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"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."
– Senator Joe Biden
January 28, 2004
India

Indian Politics Stall U.S.-Indian Nuclear Deal

Wade Boese

Domestic political opposition has compelled India’s government to put off required negotiations with the world’s nuclear monitoring agency, miring in doubt a U.S.-Indian initiative to peel back U.S. and multilateral civil nuclear trade restrictions on India. The two governments maintain they remain committed to the effort.

The U.S.-Indian initiative has fueled impassioned debate in India, but the ruling government has stood by the July 2005 deal it struck and had confidently maintained it would see the agreement through to completion. On Oct. 15, however, a government press release stated that Prime Minister Manmohan Singh had informed President George W. Bush in a telephone conversation that “certain difficulties have arisen with respect to the operationalisation of the India-U.S. civil nuclear cooperation agreement.”

Those difficulties stem from rigid opposition to the initiative by India’s Communist parties and its leftist allies, whose support Singh’s Congress Party relies on to help preserve its ruling coalition. Fervently anti-American, the Communist parties and their allies charge the initiative will render India subservient to the United States, particularly in foreign policy. They imply their support for the coalition government will end if it moves any further to bring the deal into effect. Such a revolt would risk national elections that might unseat the coalition.

The Congress Party has convened several meetings, the latest on Oct. 22, to sway the Communists and other leftists to modify their position, but to no avail. Another meeting is scheduled for Nov. 16.

After blasting the dissenters as foes to India’s development, the Congress Party recently softened its tone and appears increasingly resigned to the possibility that the initiative may whither away. Indian media reports widely quoted Singh as saying Oct. 12 that the initiative’s failure “would be a disappointment, but in life one has to live with certain disappointments.”

The Bharatiya Janata Party (BJP), the Hindu nationalist party that is the main opposition party, also has kept up a steady drumbeat of criticism against the initiative. The BJP claims the agreement will impinge on India’s nuclear weapons program.

In an Oct. 13 BJP statement, L.K. Advani argued that, under the initiative, “there would be no Pokhrans,” referring to the test site of India’s nuclear blasts in 1974 and 1998. In power at the time, the BJP authorized the 1998 tests, which spurred Pakistan for the first time to demonstrate its nuclear capability by carrying out nuclear explosions. (See ACT, May 1998. )

India is one of three countries, Israel and Pakistan being the other two, never to have signed the 1968 nuclear Nonproliferation Treaty (NPT), which recognizes only five states (China, France, Russia, the United Kingdom, and the United States) as possessing nuclear arms. The treaty obligates those five to work toward nuclear disarmament.

All of the NPT’s other states-parties forswear nuclear weapons. In return, they gain access to civil nuclear trade. The U.S.-Indian initiative would grant nuclear-armed India similar trade opportunities, which New Delhi claims are necessary to bolster India’s energy production and sustain its economic growth.

The BJP insinuates that the initiative is intended to pressure India toward nuclear abolition. Advani charged that Singh’s government is “jeopardizing India’s national security in the name of illusory energy security” and “assisting the United States to bring India into the NPT regime through the backdoor.”

The United States had led the world in erecting and upholding barriers to India’s participation in the global nuclear fuel and technology market because the device used in India’s 1974 explosion originated in part from Canadian and U.S. exports designated for peaceful purposes. Aiming to draw India closer to the United States, however, the Bush administration turned to ending India’s nuclear isolation.

U.S. lawmakers gave their preliminary approval, albeit with some conditions, to the administration’s new approach last December. (See ACT, January/February 2007. ) In July, the United States and India concluded an agreement specifying the terms of their potential future nuclear trade. The pact is known as a 123 agreement, after the section of the 1954 U.S. Atomic Energy Act requiring such instruments. (See ACT, September 2007. )

The next step in the process involves India concluding a safeguards agreement with the International Atomic Energy Agency (IAEA) to cover nuclear facilities and materials that India declares as civilian. Safeguards are measures, such as inspections and remote monitoring, to ensure that civil nuclear programs are not used to make nuclear weapons.

India intends to maintain a military sector for building nuclear bombs that will not be subject to IAEA safeguards. Of its 22 existing or under-construction power reactors, India says eight will be kept outside of safeguards.

New Delhi has declared it wants “India-specific” safeguards without publicly explaining what that concept entails. Indications are that India wants flexibility to suspend safeguards at certain times. The U.S.-Indian 123 agreement commits India to safeguards “in perpetuity,” but it also allows India to take unspecified “corrective measures” in case of any foreign supply disruptions.

The Communist and other leftist parties have said negotiations with the IAEA would trigger their break with Singh’s government. Without an Indian-IAEA safeguards agreement, the U.S.-Indian initiative cannot move forward. Both the voluntary 45-member Nuclear Suppliers Group (NSG) and U.S. legislators have made an Indian-IAEA safeguards agreement a prerequisite for exempting India from current nuclear trade prohibitions.

NSG members are scheduled to meet Nov. 14-16 in Vienna, and reportedly the U.S.-Indian initiative is on the agenda for discussion. The United States has circulated to certain states a draft proposal for exempting India from the group’s rule that bars most nuclear trade with countries without safeguards on their entire nuclear enterprise. Washington only has shared its proposal with those governments solidly supporting the effort. Several NSG members are critical or skeptical of the initiative.

A trio of U.S. House members, including the ranking Republican on the foreign affairs committee, introduced a nonbinding resolution Oct. 4 calling on the administration not to support an India exemption at the NSG that does not conform to U.S. law. For instance, they urged any NSG exemption duplicate a U.S. requirement that all cooperation end if India conducts another nuclear test. The resolution, which has been referred to the committee for consideration, states that an “unqualified [NSG] exemption for India” could undermine U.S. nonproliferation policy and commercial interests because India might seek out nuclear trade partners with “less stringent conditions” than the United States.

With the current political deadlock in India preventing negotiations on IAEA safeguards, no action is expected on the U.S.-Indian initiative at the Vienna meeting. Moreover, NSG decisions, which are supposed to be made by consensus, are typically reserved for an annual plenary meeting, the next of which is to be hosted by Germany in the spring. Group members, however, can hold extraordinary meetings for special purposes.

Meanwhile, U.S. legislators are waiting on the NSG to act and on completion of the safeguards agreement. Nicholas Burns, the undersecretary of state for political affairs who has served as the administration’s lead on the initiative, said earlier this year that he hoped the 123 agreement would be presented to Congress for a final vote before the end of this year.

In light of the current circumstances in India, the Bush administration has revised its timeline for potentially finalizing the initiative to 2008. Department of State spokesperson Tom Casey acknowledged to reporters Oct. 16 that “obviously, a number of things would have to occur for [the initiative] to be ultimately implemented, but it’s a long time between now and the end of 2008 and we’ll see where we are.”

LOOKING BACK: The Additional Protocol

Trevor Findlay

The theory of punctuated equilibrium posits that life on Earth has evolved not in constant, linear fashion but through long periods of stasis, interrupted by catastrophic events, such as meteor impacts, which suddenly push it in new, adaptive directions. Without stretching the metaphor too far, the evolution of nuclear safeguards can be viewed in this way. It has been characterized by long periods of continuity, interrupted by extraordinary events that have changed its nature and direction.

Notable among these events, welcome and disturbing alike, have been the advent of the 1968 nuclear Nonproliferation Treaty (NPT), the 1974 Indian nuclear test, and the 1991 discovery of Iraq’s violation of the NPT, along with the later cases of North Korea, Libya, and Iran. A significant adaptive outcome of the Iraq case was the strengthened safeguards system, of which the Model Additional Protocol, launched in 1997, is a major component. On the tenth anniversary of the Model Additional Protocol, this article reviews the evolution of nuclear safeguards that led up to it, assesses its achievements and failings, and speculates about the next likely punctuation in the evolution of nuclear safeguards.

Origins

The origins of the nuclear safeguards concept and perhaps the term itself may be found in the 1946 Acheson-Lilienthal report, which concluded that “a system of inspection imposed on an otherwise uncontrolled exploitation of atomic energy by national governments will not be an adequate safeguard” against the production of fissionable material for nuclear weapons.[1] After the Soviet Union rejected the 1946 Baruch Plan for the internationalization of all nuclear capabilities, the safeguards about which Acheson and Lilienthal had been so skeptical became the default concept. They were embodied in the statute of the International Atomic Energy Agency (IAEA), founded in 1957 as both facilitator of the spread of nuclear science and technology and its chief “safeguarder.”

The IAEA was mandated to “establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities and information…are not used in such a way as to further any military purpose.”[2] The agency could review the design of equipment and facilities, including reactors; require the maintenance of operating records for the use of nuclear material; and call for reports from states. Most extraordinarily, in terms of intrusiveness, the IAEA could conduct on-site inspections, giving it “access at all times to all places and data and to any person…as necessary to account for…materials” in order to determine compliance.[3]

In the early years, most IAEA safeguards resulted from the transfer of existing bilateral arrangements to the agency. Based on IAEA document INFCIRC/26, the safeguards applied only to materials and facilities transferred from one state to another, notably small reactors, and have been described as “technically amateurish.”[4] After the Soviet Union became convinced of the security benefits of containing nuclear proliferation, a more elaborate and intrusive model became possible, based on agency document INFCIRC/66/REV.2 of 1965. Some of these early agreements survive, notably those applied to select facilities in the three states still outside the global nonproliferation regime: India, Israel, and Pakistan.[5]

Enter the NPT: Comprehensive or Full-Scope Safeguards

The most dramatic punctuation of this early period was the negotiation and entry into force of the NPT. The treaty formalized a division of the world into nuclear-weapon states and non-nuclear-weapon states, along with the concept of a verifiable division between peaceful and nonpeaceful nuclear programs. The NPT imposed a legal obligation on its non-nuclear-weapon states-parties to place all of their nuclear activities under IAEA safeguards, hence the terms “full-scope” and “comprehensive.” Each state-party is obligated to negotiate a bilateral safeguards agreement with the IAEA based on frameworks and models encapsulated in IAEA document INFCIRC/153.

