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IAEA agreement is final, but wait for Additional Protocol

By Sheela Bhatt in New Delhi
May 09, 2008 20:59 IST
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On May 7, Prime Minister Manmohan Singh once again reiterated that he was hopeful about the India-US nuclear agreement being sealed. Obviously, it's difficult to not take his views seriously.

Silencing media speculation that the deal was dead, Dr Singh said, ' am hopeful so long as we are discussing it.'

The prime minister's hope must have been because the final draft of the safeguards agreement between India and the International Atomic Energy Agency had arrived.

The political posturing by Dr Singh could be because the United Progressive Alliance government believes that India has bargained successfully at the IAEA. has collected from various sources reliable information on what has been India's gains and losses at the IAEA. None of the sources are ready to speak on record.

The agreement, which is still not made public, is finalised but not yet 'operationalised' by the government due to severe opposition from the Left parties. It is a 20-page plus document with a long preamble that explains the circumstances under which these negotiations were held after the Indo-US civil nuclear co-operation was signed in 2005.

1. According to information available, in the final drafts between India and the IAEA, India is accorded special status but is unlikely to be recognised clearly as a Nuclear Weapons State. India is expected to get 'a special status of Non-Nuclear Weapons State who is not signatory to the NPT'.

So, in effect, India is not one among the NWS -- the P5, as they are called -- but it will be five plus one. India is above Pakistan and North Korea, obviously, but surely not equal to the five declared nuclear powers.

2. Also, it is believed that the agreement with the IAEA will indirectly help India to exit in case of disruptions in supply of fuel to its civil nuclear energy establishments kept under safeguards, and take legal recourse. There will be a legal option available to come out of the safeguards.

3. The IAEA wants the issue of guarantee of assured fuel supplies to be dealt between the seller and buyer of fuel. India, the buyer country, will have to tackle it directly with the countries supplying fuel for producing civil nuclear energy.

4. Also, the inter-changeability of nuclear establishments kept under civil head and strategic head, available to countries like China, is not expected to be given to India.

The IAEA has safeguard agreements with some 140 nations which allow the Agency's inspectors to oversee nuclear and related facilities. These strict agreements protect the world against nuclear proliferation.

Before the current discussion with the IAEA started, India had discussed such a safeguards agreement with the IAEA in and around 1993.

The latest and highly controversial discussion with the IAEA was conducted by Dr R B Grover, director, Strategic Planning Group at the Department of Atomic Energy, and his team. Dr Grover is a mechanical engineer of repute.

He has, with the help of his DAE colleagues and a team of Indian diplomats, clinched a very complex agreement which will bind India in the coming generations.

Dr Singh's positivism is because of his deep political conviction that this deal is good for India, but there are many hurdles at every step ahead including at the IAEA. Also, one cannot forget that the critics of the deal within India, like the Left and the Bharatiya Janata Party, will not be satisfied with the favourable conditions of the India-specific safeguards agreement because they are more worried about the implications of the Hyde Act and the additional protocols agreement which the Singh government has not yet brokered with the IAEA.

That raises the question: Is the prime minister's hope realistic?

In the unlikely circumstances of the Left agreeing to give a green signal to move the India-specific agreement to the IAEA board for ratification, it will be a hard task to manage a 'clean exemption' from the IAEA board of governors and, later, from the Nuclear Suppliers Group.

The official position is that the Left-UPA meeting on May 6 on the nuclear deal failed to make any advance, and the two sides decided to meet again on May 28. The Left parties are saying they would meet on May 23 to decide on whether or not to allow the IAEA safeguards agreement.

Media reports claim that the Left parties want clarifications on guaranteed uninterrupted fuel supplies, full civil nuclear cooperation, the issue of reciprocity and implications of America's domestic Hyde Act on India's foreign and security policies.

Nuclear deal a problem of politics: Dr Kakodkar

This means that the Left parties have not moved an inch towards agreeing with the government's point of view even after eight meetings and after taking so much time. But, then, it may not be the correct conclusion because it is worth noting that the Left parties have not walked out of the meeting or stopped talking to the government. If the deal with the IAEA was not worthy of deliberations, they would have walked out and would have pulled the shutters down.

Also, it is strange to observe that at least officially speaking, the much-awaited final text of the safeguards agreement which India is stated to have concluded with the IAEA has been a no-show at the May 6 meeting of the Joint Committee with the Left parties. It is paradoxical that even those members who are most crucial in the decision-making process, leave alone the public, are denied access to scrutinise the full text while many in the international community, particularly those from the NSG countries, must be scanning it with a microscope!

