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IAEA and NSG will be no Cakewalk
T P Sreenivasan
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August 24, 2007
The timing of the 'do or die' opposition of the Left to the nuclear deal has remained inexplicable. They had two long years to give a clear signal to the government that it was definitely a 'we or they' situation, but they chose to raise the alarm bells only when the 123 Agreement was done.

This was possibly because they thought that the US would never concede the points on testing and reprocessing. When they found that these hurdles were crossed and it appeared that the remaining steps like negotiations with the International Atomic Energy Agency, IAEA, and the Nuclear Suppliers Group, NSG, were a mere formality, they chose to put their foot down.

The negotiations on an India-specific safeguards agreement with the IAEA Governing Board and talks with members of the NSG to seek an exception for India are likely to be long and hazardous. The United States has considerable influence in the IAEA Board and, as the founder of the NSG it has the necessary clout to determine the outcome of the informal group. But, over the years, positions of individual countries have crystallized in these bodies and they are likely to give us a hard time despite the US being our 'sherpa' on the climb.

The commitment to non-proliferation is strong in both these bodies and it will be difficult for members to change their mindsets by a mere nod from the United States. Moreover, the United States stands to gain from an orchestrated debate in both these bodies, so that the right stage is set for the hard days ahead of implementation of the deal.

There is much speculation about the stage of drafting of the two documents, which should emerge from the IAEA and the NSG before the US Congress proceeds to vote on the 123 Agreement. But this should be the least of the problems. Neither our mission in Vienna, nor the Department of Atomic Energy would have remained idle since July 2005.

In fact, they had not remained idle even before: It was quite normal for them to prepare plans for the eventuality of an accommodation with the non-proliferation regime. As for India-specific safeguards as different from full-scope safeguards, these already exist for Tarapur, Rajasthan and Kudankulam. It is simply a matter of concluding such an agreement in the case of designated civilian facilities.

The general contours of such arrangements have already been discussed between Dr R Chidambaram and Dr Mohamed ElBaradei on a couple of occasions and the members of the Board, who are directly interested in the issue must have given their inputs to the IAEA.

It should also not be difficult for the IAEA Board and the General Conference to meet at short notice to approve such agreements at very short notice, if there is political will. Incidentally, Dr Anil Kakodkar, the Chairman, Atomic Energy Commission, leads our delegation to the General Conference, while our ambassador in Vienna is on the Board of Governors.

An important point to note is that the Board has to recognise that there will be a qualitative difference in the status of India in the IAEA when the new arrangements are in place. We are presently in the company of Pakistan and Israel when it comes to safeguards issues. The three countries vote against an Egyptian-sponsored call for all member States to accept full-scope safeguards even though there is language in the resolution that this will be in accordance with their respective international obligations. The vote is often preceded by long and hard negotiations with Egypt and its supporters.

Even after the adoption of India-specific safeguards, India cannot endorse full-scope safeguards, but we will have to work out a way in which we distance ourselves from Israel and Pakistan. But the negotiations in the Board will be coloured by past acrimony on this issue.

Egypt and other countries, even while accepting the Indian arrangement, will maintain that India should eventually accept full-scope safeguards. They will also want to maintain their reservations on India's status till we become either a Nuclear Weapon State or a non-Nuclear Weapon State.

On the Indian side too, a change is imperative. In our bid to keep our distance from the regulatory role of the IAEA, we have devised a number of measures for ourselves. Though we are keen advocates of the technical cooperation programme, we do not accept technical assistance from it. (Pakistan and China accept such assistance.) We do not accept even safety inspections from the IAEA in our installations.

Our attitude to the department of safeguards of the IAEA should undergo a change. These changes will be slow in coming, considering our present regulations and attitudes.

The additional protocol to the safeguards agreement was devised by the IAEA to strengthen the inspection regime and most countries have routinely accepted the model protocol the Board has approved. We had considered signing an additional protocol to our own safeguards, but we found that it would be difficult to frame a protocol for our special circumstances.

By requiring India to sign 'an' additional protocol rather than 'the' additional protocol, the US negotiators are supposed to have shown flexibility in this regard. But it will take some time and effort to carry the Board with us on a text that recognises the new situation.

Another additional complication with the IAEA is that we do not want the Board to vote upon these documents before we are sure that the NSG and the US Congress are ready to follow through.