INFCIRC/153 remains the foundation of modern IAEA safeguards, used not just for the NPT but for nuclear-weapon-free zones, the first of which, established by the 1967 Treaty of Tlatelolco, preceded the NPT by a year. It envisaged the same methods and practices as INFCIRC/66,[6] notably nuclear materials accountancy and inspections, but introduced new concepts to improve effectiveness: subsidiary arrangements to tailor safeguards to each state and protect confidentiality; the focusing of safeguards on strategic points where verification might be most revealing; the use of instrumentation and nonhuman inspection techniques (today, increasingly, continuous real-time remote monitoring using video cameras); surveillance and containment as important complements to material accountancy; and a requirement that states establish state systems of accountancy and control. INFCIRC/153 also placed some limitations on the agency, regulating the designation and right of rejection of agency inspectors by states and setting out dispute resolution arrangements.

The detonation of a nuclear device in May 1974 by non-NPT party India was an unexpected punctuation for this new safeguards regime only four years after entry into force of the NPT. Although India had not violated its IAEA safeguards agreement because it did not have one, the test spotlighted the “peaceful nuclear explosion” loophole in safeguards language relating to “weapons purposes” and led to the establishment in 1975 of the Standing Advisory Group on Safeguards Implementation. That group has been charged with recommending technical improvements to safeguards ever since.

Thereafter, the safeguards system entered a period of equilibrium. The number of states-parties to the NPT increased to near universality, and apart from some relatively minor infractions discovered in the early 1980s, the IAEA was able to declare annually that it had no evidence of the diversion, by any non-nuclear-weapon state-party, of peaceful nuclear material or facilities to nonpeaceful purposes.

The Iraq Debacle and Response

The sharpest of punctuations to this equilibrium came with the revelation, after the 1991 Persian Gulf War, that Iraq had been clandestinely conducting a nuclear weapons program in parallel with its IAEA-inspected peaceful program. The IAEA’s failure to detect such activities, located in some cases just over the berm from where inspectors visited, produced widespread criticism of safeguards, both justified and unfair. It also provided a political window of opportunity for significant strengthening of the system.

The fundamental problem was that the IAEA could only monitor and inspect materials and facilities declared by states-parties. Determined proliferators could develop substantial undeclared nuclear capabilities undetected, either co-located with declared facilities or apart from them. Although a so-called special inspection, the equivalent of a challenge inspection in other disarmament regimes, could be requested, these were politically and practically difficult to launch. After the IAEA board, post-Iraq, reiterated its right to seek special inspections, it found itself peremptorily refused on its first attempt, in North Korea in 1993.

A further difficulty was the reliance on nuclear accountancy as the principal tool for detecting diversion and, in turn, the reliance on safeguards as the key tool in detecting noncompliance with the NPT. The agency lacked the full range of modern tools for such a verification challenge, although even states with satellite imagery and sophisticated intelligence services had missed Iraq’s illicit activities. Nonetheless, the agency demonstrated the continuing utility of safeguards in 1993 by detecting North Korea’s noncompliance with its new safeguards agreement by calculating, using materials accountancy, that declarations of its plutonium production were improbably low.

Together, the Iraq and North Korea crises, along with South Africa’s 1989 revelation that it had secretly produced a small nuclear arsenal,[7] although as a nonparty to the NPT, proved sufficiently punctuating to trigger relatively rapid, adaptive evolution of safeguards in a new direction.

Strengthened Safeguards, Including the Additional Protocol

Jolted by such wanton noncompliance cases, the IAEA board in 1993 mandated that the secretariat propose legal, technical, and financial means of strengthening safeguards. The recommendations resulted in a two-pronged program. Part one comprised measures the agency concluded it already had the legal authority to undertake and that could begin immediately. These included requests for additional information from states on their former and future nuclear facilities; increased use of unattended monitoring devices transmitting data direct to IAEA headquarters in Vienna; expanded use of short-notice and unannounced inspections at declared facilities; and the introduction of environmental sampling. In addition, the agency revolutionized its use of open-source information, including satellite imagery, which is increasingly cheaply available commercially, as well as accepting intelligence information from member states.

Part two involved states providing the agency with the legal authority for further measures by individually concluding a supplement to their comprehensive nuclear safeguards agreements. In May 1997, the board agreed on a Model Additional Protocol,[8] which expanded the verification responsibilities of the agency and each state-party. It increased transparency by extending states’ declaration, reporting, and site access obligations to encompass the range of nuclear fuel cycle activities from mining to the storage of nuclear waste. The protocol also requires states to report on nuclear equipment production, imports and exports, fuel cycle research and development, and future plans for facilities. Parties are required to provide an expanded declaration of their nuclear activities within 180 days of entry into force of their additional protocol.

The IAEA would now aim at a holistic, as opposed to a materials- and facilities-based, view of states’ nuclear activities. It would for the first time seek “credible assurance not only about declared nuclear material in a state but also about the absence of undeclared nuclear material and activities.”[9] Complementary access could be sought by inspectors to resolve ambiguities discerned at declared and undeclared sites.

The power of strengthened safeguards has been demonstrated by the revelation of previously undisclosed nuclear activities in Egypt, South Korea, and, more significantly, Iran. In the case of Iran, the extra information requirements and agency powers, including those under the additional protocol, have proved potent. (Iran has signed but not ratified an additional protocol, and has sent mixed signals about its willingness to comply.) Although Iranian opposition groups first revealed the deception, new safeguards measures have helped uncover the details of 20 years of dishonesty and provided a constant stream of leads for the IAEA to pursue through requests for further information and follow-up inspections. Environmental sampling has proved illuminating.

The new IAEA safeguards capabilities provide increased reassurance that such noncompliance in the future will be detected much earlier. Yet, limitations remain. A major challenge is that concluding an additional protocol is voluntary, making it likely that only states intent on complying will join without pressure, which has been applied in the cases of Libya and Iran. Although there have been calls for the IAEA board to make the protocol compulsory, there is little stomach for venturing so far at this stage. It will probably take another punctuation in the safeguards equilibrium for this to happen.

In the meantime, after a slow start the number of states with additional protocols is growing to the point where it is becoming the norm. As of September 2007, 84 states had such protocols in force. The real surprise is the number of NPT states-parties that have failed to comply with their legally binding obligation to have a comprehensive safeguards agreement in force. As of September 2007, they numbered 30, mostly African states. This partly explains why the adoption of the Model Additional Protocol has been so slow. Without a comprehensive agreement, there is nothing to which the protocol can be attached. Other countries, such as the United States, have a policy of not bringing the protocol into force until their domestic legislative and other mechanisms are in place. Indeed, states without such mechanisms in place risk missing their 180-day declaration deadline under the protocol, which some have. Political and legislative lethargy and a lack of awareness by states not represented in Vienna are added reasons for the slow adherence to the protocol, despite the IAEA’s valiant attempts through regional meetings and other outreach activities.

A further difficulty is that some of the additional powers that the IAEA acquires under the Model Additional Protocol are neutered in states that also have a Small Quantities Protocol (SQP). Introduced in 1971, such protocols hold in abeyance significant safeguards obligations, including declarations and inspections, when nuclear activities remain under a certain low threshold. Controversy over the SQPs arose when Saudi Arabia, a state with evident nuclear energy ambitions, sought one. In September 2005, the board directed the agency to begin renegotiating with SQP states to restore at least some of the IAEA’s powers based on a revised model. States with existing SQPs were invited to exchange letters with the IAEA to trigger implementation of the new model, while all future SQPs will be based on the new one. This would oblige states to submit a declaration on their nuclear holdings, however small, which in turn forces them to institute a national system of nuclear materials accounting and tracking. This should be especially useful in strengthening national measures to avoid theft and illicit transshipments of nuclear material.[10] The initiative is, however, again dependent on the goodwill of the states concerned and is proceeding slowly. Currently, 79 states have old SQPs in force; 13 have the new version in force with five others in process; and one has been rescinded.[11]

Finally, the Model Additional Protocol still leaves the IAEA a long way from the anytime, anywhere verification envisaged in its statute. Complementary access requires at least 24 hours’ notice. If inspectors are already at the site in question, they must give two hours’ advance notice. A demand for a special inspection remains an extraordinary, highly politicized option. There is still a possibility that undeclared facilities could go undetected. A state bent on noncompliance will take active measures to conceal its activities, including disinformation and delaying tactics of the type that Iran has deployed.

Nonetheless, the strengthened safeguards system increases the costs and risks for a potential proliferator. It has also to some extent liberated the IAEA from its past timidity, both mandated and self-imposed, and certainly emboldened current Director-General Mohamed ElBaradei in examining the entire range of signals of a proliferator’s intentions. It is notable, for instance, that the agency has concerned itself with evidence of the links between Iran’s military and its alleged peaceful nuclear program, something it previously would have felt was beyond its official verification remit.

The agency meanwhile has also moved to rationalize layers of safeguards imposed on selected states over the years, thereby increasing efficiency and, it is hoped, effectiveness through a program of integrated safeguards. To date, only a handful of countries, notably Australia, Canada and Japan, have been admitted to this select group. This is partly a reward for punctilious compliance with all aspects of safeguards, including the Model Additional Protocol, as candidate states must undergo rigorous examination and cross-examination before qualifying. An unspoken benefit for the IAEA is that verification resources can in theory be devoted to more problematic cases.

The existing system remains as underfinanced and under-resourced as ever. In addition to a decade of zero budgetary growth that ended in 2003, the agency has been obliged to assume increasingly onerous and numerous verification and safeguards obligations, notably in Iran, Iraq, Libya, North Korea, South Africa, and the non-nuclear successor states of the Soviet Union and Yugoslavia. It is also cooperating with the United States and Russia in repatriating highly enriched uranium from research facilities in vulnerable locations around the world. If the U.S.-Indian nuclear cooperation agreement, which envisages India designating a whole raft of nuclear facilities as peaceful and therefore subject to safeguards, ever enters into force, the cost could be as much as $10 million annually. The strengthened safeguards system is itself more costly and labor intensive, while integrated safeguards have yet to produce significant, if any, savings.

