Open secret

The leak of the India-specific safeguards agreement between India and the IAEA has left the government embarrassed.

THE India-specific safeguards agreement between India and the International Atomic Energy Agency (IAEA) which had been envisaged in the India-United States 123 Agreement of August 2007 under its Article 5, Clause 6(c), and negotiated with the IAEA over eight months after the Left parties permitted the government to begin the process in September is now public after it was leaked in the early hours of July 11 on the Internet. In the governments bid not to reveal the document to the opponents of the deal, it had resorted to making statements that clearly had no basis.

The leak has left the government considerably embarrassed, coming as it did in the wake of the pronouncements of External Affairs Minister Pranab Mukherjee, on the one hand, that it was a classified and privileged document under IAEA procedures and hence could not be shown to the Left-United Progressive Alliance joint committee, and that of, Atomic Energy Commission (AEC) Chairman Anil Kakodkar, on the other, that the safeguards were still under negotiation. Indeed, T.P. Sreenivasan, a former Indian Ambassador to the IAEA, told an Indian television channel that the IAEA had no such restrictive rules and that it was entirely a sovereign decision of Indias to label it classified.

As expected, the moment the government decided to go to the IAEA Board of Governors to finalise the agreement, after making sure that the government would survive despite the Left withdrawing its support thanks to the opportunistic politics of Mulayam Singh Yadav and Amar Singh of the Samajwadi Party and the document had to be circulated to the board before calling for a board meeting as per the rules, it took no time for it to leak out the contents of the deal, obviously through one of the member-countries of the board.

The debate over the contents of the safeguards agreement arises essentially from two concerns, which the India-U.S. agreement had incorporated in quite opaque language. The concerns were related to uninterrupted fuel supply to the reactors that India had agreed to place under safeguards in perpetuity, given the experience of the Tarapur Atomic Power Station (TAPS) when the U.S. stopped supply of fuel to it after India conducted its Pokhran-I nuclear tests. Article 5, Clauses (b) and (c), had provided, on the one hand, for the creation of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of Indias reactors through unspecified means, and, on the other, for unspecified corrective measures to ensure uninterrupted operation of safeguarded reactors if the fuel supply were to stop for any reason, including conduction of a nuclear test by India, breaking its unilaterally declared moratorium.

The question from those opposing the deal at home was whether these provisions had been provided for in an unambiguous fashion so that the reactors would not be forced to stop for want of fuel supplies, and whether they allowed at least the safeguarded indigenous reactors to be withdrawn from safeguards as a corrective measure so that they could be operated with indigenous unsafeguarded fuel.

The same question bothered the non-proliferation lobby in the U.S. but from a different perspective. They wanted the safeguards of all the reactors identified as civil in the civil-military separation plan of March 2006 to remain in perpetuity, irrespective of the situation with regard to fuel supply. The Hyde Act, the enabling U.S. legislation for the 123 Agreement, makes this specific requirement of safeguards to be in perpetuity in accordance with the IAEA document GOV/1621 of August 20, 1973.

Now the IAEA safeguards are basically of three kinds: Voluntary safeguards applied to the facilities of nuclear weapon states (NWSs) under the Nuclear Non-proliferation Treaty (NPT); the comprehensive or full-scope safeguards system embodied in the IAEA document INFCIRC/153 for non-nuclear weapon states (NNWSs) under the NPT and the facility/material/equipment specific safeguards system as set out in INFCIRC/66/Rev.2 of September 1968 for the facilities of non-NPT signatories brought under safeguards either unilaterally or under some bilateral or multilateral cooperation agreement. India has INFCIRC/66 type safeguards implemented on its twin Rajasthan Atomic Power Station (RAPS) reactors (INFCIRC/260 of November 1977 following the start-up heavy water supplied by the former Soviet Union), the Tarapur reactors (INFCIRC/374 of October 1989 and INFCIRC/433 of March and September 1994) and the upcoming Kudankulam reactors (INFCIRC/360 of September 1988) under an Indo-Russian agreement.

Now the safeguards envisaged under the India-U.S. agreement is unique and creates an entirely new category of safeguards, though based essentially on the INFCIRC/66 template, because it seeks to bring a set of facilities, not just one, unilaterally identified as civilian by India, to which more facilities could be added in a phased manner.

