David Morrison / Labour & Trade Union Review – 2007-01-20 09:11:21
LONDON (January 8, 2007) — The week beginning 18 December 2006 witnessed another fine example of US double standards on nuclear weapons.
On Monday 18 December 2006, President Bush signed into law an Act paving the way for the lifting of sanctions against India, a nuclear-armed state that never signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), sanctions which have banned India from importing nuclear material and equipment for civil purposes for over 30 years, since its first nuclear test in 1974. India is not required to give up its nuclear weapons (or anything else) in order to get these sanctions lifted.
On Saturday 23 December 2006, at the instigation of the US, the Security Council imposed (albeit nugatory) sanctions on Iran for refusing to halt its uranium enrichment programme, a programme that is supposed to be its “inalienable right” as a signatory to the NPT. Iran has no nuclear weapons and the IAEA has found no evidence that its nuclear activities are for anything other than peaceful purposes.
A potential ally with nuclear weapons is rewarded in an attempt to make it a firm ally. A perceived enemy without nuclear weapons is punished.
Peaceful Atomic Energy Cooperation Act 2006
On 18 December 2006, President Bush signed into US law the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act 2006 , which had earlier been passed overwhelmingly by the US Congress. This Act paves the way for the reversal of the 30-year old US policy of banning the export of nuclear material and equipment to India, a policy that was prompted by India’s first nuclear weapons test in 1974.
Before the passage of this Act, US policy and law conformed to the international rules for the export of nuclear material and equipment, which are laid down in the Guidelines of the Nuclear Suppliers Group (NSG) of exporting states .
The formation of the NSG, which now has 45 members, was prompted by India’s use of fissile material, generated by reactors imported for civil purposes from the US and Canada, to create the nuclear weapon it tested in 1974. The objective of the NSG was to prevent this sort of thing recurring and its Guidelines are therefore a key instrument in countering the proliferation of nuclear weapons, as prescribed by the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT).
The Guidelines apply to the export of nuclear material and equipment to all states, whether or not they are signatories of the NPT, apart from the five states (China, France, Russia, the UK and the US) that are allowed to have nuclear weapons under the NPT. Nowadays, only a handful of states (notably, India, Israel and Pakistan) are not signatories to the NPT, but this was not the case when the NSG was established in the mid 70s.
“Full-scope” IAEA Safeguards
Since 1992, the Guidelines have required a receiving state to have “full-scope” IAEA safeguards, that is, to have an agreement with the IAEA to monitor all the nuclear facilities under its jurisdiction. All states that have signed the NPT as “non-nuclear-weapon” states should automatically satisfy the NSG Guidelines, since they are obliged to have “full-scope” IAEA safeguards under Article III of the NPT, which states :
“The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.”
Surprisingly, about 30 (out of the 183) “non-nuclear-weapon” signatories to the NPT, for instance, Saudi Arabia, don’t have comprehensive safeguards agreements with the IAEA in force .
But India opted not to sign the NPT and developed nuclear weapons, as did Israel and Pakistan. Since India was never a signatory to the NPT, it didn’t breach any international obligations by doing so. But, there was a price to pay.
With only a few exceptions, India’s nuclear facilities are not under IAEA safeguards and it has been very difficult for India to import nuclear material and equipment. After 1992, when the NSG Guidelines were tightened to require importing states to have “full-scope” IAEA safeguards, it became next to impossible.
US-India Nuclear Agreement
Understandably, India is very keen to get the international rules changed so that it has access to the world market in nuclear goods in order to develop its nuclear power programme. The US has agreed to facilitate India, in a transparent attempt to draw it into the US sphere of influence as a counterweight to China.
The US concluded a nuclear agreement with India in Washington on 18 July 2005. The key element in this agreement is that an exception be made for India in the international rules governing nuclear trade, so that unlike any other state in the world (apart from the five “official” nuclear states) India will be allowed to import nuclear material and equipment without having “full-scope” IAEA safeguards.
The Act, signed by President Bush on 18 December 2006, changes the US Atomic Energy Act of 1954 to make such an exception for India in US domestic legislation. But, the US is also seeking to persuade the NSG to amend its Guidelines to make an equivalent exception, so that all supplier states will be free to export nuclear material and equipment to India. In fact, the exception for India in the 2006 Act only comes into effect if the NSG makes such an amendment.