In June 2007, ElBaradei decried the board’s refusal to approve a requested increase of 4.6 percent in the IAEA annual budget of around $275.5 million, revealing that the agency’s safeguards function was being “eroded over time.”[12] He noted that the organization was forced to use an unreliable 28-year-old instrument for environmental sampling and rely on external laboratories for analysis, “which puts into question the whole independence of the agency’s verification system.” Moreover, there has been no general implementation of wide-area environmental sampling due to the projected cost. The threat to safeguards is compounded by what the U.S. Government Accountability Office has described as “a looming human capital crisis caused by the large number of inspectors and safeguards management personnel expected to retire in the next 5 years.”[13]

The recent attempt by the United States to engage IAEA board members in further improving safeguards ended in failure when the Advisory Committee on Safeguards and Verification folded last June after two unproductive years. Although the secretariat proposed at least 18 improvements for consideration, the committee was unable to adopt a work plan. With its membership open to all IAEA members, Iran was able to pursue a wrecking strategy. Even the United States seemed unwilling to devote the necessary political and financial capital into making the committee succeed. Perpetual issues over the relative attention devoted to nuclear safeguards and assistance in the peaceful uses of nuclear energy and nuclear disarmament also contributed to the paralysis.

The Next Punctuation: Future Challenges

Nuclear safeguards remain a work in progress. If the punctuated equilibrium theory is correct, it will require another crisis for significant new improvements to be made. This may occur if the much-heralded nuclear energy revival ever comes to fruition. Increased numbers of research and power reactors, additional nuclear trade and transport, and moves by more states to acquire the full nuclear fuel cycle will require increased IAEA safeguards capacity and spending. It may also awaken a sleeper issue that has long exercised the sharpest critics of safeguards: the fact that the current system cannot provide sufficient assurance of nondiversion of fissionable material from bulk-handling facilities, such as those involved in uranium enrichment, plutonium reprocessing, and fuel fabrication. These facilities handle such large volumes of nuclear material that significant amounts, in terms of the quantities required for an illicit nuclear device, will be unaccounted for, lodged in pipes or other equipment or subject to accounting and measurement errors. The system is also currently unable to verify rapid adaptation of enrichment and reprocessing plants from declared peaceful purposes to production of weapons-useable materials. Moreover, some critics claim that the IAEA’s 30-year-old criteria, suggested by the nuclear-weapon states, for how much nuclear material is needed to make a nuclear weapon (“significant quantity”) and how much time is required to convert such materials into a bomb (“conversion time”) need significant revision downward.[14]

If a nuclear energy revival permits increasing numbers of non-nuclear-weapon states to acquire such facilities, the safeguards system risks losing credibility. Proposals for fuel banks and regional or multilateral enrichment facilities and the phaseout of the use of plutonium for civilian purposes are widely deemed to be appropriate means for dealing with the proliferation implications of these developments, but all of them imply more powerful nuclear safeguards tools beyond even today’s strengthened system. In the meantime, it would be useful for the IAEA to tell its member states frankly where it is unable to achieve verifiability. This will not only help relieve the agency of the perennial burden of overblown expectations but should catalyze radical new improvements in areas where they are feasible.

Faced with such challenges, the future evolution of nuclear safeguards lies in the realization by the international community that this form of verification is a security bargain that deserves openness, hard-headed scrutiny, commitment, finances, and resources commensurate with its significance for international security.


Trevor Findlay is director of the Canadian Centre for Treaty Compliance, Carleton University, Ottawa, and of the Nuclear Futures Project at the Centre for International Governance Innovation, Waterloo, Ontario.


ENDNOTES

1. “Nuclear Safeguards: A Reader,” Congressional Research Service, Washington, DC, December 1983, pp. 46-51 (excerpts from “A Report on the International Control of Atomic Energy,” [Acheson-Lilienthal report]).

2. Statute of the IAEA, art. III.A.5.

3. Ibid., art. XII.A.6.

4. Carlos L. Büchler, “Safeguards: The Beginnings,” International Atomic Energy Agency: Personal Reflections (Vienna: IAEA, 1997), p. 48.

5. In NPT states-parties, they are “suspended” but would be reactivated automatically should NPT-based safeguards disappear.

6. Lawrence Scheinman, The International Atomic Energy Agency and World Nuclear Order (Washington D.C: Resources for the Future, 1987), pp. 153-154.

7. See Jack Boureston and Jennifer Lacey, “Shoring Up a Crucial Bridge: South Africa’s Pressing Nuclear Choices,” Arms Control Today, January/February 2007, pp. 18-21.

8. “Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards,” INFCIRC/540 (Corrected), Vienna, September 1997.

9. Jan Lodding, “Non-Proliferation of Nuclear Weapons and Nuclear Security: IAEA Safeguards Agreements and Additional Protocols,” IAEA, 2002, p. 2 (quoting IAEA Director-General Mohamed ElBaradei).

10. See Jan Lodding and Bernado Ribeiro, “Strengthening Safeguards in States With Limited Nuclear Activities,” Trust & Verify, No. 123 (March 2006-March 2007), pp. 1-4.

11. Safeguards current status as of September 27, 2007. See www.iaea.org.

12. Julian Borger, “Nuclear Watchdog Might Not Cope in Atomic Crisis,” The Guardian, June 22, 2007, www.guardian.co.uk/korea/.

13. U.S. Government Accountability Office, “Nuclear Proliferation: IAEA Has Strengthened Its Safeguards and Nuclear Security Programs, but Weaknesses Need to Be Addressed,” GAO-06-93, Washington, DC, October 2005.

14. See Henry Sokolski, “Falling Behind: International Scrutiny of the Peaceful Atom,” Nonproliferation Policy Education Center, September 2007.

The theory of punctuated equilibrium posits that life on Earth has evolved not in constant, linear fashion but through long periods of stasis, interrupted by catastrophic events, such as meteor impacts, which suddenly push it in new, adaptive directions. Without stretching the metaphor too far, the evolution of nuclear safeguards can be viewed in this way. It has been characterized by long periods of continuity, interrupted by extraordinary events that have changed its nature and direction. (Continue)

Israel’s Nuclear Trade Proposal in the Context of the U.S.-Indian Nuclear Deal

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For Immediate Release: September 27, 2007
Press Contacts: Daryl G. Kimball, Executive Director, Arms Control Association, (202) 463-8270 x107

Documents surfaced this week outlining an Israeli proposal for criteria that nuclear suppliers should use in determining eligible recipients for nuclear commerce. That “criteria-based” approach contrasts sharply with the Bush administration’s pursuit of “India-specific” exemptions to existing U.S. and international nuclear commerce rules. Not only does the Israeli proposal underscore that bending rules for one state will increase pressure from others for similar favours, Israel’s dozen criteria highlights shortcomings in India’s bid for special treatment.

Israel tendered its proposal to the voluntary Nuclear Suppliers Group (NSG) in March 2007. The group’s 45 members, including the United States, aim to coordinate their nuclear export policies in order to prevent the spread of materials and technologies that could aid nuclear weapons programs. In 1992, the group adopted a rule significantly restricting nuclear trade with any non-nuclear-weapon state that does not subject all of its nuclear facilities and activities to international full-scope safeguards, such as inspections. That rule currently constrains India, Israel, North Korea, and Pakistan from engaging in international civilian nuclear trade because they do not allow such comprehensive safeguards and, despite possessing nuclear arms, they all are classified as non-nuclear-weapon states under the 1968 nuclear Nonproliferation Treaty (NPT).

In July 2005, the Bush administration committed itself to nullify for India that full-scope safeguards rule, which was originally promoted by the United States. Pakistan has indicated that it wants a similar arrangement and Israel’s March proposal suggests it does not want to be left out. If any one or all three succeed, the result would be that current nuclear-armed NPT outliers would reap benefits previously reserved for countries abjuring nuclear weapons. That could have severe consequences for global efforts to stem the spread of nuclear weapons. Other states might re-evaluate their policies to forswear nuclear weapons or conclude that global norms and treaties have little value.

Israel’s proposed criteria illustrate some of the reasons why India does not deserve preferential treatment. For instance, one criterion notes that non-NPT states should be “in full compliance with any nuclear cooperation agreement previously entered into.” India had a previous agreement with the United States but blatantly broke it by testing a nuclear device in 1974 that was partially derived from U.S. materials supplied solely for peaceful purposes. India’s government still insists that test was a “peaceful” nuclear explosion, and it also maintains that it has a “right” to conduct future nuclear tests. Other criteria also raise questions for India because of its ongoing relations with Iran, which has violated its international safeguards and is charged by the United States and other countries as illicitly pursuing nuclear arms.

The Israeli proposal, however, fails to include as criteria two other essential measures of good nonproliferation behaviour: signature and ratification of the Comprehensive Test Ban Treaty, which outlaws nuclear explosions, and cessation of the production of fissile material, plutonium and highly enriched uranium, for nuclear weapon purposes.

When pondering changes to existing nuclear rules, governments should proceed with extreme caution to avoid undermining the global nonproliferation regime and maintain common sense conditions on nuclear trade that enshrine standards for and require responsible behaviour by all.

A copy of the Israeli proposal and additional information on the proposed U.S.-Indian nuclear cooperation agreement are available at http://www.armscontrol.org/projects/india/.

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Documents surfaced this week outlining an Israeli proposal for criteria that nuclear suppliers should use in determining eligible recipients for nuclear commerce. That “criteria-based” approach contrasts sharply with the Bush administration’s pursuit of “India-specific” exemptions to existing U.S. and international nuclear commerce rules. Not only does the Israeli proposal underscore that bending rules for one state will increase pressure from others for similar favours, Israel’s dozen criteria highlights shortcomings in India’s bid for special treatment. (Continue)

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U.S. Renews Fighter Exports to Pakistan

Zachary Ginsburg

The United States recently delivered two used F-16B jets to Pakistan and announced plans to donate another two dozen. In a deal announced last September, the United States is also set to sell Pakistan 18 new F-16C/D fighters for delivery in 2010 and upgrades for its current fleet of 34 F-16 combat aircraft.

