The Board of Governors of the IAEA adopts the Safeguards Agreement, but member-countries have mixed feelings about it.
For all the crossing of fingers by Indian officials during the run-up to the crucial meeting of the Board of Governors of the International Atomic Energy Agency (IAEA) in Vienna on August 1 to consider the draft Safeguards Agreement that was drawn up between India and the IAEA on July 9 (Frontline, August 1) and the reservations that different countries openly expressed with regard to the various provisions in the agreement, its passage seems to have been a rather tame affair. The agreement was adopted without any amendments to the original text, and that too by consensus, which was certainly unexpected. Anil Kakodkar, Chairman, Atomic Energy Commission, sought to emphasise this when he told the media: The significant point is that the safeguards document has been adopted by consensus.
Having got the Safeguards Agreement adopted, the next step required to enable India to engage in global nuclear trade is a waiver of the full-scope safeguards provision of the Nuclear Suppliers Groups (NSG) Guidelines. Towards this, the United States will seek an exemption to the provision by moving an India-specific amendment. The NSG is scheduled to meet in Vienna on August 21 to consider the Indian case. The Guidelines of the 45-member NSG currently prevent transfer of material, reactors and sub-systems directly related to the nuclear fuel cycle the so-called trigger list items to states not party to the Nuclear Non-Proliferation Treaty (NPT) without the comprehensive (or full-scope) safeguards of the IAEA.
The most interesting change of attitude at the meeting was that of Pakistan, which had initially called for amendments to the agreement and even threatened to press for a vote at the Board of Governors meeting. In fact, on July 18, Shahbaz, Pakistans Ambassador to the IAEA, shot off a four-page letter to the IAEA Director-General Mohammed ElBaradei stating the countrys misgivings about the agreement and its disapproval of the departure from the laid-down procedure (of a 45-day notice period) to steamroll the Agreement just to accommodate the political exigencies of India and the U.S.
In particular, Pakistan questioned the IAEAs acceptance of Indias premise of separating civilian and military nuclear facilities through the reference made by the agreements preamble to the India-U.S. Joint Statement of July 18, 2005. This, it said, was tantamount to the Board of Governors being asked to recognise Indias nuclear weapon status. It also disapproved of the terming of the agreement as India-specific. Though the title of the agreement itself does not use this phrase, the text of the preamble to the agreement does. The IAEA Statute, the letter said, does not provide for differentiation between member-states nor does it allow for special treatment for a particular state. Calling it an India-specific agreement is therefore unprecedented. Since the IAEA concludes safeguards agreements based on approved models, it will be important that any safeguards agreement adopted by the BOG [Board of Governors] in respect of India should be available as a model for other non-NPT states (emphasis added, throughout).
It has been reported that the U.S. coerced Pakistan to back off. Indeed, the fact that none of the Board members sought to block the passage of the agreement is evidence of the U.S. overwhelming influence on the Board. It is also interesting to note that the non-proliferation lobby in the U.S. and elsewhere does not seem to have had much of an impact on the Board members. ElBaradeis strong support to the agreement, which was very much evident in his press briefing, must have played a significant role in generating the consensus, and to a lesser extent, perhaps, the intense diplomatic lobbying at various levels, particularly during the briefing to the various member-states by the IAEA Secretariat on July 25.
While Indian officials have claimed that the briefing was a smooth affair, various members did raise questions about the exact meaning of the undefined corrective measures that the agreement allowed India to take in the event of disruption in fuel supplies at any time during the lifetime of reactors. Significantly, however, Vilmos Cserveny, the chief IAEA negotiator for the Safeguards Agreement, made it clear that corrective measures should not be confused with termination of safeguards, which were governed by Articles 29 and 32 of the agreement and which are standard, a point emphasised by ElBaradei as well.
It should be noted here that this is contrary to the stand maintained by Indian officials that while imported facilities would be under safeguards for perpetuity governed as they would be by the IAEA document GOV/1621 that is reflected in Article 29 of the agreement indigenous facilities could be withdrawn from safeguards if fuel supplies to them were disrupted. It is Article 32 that would govern the termination of safeguards with regard to indigenous facilities. The countries that queried the Secretariat on corrective measures were Canada, Norway, Ireland and Sweden. While all four are members of the NSG, only Canada and Ireland are members of the Board.