It should be emphasised that the US is not proposing that the exception for India be conditional upon its joining the NPT or restricting its nuclear weapons programme. As the Indian Government stated bluntly on 29 July 2005 , shortly after the original agreement was signed:
“The issue of India’s nuclear weapons or NPT has not been raised in our dialogue with the United States. Our dialogue is predicated on India maintaining its strategic [weapons] programme. Our nuclear deterrent cannot be [the] subject of negotiations with foreign governments and is strictly within our sovereign domain. India has rejected demands for joining the NPT as a non-nuclear weapon State.”
(The NPT is a most unusual treaty, in that there are two classes of signatory with very different rights and duties it: (i) “nuclear-weapon” states, which are allowed to keep their weapons, and (ii) “non-nuclear-weapon” states, which are not allowed to acquire nuclear weapons.
However, Article IX(3) of the treaty limits the states allowed to sign as a “nuclear-weapon” states to those that “manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967”, in other words, China, France, Russia, the UK and the US. India cannot sign the NPT as a “nuclear-weapon” state since it didn’t explode a nuclear device until 1974, so, if it were to join the NPT now, it would have to sign as a “non-nuclear-weapon” state, and give up its nuclear weapons in order to do so – which it is not going to do.)
The formal legal basis for the US to export nuclear material and equipment is an Agreement for Nuclear Cooperation under Section 123 of the 1954 Atomic Energy Act, popularly known as a 123 Agreement. Section 104(a) of the 2006 Act exempts such an Agreement with India, and India alone, from the requirement that it have “full-scope” IAEA safeguards. Section 104(b) of the 2006 Act specifies a number of other hurdles (see below) that have to be overcome before such an Agreement with India can be concluded.
Under the 2006 Act, Congress retains considerable control over nuclear exports to India. Thus, Section 104(e) requires that a 123 Agreement made by the President with India has to be approved by a joint resolution of the two Houses of Congress (unlike Agreements with other states). Section 104(f) allows Congress to terminate an Agreement by a joint resolution of the two Houses of Congress. (By Section 106, an Agreement will automatically terminate if India explodes a nuclear device).
The first three hurdles in Section 104(b) are concerned with India’s arrangements with the IAEA. Under the original US-India agreement, India was required to separate its nuclear facilities into “civilian” and “military” and put those deemed “civilian” under IAEA safeguards (and to sign up to an Additional Protocol with IAEA). In March 2006, when President Bush visited India, the US and India agreed such a separation plan (see my article The US-India nuclear agreement: A triumph for India ).
The application of “full-scope” IAEA safeguards in a “non-nuclear-weapon” state, as required by the NPT, has the well-defined purpose of ensuring that the state doesn’t develop nuclear weapons, or help any other state to do so, in other words, it’s an anti-proliferation measure. But, the purpose of “partial-scope” IAEA safeguards in states like India that already possess nuclear weapons is not obvious. Manifestly, it cannot be to prevent the state developing an indigenous nuclear weapons capability, since one already exists. Nor can it play any role in monitoring, let alone restraining, nuclear weapons production – since oversight of military facilities is always outside the scope of such safeguards. As an anti-proliferation measure, it is useless, since, if the state decides to assist another in developing nuclear weapons, it will do so from facilities that are not subject to IAEA safeguards.
“Partial-scope” IAEA Safeguards
What then is the purpose of requiring India to have “partial-scope” IAEA safeguards, since it is clearly not an anti-proliferation measure? The answer is to ensure that imported nuclear material and equipment isn’t used directly for weapons purposes, for instance, imported reactors could be a source of fissile material for India’s weapons programme (which was how the programme got started in the first place). If that happened, “nuclear-weapon” states would be in breach of their obligations under Article I of the NPT, which states:
“Each nuclear-weapon State Party to the Treaty undertakes … not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices … .”
(In this context, India is a “non-nuclear-weapon” state, since it’s not one of the five defined by the NPT to be a “nuclear-weapon” states).
So, if the deal goes through, reactors supplied and/or fuelled from abroad will be deemed “civilian”, and therefore be subject to IAEA inspection, to ensure that India doesn’t get fissile material for its weapons programme from them.