U.S. Ambassador to Pakistan Anne W. Patterson said at a July 10 transfer ceremony at Pakistan’s Sargodha Air Force Base that the planes are “symbolic of our commitment to assist Pakistan in improving its ability to secure its territory.” Pakistani Air Chief Marshal Tanvir Mehmood Ahmed has told news agencies that he expects 10 more used jets to be delivered by the end of 2008.

A Department of Defense spokesperson told Arms Control Today July 25 that Pakistan will not pay for the used, older model F-16s, whose flying conditions vary, but will assume the costs for refurbishing and modernizing them. The U.S. government cleared Islamabad last year for about $2.1 billion of new weapons, avionics, engines, and other equipment for F-16 fighters. (See ACT, November 2006. )

In late 2005, the United States donated two F-16A fighters to Pakistan in the first transfer of fighter aircraft to that state since 1990. That year, President George H.W. Bush blocked arms sales to Pakistan because his administration would not certify under U.S. law that Islamabad did not possess a nuclear device. Seeking Pakistan’s allegiance after the September 11 attacks, President George W. Bush waived the prohibitions. (See ACT, October 2001. )

Pakistan is supposed to begin receiving the 18 new, top-of-the-line F-16C/Ds in three years and has the option to purchase 18 more. Under U.S. law, Congress was notified of the possible sales, and the House International Relations Committee subsequently convened a hearing in July 2006 in which members blasted the Bush administration for not sufficiently consulting them about the deal. Legislators did not block the transaction—that would require a two-thirds supermajority—but some strongly rebuked the administration. (See ACT, September 2006. )

At the hearing, lawmakers such as Chairman Henry Hyde (R-Ill.) and ranking member Rep. Tom Lantos (D-Calif.), who is currently chairman, expressed concerns about the potential for unauthorized dissemination of sensitive technologies and for modification of the F-16s to carry nuclear weapons. Broad speculation exists that Pakistan modified previously delivered U.S. F-16s for nuclear delivery missions.

Administration officials assured Congress that the planes would be subject to more strict security measures by Pakistan and more robust U.S. oversight than in previous transfers between the two countries. “We’ve put into the deal that [Pakistan] must comply with the approved security plans before we’ll release any systems in a sale,” then-Assistant Secretary of State for Political-Military Affairs John Hillen testified. These “security plans,” according to Hillen, would include “a very enhanced end-use monitoring program [and] semiannual inventories of all F-16 aircraft, equipment, and munitions, including related technical data.”

In recent interviews, neither U.S. nor Pakistani officials would provide any further details to Arms Control Today on the security arrangements.

President Bush signed into law Aug. 3 legislation that could block future F-16 transfers. The Implementing the 9/11 Commission Recommendations Act prohibits the sale of military equipment to Pakistan if it is not “committed to eliminating the Taliban” within its borders. However, the determination of whether Pakistan is progressing aggressively enough against the Taliban will be left up to the president, who has said he views Pakistan as a key ally.

Pakistan’s neighbor and rival, India, has publicly worried about the U.S. F-16 transfers. The Pentagon, however, noted in June 2006 that the exports “would not significantly reduce India’s quantitative or qualitative military advantage.”

Still, New Delhi is exploring the purchase of U.S. combat aircraft to fill an Indian procurement goal of 126 planes. India is eyeing both F-16s and newer F-35 Joint Strike Fighters, but it may instead opt for Russian MiG-35s.

U.S.-Indian Nuclear Deal Advances

Wade Boese

The United States and India completed negotiations July 27 on a bilateral nuclear cooperation agreement, edging them closer toward erasing long-standing U.S. and international nuclear trade restrictions on India. But before realizing that goal, the two governments must still win over their own lawmakers and other countries, some of which, most recently Australia, are already angling to do business with India.

President George W. Bush and Prime Minister Manmohan Singh two years ago launched the initiative to expand U.S. and global nuclear trade with India. In broad terms, the United States pledged to help India shed its roughly three-decade status as a nuclear trade pariah. New Delhi had earned that status for carrying out a 1974 explosion of a nuclear device fashioned partially from U.S. and Canadian nuclear imports intended for peaceful purposes. In return for the promised U.S. effort, India vowed to grant greater foreign oversight to a select portion of its nuclear enterprise.

Bush officials saw overcoming the nuclear trade impediments as a means of forging closer strategic and economic ties with India. Undersecretary of State for Political Affairs Nicholas Burns told reporters July 27 that it was Secretary of State Condoleezza Rice who went to New Delhi in the spring of 2005 “with this big idea to break through three decades of separation.”

Washington released Aug. 3 the text of the pact, known as a 123 agreement after the section of the Atomic Energy Act of 1954 that requires such instruments. It is supposed to govern future U.S. and Indian nuclear commerce for at least 40 years once it takes effect. Burns, the lead U.S. negotiator in the talks, heralded the agreement as “perhaps the single most important initiative” ever between the two countries.

Not everybody greeted the pact enthusiastically. Some Indian parliamentarians Aug. 13 tried to shout Singh down when he briefed them on the agreement. The Bharatiya Janata Party, the main opposition group, contends the pact will impinge on India’s nuclear weapons program, while some members of India’s Communist parties, which support Singh’s coalition government, allege India is kowtowing to the United States. India’s parliament does not have a vote on the pact, but it could engineer procedural hurdles to slow or sink implementation of the agreement.

Meanwhile in Congress, Rep. Edward Markey (D-Mass.), an outspoken critic of the deal, derided the agreement Aug. 13 as “nuclear capitulation to India’s every wish.” House Foreign Affairs Committee Chairman Tom Lantos (D-Calif.) cautiously noted Aug. 3 that he would review the pact to see whether it conformed to legislation that lawmakers passed last December setting the stage for further nuclear cooperation. (See ACT, January/February 2007. ) Congress must approve the 123 agreement for it to enter into force.

That critics in New Delhi and Washington allege that their governments were duped in the negotiations reflects domestic politics in each country as well as the compromise nature of the pact. In response, both governments have interpreted key and controversial aspects of the agreement to their benefit and to stifle detractors. Nevertheless, the agreement tilts more to India’s initial negotiating positions than those argued by the United States.

The 123 Agreement

U.S. and Indian negotiators wrangled for more than a year on several matters in which India was seeking exceptions or privileges that went beyond most other U.S. 123 agreements with foreign governments.

Although India pledged in July 2005 to continue a nuclear testing moratorium, New Delhi opposed any explicit provision in the 123 agreement terminating cooperation if it conducts a future nuclear test. Such termination provisions are standard features of U.S. agreements with non-nuclear-weapon states. India, which has nuclear weapons, is classified as a non-nuclear-weapon state by the 1968 nuclear Nonproliferation Treaty. New Delhi has never signed the accord.

The U.S.-Indian agreement does not contain the word “test,” nor is there an automatic trigger to cease cooperation for any activity or violation by either country. Singh Aug. 13 asserted the pact “does not in any way affect India’s right to undertake future nuclear tests.”

India could choose to test, according to U.S. officials, but that does not mean that there would not be repercussions. In an Aug. 6 interview with Times Now television, Burns noted that India has a sovereign right to test but that, under U.S. law, the president would have “the right to end the agreement.”

Article 2 of the 123 agreement maintains that countries will implement cooperation “in accordance with its… national laws.” The Atomic Energy Act mandates an end to nuclear trade with a non-nuclear-weapon state that conducts a nuclear test. The president could waive such a termination but Congress has the power to nullify that waiver by passing a resolution in opposition.

U.S. law also holds that Washington retains a right of return of its nuclear exports if the recipient conducts a nuclear test, and most 123 agreements explicitly reiterate that right. But India fought against including such a provision.

The agreement does authorize each country to seek a right of return in the event that it chooses to terminate the agreement, which requires one year’s notice in writing and consultations before taking effect. But the agreement also aims to dissuade such a move by stressing that “exercising the right of return would have profound implications” on the two countries’ relations. Other U.S. 123 agreements do not contain similar language.

Another unique feature is the inclusion of “fuel assurances” for India. These provisions commit the United States to “support” New Delhi in establishing a “strategic fuel reserve” in case foreign fuel supplies are ever halted. In such an event, the United States vows to assist India in pursuing a resumption of outside fuel supplies.

Foreign fuel supplies are critical for India because it lacks sufficient domestic resources of uranium to make reactor fuel to continue powering its entire nuclear enterprise at full capacity, let alone support its nuclear energy expansion plans. In his Aug. 13 address, Singh noted that “indigenous supplies of uranium are highly inadequate, and hence we need to source uranium supply from elsewhere.”

Critics contend that foreign fuel supplies will free India from having to decide between using its uranium to make energy or nuclear weapons by enabling it to use foreign fuel for energy and domestic resources for weapons. Although U.S. lawmakers expressed concern that India not ramp up its nuclear weapons activities after it begins to import foreign nuclear fuel, Burns noted July 27, “[W]hat India does on the strategic side is India’s business.”

The 123 agreement specifies that the U.S. fuel assurances apply to “any disruption,” suggesting that were the United States to cut off nuclear fuel supplies or trade with India because it conducted a nuclear test or violated the agreement in some way, Washington still would be required to help other countries fill the void.

The fuel assurances seemingly contradict Congress’s guidance staked out in its December 2006 legislation, known as the Hyde Act after then-chairman of the House International Relations Committee Henry Hyde (R-Ill.). The nonbinding “sense of Congress” portion of the Hyde Act states that the United States “should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party” if the United States ends cooperation under law. In addition, lawmakers in a joint explanation of the Hyde Act noted that any fuel assurances should pertain to disruptions caused by “market failures or similar reasons, and not due to Indian actions” that break its commitments.

