Nonproliferation Benefits of India Deal Remain Elusive

June 2015

By John Carlson

In 2005 the Bush administration decided to normalize India’s participation in international nuclear cooperation. In a joint statement with Indian Prime Minister Manmohan Singh, President George W. Bush announced that he would work to achieve full civil nuclear energy cooperation with India.[1] Singh affirmed that India was “ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States,” and announced a number of nonproliferation and disarmament commitments.

In 2007, India and the United States concluded a nuclear cooperation agreement. The following year, at U.S. instigation, the Nuclear Suppliers Group (NSG) decided to exempt India from the group’s requirement for comprehensive International Atomic Energy Agency (IAEA) safeguards as a condition for nuclear supply. Ten countries have since signed nuclear cooperation agreements with India.[2]

As a result of the U.S. initiative, India is now receiving the benefits of the nuclear Nonproliferation Treaty (NPT) without assuming any of the NPT’s obligations, a situation widely seen as damaging the NPT. Today, as India seeks to join the NSG, it is timely to reflect whether India can be seen as sufficiently “like-minded” for its bid to gain consensus support.

Commitments Undertaken

A key objective for the 2005 U.S. initiative was to encourage India to meet international nuclear norms. If India really did intend to assume “the same responsibilities and practices…as other leading countries…such as the United States,” what might it be expected to do?

India could reasonably have been expected to assume the same obligations and responsibilities as NPT nuclear-weapon states. There is no justification for India to expect to receive more-favorable treatment than these states if it does not accept obligations that are at least as rigorous.[3] Under the NPT, the nuclear-weapon states have pledged to refrain from transferring nuclear weapons to other states or assisting others to acquire nuclear weapons, to require safeguards on nuclear transfers to non-nuclear-weapon states, and to pursue negotiations on cessation of the nuclear arms race and on nuclear and general disarmament.

In addition to these explicit obligations, the NPT contains implicit principles. For example, in the terms of their voluntary-offer safeguards agreements,[4] the nuclear-weapon states implicitly agree to separate their military and civilian nuclear programs. Another implicit obligation, applicable to all NPT states, is effective control of uranium-enrichment, spent fuel reprocessing, and other sensitive nuclear technologies, a commitment that for nuclear-weapon states arises from the NPT Article I prohibition on assisting others to acquire nuclear weapons. This responsibility encompasses acts of omission, such as inadequate control enabling unauthorized transfer of sensitive technology. Similarly, there is an implicit obligation on all NPT parties to maintain effective security for nuclear materials.

The nuclear-weapon states have incurred further obligations and responsibilities by signing the Comprehensive Test Ban Treaty (CTBT) and allowing the installation of CTBT monitoring stations, supporting the negotiation and conclusion of a fissile material cutoff treaty (FMCT), and placing all imported nuclear material under IAEA safeguards.

In the 2005 joint statement, India undertook to identify and separate civilian and military nuclear facilities and programs “in a phased manner,” voluntarily place civilian facilities under IAEA safeguards, conclude an additional protocol to its IAEA safeguards agreement with respect to civilian facilities, continue its unilateral moratorium on nuclear testing, work with the United States for the conclusion of a multilateral FMCT, refrain from transferring enrichment and reprocessing technologies to new states and support international efforts to limit their spread, and secure nuclear materials and technology through comprehensive export control legislation and through harmonization of and adherence to Missile Technology Control Regime (MTCR) and NSG guidelines.

The first three points were reiterated in the 2007 U.S.-Indian nuclear cooperation agreement.

Comparing Commitments

The commitments assumed by India are considerably less than those of the nuclear-weapon states. The analysis below compares the two sets of commitments point by point.

Not transferring nuclear weapons to other states or assisting others to acquire nuclear weapons. India’s commitments not to transfer enrichment and reprocessing technologies to states that do not have them, to establish comprehensive export control legislation, and to adhere to the NSG guidelines and MTCR regime are welcome, but only partially correspond to the obligations impose by NPT Article I. The effectiveness of India’s export control arrangements is not clear at this stage.

Pursuing negotiations on disarmament. India has given no commitment comparable to the one in NPT Article VI. In contrast to the nuclear-weapon states, India has avoided any legal obligation to engage in nuclear disarmament efforts. There is a limit to how far nuclear disarmament can proceed without India. India actually is working in the opposite direction, increasing its nuclear arsenal.

Separating military and civilian programs and accepting IAEA safeguards. India released its separation plan, as the document is known, in 2006.[5] Fourteen of the 22 power reactors that were in operation or under construction at that time have been or will be designated for IAEA safeguards, together with some associated facilities.[6] For the future, India reserves the right to decide which additional facilities, if any, it will place under safeguards.

In the case of foreign-supplied facilities, India is obliged by the suppliers to place these under safeguards. For indigenous facilities, which include enrichment facilities, fast breeder reactors, and other power reactors, the separation plan says India will take into account “the nature of the facility concerned, the activities undertaken in it, the national security significance of materials and the location of the facilities.”