However, India has made it perfectly plain that it will retain the sole right to decide the designation of existing and future facilities built without foreign input, and the designation of such facilities will be guided by the needs of its weapons programme. As Prime Minister Manmohan Singh said in his report to the Lok Sabha on 7 March 2006 :
“… the separation plan will not adversely effect our strategic [ie military] programme. There will be no capping of our strategic programme, and the separation plan ensures adequacy of fissile material and other inputs to meet the current and future requirements of our strategic programme, based on our assessment of the threat scenarios. No constraint has been placed on our right to construct new facilities for strategic purposes.”
So, it may be that the proposed IAEA safeguards for India will ensure that nuclear material and equipment imported by India, and any nuclear material generated by imported equipment, is not used for weapons production. However, if India is able to import nuclear material for civilian purposes, then indigenous material, which would otherwise have to be used for civilian purposes, will be available for weapons production.
The prime example of this is uranium, of which India has a limited supply. So, “nuclear-weapon” states that supply India with nuclear material and equipment will arguably be in breach of their Article I duty “not in any way to assist” India with its weapons programmes, even if the imports are used for civilian purposes only.
One thing is certain: India’s nuclear weapons programme will not be restrained one whit by IAEA safeguards on those nuclear facilities that India’s deems “civilian”.
Section 104(b) of the 2006 Act does not require these arrangements between India and the IAEA to be in place before a formal Section 123 agreement can be concluded, merely that:
“India has provided the United States and the IAEA with a credible plan to separate civil and military nuclear facilities, materials, and programs, and has filed a declaration regarding its civil facilities and materials with the IAEA.” (Section 104(b)(1))
Nor does the 2006 Act require an Additional Protocol between India and the IAEA to be in place, merely that:
“India and the IAEA are making substantial progress toward concluding an Additional Protocol consistent with IAEA principles, practices, and policies that would apply to India’s civil nuclear program.” (Section 104(b)(3))
Amending the NSG Guidelines
However, the 2006 Act does require that, before a 123 Agreement can be concluded, “the NSG has decided by consensus to permit supply to India of nuclear items covered by the guidelines of the NSG” (Section 104(b)(7)).
As the above implies, the NSG is a body that operates by consensus, and theoretically the opposition of just one of its 45 member states would be sufficient to prevent a change in its Guidelines to give India the unique privilege of being permitted to import nuclear material and equipment without having “full-scope” IAEA safeguards.
Most likely, however, none of the 45 members of the NSG (with the possible exception of China -see below) will hold out against the US. They are, to a greater or lesser extent, suppliers of nuclear material and equipment, so they have a commercial interest in seeing the market for their goods expanded to include India. France and Russia, which are major suppliers of nuclear material and equipment, have publicly expressed enthusiasm for the US proposal.
And the US administration has claimed from the outset that Britain is onside (see, for example ) but, to the best of my knowledge, the British government has yet to inform Parliament of our support for granting India this unique privilege.
The interests of NSG members are not the same as the other 150 or so NPT signatories, many of whom will not be pleased to see India, which stayed outside the NPT in order to develop nuclear weapons, being given this unique privilege. But, as things stand, if the NSG supplier states unanimously agree to change the rules so that they can do business with India, then the rules will be changed – and there is nothing other NPT members as a body can do about it.
The NSG makes its decisions at annual plenary meetings. The last one took place in Brasilia on 1-2 June 2006, where the US-India deal was discussed. A statement issued afterwards said:
“Participating Governments continued to examine the issues raised by the US-India Joint Statement of July 2005. They discussed, in this context, a possible NSG-India relationship regarding civilian nuclear co-operation. They decided to continue their consultations and agreed to return to this matter at the next regular Consultative Group meeting, when further information might be available.”
According to Wade Boese, writing in the July/August edition of Arms Control Today , the meeting declined a US request to include a more positive reference to the US-India deal. Boese singles out Sweden and Ireland as strong critics of the proposal, but says that most members haven’t committed themselves.
One possible fly in the ointment for the US is China, which has an interest in Pakistan also being able to import nuclear material and equipment. Like India, Pakistan is precluded from doing so under the existing NSG Guidelines, because it doesn’t have “full-scope” IAEA safeguards.
China has ongoing nuclear projects with Pakistan, projects which started before China joined the NSG in 2004 and which under NSG rules it is allowed to complete. However, after that, it will be banned from engaging in nuclear exports to Pakistan – unless the NSG rules are changed. Because of this, according to Boese, at the NSG meeting last June:
“China, for the first time, declared it would prefer establishing a criteria-based approach for determining whether countries not meeting the 1992 [“full-scope” IAEA safeguards] condition should be allowed to engage in nuclear trade, rather than singling out India for special exemption.”