The safeguards agreements being highly loaded legal documents couched in language usually subject to various interpretations, require careful scrutiny. Serious decisions based on excerpts could be misleading. So what kind of discussions will the Left parties do without the actual text?

One important aspect not focused in the ongoing debate so far as the India-specific safeguards negotiations with the IAEA is concerned, is the need for arriving at a satisfactory additional protocol to the safeguards agreement.

The Opposition to the deal is unlikely to go because the two (India-specific agreements and the additional protocol) are inseparable, and in fact the additional protocol spells out in specific terms and in detail the extent of intrusiveness with which the safeguards measures will be implemented. In short, while the basic safeguards agreement deals with broad parameters and the legalities, the additional protocol lists the stringent inspection measures as well as the contentious issues which can touch upon national pride.

The two are complementary. Hence, the critics of the deal argue, it is very essential to understand that even if the safeguards agreement is satisfactorily negotiated, the job is not fully done until the additional protocol is also complete and meets India's interests, in order to avoid future problems. The critics have already argued many times that if taken up later, it could likely be exposed to extraneous stringent provisions being introduced when the focus is off, conceding all the leverage away. In fact, in practice, the additional protocol is more difficult to deal with, even for countries like Japan.

Neither External Affairs Minister Pranab Mukherjee nor the Left parties, or the BJP for that matter, have spoken much on the issue of additional protocol publicly.

The text of the safeguards agreement is expected to address issues such as corrective measures and exercise of right of return (fuel or equipment) by suppliers in case of disruption of supplies or cessation of cooperation due to any of the reasons mentioned in the Hyde Act, as well as how assurances of uranium supply will be tied to safeguards in perpetuity.

Although India is a de facto nuclear power, since it has no formal recognition as a weapons state the safeguards arrangement, particularly the additional protocol as and when negotiated, may include safeguards provisions as applicable to non-weapon states.

For example, Nuclear Weapon States enjoy the freedom of switching and choosing nuclear facilities and materials for inclusion in the civil or military category at will, which is denied to India and expected to be denied to India.

According to information available, India is allowed to keep the certain portion of activity out of the IAEA's purview.

Lack of consensus is major handicap: NSA

America's precondition is that India may get uranium from foreign countries to produce nuclear energy. To make that possible India needs to separate and place under IAEA safeguards its civil nuclear energy programme as distinct from weapons production units. This is the strategy to get India into the mainstream of nuclear non-proliferation regime.

Also, a significant privilege that P5 enjoys is not given to India in this unique and trend-setting agreement. The United States has certain unique rights in the name of its 'national security interest' in the agreement with the IAEA while China has the right to not put its own programme under additional protocols.

India has already agreed to put under safeguards its own internally developed civil nuclear energy programme (Kakrapar, Rajasthan etc) in this agreement which is irreversible unlike in the case of nuclear weapon states like China.

Critics of the deal think the nuclear deal in its present form is anchored on the Hyde Act which has been promulgated exclusively to 'fix' India. In short, the Left parties will continue opposing the deal even if India has got the best terms from the IAEA. The issue is the 123 Agreement and its linkages to the Hyde Act.

The joint UPA-Left committee has not moved an inch on resolving this contentious issue. Innumerable time assurances and spins have been given both by India and the US to the effect that the Hyde Act is not binding as it is only an enabling document for cooperation and only the 123 Agreement matters.

None of the parties opposing the deal has accepted this.

Rather, critics never fail to cite the glaring precedent with the Tarapur power plant. The 1963 bilateral 123 agreement was unilaterally abrogated by the US after India's nuclear test in May 1974 and a new Act called the Nuclear Non-proliferation Act passed in 1978 was made applicable.

Critics of the deal will not be satisfied with the safeguards agreement because they are more worried about the implications of the Hyde Act and the additional protocols agreement which the Singh government has not yet brokered with the IAEA.

In view of the above arguments, one wonders what makes Dr Singh so hopeful of the deal going through.

BJP MPs in Parliament say if the Congress does well in the Karnataka assembly election the government will go ahead with the nuclear deal and a consequent early general election since the Left will pull the government down.

Now, to link the highly complex matter of international affairs of nuclear proliferation and India's foreign policy to a state election is like anti-climax for India which wants to become a superpower in the coming decades.

Will the hopeful Dr Singh be spared of despair after the Karnataka election results are announced?

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Sheela Bhatt in New Delhi