Major parts of India’s civilian program remain outside IAEA safeguards and evidently will remain so in the future. The relationship among civilian safeguarded facilities,[7] civilian unsafeguarded facilities, and military facilities is opaque, especially in view of the provisions of the Indian-IAEA safeguards agreement. This agreement allows safeguarded material to be used in normally unsafeguarded facilities and in specified circumstances to produce unsafeguarded plutonium and allows unsafeguarded material to be used in safeguarded facilities. Such flexibility is particularly problematic given that, unlike the nuclear-weapon states, India continues to produce fissile material for weapons.

The scope of the nuclear-weapon states’ voluntary-offer safeguards agreements varies. The Chinese and Russian agreements designate certain facilities as eligible for safeguards, while the United Kingdom and the United States make all civilian facilities eligible for safeguards. France is in between; all facilities with material under bilateral safeguards obligations are designated for IAEA safeguards. In spite of their variations, however, these agreements are consistent in not allowing the use of safeguarded material in unsafeguarded facilities, or vice versa. Facilities either are designated for safeguards, or they are not.

As for India’s additional protocol, New Delhi has reneged on its commitment, made in the 2005 joint statement and the 2007 cooperation agreement, to apply this to its civilian facilities. India’s additional protocol is the most limited of all. The Chinese and Russian additional protocols apply at least to facilities involved in collaborative programs with non-nuclear-weapon states, while the UK and U.S. protocols apply to all the civilian facilities in those countries. India’s additional protocol, however, does not apply to any facilities. This blatant dishonoring of a specific commitment raises questions about India’s attitude toward commitments.

Safeguards in India have some positive aspects. For example, designation of a facility for safeguards is irreversible. In addition, India has placed a larger proportion of facilities under safeguards than China and Russia have, although nowhere near the examples of the UK and the United States, and the IAEA undertakes inspections at all safeguarded facilities. Nevertheless, the separation between military and civilian programs in India has a long way to go compared with the nuclear-weapon states.

Signing the CTBT and hosting CTBT monitoring stations. Signing the CTBT would be a major step in support of nuclear disarmament. The CTBT requires ratification by 44 specified countries before it can enter into force. Eight of those countries have not ratified the treaty: China, Egypt, Iran, Israel, and the United States, which have signed but not ratified the treaty, and India, North Korea, and Pakistan, which have not signed it.

U.S. ratification depends on gaining the necessary number of votes in the Senate, which the Obama administration is pursuing. The general expectation is that when the United States is able to ratify the treaty, China and most of the others will quickly follow. If India does not ratify the CTBT, however, China could use that as a reason not to do so. India’s position therefore is critical because signing the CTBT will build confidence in its intentions among the other holdouts.

A further negative factor is that late in the CTBT negotiations, India withdrew approval for the four monitoring stations planned for its territory.[8] The absence of these stations detracts from the ability of the CTBT monitoring system to provide effective coverage of a key part of the world—South Asia, China, Central Asia, and the Middle East. India has said it will maintain its unilateral test moratorium, but New Delhi’s refusal to allow these stations can be seen as casting doubt on its commitment to its test moratorium. India should show good faith by allowing the four monitoring stations to proceed and signing the CTBT.

Supporting an FMCT. The effort to achieve a global cutoff of fissile material production for nuclear weapons is another important area in which India could demonstrate its good intentions. Along with North Korea and Pakistan, India is one of only three countries still producing fissile material for nuclear weapons. It is not asking too much for India to seriously consider ceasing production of fissile material now as the nuclear-weapon states did many years ago.[9] Serious moves in this direction would have an immediate effect in reducing tensions with Pakistan. Indeed, India could show leadership by initiating negotiations with Pakistan on a bilateral fissile material cutoff agreement.

Placing all imported nuclear material under IAEA safeguards. Under its agreement with the IAEA, India accepts safeguards on imported nuclear material only if this is required by an arrangement to which India is a party, such as a bilateral nuclear cooperation agreement. Today, all established uranium suppliers are NPT parties obliged to require safeguards on all nuclear transfers to a nonparty. It is not known whether all countries supplying uranium to India are insisting on safeguards; if not, they are in violation of their NPT obligations. It would be regrettable if India were taking advantage of this. It would be a welcome gesture of good faith for India to place all imported nuclear material under IAEA safeguards.

Bilateral Agreements

A number of major suppliers—Australia, Canada, Japan, the United States, and the European Union—apply similar conditions for the supply of nuclear material and other goods. They require the recipient country to accept conditions covering areas such as peaceful assurances, application of IAEA safeguards, and consent rights for reprocessing, enrichment to levels above 20 percent uranium-235, and retransfers. The agreements include accounting and tracking requirements so that material and items subject to the agreements can be identified.

India has refused to allow suppliers to track nuclear material, maintaining that IAEA safeguards are sufficient. The IAEA, however, does not distinguish between materials of different origins. Without tracking, material covered by particular agreements cannot be readily identified, making it impossible to know if bilateral conditions are being met.