In other words, China wants a change in the rules, so that Pakistan, as well as India, can engage in nuclear trade, if they meet certain defined criteria. The latter might be the separation of nuclear facilities into “civilian” and “military”, with the former being put under IAEA safeguards, as the US is requiring India to do.
If China insists, it can stop the US-India nuclear deal in its tracks, unless Pakistan is accorded the same privilege as India. The latter would cause problems for the US administration, which has made it clear to Congress that India is a special case, with no record of supplying nuclear weapons technology to other states, unlike Pakistan (see, for example, Robert Joseph of the State Department in evidence to the House International Relations Committee on 8 September 2005 ).
So, if China were to force the US to choose between both India and Pakistan, or neither, being allowed to engage in nuclear trade, it might have to choose neither – and the US-India nuclear deal would run into the sand.
A Safer World?
When he signed the United States-India Peaceful Atomic Energy Cooperation Act 2006 on 18 December 2006, President Bush declared :
“… the bill will help keep America safe by paving the way for India to join the global effort to stop the spread of nuclear weapons. India has conducted its civilian nuclear energy program in a safe and responsible way for decades.
“Now, in return for access to American technology, India has agreed to open its civilian nuclear power program to international inspection. This is an important achievement for the whole world. After 30 years outside the system, India will now operate its civilian nuclear energy program under internationally accepted guidelines — and the world is going to be safer as a result.”
This is a piece of self-contradictory gibberish. Is India not already committed to “the global effort to stop the spread of nuclear weapons”, outside India, at least? And, if not, how will the US-India nuclear deal encourage it to “join”? As for India’s civilian nuclear programme, if it has been conducted “in a safe and responsible way for decades”, what difference will subjecting it to IAEA inspection make?
And, why is “the world is going to be safer as a result”, particularly when its military facilities will not be subject to IAEA inspection? If India did choose to help another state develop nuclear weapons, then it would obviously do so with material and equipment from its military facilities that will not be subject to IAEA inspection.
This Presidential gibberish is a futile attempt to demonstrate that the proliferation of nuclear weapons will be deterred by giving a unique privilege to a state that has stood outside the NPT and developed nuclear weapons.
In reality, it is an encouragement to states to leave the NPT and develop nuclear weapons as India has done (and, if possible, contrive to become an object of Washington’s heart’s desire). Hence, the Presidential gibberish about making the world a safer place.
ElBaradei Backs Bush
But, it is somewhat surprising to hear Dr Mohamed ElBaradei, the Director General of the IAEA, the body charged with preventing nuclear proliferation, spouting similar gibberish in support of the US-India agreement. On 20 July 2005, two days after the agreement was signed he issued a press statement, which began :
“IAEA Director General, Mohamed ElBaradei has welcomed the US-India agreement to embark on full civil nuclear energy cooperation and to work to enhance nuclear non-proliferation and security.”
It sounds like the President, doesn’t it? He went on to describe the deal as “out of the box thinking”. His statement concluded:
“Dr. ElBaradei said that India’s intention to identify and place all its civilian nuclear facilities under IAEA safeguards and sign and adhere to an Additional Protocol with respect to civilian nuclear facilities is a welcome development. ‘I have always advocated concrete and practical steps towards the universal application of IAEA safeguards’, Dr. ElBaradei said.”
But, inspecting nuclear facilities that are never going to be used as a source for nuclear proliferation – because other facilities not subject to inspection are available – is simply a waste of IAEA resources. And, it is difficult to believe that ElBaradei doesn’t know this.
(On 30 May 2006, he gave a wide-ranging interview at the Monterey Institute for International Studies in California , in which he was questioned at length about his support for the deal. His response was an incoherent restatement of the US position.)
In the past, ElBaradei was not well regarded by this US administration. Prior to the US invasion of Iraq, he maintained an unwelcome (and wholly justified) scepticism about Iraq’s nuclear weapons programme, and his refusal to conclude that Iran has a nuclear weapons programme has not been to the administration’s taste either. As a result, it was widely believed that US opposition would prevent him being reappointed for a third 4-year term, when his second expired at the end of 2005.
Could it be that his enthusiasm for the US-India deal was motivated by a desire to get into Washington’s good books? He was reappointed for a third term in September 2005.