The NSG will be a particular challenge as negotiating for an exception for India from its guidelines will be like negotiating with Winston Churchill for the liquidation of the British Empire. The NSG was set up specifically to deny India nuclear fuel and technology after our explosion of 1974. France [Images], at that time a non-party to the NPT, had agreed to supply fuel to India and the formation of the group, originally of seven countries, including France, ended that deal.

In 1992, the revelations about Iraq's illicit nuclear weapons programme spurred the NSG to adopt controls on nuclear-related dual-use goods that could make a contribution to explosive technology in the hands of non-Nuclear Weapon States.

Between the original guidelines that required application of comprehensive IAEA safeguards and physical protection against unauthorised use of transferred material and the additional requirements of a strict regime for use of dual-use technology, there is a veritable fortress of rules and lists to prevent proliferation.

In 2004, the members even adopted a 'catch all' mechanism, which authorises members to block any export suspected to be destined to a nuclear weapons programme even if the export material does not appear on one of the control lists. The fact, of course, is that determined States and individuals like A Q Khan have been able to penetrate the fortress without any let or hindrance.

The regime is voluntary and there is no requirement for prior clearance of exports with the group, but as in the instance of Russia [Images]n supplies to India in 2001, the other members can exert pressure on individual countries, which violate the guidelines. Russia was able to supply in 2006 only with the implicit understanding of the US.

Members are supposed to report their export denials to each other so that potential proliferators cannot approach several suppliers with the same request and get different responses. They are also expected to refrain from making exports identical or similar to those denied by other members. The guidelines do not remain static, as members tend to add new items to the prohibited list, especially of dual-use items.

An informal grouping, the Zangger Committee, with a similar mandate was already in existence ever since the NPT came into force. The Zangger Committee characterises itself as a 'faithful interpreter of Article III paragraph 2 of the NPT.' The Group's objective was to reach a common understanding on the definition of 'equipment or material especially designed or prepared for the processing, use or production of special fissionable material' and the conditions and procedures for such exports.

Though The NSG adopted the Zangger Committee's 'Trigger List' and depended on it to resolve some non-proliferation issues at a time when China had not yet joined the NSG, the Zangger Committee was not considered adequate to deal with the challenges of India and Iraq, first because the Zangger Committee dealt only with NPT signatories and its decisions were not legally binding on its members. Their common mission and their co-location in Vienna have made the Zangger Committee and the NSG non-proliferation twins born out of the NPT.

India had kept a distance from the NSG in the past as we did not want to give any impression that we had anything to do with the NPT institutions, even though we were using the NSG guidelines to regulate our own export of nuclear technology and materials. When the NSG began an outreach programme with non-NSG members in 2001, we participated in it once, but when we found that it was not aimed at accommodating our needs, we declined further contacts in Vienna.

We knew that we did not miss much as Israel and Pakistan, which went to such meetings, came back disappointed that the NSG had no intention to relax its guidelines. Under pressure from NSG members, who were otherwise friendly, we suggested that we would not be averse to talks in New Delhi.

Accordingly, a team of ambassadors from Vienna and some officials from NSG capitals came to New Delhi for an interaction. It was evident from these meetings that, unless there was a change in the US position, such meetings would be futile.

The NSG members at that time were aware of an Indian proposal to open up additional nuclear establishments for IAEA inspection in return for relaxation of the NSG guidelines, but the members, like the Americans, were not enthusiastic.

The atmosphere in the NSG improved after the India-US Joint Statement of 2005, though an American proposal to put the nuclear deal on the agenda of the NSG Plenary Meeting in May 2006 was not accepted as the deal had not become operational. On the Russian supply of fuel to India in 2006, the US State Department stated: 'Deals to supply that fuel should move forward on the basis of a joint initiative, on the basis of steps that India will take, but it has not yet taken.'

Japan [Images] and Australia were particularly firm on examining matters only after the India-US deal became operational. In the NSG, the general trend was for countries, which have nuclear power plants and other equipment to sell to be more positive than those, which had no business to transact under any new arrangement.

A fundamental premise of the NSG is that any country that receives supplies should accept full-scope safeguards. China initially joined the Zangger Committee and not the NSG because China was at that time in the process of supplying a reactor to Pakistan. Since the NPT does not require full scope safeguards as a condition of supply, China's membership of the Zangger Committee did not prevent them from supplying the reactor to Pakistan.