Because of India’s refusal to accept tracking, the administrative arrangement required for the 2007 U.S.-Indian nuclear agreement to go into effect still has not been concluded.[10] Following President Barack Obama’s visit to India in January, it seems that officials have finally found a practical solution. It appears that the United States would supply nuclear material only in the form of fuel assemblies for U.S.-supplied reactors. This material would stay in a self-contained U.S. bubble within the Indian fuel cycle. India would provide detailed reactor operational information to enable the United States to calculate plutonium production.

It is difficult to understand why India has been so obstinate on this issue. Once India adopts modern nuclear accounting, a step the IAEA is working to help it achieve, New Delhi could easily generate the information required under bilateral agreements in the same way as every other country with such agreements.

Conclusion

On the basis of the terms set by the 2005 joint statement—that India is ready to assume the same responsibilities and practices as other leading countries, such as the United States—lifting the barriers to nuclear cooperation with India cannot be considered a success. The disparity between the commitments assumed by the NPT nuclear-weapon states and those of India clearly shows the opportunity lost in failing to require more of India. As a result of that failure, India has achieved a privileged position, gaining the benefits of the NPT without any of the obligations.

This situation has been exacerbated by the willingness of some governments to compromise nuclear cooperation standards for short-term political gain. Far from assisting India’s integration into the global nuclear community, such compromises will make integration longer and more fraught. Lifting the restrictions on India was intended to bring India into the nonproliferation mainstream. Yet, India has shown limited interest in meeting international nuclear norms and is instead determined to go its own way. This will not be lost on governments considering whether India is sufficiently like-minded to join the NSG.

At a time when Russia and the United States have made very substantial cuts to their nuclear arsenals and the international community is calling for the other nuclear-armed countries to join in arms reductions, India is working in the opposite direction. Indians see access to imported nuclear material as freeing up indigenous material for their weapons program.[11] With its civilian and military programs closely linked, New Delhi is operating on a fuel cycle model that the nuclear-weapon states abandoned decades ago. Moreover, India is increasing production of fissile material, adding to regional tensions.

It is alarming that New Delhi has not articulated the limits of its nuclear ambitions. Indian leaders believe that their country’s principal adversary is not Pakistan, with which it has broad nuclear parity, but China. This suggests India could be considering increasing its nuclear arsenal by a factor of two or three or perhaps more.
It can be hoped that India’s role in international nuclear affairs will be more positive, but a transition from nuclear outlier to leader will require a major change in India’s attitude toward disarmament and regional security.

John Carlson is a counselor to the Nuclear Threat Initiative and nonresident fellow at the Lowy Institute in Sydney. He was director-general of the Australian Safeguards and Nonproliferation Office and chair of the International Atomic Energy Agency’s Standing Advisory Group on Safeguards Implementation. The views in this article are his own.

ENDNOTES

1. Office of the Press Secretary, The White House, “Joint Statement Between President George W. Bush and Prime Minister Manmohan Singh,” July 18, 2005.

2. In addition to the United States, the countries that have signed and brought into force an agreement with India are Argentina, Canada, France, Kazakhstan, Mongolia, Namibia, Russia, South Korea, and the United Kingdom. Australia has signed an agreement.

3. For more, see John Carlson, “Challenges and Opportunities for Extending NPT-Related Commitments to Non-NPT States,” Policy Brief, No. 15 (September 2014), http://www.a-pln.org/content/policy-brief-no-15-challenges-and-opportunities-extending-npt-related-commitments-non-npt.

4. Under their voluntary-offer safeguards agreements, nuclear-weapon states under the nuclear Nonproliferation Treaty can designate facilities that are eligible for International Atomic Energy Agency (IAEA) safeguards. The IAEA can select from these eligible facilities for conducting safeguards activities. In practice, for reasons of resource limitations, the IAEA conducts safeguards at only a limited number of facilities in nuclear-weapon states.

5. IAEA, “Communication Dated 25 July 2008 Received From the Permanent Mission of India Concerning a Document Entitled ‘Implementation of the India-United States Joint Statement of July 18, 2005: India’s Separation Plan,’” INFCIRC/731, July 25, 2008.

6. Of the 14 reactors designated for safeguards, six already were subject to safeguards because they were supplied by a foreign country. Thus, the net increase for safeguards is eight indigenous reactors.

7. In this context, the term “civilian safeguarded facilities” means the facilities that are listed in the annex to India’s IAEA safeguards agreement.

8. Ramesh Thakur and John Carlson, “How India Can Support the CTBT Before Signing,” Japan Times, April 8, 2015, http://www.japantimes.co.jp/opinion/2015/04/08/commentary/world-commentary/india-can-support-ctbt-signing.

9. France, Russia, the United Kingdom, and the United States have formally declared that they are not producing fissile material for nuclear weapons. China has not made such a declaration, but is believed to be following suit.

10. A further issue, outside the scope of this paper, is India’s nuclear liability laws.

11. See Akhilesh Pillalamarri, “India’s Nuclear-Weapons Program: 5 Things You Need to Know,” The National Interest, April 22, 2015, http://www.nationalinterest.org/feature/indias-nuclear-weapons-program-5-things-you-need-know-12697?page=show.