Congruent Foreign Policy
Section 102 of 2006 Act is entitled SENSE OF CONGRESS. It has no legal effect, but sets out the Congress’s reasoning for passing the Act. Specifically, it attempts to reconcile what it states to be a critical US foreign policy objective of nuclear non-proliferation — and the central role of the NPT in achieving that objective — with conferring a unique privilege on a state that has refused to sign the NPT and has developed nuclear weapons. The key reasoning is set out in Section 102(6) which says:
“it is in the interest of the United States to enter into an agreement for nuclear cooperation … with a country that has never been a State Party to the NPT if— …
the country … has a foreign policy that is congruent to that of the United States, and is working with the United States on key foreign policy initiatives related to nonproliferation; …
such cooperation will induce the country to give greater political and material support to the achievement of United States global and regional nonproliferation objectives, especially with respect to dissuading, isolating, and, if necessary, sanctioning and containing states that sponsor terrorism and terrorist groups that are seeking to acquire a nuclear weapons capability or other weapons of mass destruction capability and the means to deliver such weapons; …”
Surprise, surprise, having a foreign policy in line with that of the US is a sine qua non of special treatment for states outside the NPT.
Section 103 of the 2006 Act sets out the Congress’s view of what US policy should be in this area. One element of it is to:
“Secure India’s full and active participation in United States efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel, and the means to deliver weapons of mass destruction.” (Section 103(4))
However, India’s support for the US over Iran, or any other issue, is not an explicit condition in the Act for the US-India deal going forward. However, if India persistently failed to back, or opposed, US foreign policy over Iran or other issues, then it is conceivable that Congress would terminate any 123 Agreement – which means that Indian foreign policy will be constrained to a degree.
(President Bush made it clear in his formal signing statement  that approving the Act did not mean acceptance of Section 103 as foreign policy “given the Constitution’s commitment to the presidency of the authority to conduct the Nation’s foreign affairs”.)
India Shifted Ground?
Has India shifted ground on foreign policy as a consequence of the deal? In one specific instance YES — by voting for the IAEA Board resolution of 6 February 2006 that reported Iran to the Security Council. That action was contrary to India’s traditional position of sticking up for the rights of small nations under the NPT. But, had India not supported the US on this issue, the Congress would probably not have passed the 2006 Act – and the deal would have been aborted.
It remains to be seen if India makes other foreign policy adjustments. The US may be disappointed.
On 31 July 2006, having remained silent for three weeks about Israel’s ongoing assault on Lebanon, the Security Council declared Iran, not Israel, a threat to the peace of the world and passed a Chapter VII resolution against it. The resolution (number 1696) demanded that :
“Iran shall suspend all enrichment-related and reprocessing activities, including research and development” (Paragraph 2)
activities that are supposed to be Iran’s “inalienable right” as a signatory to the NPT, as long as they are for peaceful purposes. The IAEA has not found otherwise.
Resolution 1696 also threatened economic sanctions against Iran if it failed to suspend these activities by 31 August 2006 and expressed the Security Council’s intention:
“in the event that Iran has not by that date complied with this resolution, then to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with this resolution and the requirements of the IAEA” (Paragraph 8).
The deadline came and went, without Iran suspending enrichment and related activity. It was nearly four months after the deadline passed before the Security Council adopted “measures under Article 41” by passing resolution 1737  on 23 December 2006.
The intervening months were taken up with the US/EU pressing for a meaningful sanctions resolution, and Russia and China resisting. The US/EU have continually trumpeted the international consensus on this issue and the successful “isolation” of Iran as a result, so they were reluctant to see the consensus at the Security Council broken.
Like ships in a convoy that have to go at the speed of the slowest, they have had little choice but to settle for the nugatory sanctions that Russia and China have been prepared to put their name to.
The sanctions contained in resolution 1737 don’t amount to a hill of beans. The resolution merely bans the supply of specified materials and technology that could contribute to Iran’s nuclear and missile programmes and imposes an asset freeze on named companies and individuals allegedly involved in Iran’s nuclear and missile programs. If, as expected, Iran fails to suspend uranium enrichment within 60 days, the resolution threatens further sanctions.
 pmindia.nic.in/pressrel.htm (29 July 2005)
 pmindia.nic.in/speeches.htm (7 March 2006)