Limiting guidelines

Doubts have been expressed over the extent to which the proposed cooperation between India and Russia can contribute to the Indian civilian nuclear programme, particularly in the nuclear energy component.

EVER since India and Russia signed an agreement on civilian nuclear cooperation, during the recent visit of President Vladimir Putin, there has been a good deal of speculation in the media on the scope of the agreement, as the document itself has not bee n made public. The uncertainty arises from the fact that Russia is a member of the 38-member Nuclear Suppliers Group (NSG), which has set forth certain guidelines for the transfer of nuclear material, equipment and technologies to a non-nuclear weapons s tate (NNWS). The guidelines, as formulated in April 1992, require implementation of the full-scope safeguards (FSS) of the International Atomic Energy Agency (IAEA) by the recipient country - which India has been opposed to all along.

FSS is a concept derived from the objectives of the Nuclear Non-Proliferation Treaty (NPT) that seeks to prevent NNWSs from acquiring nuclear weapon capabilities by imposing the IAEA's safeguards regime on all nuclear facilities and activities - current and future - of a given country. India's opposition to FSS stems from its opposition to the discriminatory NPT as accepting FSS would be tantamount to accepting the control regime of the Treaty itself. Hence the doubts on the extent to which the propose d cooperation between India and Russia can contribute to the Indian civilian nuclear programme, particularly in the nuclear energy component, especially when Putin has made it clear that the cooperation envisaged under the Memorandum of Understanding (Mo U) would be fully in tune with Russia's international obligations. A key obligation is Russia's undertaking to observe NSG guidelines. And there are domestic Russian export control laws that incorporate these guidelines.

The NSG, also known informally as the London Group, was formed in 1975 following the Indian nuclear detonation in 1974. It was formed as a body distinct from the then existent Zangger Committee (formed in 1971 following the conclusion of the NPT) so that Japan and France, major nuclear suppliers which were not members of the NPT then, could also be included. The Zangger Committee had been formed as a forum to establish guidelines for implementing the export control provisions of Article III.2 of the NPT among nuclear supplier members of the NPT. It stipulates imposition of safeguards on any transfer of nuclear material, related equipment and technologies to an NNWS.

The Zangger Committee maintains a list of controlled nuclear-related items called the "Trigger List". For the export of Trigger List items, the Zangger Committee guidelines require that they (1) not be used for developing nuclear explosives, (2) be subje ct to IAEA safeguards in the recipient non-nuclear weapon state, and 3) not be re-exported unless they are subject to safeguards in the new recipient state. The safeguards envisaged here are site-specific or facility-specific, or what are known as "islan ded safeguards", under which only the activity/facility to which the Trigger List item has been transferred would be under IAEA safeguards.

Between 1975 and 1978, building on the Trigger List and the accompanying guidelines, the seven original members of the NSG (the United States, the Soviet Union, the United Kingdom, France, Germany, Canada and Japan) developed a set of nuclear export rule s, which too required only islanded safeguards and not FSS. These NSG guidelines were set out in the IAEA document INFCIRC/254 of February 1978. It must be emphasised that the NSG guidelines do not have the force of an international treaty and are to be implemented by each NSG member in accordance with its national laws and practices. Decisions on export applications are taken at the national level in accordance with national export licensing requirements.

Between 1978 and 1991, the NSG was not active though these guidelines were in place. However, following the Gulf war and the discovery of the covert Iraqi nuclear weapons programme, the NSG revised its guidelines in April 1992. Called Warsaw guidelines, these established separate rules for transfers of nuclear materials, equipment and technologies (that are exclusively for nuclear use); and nuclear-related dual-use items. These revised guidelines also enhanced the safeguards requirement by demanding FSS for future supplies to any NNWS instead of the islanded safeguards requirement of INFCIRC/254 of 1978. The revised guidelines for nuclear material are set out in the IAEA documents INFCIRC/254/Rev. 2/Part 1 of October 1995.

