner designed to avoid hampering India’s economic or technological development, and not to hinder or otherwise interfere with any activities involving the use by India of nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by India independent of this Agreement for its own purposes.” However, read on and you will come across: “II. CIRCUMSTANCES REQUIRING SAFEGUARDS/ A. ITEMS SUBJECT TO THIS AGREEMENT/ 11. The items subject to this Agreement shall be: (b) Any nuclear material, non-nuclear material, equipment and components supplied to India which are required to be safeguarded pursuant to a bilateral or multilateral arrangement to which India is a party.”

The phrase, “to a bilateral or multilateral arrangement to which India is a party,” is legally ambiguous. If the two clauses above together mean that any related equipment outside the ambit of the agreement with the IAEA won’t be checked but those in its ambit will be, then a few of the NSG countries with which India has had agreements on nuclear as well as non-nuclear equipment will be in a quandary for being part of some agreements that they have had with the IAEA, independent of their respective deals with India. Russia, for one, has nuclear dealing with India. It deals with the IAEA too. The same position is that of India which deals with Russia and, now, the IAEA too, the two relations being hitherto independent of each other. So, which of India’s nuclear facilities will the IAEA check and which all will it spare? This is a grey area and the airtight compartments of jurisdiction that the Government of India and the IAEA have jointly agreed upon to build cannot practically exist.

Guess who is lying! Advocates of the 123 Agreement in India argue that China has settled for much less in its civil nuclear cooperation agreement with the US. They forget that China is a recognised nuclear weapons state, which still India is not, as per the term’s international, legal definition. The US, notwithstanding its hard-sell of the deal with India, has stated categorically again and again — refer to the Hyde Act along with its post-123 Agreement explanations — that the safeguards agreement, howsoever India-specific, has to adhere to the standard IAEA practices. It’s natural to question the judiciousness of the Indian negotiators who should have pressed for a safeguards arrangement similar to the one applicable to the weapons states, but did not. Obviously, China, a recognised nuclear weapons state, does not need from the US the kind of assurances that India, a de facto nuclear weapons state, needs. From the 123 Agreement to the agreement with the IAEA — nothing is in the spirit of the George Bush-Manmohan Singh joint statement of 18 July 2005 where there was an expression of intent that India will be treated at par with other advanced countries such as the US.

Today, there is an additional argument from these advocates that it is not just civilian nuclear energy that they want — moreover, given India’s spotless non-proliferation record and the detailed safeguards agreement with the IAEA (explained later), it’s an obsessive compulsive behaviour by entities like Pakistan that think this country could deviate imported nuclear fuel to its military hardware — but they support the deal also for its wider “dual use” benefits. This shows that the writer of the cited article has not read this provision (this is just one of several dampeners in the draft agreement): “II. D. 31. If India wishes to use safeguarded source material for non-nuclear purposes, such as the production of alloys or ceramics, it shall agree with the agency on the circumstances under which the safeguards on such material may be terminated.” Dual use is in no way going to be hassle free. In fact, the peaceful secondary use of our indigenous nuclear technology is much easier.

These ‘benefits’ include the transfer of know-how as uncontrollable by governments as information technology hardware and software! It’s too much to assume in this age of globalisation and privatisation that Indians still care for a nanny US Administration to let it have access to any kind of chip, integrated circuit, fibre optical equipment or a software programme.

It was difficult to assume so even in the last era when governments, especially the communist USSR and a quasi-socialist India, used to have everything under their control. Recall that when Raja Ramanna was at the helm, Rajagopala Chidambaram — then a researcher of molecular biology at the Bhabha Atomic Research Centre, later the Indian Atomic Energy Commission Chairman and now a scientific adviser to the Prime Minister of India — investigated the equation of the state of plutonium, that is the density-temperature-pressure relation, required to design an implosion bomb, in the autumn of 1967. During December 1968 - January 1969, scientist PK Iyengar (later, IAEC Chairman) and three of his colleagues visited the plutonium-fuelled pulsed fast reactor at Dubna in what was then Soviet Union. The next thing we know is that Iyengar set about developing its virtual replica in India. On receiving the approval for the plan in January 1969, the project for reactor Purnima (Plutonium Reactor for Neutron Investigation in Multiplying Assemblies) took off in March 1969.

So, if Indian brains did not need deliverance from a sanction-happy West in the control-freaky 1960s, they do not need to be rescued by a West eager to take our brains along in today’s free-market world. The British might have blunted the Indian innovative brains in about two centuries of its colonial rule. But the Indian ability to learn fast and reproduce even faster is arguably still unparalleled in the world. We, the ‘ordinary’ Indians, know so many useful things that government would rather we don’t.

No wonder, Iyengar as well as former Atomic Energy Regulatory Board Chairman A Gopalakrishnan do not like the draft agreement with the IAEA on India-specific safeguards. When they say that the draft text is identical to the IAEA Circular 66 on safeguards to non-weapon states and that it provided no assurance on fuel supply, they are right. Here is how:

When the NPT was being negotiated in the late 1960s, the IAEA safeguards rules were called “The Agency’s Safeguards System,” IAEA Information Circular 66/Revision 2 (issued in 1965 as IAEA document INFCIRC/66/Rev.2). This document — the basis for 1960s safeguards inspection agreements between the IAEA and the nation states having nuclear facilities — contained the basic IAEA non-proliferation safeguards inspection requirements. Its main focus was on accounting for “nuclear material”.