One of the questions that many members, in particular Canada, reportedly asked during the briefing by the Secretariat and other diplomatic interactions with India was about the listing of the facilities to be safeguarded under the umbrella agreement, as the draft agreement does not list any facilities yet in the annex provided in the agreement for the purpose. In fact, the Pakistan letter asked: What is the purpose of the Agreement if the facilities to be safeguarded are not known? As per Article 13 and 14 of the agreement, India will voluntarily decide to include facilities in the annex in a phased manner once all the conditions conducive to accomplishment of the objective of this agreement are in place. This carries the implication that India will declare and notify each facility to be listed in the annex only when lifetime fuel supply conditions are met.
It is in response to this demand that India filed with the IAEA a copy of its civil-military separation plan that was tabled in Parliament by Prime Minister Manmohan Singh on May 11, 2006, as INFCIRC/731 on July 25. This plan lists the facilities that India proposes to bring under safeguards in a phased manner up to 2014. Of the 22 reactors, this plan would bring under safeguards eight reactors in addition to the present six, as well as all other future reactors identified by India as civilian. In a note attached to the separation plan, the Indian Ambassador to the IAEA said that it was Indias intention to move forward in accordance with the provisions of the Safeguards Agreement after its entry into force.
During the July 25 briefing by the Secretariat, Pakistan reportedly asked about the likely precedent that the agreement could set for other non-NPT signatories, a point it had raised in its July 18 letter to the IAEA as well. The Secretariat stated that such an umbrella agreement for multiple facilities was an improvement over separate INFCIRC/66-type agreements for each facility and the precedent would, in fact, be a good one. This may well also be the reason for Pakistan not pressing for a vote, hoping to get a similar agreement for its own facilities at a later date.
In an obvious reference to Pakistans demand, the Director-General, too, reiterated this aspect of the agreement in his introductory statement to the Board while submitting the draft agreement for its consideration, when he said: The umbrella nature of the agreement provides a more efficient mechanism for ensuring that safeguards requirements can be met. Such an umbrella approach could also be used for the conclusion of other 66-type safeguards agreements. Calling it a historic decision, Pakistan welcomed this in its statement at the Board, the tone of which was entirely different from that of the letter: A step has been taken towards accommodating the interests of a non-nuclear weapon state by evolving an innovative and new model. A significant departure has been made from the standard norms pertaining to verification and non-proliferation. This constitutes an acknowledgement of new realities. The global non-proliferation regime can be strengthened only on the basis of moral and political commitment to its objectives as well as by application of the norms on a non-selective, non-discriminatory [basis] and in an equitable manner.
Pakistan also recalled the view of its National Command Authority of the India-U.S. nuclear deal that it would have implications on strategic stability and that the objective strategic stability in South Asia and the global non-proliferation regime would have been better served if the U.S. had considered a package approach for Pakistan and India.
On termination of the safeguards, which had become a contentious issue in the domestic political context, ElBaradei said: The termination provisions contained in the agreement are the same as for other 66-type agreements. However, perhaps to accommodate the Indian view that the safeguards could be terminated if fuel supplies are cut off, which are based on Indias interpretation of Articles 52(c), 29, 30(f) and 4 read together with the preamble of the agreement, he made this ambiguous remark: Naturally as with all safeguards agreements this agreement is subject to the general rules of international law. Therefore the agreement should be read as a whole. Kakodkars statement after the adoption of the agreement emphasised this particular remark of ElBaradei, implying thereby that India continues to stick by its interpretation on the issue of termination of safeguards. ElBaradei also made it a point to highlight the fact that India and the IAEA had begun discussions on an additional protocol to the Safeguards Agreement. This is a commitment that India gave to the U.S. in the Joint Statement. The Hyde Act, which will govern the implementation of the 123 Agreement, also mandates that nuclear commerce with India can begin only after presidential determination that India has made substantial progress towards concluding an additional protocol.
Notwithstanding Indias varied interpretations of some provisions of the agreement, the Indian statement said: The Safeguards Agreementwas negotiated by India and the Agency using the guidance documents adopted by the Board for the purpose of concluding and implementing INFCIRC/66-type agreements. The Safeguards Agreement speaks for itself and we see no difficulty in implementing the Agreement on the basis of what is stated therein. India will implement this Agreement in strict accordance with its provisions.
In the press briefing after the adoption of the agreement, ElBaradei said:
I believe the agreement is good for India, is good for the world, is good for our collective effort to move towards a world free from nuclear weapons. What the agreement does is [to] bring India closer to the debate on our ultimate goal, which is the goal of the NPT to establish a world free from nuclear weapons. I have always maintained that if we were to move toward strengthening non-proliferation that dialogue has to be universal and inclusive. We cannot exclude from that debate India or Pakistan or Israel the three countries who remain outside the NPT.
I look at the agreement from a big picture, and the big picture is that I hope the agreement will reignite the debate on nuclear disarmament. A concrete result of that would be a comprehensive moratorium by all states that have nuclear weapons not to test at any time in the future, until the Comprehensive Test Ban Treaty (CTBT) comes into force. I hope it will also lead to a moratorium on production of any nuclear material for weapons purposes, until we have the Fissile Material Cut-off Treaty (FMCT) in force.... I have been supporting the agreement from day one and am very happy today that I see that my judgment has been certified by the Board in approving the agreement by consensus.
Of course, the reference to a moratorium on fissile material production, something that the U.S. Congress and the U.S. non-proliferation lobby have been demanding, may not have gone down well with the Indian camp.
But one cannot say that the passage of the Safeguards Agreement was entirely smooth. Almost all the 35 countries that make up the Board made statements at the meeting. While some of them endorsed the draft without any qualifications, the majority made their reservations clear in their statements, though they chose not to block the passage of the agreement on those grounds. Since as many as 19 countries on the Board also belong to the 45-member NSG, it is at this forum that the Indian bid is likely to face the toughest challenge.
Going by the statements made by the NSG members at the Board meeting, one can expect these countries to take quite hardened positions at the NSG. Though India has the backing of the U.S., the chief architect of the NSG with considerable clout in this exclusive club, Austria, China, Finland, Ireland, Japan and Switzerland are potential party spoilers even though they did not attempt to block the process at the IAEA Board. The Netherlands, New Zealand, Norway and Sweden, which are not members of the Board, are also likely to take a tough stand.
The statements of Austria, Ireland and Switzerland were particularly critical. In fact, Ireland, Austria, Japan and Brazil apparently made it a point to emphasise that their being party to the consensus should not be taken to mean that they will sit quiet at the NSG meeting to consider the waiver for India. Interestingly, Ireland stated after the approval that it would have abstained had there been a vote. During his recent visit to India, Japanese Foreign Minister Masahiko Koumura gave no commitment of support to the Indian case at the NSG. New Zealand, which is not a Board member but was an observer at the Board meeting, stated that it would make its stand clear at the NSG. Given New Zealands traditionally strong anti-nuclear position and the governments commitment to non-proliferation and the NPT, and given the potential political backlash of a contrary stand at the NSG, it would be interesting to see what posture it adopts, especially after its Prime Minister, Helen Clarks recent description of India as a close friend.
The case of Austria, too, is interesting. Apparently, the supportive statement made by France on behalf of the European Union had to be delayed because Austria had strongly opposed the E.U. formulation and wanted it changed, but ultimately it was prevailed upon to back off. In fact, the previous day Austria had tried to bring together a few other countries to make a joint statement expressing the reservations they had. But with countries wanting to make their individual statements, the move did not materialise. The Russian response has been an interesting one. While it welcomed the Safeguards Agreement in its statement at the Board meeting, the Russian Ambassador at Vienna, Alexander Zmeyevsky, said that the agreement should not be construed as giving India nuclear weapon power status. He also emphasised that the agreement did not provide for India to withdraw facilities from safeguards at its own discretion.
The general feeling of the majority of the Board member-states could probably be gauged from the remarks of the IAEA Ambassador of Mexico. Mexicos own statement per se is not of much consequence because it is not a member of the NSG. Its Ambassador, Alejandro Diaz, had gone on record saying that, while the country would support the case, it had mixed feelings about the recognition being accorded to India. The NPT is not being taken into account, he said. Mexico, as one of the earliest supporters of the NPT, would like to see India coming into the Treaty than remaining outside it. And this is the case with most of the members of the Board.