The key guideline relating to FSS is clause 4(a). However, FSS may be exempt under two special circumstances: (1) transfers that pertain to agreements or contracts drawn up on or prior to April 3, 1992; and, (2) in exceptional cases when such transfers a re essential for the safe operation of existing facilities. In both these circumstances, safeguards will only be facility-specific. However, the guidelines add under 4(d) that "suppliers undertake to strive for the earliest implementation of the policy r eferred to in 4(a) under such agreements". The point to be noted here is that while the decision to expand the safeguards into an FSS regime was taken in April 1992, these guidelines were formalised only in October 1995. Russia's adherence to these revis ed NSG guidelines that invoke FSS was communicated to the IAEA through a note verbale in April 1996 which states: "The government of the Russian Federation has decided to act in accordance with the guidelines for Nuclear Transfers so revised."

Interestingly, Russia had put in place nuclear export controls invoking FSS even before the NSG had adopted the Warsaw guidelines. President Yeltsin's Decree No. 312 of March 27, 1992, states: "Export from Russian Federation of nuclear materials, as also technologies, equipment, installations and special non-nuclear materials, meant for their processing, use or production, at any state, which does not have a nuclear weapon, may be realised only under the condition of setting up of all nuclear activity o f this state with the guarantee (safeguards) of International Agency of Atomic Energy (IAEA)". This decree was turned into a law on December 21, 1992, through Government Regulation No.1005.

In fact, this is stricter than the Warsaw guidelines which permit islanded safeguards for exceptional circumstances. The Russian law exempting pre-April 1992 agreements and contracts from FSS, as allowed by the NSG guidelines, came only on May 8, 1996, t hrough Government Regulation No.574 after the Russian Federation sent in its note verbale to the IAEA on its adherence to the NSG guidelines. Strangely enough, this law did not incorporate the second of the exceptional circumstance relating to tra nsfers without FSS for safety of nuclear plants. This came only on May 7, 2000 through a presidential amendment to Decree No.312.

Quoting unnamed sources, commentator on strategic affairs C. Raja Mohan (The Hindu, October 4, 2000) stated that the key element of this "path-breaking" agreement was the expansion of Russian assistance to India's nuclear power programme. As is kn own, there is already an ongoing collaborative nuclear power project, comprising two 1000 MWe light water reactors based on the Russian VVER design, being implemented at Koodankulam in Tamil Nadu at an estimated cost of $3.1 billion. However, this does n ot invoke FSS because the project pertains to an agreement that predates April 3, 1992, the date on which the NSG decided to incorporate FSS in its guidelines. The Koodankulam project is the result of an inter-governmental agreement (IGA) signed between India and the Soviet Union during President Mikhail Gorbachev's visit to India in 1988.

The IGA of November 20, 1988 was a general agreement on nuclear cooperation between the two countries requiring specific agreements to be drawn up in case of any commercial deals. Thus there was a separate agreement on the Koodankulam project which speci fied construction of two VVER 1000 MWe reactors on a turnkey basis by the Russian Atomenergoexport. However, the collapse of the Soviet Union, and subsequent difficulties in financing the project in hard currency, led to the project being put on the back burner for nearly a decade. A supplementary agreement was worked out on June 21, 1998 to revive the project, with the reactors to be built not on a turnkey basis as envisaged earlier, but by the Nuclear Power Corporation of India Ltd. (NPCIL) based on t he Russian VVER design and engineering supervision. It is clear that this proposal to revive the project could have come about only after Regulation No. 574, which incorporates the "grandfather clause" of pre-April 1992 contracts, was enacted in May 1996 .

The question now is whether the agreement signed during Putin's visit goes beyond the Koodankulam project in any significant way. In a recent article in Frontline (October 27, 2000), Russian Deputy Minister for Atomic Energy E.A. Reshetnikov was q uoted as saying that from the economic point of view it was viable to have six similar units, or at least four units, at the same site in Koodankulam. Did this statement signal Russia's willingness now to supply more VVER-type reactors without imposing F SS in contravention of the NSG guidelines? Raja Mohan in his article had implied that this indeed is the essence of Putin's MoU which for some reason is being held confidential. Sources within the Department of Atomic Energy (DAE), however, say that the agreement is of a general nature and it merely extends the earlier IGA of 1988. In any case, as of now no such specific proposal to sell more reactors has been made.