However, the nuclear Non-Proliferation Treaty, which as per the US’s perception India has de facto agreed upon by signing the 123 Agreement, talks of an equivocal nuclear “energy” instead of nuclear “material”: The first sentence of the NPT inspection article (Article III.1) describes the goal of inspections. It states that their purpose is to verify compliance with the promise of a non-nuclear-weapon state not to acquire nuclear weapons. It says that each non-nuclear-weapon state must accept IAEA safeguards inspections “for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons.…”

This means that the IAEA may consider itself authorised to inspect any location related to “nuclear energy” whether or not nuclear material is actually what has been imported under the aegis of India’s agreement with the IAEA and understanding with the NSG. This Indian apprehension is not a hypothesis-borne fear. After all, on several occasions, INFCIRC/66 authorised inspections even though no such material was likely to be present at the time and place of inspection. For example, it said that “routine inspections” could include “audit of records and reports” without requiring that the records and reports be located where the nuclear material was located. “Initial inspections” of principal nuclear facilities were to take place before the facilities had started to operate, and this could mean before nuclear material had been installed.

According to the INFCIRC/153’s statement of purpose for safeguards, the IAEA has the “right and obligation to ensure that safeguards will be applied, in accordance with the terms of the (safeguards) agreement, on all (nuclear) material in all peaceful nuclear activities within the territory of the state… for the exclusive purpose of verifying that such material is not diverted to nuclear weapons…”

To achieve this end, the IAEA needs to ensure two things: First, the nuclear material declared by the subject country is not being made into weapons; and, second, no undeclared nuclear material exists within the inspected state. Now, for the second job, inspections beyond the facilities or locations where declared nuclear facilities exist may sometimes be essential to achieve the basic purpose for safeguards. This provision is, thus, prone to abuse, if any P-5 country hostile to Indian interests wants to act funny. What is the guarantee that India will not be harassed this way?

The nuclear facilities of western European countries — which did not have nuclear weapons but did have nuclear reactors, viz, Belgium, Italy, the Netherlands and then Federal Republic of Germany — were inspected at regular intervals by the west European atomic energy agency, Euratom, which had begun operations before the IAEA did. Some Euratom governments saw no reason why their nuclear facilities should have to be inspected by IAEA inspectors as well as by Euratom inspectors acting pursuant to Euratom inspection standards.

While the US and the UK insisted that the western European countries must allow inspection by the IAEA, the latter insisted that they must be trusted on account of the “inspected, ok” certificate from Euratom. This was mainly because the IAEA inspectors could include one or more official from the then USSR. Why should Indians accept a Chinese or a Pakistani official sniffing our nuclear premises?

And one question raised by India’s left parties holds enough water: What are the corrective steps that India can take if fuel supplies are interrupted by the US/NSG countries? The draft agreement with the IAEA is silent on this count. It’s only in the introductory part (page 2) that the draft says, “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.” But what are those “corrective measures”? The word “corrective” never appears in the document thereafter.

On the contrary, the draft rather notes “for the purposes of this agreement that: India will place its civilian nuclear facilities under (the) agency(’s) safeguards so as to facilitate full civil nuclear cooperation between India and (the) member states of the Agency and to provide assurance against withdrawal of safeguarded nuclear material from civilian use at any time.” This makes Prime Minister Manmohan Singh’s assurance to Parliament on 29 July 2005 on corrective measures doubtful.

“108. This agreement shall enter into force on the date on which the agency receives from India (a) written notification that India’s statutory and/or constitutional requirements for entry into force have been met,” says the draft. Let’s hope it never “enters into force” with the 123 Agreement as the backdrop in its present form. The left has said categorically it will make it “impossible for the government to go ahead with the deal.” The right is still, at least publicly, toying with the idea of renegotiating the deal with the US, should it come to power after the next Lok Sabha election. It cannot be denied that the communists are pathologically averse to America and the BJP is suffering from selective amnesia of the period 1998-2004. But the messengers being wrong does not make the message wrong.

If the left and the right have quoted facts as selectively and conveniently as the Congress, that does not make it either a good or a bad deal. Judge the deal neither by what some nuclear scientists said and their peers refuted — they say different things when occupying a government office and when out of it. Judge the agreement never by the statements of a former president and a former national security adviser who had once said 'no' and now they are saying 'yes' to the deal — the questions thrown at them were mischievously worded. If you must, judge the deal on its independent merit, irrespective of its endorsement by the defender and criticism by the detractor.

Food for thought: Wonder why the supporters of the India-US civil nuclear deal shy away from arguing on the technicality of either the 123 Agreement or the draft agreement with the IAEA...

The writer is a mathematician and linguist, now a corporate communicator and has been a science journalist, a teacher and a marketing manager (in reverse chronological order) in his previous vocations

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Surajit Dasgupta treats no individual, organisation or institution as a holy cow.