Notwithstanding the above, the logic of the Board member-states in not blocking or amending the agreement, even when they had strong reservations, must have been that it would be easier to ensure suitable language in the NSG waiver to accommodate their apprehensions without the ambiguities they saw in the Safeguards Agreement. Also, since a simple majority alone is sufficient for deciding on a proposal at the Board, unlike at the NSG where all decisions are by consensus, potential blockers may have felt that pressing for a vote might not have really prevented the passage of the agreement. Thus, the imminent opposition to granting India a special status by recognising its weapons programme would only seem to have been postponed until August 21 when the NSG meets to consider the waiver for India that would be moved by the U.S. The battleground is likely to shift to the NSG meeting.
After getting the IAEA Boards approval for the Safeguards Agreement, India hopes that the U.S. will be able to get the NSG to deliver a clean and unconditional waiver of its Guidelines to enable nuclear transfers to India. This position was articulated by the Prime Minister in his August 17, 2006, address in Parliament when he said: If in their final form the U.S. legislation or the adopted NSG Guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament.
In the India-U.S. Joint Statement the U.S. had committed to work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India. Indian officials interpret this to mean that the NSG waiver should unconditionally waive the requirement of comprehensive safeguards without any other conditions, such as a no-nuclear-test rider, tagged to it. Kakodkar said after the approval of the Safeguards Agreement, We look forward for a clean and unconditional exemption and it is for the U.S. to deliver as per the July 18, 2005, statement. But it is difficult to imagine that this Indian expectation will be realised easily. In fact, in an interview to a national daily, even Shyam Saran, the Prime Ministers special envoy, said that it was unrealistic to expect the NSG not to insist on a no-testing condition.
Though in the earlier stages of negotiations with India, the U.S. apparently supported the Indian demand for an unconditional exemption, during its discussions with the NSG members it found that many members wanted certain restrictive conditions to be included. In March 2006, the U.S. circulated a draft waiver proposal, which retained the condition already contained in the NSG Guidelines that countries exporting trigger-list items should strive for earliest implementation of full-scope safeguards (Article 4(d) of INFCIRC/254/Rev. 8/Pt. 1). According to a recent document of the Congressional Research Service (CRS), a new and substantially revised draft has been made. If the recent pronouncements of the U.S. Ambassador to India, David Mulford, are any indication, the U.S. may only strive for a clean waiver and not an unconditional one. Some of the likely conditions are suspension of exports if India conducts a nuclear test, ban on the sale of enrichment and reprocessing equipment, moratorium on fissile material production, and provisions for a periodic review.
At a press conference on July 23, Mulford made a distinction between a clean exemption and a clean and unconditional exemption, which he reiterated more recently, too. In a telephonic press conference on August 5, he said that Indias insistence on an unconditional waiver at the NSG could lead to problems. Stating that it was his personal view, and not of the U.S. government, he said: Unconditional is not a good word in this context there is a huge amount of work on this [India-U.S.] understanding and, therefore, to use the word unconditional to me is oversimplification. I will be hoping only for a clean exemption. He also added that the U.S. was already engaged in a diplomatic offensive towards the NSG waiver and hoped to submit the 123 Agreement to Congress in early September.
Early this month, the U.S. made available to India a revised text of the draft waiver, which apparently reiterated the goal of supplier countries striving to move eventually towards application of full-scope safeguards for transfer of trigger list items to India. The Indian government, the Department of Atomic Energy in particular, apparently objected to this. The reason for this is not clear. Firstly, it is the standard statement contained in the NSG Guidelines for transfer of trigger list items under exemption from full-scope safeguards (which currently is applicable only for transfers for safety reasons and under agreements prior to April 1992). It is under these existing exemption criteria that Russia exported fuel for TAPS-1&2 in 2001 and, more recently, in 2006. Also, it exported nuclear reactors for Kudankulam on the basis that the agreement for the supply of these two reactors was signed in 1988. Therefore, the prescriptive export guideline Article 4(d) did impinge upon Russia. But neither the bilateral agreement nor the Safeguards Agreement actually included this prescription. So the fuss now defies logic.
But, because of the Indian opposition, the U.S. has reportedly revised the draft once again and dropped the contentious prescription. However, this does not mean that other countries at the NSG meeting will not press for its inclusion or other restrictions such as the no-testing condition. In all likelihood, given the pronouncements during the adoption of the Safeguards Agreement, this will happen.
The moot question is, will the Prime Minister have the courage to walk away from the deal as he had stated in Parliament, having invested so much time and money and even gone as far as staking the government for its sake?