In an article published in The Hindu (October 18), analyst G. Balachandran made an interesting point. He pointed out that unlike the NPT, which defines a nuclear weapon state (NWS) as "one which has manufactured and exploded a nuclear weapon or ot her explosive nuclear device prior to January 1, 1967", there is no definition of an NWS or an NNWS in the NSG guidelines. Balachandran argued that India's nuclear tests of May 1998 had created a peculiar situation and by recognising India as an NWS, Rus sia is not bound by the FSS guideline of the NSG which is only for transfers to an NNWS. What Russia could not transfer without invoking the FSS before May 1998 could now be done without violating its commitment to the NSG guidelines, he argued.

While this interpretation is technically correct, it might appear a little far-fetched. Given that the NSG has evolved from Zangger which, in turn, had its origins in the NPT, it would be reasonable to assume that the definition of an NWS/NNWS adopted by the NSG, though not explicitly stated, implicitly follows from the NPT. Further, being one of the founding members of the NSG, Russia would be a party to that definition. Also, NSG documents constantly refer to the NPT as the cornerstone of its policies . For instance, the consensus statement of May 1992 with regard to implementing FSS (INFCIRC/405) says: "At their meeting in Warsaw on April 3, 1992, the adherents to the NSG guidelines, desiring to contribute to an effective non-proliferation regime, an d to the widest possible implementation of the objectives of the NPT... have adopted the following policy on FSS as a condition for future nuclear supplies."

The consistency of the NSG guidelines with the legal undertakings under the NPT was reiterated by the NSG statement following the NPT Review and Extension Conference in 1995. Similarly, in the light of criticisms that the NSG is operating as a cartel and is discriminatory, the Group presented a fact-sheet at the time of the NPT Review Conference this year (IAEA document INFCIRC/539). It states: "The NSG guidelines are consistent with, and complement, the various international, legally-binding instrument s in the field of nuclear non-proliferation. These include the NPT...etc. etc." It stands to reason that the guidelines cannot be consistent with the NPT without conforming to its definition of an NWS.

GIVEN the above argument, it is extremely unlikely that Russia would accord unilateral recognition to India as an NWS (and violate the FSS guideline of the NSG) without inviting criticisms and action by the other members of the NSG though Russia's links with the West are on downswing in the post-Yeltsin period and Putin's foreign policy decisions are seen to be more independent and often opposed to those of Yeltsin. Indeed, at a press conference in Moscow on May 29, in reply to the question "Will Russia take any steps to bring India and Pakistan simultaneously into the nuclear group so that cooperation could begin?" Mikhai Rhyzov, a senior official in the Russian Ministry of Atomic Energy (Minatom), said: "In my personal opinion, both India and Pakista n have tested nuclear weapons. Since that moment neither India nor Pakistan can be regarded as non-nuclear countries. But the NPT says that for its purposes the nuclear countries are those five states that had conducted tests before 1968...this is an unn atural situation and sooner or later it will be changed. When? Frankly, I do not know. It depends on many things. But an unnatural situation does not exist for long." Balachandran's point would imply that between May and October this has already occurred in Russia's foreign policy. Is this why the MoU is being held confidential? Perhaps, but unlikely.

So what kind of cooperation can be expected after Putin's MoU? A recent report in The Hindustan Times with a Moscow dateline said that Russia had offered to supply enriched uranium fuel for the twin Boiling Water Reactors (BWRs) of the Tarapur Ato mic Power Station (TAPS) built by the United States. The controversy around the operation of TAPS after the U.S. pulled out of its commitment made in the August 1963 bilateral agreement (in force for 30 years) with regard to fuel supply in the wake of th e Pokhran explosion of 1974 is well known.

Under the fuel supply contract agreement of 1966, the U.S. was supposed to supply enriched uranium (2-3 per cent U-235). However, after Tarapur ran out of fuel in 1976 and the U.S. could not make further supplies because of domestic political considerati ons, in 1983 France stepped in to supply the fuel. The application of the tripartite safeguards agreement of 1971 between the U.S., India and the IAEA (INFCIRC/154) with regard to nuclear material was transferred from the U.S. in favour of France. Howeve r, after the expiry of the Indo-U.S. bilateral agreement in August 1993, the U.S. refused to take back the TAPS spent fuel as required by the agreement and contested the Indian claim of its right over the spent fuel and its right to reprocess the same. The original 1963 agreement allows reprocessing only after approval by the U.S. government.

India argued that it required to reprocess TAPS spent fuel for loading the reactors with the uranium-plutonium mixed oxide (MOX) fuel. India has been arguing so since the early 1980s after the U.S. reneged and had also entered into a subsidiary agreement with the IAEA in August 1980.

Indeed, after the expiry of the TAPS safeguards agreement INFCIRC/154, which was coterminous with the expiry of the Indo-U.S. bilateral agreement in August 1993, India placed TAPS unilaterally under a different safeguards arrangement with the IAEA (INFCI RC/433) which came into effect in March 1994. At that time India informed the IAEA that the technical feasibility of MOX had been demonstrated and that it proposed to begin reprocessing of the TAPS spent fuel. According to P.K. Iyengar, the then Chairman of the Atomic Energy Commission (AEC), this was done to put pressure on the U.S. government. Not unexpectedly, the U.S. interpreted the legality of the bilateral agreement differently and objected to it. The U.S. position seems to have prevailed because till date the TAPS spent fuel has not been reprocessed so far. However, the Department of Atomic Energy (DAE) continues to hold that it can reprocess the fuel whenever it wants. As of now some 12 of the 284 fuel assemblies in the TAPS reactor core (2.4 per cent) have been loaded with MOX, according to Anil Kakodkar, Director, Bhabha Atomic Research Centre (BARC).

In 1995, China stepped in to supply fuel and it could do so because it was not - and is still not - a member of the NSG. It is only a member of the Zangger Committee whose regulations require only facility-specific safeguards. The corresponding islanded safeguards for fuel supplied by any country have been incorporated in the safeguards agreement of November 1994 (INFCIRC/433/Mod), which would be applicable to the Russian fuel too. The 1994 contract with China was for a fixed amount of the fuel, accordi ng to R. Chidambaram, Chairman, AEC. Tarapur will soon run out of the Chinese fuel as well and supplies from any source, including China, is welcome, Chidambaram says.

According to V.K. Chaturvedi, chairman and managing director of NPCIL, even though the Chinese contract can be revived, purely commercial considerations (in terms of lower costs) have led to exploring the Russian offer as well. He clarified that no contr act with Russia had been signed yet for the fuel.

One may ask why Russia did not step in to supply fuel after France stopped the supply. The simple reason is that it could not have, because of the existing export control law Regulation No.1005 (the legal instrument of Decree No. 312 of March 1992) that required the application of FSS. The amendment of May 7, which incorporates the exemption of FSS for safety reasons in accordance with the NSG guidelines, enables fuel supply now. Clearly, the offer implies that fuel from Russia is imperative for the saf e operation of TAPS. Under no other condition will Russia be able to supply fuel for TAPS without violating the NSG guidelines and its domestic laws, unless of course it has recognised India as a nuclear weapons state. According to the May 7 amendment, a ny transfer only with facility-specific safeguards for safety purposes requires a specific authorisation by the Russian government. The authorisation will have to wait until the May 7 amendment is turned into a law which is yet to happen. Only then perha ps will any contract for fuel supplies be signed in Russia.

In sum, assuming that Russia has not granted India the status of an NWS, within the ambit of the NSG guidelines and Russia's domestic laws, what Russia can transfer without violating international obligations are material, equipment and technologies for safe operation of nuclear facilities and honour the pre-1992 agreement for the two 1000 MWe VVER reactors at Koodankulam. Nothing more is likely. Of course, since the NSG guidelines do not define the exceptional cases when safety considerations apply, th e safety caveat may allow a lot of room for interpretation and any export may be explained as being for safety purposes. The moot question will then be why the French did not supply fuel without FSS under the safety caveat.