Lawmakers also stated in their report that development of any Indian strategic fuel reserve should be “commensurate with reasonable reactor operating requirements” and not so large to install India with confidence that it could act with impunity. On Aug. 13, Markey observed that the agreement’s strategic reserve provision “would render toothless any termination of trade if India breaks the agreement.”

Indian officials trumpeted the assurances. Singh claimed that the measures “ensure that there is no repeat of our unfortunate experience with Tarapur.” The United States cut off fuel supplies to India’s Tarapur reactors after the 1974 test, which forced India to scramble to procure fuel to keep them running.

In addition to fuel assurances, New Delhi secured a U.S. commitment in principle to permit India to reprocess U.S.-origin spent fuel. Reprocessing involves the harvesting of plutonium from nuclear fuel after it is used in a reactor. Because plutonium can be used to make nuclear weapons, standard U.S. policy is to deny other countries advance reprocessing rights. India is now set to join the other two exceptions to that policy, Japan and the European consortium EURATOM.

To take advantage of that right, however, India would have to construct a new reprocessing facility under International Atomic Energy Agency (IAEA) safeguards to handle U.S.-origin spent fuel, as well as that of other countries. IAEA safeguards are measures to ensure that nuclear material and technologies for peaceful purposes are not diverted to making bombs.

In addition, the U.S. and Indian governments must agree on “arrangements and procedures” under which any Indian reprocessing of U.S.-origin spent fuel could occur. The agreement declares that such talks should begin within six months of a request by either party to start them and should finish within one year.

The agreement also provides the option for the two countries to conclude future arrangements to trade reprocessing and enrichment technologies. Enrichment is the process through which natural uranium is transformed into nuclear fuel and, if carried to a certain point, fuel for nuclear weapons. The Hyde Act limits such transfers to India to the limited scenarios in which the recipient is a multinational facility involved in an IAEA-approved project or a facility involved in a multinational project to develop a “proliferation-resistant fuel cycle.”

The concessions to India on enrichment and reprocessing stand in contrast with the administration’s global effort to dissuade states from acquiring such capabilities. In a February 2004 speech, Bush declared that “enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.” (See ACT, March 2004. )

Next Stops: The IAEA and the Nuclear Suppliers Group

Before Congress votes on the 123 agreement to initiate U.S.-Indian nuclear trade, India must first negotiate a safeguards agreement with the IAEA. That agreement will have to be approved by a majority of the agency’s 35-member Board of Governors.

In addition, the 45-member Nuclear Suppliers Group (NSG) must agree by consensus to exempt India from a 1992 group rule, adopted at U.S. insistence, that significantly restricts trade with non-nuclear-weapon states that do not subject all of their nuclear facilities and materials to IAEA safeguards. Such comprehensive safeguards are known as full-scope safeguards. The safeguards agreement India intends to negotiate would not cover its full nuclear complex.

New Delhi maintains that it will seek “India-specific” safeguards to its declared civilian nuclear facilities. In March 2006, India announced that 14 of its 22 existing or under-construction power reactors would be declared civilian and that the other eight would be classified as military and off-limits to safeguards. Six of the 14 reactors designated as civilian already were subject to or slated for safeguards.

India exempted from safeguards its test breeder reactor and prototype breeder reactor, which produce more plutonium than power reactors. New Delhi further reserved the right to declare as military all future reactors it builds. (See ACT, April 2006. )

No official definition of “India-specific” safeguards has been made public, but reportedly the notion is that safeguards would only be operational when foreign nuclear materials and technologies are present at a facility. The 123 agreement states that the future safeguards should be in “perpetuity,” but it also notes India’s right to take “corrective measures” if foreign fuel supplies are disrupted. Neither the U.S. nor Indian government has explained what these “corrective measures” might entail.

India was waiting on the conclusion of the 123 agreement before beginning negotiations with the IAEA. Although Burns suggested in an Aug. 6 interview with Aajtak news agency that Washington hoped that an IAEA-Indian agreement could be completed “no later” than Sept. 1, it was unclear in late August whether the two sides had started negotiations. The Indian government did not respond to Arms Control Today’s questions about the status of the process, and the IAEA declined to answer questions on the matter.

Completion of the safeguards agreement is viewed by NSG members as a prerequisite for any group decision on India. Still, Washington reportedly is seeking to prepare group members with a Sept. 30 briefing on the 123 agreement. The NSG generally makes decisions at an annual spring plenary meeting, but extraordinary meetings can be convened to take an action.

Group members reportedly are divided about giving India special treatment. France, Russia, and the United Kingdom support the U.S.-Indian initiative, but several members remain skeptical.

Some members also have suggested that instead of solely granting India a 1992 rule exemption, the group should establish certain criteria that must be met by an interested government in order for the rule to be waived. Such an approach could conceivably open the door for Pakistan and Israel to seek nuclear trade from NSG members (see page 38 ).

Washington and New Delhi strongly oppose this concept. Indian officials have stressed that that they want a “clean” NSG exemption that does not impose any conditions or restraints on future nuclear trade.

If India successfully completes its negotiations with the IAEA and the NSG decides to make India eligible for nuclear trade, the administration will then present the 123 agreement to Congress for a vote. Burns said July 27 that he hoped the agreement would be before lawmakers prior to the end of this year.

An Open Field

When Congress receives the agreement for consideration, it could be confronted with the reality that other governments are already courting India with their nuclear wares. Unless conditioned in some way, the NSG decision that serves as the trigger for the 123 agreement to be sent to Congress would void the international restraints on other suppliers engaging in nuclear commerce with India, possibly under terms less restrictive than those envisioned by the United States.

Since the July 2005 initiative was announced, France and Russia have started to position themselves to pursue nuclear deals with India. Australia recently joined the queue.

Australian Prime Minister John Howard said Aug. 16 that his government would drop a long-standing prohibition against supplying uranium to India. He conditioned the move on India having appropriate safeguards in place, an NSG decision to relax its restriction against trade with India, and the “conclusion” of the U.S.-Indian 123 agreement, including its approval by Congress. Opposition Labor Party officials have criticized the initiative, and an Australian election will take place sometime this fall that could unseat Howard.

Future Australian shipments of uranium to India would breach Australia’s legal commitments under the 1985 South Pacific Nuclear-Weapon-Free Zone Treaty. Australian Foreign Minister Alexander Downer told the Australian parliament in October 1996 that, in dealings with non-nuclear-weapon states, the 1985 treaty “imposes a legal obligation not to provide nuclear material unless subject to…full-scope safeguards.”

Although some countries might get an early jump on trade with India, Burns said he expects U.S. nuclear companies to have a fair opportunity to compete. “We are confident that American companies will have equal access to this huge market and that they will succeed there,” he stated.

In addition, Burns predicted that the nuclear policy changes might also benefit U.S. arms manufacturers, claiming that he sees “far greater defense cooperation” between the United States and India. Washington is currently offering New Delhi advanced U.S. fighter jets and has pitched anti-missile systems.

Fixing a Flawed Nuclear Deal

By Daryl G. Kimball

After months of contentious negotiations, U.S. and Indian officials recently concluded a formal agreement for nuclear cooperation that contradicts long-standing U.S. nuclear export policies and threatens the global nonproliferation order.

The proposed agreement endorses undefined “India-specific” safeguards and fails to explicitly state that renewed Indian testing would lead to a termination of U.S. nuclear trade. The pact promises India assurances of nuclear fuel supply and advance consent to carry out sensitive nuclear activities that are unprecedented and inconsistent with legislation approved by Congress last year.

The sum of these and other U.S. concessions could give India—a country that has violated past agreements on peaceful nuclear cooperation by testing a nuclear weapon—terms of nuclear trade more favorable than those for states that have assumed all the obligations and responsibilities of the nuclear Nonproliferation Treaty (NPT), which India has never signed.

Much is at stake. In the coming months, Congress and the 45-nation Nuclear Suppliers Group (NSG) can prevent further damage by using their authority to close the loopholes in the deeply flawed U.S.-Indian agreement.

The pact is based on Prime Minister Manmohan Singh’s July 2005 pledge to “separate” India’s military and civilian nuclear facilities and put eight additional reactors under international safeguards by 2014. In exchange, President George W. Bush pledged to seek an India-specific exemption from U.S. laws and NSG rules that restrict trade with states that do not allow “full scope” safeguards. Congress approved changes to U.S. nuclear export laws with conditions, but it must still approve the U.S.-Indian nuclear cooperation agreement. It may do so only if the NSG agrees by consensus to waive its comprehensive safeguards requirement for India.

While many NSG member states support India’s legitimate nuclear energy goals, they are also deeply uncomfortable with the agreement and for good reason. Partial safeguards in India are hardly worth their estimated $10 million annual cost. Yet, the U.S.-Indian agreement cheapens their value by endorsing the concept of India-specific safeguards and allowing India to take unspecified “corrective measures” if fuel supplies are disrupted. Congress and the NSG should reject any proposal for nonstandard safeguards for Indian reactors.

Unlike other nuclear cooperation agreements, the U.S.-Indian deal fails to clearly state that a resumption of nuclear testing would lead to a termination of nuclear transfers and the return of U.S.-supplied equipment and material. To protect its testing options, India sought and got an unprecedented U.S. commitment to help India amass a strategic reserve of nuclear fuel to guard against any supply disruption. Incredibly, the agreement also commits Washington to help New Delhi secure fuel supplies from other countries even if India resumes testing.

Officials at the Department of State may argue that the fuel supply assurances are political and not legal commitments and are there only to assuage Indian domestic audiences. This is not how the Indian government interprets the agreement. Such ambiguity has no place in international nonproliferation rules. Congress and the NSG should clearly establish that any India-specific exemption from existing nuclear trade rules shall be terminated if India resumes testing.

U.S. negotiators also agreed to allow for possible future trade involving sensitive nuclear technology, including uranium-enrichment and plutonium-reprocessing-related goods. Even if such transfers are destined for safeguarded facilities, they could be replicated and used to support India’s weapons program. The NSG should specifically bar such transfers to India.

