Over to NSG

Published : Aug 24, 2007 00:00 IST

HAVING wrapped up the Agreement for Cooperation Between the Government of India and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy, or the 123 Agreement as it is called, the natural question that arises is, What Next?

The next important step that India must take is to negotiate an India-specific safeguards agreement with the International Atomic Energy Agency (IAEA) for implementation on its civilian facilities as identified in the civil-military Separation Plan of March 2, 2006. This is because Section 104 (b)(2) of the Hyde Act, which is the enabling U.S. legislation for civilian nuclear cooperation with India, requires a determination by the U.S. President, while submitting the proposed 123 Agreement to Congress for its approval, that India and the International Atomic Energy Agency (IAEA) have concluded all legal steps required prior to signature by the parties of an agreement requiring the application of IAEA safeguards in perpetuity to Indias civil nuclear materials and programmes including materials used in or produced through the use of Indias civil nuclear facilities.

There should also be evidence to show that India and the IAEA are making substantial progress toward concluding an Additional Protocol that would apply to Indias civil nuclear programme because a determination of this by the President is also a requirement under the Hyde Act. Besides these, the President has to make a determination on five other actions, which, unlike the negotiation of IAEA safeguards, do not require any immediate action on Indias part.

The most important one among them [Section 104 (b)(7)] is action by the 45-member Nuclear Suppliers Group (NSG). It requires the NSG to have decided by consensus to permit supply of nuclear items covered by its Guidelines. Items covered by NSG Guidelines (I & II) are the nuclear Trigger List items for direct application in nuclear fuel cycle operations and nuclear dual-use items. The NSG may also prefer to see a safeguards agreement with the IAEA before bringing about India-specific amendments to its Guidelines so as to enable nuclear trade with India.

Once the President makes these determinations, he can waive the requirement of full-scope safeguards (FSS) for an agreement under Section 123 a.(2) of the Atomic Energy Act (AEA), waive the requirement of annual congressional review of exports to India under Section 128, and waive application of sanctions for having detonated a nuclear device under Section 129, and submit the 123 Agreement to Congress through the routine approval process (as if India were not exempt from any of the nine conditions under Section 123 of the AEA).

Such an Agreement will enter into force unless Congress passes a joint resolution of disapproval. Also, it will be just an up-down vote, which means that Congress cannot include amendments to the Agreement.

But negotiating an India-specific safeguards agreement may not be easy as India intends to have the safeguards regime to provide for, under Article 5.6(c) of the 123 Agreement, corrective measures that India may take to ensure uninterrupted operation of its civilian reactors in the event of disruption of foreign fuel supplies. However, India does not seem to have worked out what these corrective measures will be and whether these will be acceptable to the IAEA. More importantly, these have to be acceptable to Congress and the NSG, which may want to take a look at the safeguards regime before amending its Guidelines. But so far the government or the Department of Atomic Energy has not given any indication of its thinking on this issue.

The NSG is likely to meet in September for its autumn meeting and could take up the matter of amending the Guidelines on the basis of the 123 Agreement. The autumn meeting is also the time when South Africa hands over the chairmanship of the NSG to Germany. However, if the NSG members insist on the India-specific safeguards being in place as well, there could be a problem because it is unlikely that safeguards could be negotiated by then. For one, there does not seem to be clarification yet on the exact nature of safeguards. In fact, Anil Kakodkar, Chairman, Atomic Energy Commission (AEC), stated at the post-123 Agreement press briefing on July 27 that the government had not set any time frame for the conclusion of a safeguards agreement.

Secondly, the IAEA would be busy in September with its General Assembly and would hardly be able to devote time to put this matter on its agenda. But if the NSG would like to have the safeguards regime negotiated before it can consider any amendment, the matter will have to wait until May-June 2008 when its annual Plenary takes place. However, since the U.S. has agreed to facilitate the amendments at the NSG, it could use its influence to postpone the autumn meeting a bit and allow it to take up Indias case, sources in the government say.

Of course, consensus on amendment at the NSG is unlikely to be an easy proposition. There could be opposition from China, even though its Foreign Minister was recently quoted as saying that China would adopt a flexible approach and would at the same time try to strengthen international non-proliferation measures. There are Scandinavian countries such as Norway and Sweden and others such as Japan who could oppose any change of the Guidelines. So the other major task that the Indian government has after concluding the 123 Agreement is to have its Foreign Office engage intensely in lobbying its cause, through diplomatic and other channels, with the potential opponents at the NSG.

If the NSG does make the necessary amendments on the basis of the negotiated 123 Agreement itself, then it becomes immaterial whether Congress approves the Agreement or not. Then India has access to nuclear technology and equipment from the other members of the NSG, in particular Russia and France who are waiting for the world nuclear trade regime to change in favour of India with its huge market potential.

Of course, it is possible that the NSG could make the amendments subject to congressional approval of the 123 Agreement. But given the keenness of the U.S. administration evident from the U.S yielding on the issues of spent fuel reprocessing, conducting a nuclear test and assurances of lifetime fuel supply it seems unlikely that the agreement would face any hurdle in Congress. However, the final inking of the agreement will not happen before the end of the year and if India does not get its act together.

But most importantly, given the opposition to the deal, the Prime Minister would do well to address the issues raised in Parliament and convince the House that the deal is good for the country (which is far from clear) rather than say that the deal is now non-negotiable.

R. Ramachandran
Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in

Comments

Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment