Journalist | Writer | Analyst
12 July 2008
Parsing the India-specific safeguards agreement
By going about its business of approaching the Board of Governors of the International Atomic Energy Agency for approval of India’s safeguards agreement with stealth and even subterfuge, the United Progressive Alliance government has scored a political own-goal which is likely to detract from the debate over the contents of the safeguards text itself.
This is unfortunate because the 23-page document, negotiated over five rounds of meetings between India and the IAEA Secretariat, contains much that is worthy of comment and analysis. The bulk of the technical aspects of the document — especially on safeguards procedures — with one or two important exceptions is virtually a carbon copy of the provisions found in the Agency’s template document for site-specific safeguards in a
non-nuclear weapon state state that is not a party to the NPT (Infcirc 66/Rev.2). But it is in the crucial provisions dealing with (1) what is to be safeguarded and for how long, and (2) the purpose and objective of the safeguards agreement and the conditions under which it is operative, that the draft takes on an “India-specific” character that is radically different from the ones applicable to NNWSs.
If the non-nuclear weapon states have virtually no rights and only obligations vis-À-vis the IAEA and the five official nuclear weapons states have only rights and virtually no obligations, India has negotiated for itself a position more or less in between. As a country with nuclear weapons voluntarily offering some civilian facilities for safeguards, it has many more rights and fewer obligations than an NNWS; at the same time, it has fewer rights than an NWS and certainly more obligations.
Scope and structure
Broadly speaking, rather than islanding its military nuclear sector and placing every other nuclear facility under safeguards, the Indian agreement essentially offers an island of self-defined facilities drawn from its civilian sector for potential safeguarding. And that too only if India feels that by doing so the “implementation of relevant bilateral or multilateral arrangements to which India is a party” are fulfilled (Art. 13, 14 and 5).
In other words, safeguards are being accepted by India pursuant to these arrangements and for no other reason. The preamble invokes an article of the IAEA statute authorising it to “apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State to any of the State’s activities in the field of atomic energy.” In this context, it notes “the relevance for this agreement” of the Indo-U.S. joint statement of July 2005 in which India “has stated its willingness to identify and separate its civilian and military nuclear facilities and programmes in a phased manner,” file a Declaration with the IAEA regarding its civilian nuclear facilities and “place voluntarily” those civilian facilities under safeguards.
The most important part of the Agreement from the perspective of international law is the preambular assertion that “an essential basis of India’s concurrence to accept Agency safeguards” is (1) the conclusion of international arrangements for the uninterrupted and continuous access to nuclear fuel, and (2) support for an Indian effort to develop a strategic reserve of nuclear fuel. The same section of the preamble also notes that “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear facilities in the event of disruption of foreign fuel supplies.”
This condition, which first began life as a unilateral assertion by India in its separation plan of March 2006 and was subsequently accorded political recognition by the U.S. in the 123 agreement, emerges here as a legally binding condition upon which the entire edifice of the Safeguards Agreement is constructed.
While non-proliferation activists abroad have denounced these provisions, a controversy has arisen within India about the inclusion of these phrases in the preambular rather than the operational section of the agreement. The government’s critics say that since “corrective measures” are not mentioned anywhere other than the preamble, they are not “legally binding.” The government insists this makes no difference. In reality, the truth probably lies in between.
The preamble is an integral part of the agreement and cannot be separated from the operational section without the latter part losing its entire context. In the Indian case, the legal linkage between the preambular and operational section is made stronger by stating at the end of the preamble: “Now, therefore, taking into account the above, India and the Agency have agreed as follows:” No Infcirc/153 preamble contains the words “taking into account the above.”
For non-nuclear weapons states, the need for a safeguards agreement stems from their obligations under the NPT. For India, the need arises from its bilateral and multilateral arrangements and the understandings therein. Thus, the context in which the need for safeguards arises is absolutely crucial here. The application of safeguards is conditional on the implementation of these arrangements. Thus the linkage between preamble and operational text is tighter than in other legal contexts.
At the same time, it is a fact that Indian negotiators had initially sought to insert the right to take corrective measures in at least four different places. As the talks with the IAEA Secretariat progressed, this was whittled down to the reference that remains, which the Indian negotiators felt was sufficient. As a result, the right to take corrective measures comes in implicitly, through the conditions precedent to the need for safeguards. If India were ever to invoke these measures, it would no doubt face flak (depending on what those measures were) but it would nevertheless have a legal leg to stand on.
Given the controversy over these provisions, a concern has arisen about what India could do if it is suddenly denied access to nuclear fuel for its imported and indigenously produced civilian reactors. Would safeguards remain in force “in perpetuity” even if fuel supplies are cut off? Though the word “perpetuity” does not figure in the agreement, the answer is ‘yes’ in the case of imported reactors since lifetime safeguards are written into Article 29’s reference to “termination of safeguards” being implemented “taking into account the provisions of GOV/1621.”
GOV/1621 was a document introduced by the IAEA in 1973 with two principal provisions. The first has to do with continuation of safeguards on safeguardable material, the duration of which it extends to the time such material needs to be safeguarded. The second aspect is termination. The Hyde Act introduced the reference to this document in order to define the perpetuity safeguards that India had agreed to in March 2006 in such a way as to prevent India from removing imported facilities from IAEA supervision. However, non-supplied facilities — that is, those that India indigenously manufactures and voluntarily offers for safeguards — will be subjected to safeguards only as long as they use imported fuel. In other words, India does not even need to invoke its separate right to corrective measures; the protection here is in-built. This provision provides a major incentive for the international community to ensure continuity of fuel supplies for these reactors.
The problem of ensuring operating continuity for imported reactors in case of a supplier reneging on a commitment remains. In principle, India may invoke its right to take corrective measures but any “retaliatory” step can at best serve as a pressure tactic; it cannot provide fuel where none exists. With the ghost of Tarapur always fresh in its mind, India in recent years has sought to protect itself from this possibility in various ways. The Kudankulam safeguards agreement covering imported VVER reactors from Russia, for example, provides for lifetime fuel supply under a sovereign guarantee of the Russian Federation. The safeguards agreement goes one step further by establishing a template wherein fuel supply guarantees are an essential part of any transfer to India of safeguarded reactors with the added layer of protection provided by the corrective measures envisaged in the preamble. Suppliers who are not able to provide such a guarantee or deal with the possibility of India invoking its right to corrective measures will find the country unwilling to buy their wares.
In any event, the safeguards agreement provides for India to report to the IAEA without delay “any disruption of operation of [safeguarded] facilities on account of material violation or breach of bilateral or multilateral arrangements to which India is a party” (Art. 52 (c)). Articles 105 and 106 allow India to raise these violations directly with the IAEA Board. This is clearly a reference to the eventuality — mentioned in Article 14 of the U.S.-India 123 Agreement — on ‘termination and cessation of cooperation’ by the United States. Some critics in India had noted the absence of a reference to the supremacy of international law in the 123 agreement in the event of unilateral termination of supplies by the U.S. A fix has been attempted in the Safeguards Agreement in Article 10 — a provision not found in standard safeguards agreements for NNWSs — when it states, “Nothing in this Agreement shall affect other rights and obligations of India under international law.”
The safeguards agreement represents an attempt to tie down the political commitments of July 2005 and March 2006 into a legal framework in which India has clearly defined rights. Some of these rights are explicit, others are implicit. But as with any legal regime, implementation of the agreement in a manner consistent with India’s expectations and interests will depend on a range of political factors, including both the attitude of the international community and the willingness of future governments in India to assert the country’s rights when the chips are down.