Even though India has refused to put existing reprocessing plants under safeguards, India also won long-term consent to reprocess U.S.-origin nuclear fuel. To exercise the right, an additional U.S.-Indian agreement governing a new, safeguarded reprocessing facility is required. Still, the reprocessing concession could allow India to negotiate more favorable terms from less scrupulous suppliers, such as Russia.

Unless the NSG also requires that India halts fissile material production for weapons as a condition for nuclear trade, supplying nuclear fuel to India for power production would free up its limited domestic supplies for bomb production. This would not only contradict NPT restrictions barring assistance to other’s nuclear weapons programs, but it would prompt neighboring Pakistan to increase its fissile material production capacity.

The U.S.-Indian agreement may lead usually sensible states to ignore their legal commitments too. Australia has announced it is ready to sell uranium to India even though its current foreign minister said in 1996 that the South Pacific Nuclear-Weapon-Free Zone Treaty “imposes a legal obligation not to provide nuclear material unless subject to the safeguards required by Article III.1 of the NPT, that is, full scope safeguards.”

Rather than sidestep their own nonproliferation policies and laws, leaders in Congress and other capitals should maintain common sense conditions on nuclear trade that help ensure India meets the same standards expected of other responsible countries. Now is the time to stand up to the White House and the nuclear profiteers and prevent further erosion of the already beleaguered nonproliferation system.

After months of contentious negotiations, U.S. and Indian officials recently concluded a formal agreement for nuclear cooperation that contradicts long-standing U.S. nuclear export policies and threatens the global nonproliferation order.

The proposed agreement endorses undefined “India-specific” safeguards and fails to explicitly state that renewed Indian testing would lead to a termination of U.S. nuclear trade. The pact promises India assurances of nuclear fuel supply and advance consent to carry out sensitive nuclear activities that are unprecedented and inconsistent with legislation approved by Congress last year. (Continue)

Nonproliferation Organization Blasts Australian Government Move to Sell Uranium to India

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Media Advisory

For Immediate Release: August 15, 2007
Press Contacts: Daryl G. Kimball, Executive Director, Arms Control Association, (202) 463-8270 x107 or Wade Boese, (202) 463-8270 x104

(Washington, D.C.): The Arms Control Association (ACA), a leading nuclear nonproliferation research and advocacy organization, strongly criticized the Australian government's decision to pursue the sale of uranium to India.

“This move flagrantly contradicts Australia's long standing international nuclear nonproliferation commitments and should be reconsidered and reversed,” said Daryl G. Kimball, executive director of ACA.

"The reported Australian cabinet decision to sell uranium to India – which is not a member of the nuclear Nonproliferation Treaty (NPT), has not signed the Comprehensive Nuclear Test Ban Treaty (CTBT), and has refused to halt its production of plutonium for weapons – would violate Australia's past political and treaty commitments to the principle of full-scope international safeguards as a condition for supply of nuclear technology and material," said Kimball.

"This decision severely tarnishes Australia's otherwise good reputation as a leader in support of nuclear nonproliferation and disarmament by all states," charged Kimball.

Under the South Pacific Nuclear-Weapon-Free Zone Treaty, Australia has committed not to provide any "source or special fissionable material or equipment" to any non-nuclear-weapon state unless subject to the safeguards required by Article III.1 of the NPT. India is considered a non-nuclear-weapon state under the NPT. While India has agreed to allow partial safeguards on eight additional nuclear reactors by 2014, it rejects the comprehensive safeguards on all of its nuclear facilities and materials that are referred to in Article III of the NPT.

"Simply put, Australia has an international treaty obligation not to transfer uranium to India,” said Kimball. See <http://www.armscontrol.org/documents/rarotonga.asp> for text of the South Pacific Nuclear-Weapon-Free Zone Treaty, which is also known as the Treaty of Rarotonga.

"Contrary to Australian government claims, safeguards on a few additional Indian reactors provide little or no nonproliferation benefits,” Kimball argued. “Because India has refused to place all of its reactors, plutonium separation, and uranium enrichment plants under international safeguards, the safeguards on a few additional facilities will do nothing to slow or stop the continued production of fissile material for nuclear weapons by India," Kimball noted.

The United States, the United Kingdom, France, and Russia have publicly declared a moratorium on the production of fissile material for weapons. China is also believed to have halted fissile production for weapons.

"Australia claims that international and bilateral safeguards arrangements with India may help prevent the direct use of Australian uranium in Indian weapons. But absent action – and not simply promises – by India to stop the production of nuclear bomb material, the sale of uranium by states such as Australia would indirectly assist India's nuclear bomb program because it would free up its more limited domestic uranium supply for the purpose of producing more nuclear material for bombs,” Kimball said. “This is contrary to the purpose and intent of the NPT and will undoubtedly lead Pakistan to expand, not slow down, its capacity to produce nuclear bomb material," he added.

"Concerned members of the Australian public should call upon the government of Prime Minister Howard to demonstrate, beyond a shadow of a doubt, that Australian uranium sales would not indirectly assist India's nuclear bomb program," urged Kimball.

"In 1992, Australia and other members of the Nuclear Suppliers Group adopted guidelines restricting nuclear trade with states, such as India, that do not accept comprehensive IAEA safeguards. In 1995, Australia and the other members of the NPT endorsed the same policy as part of a package of decisions that allowed for the indefinite extension of the NPT," Kimball added. Paragraph 12 of the “Principles and objectives for nuclear nonproliferation and disarmament" Decision 2, of the 1995 NPT Extension Conference says that countries should not receive nuclear assistance unless they have made “internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices."

Australia is also obliged to respect United Nations Security Council Resolution 1172 of June 1998, which calls upon India (and Pakistan) to refrain from further nuclear testing, sign the CTBT, and stop the production of fissile material for weapons purposes. See <http://www.armscontrol.org/pdf/UNSCR1172.pdf>. Adopted in the wake of India and Pakistan's tit-for-tat nuclear tests, the resolution also "encourages all States to prevent the export of equipment, materials or technology that could in any way assist programs in India or Pakistan for nuclear weapons."

"The sale of uranium to India and Australian support for a change in Nuclear Supplier Group rules to allow trade with India – absent any further commitment by India to reconsider the CTBT and a provision revoking the exemption if India resumes testing – would also make a mockery of Australia's leadership position on the entry-into-force of the CTBT," Kimball said.

Only two years ago, Australian Foreign Minister Alexander Downer led an international conference in New York urging states that have not signed and ratified the CTBT to do so. On September 21, 2005, Downer told the conference: "Let me be clear - we welcome the continuing voluntary moratorium on weapons testing, but this cannot be a substitute for entry into force of the permanent and legally binding treaty."

Speaking of the states that are holding up CTBT entry into force by either not signing or ratifying, Downer added: "We have over the years heard many reasons as to why this is so. The time for excuses is past. The time for them is to act."

"The time for excuses is past and the time for action is indeed now," Kimball said. He added, "Australia must not squander what leverage it has to prompt CTBT hold-out states such as India to sign and ratify the CTBT, and to get the United States and China, which have signed but not ratified, to do so. Current U.S. laws would require the United States to terminate nuclear trade with India if it resumes testing and allow the return of all U.S. nuclear equipment and material. Australia should, in the very least, establish similar requirements.”

"Australia can and must do better. Rather than reverse its own national policies against nuclear trade with NPT non-members and ignore global treaties and standards on nuclear nonproliferation, Australia's leaders should refrain from selling uranium to India until it exercises greater nuclear weapons restraint and meets the same nonproliferation standards expected of other nuclear-armed countries," Kimball urged.

For additional information on the controversial proposal for engaging in nuclear trade with India see < http://www.armscontrol.org/projects/india/ >.

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U.S.-Indian Nuclear Agreement: A Bad Deal Gets Worse

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Background Memo by Daryl G. Kimball & Fred McGoldrick

For Immediate Release: August 3, 2007

Press Contacts: Daryl G. Kimball, Executive Director, Arms Control Association, (202) 463-8270 x107; Fred McGoldrick of Bengelsdorf, McGoldrick & Associates (617) 298-2024 or 508-981-9112; or Alex Bollfrass, Herbert Scoville Peace Fellow, Arms Control Association (202) 463-8270 x103

After months of contentious negotiations, the U.S. and Indian officials have concluded -- and released the text of -- a formal agreement for peaceful nuclear cooperation. The proposed agreement (also known as a "Section 123" agreement) would give India assurances of supply and advance consent to carry out sensitive nuclear activities that are unprecedented. These U.S. concessions compromise long-standing U.S. nuclear nonproliferation policies and give India, a country that has refused to join the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), preferential treatment that the United States has not even given to states that have assumed all the obligations and responsibilities of the NPT.

Text of the Agreement

Several more difficult hurdles must be cleared before Congress formally considers the agreement. First, India and the IAEA must negotiate and the IAEA Board of Governors must approve an Indian-IAEA safeguards agreement. Then, the 45-nation Nuclear Suppliers Group must approve by consensus changes to its guidelines that currently restrict trade with non-nuclear-weapon states, such as India, that do not accept safeguards on all their nuclear activities. The rotating chair of the NSG is currently held by South Africa. The NSG is due to hold a "consultative group" meeting in Vienna this autumn. Germany will take over the chair when the NSG meets for its full Plenary session in the spring of 2008.

Congress and other nuclear supplier states must use their authority to carefully consider the proposal, get straight answers to their questions, weigh the alternatives, and close the proliferation loopholes that plague the proposed U.S.-Indian nuclear cooperation agreement.

Background

The U.S.-Indian nuclear cooperation agreement would not have been possible if not for the Bush administration's decision, announced in July 2005, to seek changes in U.S. and international rules restricting nuclear trade with India, which violated its peaceful use commitments by using Canadian and U.S. civil nuclear assistance to conduct its 1974 nuclear bomb test.