By joining the NSG at that time, China would have forsaken its right to supply nuclear equipment to Pakistan. A US representative to the NSG revealed this when China applied for NSG membership subsequently.

Since India will not accept full-scope safeguards under the deal, the NSG will need to make a change in its fundamental position. The India-specific safeguards, which the IAEA approves, will be subjected to an analysis to see whether it will have sufficient safeguards against diversion of nuclear material or dual use equipment.

For this reason, Russia is supposed to have advised India to circulate its draft of the safeguards to the members of the NSG in advance.

The strategy of the United States in the context of the NSG will be to ask the NSG members to take note of the steps that India has taken as a 'contributing partner' in the non-proliferation regime. It will also ask NSG members to transfer the trigger list items and related technologies only to the safeguarded civil nuclear facilities in India as long as India continues to meet the other requirements of the NSG. The relaxation will be sought on the ground that India has accepted IAEA safeguards in perpetuity for its civilian nuclear facilities, it has a moratorium on testing in place, it will sign an Additional Protocol with the IAEA, it has stringent export controls and it will adhere strictly to the NSG guidelines on exports.

Here, interested governments will argue that India had no intention to be a contributing partner in the non-proliferation regime as the Indian position is that the nuclear deal is merely an energy agreement.

Another requirement of the NSG is that adequate verification measures should be in place to ensure that the supplies of the participating states are not diverted to weapons purposes. The bilateral agreement between India and the US envisages IAEA inspections of civilian establishments in India and a certain amount of trust is an element in the agreement. A multilateral group like the NSG might want other verification measures, which may prove anathema to India.

China's position will be the most crucial in the entire NSG exercise. At the first NSG meeting after the India-US Joint Statement, China had pressed the US for a similar deal for Pakistan. China has been lying low, but it has not made secret of its opposition to the deal. But China tends to be eminently reasonable in the international arena and, therefore, may point out that the exception should be criteria based rather than country based. If other countries adopt similar measures as India has done, they should be treated in a similar manner.

Though the US position is that no other exception will be made, it may close its eyes to the advantage it may give to Pakistan and China to enhance their nuclear cooperation. The Chinese position may enjoy some support among the other NSG members. China will also look for some gains for itself in the light of the impression that the 123 Agreement with China is not as favourable to China as in the Indian case.

Although nuclear tests are not mentioned in the 123 Agreement, it is premised on an Indian moratorium on testing, which finds mention in the India-US Joint Statement of 2005. The debate in Parliament and elsewhere about the need for India to protect its sovereign right to test may well have created suspicion in the minds of the NSG members and they may well make a reference in the revised guidelines to the termination of the arrangements in the event of a nuclear test by India.

The US will naturally welcome such a provision, which, according to it, is already included in the 123 Agreement.

The extent of challenges within the NSG will depend on the degree of firmness with which the United States will defend the agreement and ensure that it is not changed to India's disadvantage. But at the same time, the US will not favour a situation, which will dismantle the NSG and leave it to the member States to deal with India and others in accordance with their own interests.

Although an exception for India will end the rationale for the existence of the group, the US will favour continuation of the Group and will do everything possible to maintain the integrity of the NSG.

The US has promised all help to persuade their friends and allies to accommodate India, but India will have to work bilaterally with each of the 45 members, as implementation of the guidelines is an individual rather than a collective responsibility. The success we have accomplished in befriending Brazil [Images] and South Africa should help us in the NSG. In the past, they have been rather adamant about full-scope safeguards.

The ultimate compromise that the NSG should make is to accept India as a member of the group. It will be logical as no other country has better credentials than India in terms of the objective of the NSG to prevent exports that will lead to proliferation. Even in the aftermath of our nuclear tests, authorities on export controls had certified that India had an impeccable record in export control.

If the criteria for membership of the NSG alone were to be considered, without considering our NPT status, there was no reason to exclude India from the NSG. Since India will soon have the capacity to export not only components, but also reactors, the NSG should welcome India to its fold. It may be seen today as a revolutionary move like admitting Russia into NATO, but today's miracles may be tomorrow's reality.

T P Sreenivasan, a former member of the Indian Foreign Service, was India's ambassador to the United Nations, Vienna, and governor for India, International Atomic Energy Agency, Vienna.

For more articles by Ambassador Sreenivasan, click here.

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