This enables a formal recognition of Indias weapon status. So the negotiated safeguards agreement, in effect, is a completely new template that grants India more rights and fewer obligations than NNWSs but fewer rights and more obligations than NWSs, who have actually no obligations at all. Barring some specific differences, which are, however, crucial from the perspective of the contentious question.

One of the important features of this agreement is that it is an umbrella agreement for all the reactors declared voluntarily by India in a phased manner, which would be included in the agreements Annex (Article 14). Also, the agreement significantly supersedes all the existing safeguards agreements and replaces them with this, provided the parties concerned agree. The proviso could, however, be difficult to overcome because the safeguards agreements with respect to RAPS and Kudankulam are more restrictive than the present one. As regards the former, the Soviet Union had demanded safeguards in perpetuity by insisting on safeguards on all subsequent generation of fissionable material used or produced in that facility.

As a result of this, RAPS continues to be under safeguards even when India uses indigenous fuel and heavy water in that facility. Now, if the present agreement becomes operative, India could import fuel and heavy water for RAPS. Similarly, the Kudankulam agreement provides for not only subsequent generations of fuel and related material in that facility, it includes all reactor facilities that may be produced therefrom or as a result of their utilisation (meaning based on its design).

Importantly, through its preamble, the agreement conditions its implementation (that is, even after the document is signed) on the conclusion of international cooperation agreements that enable it to access international fuel market, which means that the safeguards can become operational only if the Nuclear Suppliers Group (NSG) relaxes its guidelines to enable transfers to India. Without specifying what the corrective measures envisaged are, the agreement acknowledges the same, again in the preamble, by saying: India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.

Irrespective of what the corrective measures are, the moot question is whether India can withdraw any of the safeguarded facilities from safeguards if it wishes to in the event of termination of cooperation agreements or disruption of fuel supplies or for any other reason. The answer is no. That is, the facilities included in the annex will continue to be under safeguards in perpetuity irrespective of the status of the agreement that necessitated placing them under safeguards.

As regards imported reactors, this is ensured by GOV/1621, which is why the Hyde Act provides for it. Actually, GOV/1621 was an interim document to bring safeguards in line with the requirement of the NSG until the guidelines were revised. The changes envisaged in this 1973 document are now part of the standard INFCIRC/66 document. In fact, the Kudankulam agreement already contains it (Sections 16 and 17).

What about the indigenous reactors? Even these cannot be pursuant to Article 11 (c) and Article 32. Unlike the standard INFCIRC/66, which specifies safeguards on nuclear material supplied under a bilateral or multilateral agreement as well as on nuclear material produced in or by the use of safeguarded nuclear material, Article 11 (c) says: The items subject to this agreement shall be: Any nuclear material, including subsequent generations of special fissionable material, produced, processed or used in or by the use of a facility listed in the Annex etc. etc. (emphasis added).

Once included in the Annex there is no provision in the agreement for its removal (like NWSs can do at will), hence this will continue to be under safeguards and so any indigenous nuclear material that would be introduced in the wake of a disruption of fuel supplies will also come under safeguards in perpetuity.

This is reinforced by Article 32, which says: Safeguards shall be terminated on a facility listed in the Annex after India and the Agency have jointly determined that the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards. Safeguards on non-nuclear material, equipment and components subject to this agreement may be terminated as and when the non-nuclear material, equipment or components have been returned to the supplier or arrangements have been made by the Agency to safeguard the non-nuclear material, equipment or components in the State to which it is being transferred, or when India and the Agency have jointly determined that the non-nuclear material, equipment or component in question has been consumed, is no longer usable for any nuclear activity relevant from the point of view of safeguards or has become practically irrecoverable.

In short, the safeguards come off only when a facility in the Annex is decommissioned, so to speak.

The logical conclusion from the above arguments is that, given that the government and the Department of Atomic Energy feel that everything is okay in the agreement, fuel supply assurances can be ensured as part of the bilateral agreement with states or companies that would supply as ensured in the agreement with Russia and fuel will be imported only from those who are willing to give this lifetime commitment for the reactors.

Further, it is perhaps the thinking of the government that disruption on account of nuclear tests is most unlikely because in the current and evolving geopolitico-strategic environment, combined with prospects of a Fissile Material Cut-off Treaty in the not-too-distant a future, a nuclear test itself is most unlikely by any state, especially by the major weapon powers because of their moratorium on testing.

Corrective measures is only a red herring and seems to carry no implication of significance to the safeguards agreement or to the deal.