After months of deliberation and debate, Congress approved legislation in late-2006 that would allow the President to waive the requirement for India to have comprehensive, “full-scope” safeguards over all of its nuclear facilities, as well as potential penalties for its earlier nuclear weapon test explosions. In that legislation, known as the Henry Hyde United States-India Peaceful Atomic Energy Cooperation Act, Congress established a set of minimal conditions and limitations on the scope and terms of civil nuclear trade with India and it retained relevant elements of AEA Sections 123 (governing the basic requirements for U.S. nuclear cooperation with others) and 129 (dealing with the grounds for the termination of U.S. nuclear cooperation).

In July 2005, India said it would allow "India specific" IAEA inspections for eight additional reactors by the year 2014, but will keep its extensive and secret nuclear weapons and materials production complex off-limits. So long as India continues to produce fissile material for weapons purposes, the supply of uranium fuel to reactors that will be safeguarded will allow India to use its limited domestic supply of uranium exclusively for weapons purposes and increase its rate of production of nuclear bomb material. India reiterated its pledge to maintain its de facto nuclear test moratorium and support U.S. efforts to negotiate a global treaty to cut off the production of fissile material for weapons (FMCT). However, this pledge may not be very meaningful since it will take years to negotiate such an FMCT, and it will place no real limits on Indian fissile material production for its nuclear weapons program for many years to come.

Further U.S. Concessions to India

Before the U.S.-Indian negotiations were completed on July 20, the two sides were at odds over key terms of the agreement for nuclear cooperation, including several areas that Congress was particularly concerned about:

  • the right of the United States to terminate nuclear cooperation and to require the return of materials and equipment subject to the agreement if India conducts a nuclear test;
  • the reprocessing of spent fuel produced from U.S.-origin nuclear fuel; and
  • assurances of the supply of nuclear fuel to India in the event that India suffers a disruption in supply.

Our preliminary analysis of the U.S.-Indian agreement for cooperation reveals that the administration appears to have – once again – agreed to virtually all of India’s demands at the cost of U.S. national security and nonproliferation interests.

Nuclear Testing, Termination of U.S. Assistance, Fuel Supply Assurances: Current U.S. law stipulates that the India-specific waiver of U.S. restrictions on trade with India would end if India resumes testing (Section 104a(3)(B) of the Hyde Act). Under Section 129 of the Atomic Energy Act the President would be obliged to terminate nuclear cooperation. Section 123 a(4) requires that agreements for cooperation contain a U.S. right to require the return of nuclear material and equipment subject to the agreement if India resumes testing or terminates or abrogates an IAEA safeguards agreement. NSG guidelines also provide for supplier suspension or termination of nuclear cooperation with states that have violated their nonproliferation obligations.

However, unlike other U.S. nuclear cooperation agreements, the proposed agreement for nuclear cooperation with India does not mention a U.S. right of return if India conducts a nuclear test. The formulation is unlike most other nuclear cooperation agreements, which unambiguously state that if the recipient country tests a nuclear explosive device, the United States can terminate nuclear cooperation and demand the return of equipment and material.

In this agreement, it is not clear that an Indian test explosion would be grounds for U.S. termination or return of U.S.-supplied material or equipment. By contrast, the Atomic Energy Act provides that the United States must have a clear and unambiguous right to require the return of materials and equipment subject to the agreement and an obligation to terminate nuclear cooperation if the non-nuclear-weapon state party to the agreement tests a nuclear explosive device.

What is more, to guard against a cut-off of fuel supplies due to renewed nuclear testing, India sought and got unprecedented concessions in the agreement. Article 5(6)b of the U.S.-Indian Agreement commits the United States to "support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors."

The agreement also commits the United States to "join India in seeking to negotiate with the IAEA an Indian-specific fuel supply agreement" and to jointly convene with India, "a group of friendly supplier countries to include countries such as Russia, France, and the United Kingdom to pursue such measures as would restore fuel supply to India." These fuel supply assurances were apparently drafted by the Indians and were articulated by P.M. Singh in a speech to the Indian parliament on March 6, 2006. (See: <http://www.armscontrol.org/projects/india/20060306_Singh_Statement.asp>.)

The language of the agreement commits the U.S. to help India in securing fuel supplies if New Delhi suffers any disruption in fuel supplies, even if the disruption is due to India’s violation of its nonproliferation commitments. This is inconsistent with the intent of the Congress in the Hyde Act, which was to cut off U.S. assistance and seek the return of U.S. nuclear technology and fuel supplies if India resumes testing. In fact, Section 103 (a)6 of the Hyde Act explicitly states that it should be the policy of the United States to seek to prevent other countries from providing India with nuclear material or technology.

Moreover, Section 129 of the Atomic Energy Act requires the President to terminate nuclear cooperation with any non-nuclear weapon state that detonates a nuclear explosive device, terminates, abrogates or materially violates an IAEA safeguards agreement for nuclear cooperation with the United States. If India violates any of these nonproliferation norms, the United States should not be assisting New Delhi in securing nuclear fuel supplies.

State Department officials may argue that the fuel supply assurances language in the agreement does not bind the U.S. to do anything to help India if it resumes testing and is there only to assuage Indian domestic audiences that they will continue to have the flexibility to resume testing in the future. If so, such assurances have no place in the formal agreement otherwise the Bush administration should state for the record that no future administration will be bound to provide any assistance to India if it resumes testing for any reason, and that the United States would terminate all nuclear cooperation with India unless it would sign and ratify the Comprehensive Nuclear Test Ban Treaty (CTBT) or if it violates any of its nonproliferation commitments.

The fuel supply assurances that the United States is committed to giving India are not found in any other U.S. peaceful nuclear cooperation agreement, including those with parties to the NPT. In other words, with these fuel assurances the United States is giving preferential treatment to a non-NPT party that has assumed none of the obligations and burdens of the NPT. The United States should be giving preferential treatment to NPT parties instead.

Safeguards: In the Hyde Act, Congress also specified that before the President can waive current restrictions on trade with India, India and the IAEA must conclude and the IAEA Board of Governors must approve a plan that applies “safeguards in perpetuity in accordance with IAEA, principles, and practices.”

The agreement commits India to seek “India-specific” safeguards with the IAEA for the eight older reactors it has agreed to put on its civilian list by 2014. Also, Article 5(6)(c of the U.S.-India nuclear cooperation agreement states that India it will seek safeguards that provide for "corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies."

What "India-specific" and “corrective measures” mean is not clear. Indian officials have suggested that they may be seeking a safeguards arrangement that would allow for the suspension of safeguards in the event that fuel supplies are interrupted.

There is no precedent or IAEA safeguards agreement that would allow for such an option, and it would be highly irresponsible for the IAEA member states to go along with such a hollow arrangement. It is not at all clear how the Indians intend to close the circle of permanent safeguards and India-specific safeguards that provide for suspension of such safeguards in the event of a supply interruption.

Reprocessing and Enrichment: Section 123 (a)(7) of the Atomic Energy Act requires U.S. consent for the reprocessing or alteration in form or content of nuclear material subject to U.S. agreements for cooperation. In the negotiations over the agreement, Indian officials insisted that the United States grant India advance, long-term consent to reprocessing so they can develop their "three-stage" nuclear fuel cycle, which would include fast breeder reactors. The United States has given long-term consent to reprocessing in only a few instances, namely in the case of Japan and EURATOM, who are NATO allies, and parties to the NPT.

The proposed U.S.-Indian agreement grants India long-term consent to reprocessing. This right will be implemented only after the parties agree to procedures for the application of safeguards to a facility that the Indians will dedicate for reprocessing used fuel under IAEA safeguards. This condition is far less comprehensive than those the United States required of its close allies and NPT parties in EURATOM and Japan. Here again, the proposed agreement grants preferential treatment to a non-NPT party.

Article 6 of the agreement also states that: "Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards." However, India has thus far refused to agree to place any part of its breeder reactor program -- the ostensible user of such reprocessed material -- under international safeguards. The Congress should demand a Presidential assurance that any plutonium or uranium recovered from reprocessed U.S.-origin fuel be subject to IAEA safeguards in perpetuity, including any such material used in or produced through the use of such material in India’s breeder reactors.

Article 5(2) of the proposed U.S.-Indian nuclear cooperation agreement states that: "Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this agreement."

Even if dual-use technologies are destined for a safeguarded facility, the United States must take further steps to ensure that such technology from such transferred items is not replicated and used in an unsafeguarded sensitive facility.

Agreement Does Not Address Material Covered Under Prior Agreement: Under an earlier 1963 U.S.-Indian nuclear cooperation agreement, the United States supplied India with nuclear power reactors at Tarapur and fuel for those reactors. The spent fuel from those reactors is in storage and contains "reactor grade" plutonium. India has said it will reprocess the used fuel to extract plutonium for use as fuel for civilian power reactor fuel. But such reactor-grade plutonium, once separated, can also be used for nuclear explosive devices and there is enough plutonium from Tarapur's spent fuel for hundreds of them. Under the 1963 agreement, India must get U.S. approval to reprocess the spent fuel, but India has taken the position that since the agreement has expired, it is not legally obliged to maintain any of its nonproliferation commitments under that agreement.

The non-proliferation assurances and conditions in the new agreement should apply to the nuclear materials and equipment for the Tarapur reactors and nuclear material that the United States supplied under the 1963 U.S.-Indian agreement, which expired in 1993. The Indians refused to place items supplied under the expired agreement under the nonproliferation controls of the proposed new agreement, including peaceful nuclear use assurances and safeguards.

In all other U.S. nuclear cooperation agreements, cooperating parties have agreed to apply the controls and conditions of a new agreement to items subject to an expired or terminated agreement. India is the sole exception. This means that the Tarapur reactors and the tons of spent fuel there are not, as far as the Indians are concerned, subject to any legal obligation to the United States (e.g, safeguards, and reprocessing or retransfer rights).

Moreover, in light of India’s refusal to place the Tarapur reactors and fuel under the proposed new agreement, the Nuclear Regulatory Commission will have to determine whether it will be able to license exports to India. For example, Section 127 of the Atomic Energy Act provides that “No such material, facilities, or sensitive nuclear technology proposed to be exported or previously exported and subject to the applicable agreement for cooperation, and no special nuclear material produced through the use of such materials, facilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device.”

The current U.S.-Indian nuclear cooperation agreement fails to resolve the status of the material covered by the 1963 U.S.-Indian agreement, and Congress should insist that the United States and India do so.

India Still Outside the Nuclear Nonproliferation Mainstream

India has been outside the international nuclear mainstream since it violated the peaceful use commitments it made to Canada and U.S. by using a Canadian-supplied reactor and U.S.-supplied heavy water to conduct its 1974 nuclear bomb test, refused to sign the nuclear Nonproliferation Treaty, and conducted additional nuclear tests in 1998. India made its choice and, as a result, it has been cut off from U.S. civilian nuclear cooperation since 1978 and most international assistance since 1992, when the Nuclear Suppliers Group adopted the comprehensive, full-scope safeguards standard for nuclear exports.

Under the terms of the U.S.-Indian nuclear cooperation deal, India is still outside the nonproliferation mainstream. The U.S.-India nuclear trade deal would grant India benefits not available to the non-nuclear weapon states parties to the nuclear Nonproliferation Treaty without even requiring it to meet all of the responsibilities expected of the five original nuclear-weapon states.

For example, unlike China, France, Russia, the United Kingdom, and the United States, India has refused to sign the 1996 Comprehensive Nuclear Test Ban Treaty and it has refused unilaterally to declare a halt to the production of fissile material for weapons -- as France, Russia, the United Kingdom, and United States have all done.

India's policies are still inconsistent with UN Security Council Resolution 1172. Approved unanimously in June 1998 following India's decision to resume nuclear testing, Resolution 1172 calls upon India and Pakistan to stop further production of fissile material for nuclear weapons. It also calls on the two countries to immediately stop their nuclear weapons development programs, refrain from weaponization or deployment of nuclear weapons, cease development of ballistic missiles capable of delivering nuclear weapons, and join other nations in a legally-binding nuclear test ban treaty.

By making a special exemption for India, the approach will make it even more difficult to enforce existing rules with states such as Iran and North Korea and to convince other states to accept tougher nonproliferation standards in the years ahead. India's neighbor, Pakistan, will surely accelerate its effort to keep pace with Indian fissile material production capabilities, which will stoke the already robust Indian-Pakistani nuclear and missile arms race.

Rather than ignore their own policies and practices, global treaties on nuclear nonproliferation, and UN Security Council resolutions, the United States and other countries should insist that leaders in New Delhi exercise greater nuclear weapons restraint and meet the same nonproliferation standards expected of other responsible, advanced countries before lifting restrictions on civil nuclear trade.

For more resources, documents, statements, and analysis, see the Arms Control Association’s special resource page on the U.S.-Indian nuclear deal at http://www.armscontrol.org/projects/india/

Daryl G. Kimball is executive director of the Arms Control Association; Fred McGoldrick is a Principal of Bengelsdorf, McGoldrick, and Associates, LLC and was a senior official with the U.S. Department of State.

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U.S.-Indian Talks Fail to Move Nuclear Deal

Wade Boese

Top U.S. and Indian officials failed recently to jump-start their stalled negotiations on a bilateral civil nuclear cooperation agreement that both governments hail as a centerpiece of their new relationship.

The two sides sought to favorably portray the latest talks that took place May 31 to June 2 in New Delhi. The U.S. embassy there issued a statement describing the discussions as “useful,” while Indian Foreign Secretary Shivshankar Menon deemed them as “constructive and productive.”

But the lead U.S. negotiator, Undersecretary of State for Political Affairs Nicholas Burns, left town without addressing reporters. His quiet exit spoke volumes about the lack of results, particularly since the Department of State had announced May 1 that the goal of Burns’ visit was to “reach a final agreement.”

The agreement being pursued is known as a 123 agreement, after the relevant section of the Atomic Energy Act of 1954. It would set the terms of future U.S.-Indian civil nuclear commerce. The United States previously cut off most nuclear trade with India following India’s 1974 explosion of a nuclear device derived in part from Canadian- and U.S.-origin material and technologies imported ostensibly for peaceful purposes.

Menon said June 2 that he was not setting dates or deadlines for completion of the agreement “because I do not think that is the right way to negotiate something that is so complicated.” Still, he noted that the two sides would like to finish negotiations “very quickly.”

President George W. Bush reportedly has invited Indian Prime Minister Manmohan Singh to an August stay at his home in Texas. They would probably like nothing more than to cap their visit with a finished agreement.

The two leaders put the entire effort in motion two years ago. (See ACT, September 2005. ) Bush pledged to change U.S. law and international rules restricting nuclear trade with India in exchange for a Singh commitment to open up a greater portion of India’s nuclear complex to outside oversight, specifically safeguards administered by the International Atomic Energy Agency (IAEA). Safeguards are measures intended to prevent nuclear technologies and materials in civil programs from flowing to nuclear weapons.

Congress gave its blessing to reviving nuclear trade with India in legislation passed last December. In that legislation, lawmakers established conditions under which future trade could be carried out. (See ACT, January/February 2007 .)

After the congressional action, Bush administration officials predicted a speedy conclusion of the 123 agreement. But the process has slowed to a standstill over the past several months because of differences over the details of the agreement.

India is opposed to clauses that would terminate cooperation and mandate the return of imports if New Delhi conducts another nuclear explosion. India also wants license to deal with U.S.-origin nuclear fuel however it sees fit, as well as the opportunity to purchase reprocessing and enrichment technologies. Those technologies can be used to make nuclear fuel or nuclear bombs. In addition, India is seeking assurances that it will not be deprived of foreign nuclear fuel supplies in the event the United States ceases cooperation.

Neither side has been in a compromising mood. Existing U.S. law and policy limits U.S. flexibility, while the Indian nuclear establishment and opposition lawmakers are pressuring the Singh government not to budge.

Burns acknowledges the difficulties but proclaims confidence they will be overcome. “I believe we will reach the mountaintop,” he said in a May 23 speech.

Conclusion of a 123 agreement would not mark the fulfillment of the Bush-Singh plan. Before U.S.-Indian nuclear trade could actually commence, there would also need to be congressional approval of the 123 agreement, completion of an IAEA-Indian safeguards agreement, and a nuclear trade exemption for India from the 45-member Nuclear Suppliers Group (NSG), which operates by consensus.

A 1992 NSG rule restricts nuclear trade with non-nuclear-weapon states that do not subject all of their nuclear enterprise to IAEA safeguards. New Delhi does not do this, nor under the Bush-Singh plan does it plan to start. Because India is classified as a non-nuclear-weapon state under the terms of the 1968 nuclear Nonproliferation Treaty, which New Delhi has not signed, it must get relief from the NSG rule to take greater advantage of international nuclear trade.

Despite some preliminary contacts, the IAEA and India have yet to launch negotiations on India’s request for unique safeguards. Meanwhile, some NSG members, such as France, Russia, and the United Kingdom, favor granting India a trade exemption, but other members must still be convinced. The group does not plan to take up the matter until a 123 agreement and IAEA safeguards agreement are negotiated.

Tests, Arrests Draw Attention to Indian Missiles

Alex Bollfrass

Indian missile engineers are wasting little time celebrating their first successful intermediate-range ballistic missile test. With their confidence boosted, missile program managers have offered to develop an ICBM and announced upcoming missile defense tests.

This push for ballistic missile advances coincides with federal government charges that a U.S. company has been violating U.S. export control laws. Cirrus Electronics stands accused of transferring dual-use technology to Indian government laboratories.

Parthasarathy Sudarshan, founder of Cirrus Electronics, was arrested March 23 together with his sole U.S. employee for supplying Indian weapons laboratories with electronic equipment suited for ballistic missiles and fighter aircraft. The indictment cites an Indian government official in the United States and charges two Cirrus employees abroad.

The defendants are charged with violating several laws that regulate what can be exported from the United States and who may receive sensitive technology. Most military exports require a government license.

The Department of Justice says Cirrus, knowing its Indian clients were unlikely to be approved, circumvented the licensing process by first shipping the items to Singapore. The company also provided forged end-user certificates to its suppliers.

The indictment’s first nine counts allege Cirrus illicitly aided India’s missile program. The U.S. Department of Commerce maintains a list of companies and individuals ineligible to receive military and dual-use technology without a permit.

Two Cirrus customers, Vikram Sarabhai Space Center and Bharat Dynamics Ltd., are on the list because of ballistic missile development work. They are owned and operated by the Indian government. Both received static random access memory chips and other electronic equipment for use in missile guidance and firing systems.

The second series of charges involve combat aircraft technology. Military-use technology exports must be approved by the Department of State. Cirrus did not seek such approval for 500 microprocessors. They were shipped via Singapore to the Aeronautical Development Establishment, a government outfit, for use in the Tejas Light Combat Aircraft.

Circumstances surrounding this charge are diplomatically awkward. Indian government officials are directly implicated in the trafficking charges, despite past assurances to respect U.S. export law.

An unnamed Indian government official is believed to have accompanied Sudarshan on a visit to the microchips’ producer in February 2004. Seven months after the trip, India’s foreign secretary assured the State Department that facilities affiliated with the Indian government would never “obtain or use U.S.-origin licensable items in contravention of U.S. export control laws and regulations.”

Moreover, Sudarshan and his employees “were in frequent consultation with Indian government representatives and were constantly acting at their direction and behest,” according to the Justice Department. The indictment calls Sudarshan an illegal agent of the Indian government.

Previous circumventions of U.S. export laws have benefited Indian government weapons laboratories. Between February 2003 and April 2006, the Commerce Department investigated more than 60 possible violations involving Indian consignees. This violation appears to be the first facilitated by an Indian official in the United States.

India reportedly relies on gray-market procurement for some of its weapons programs, particularly uranium-enrichment technology. Its position outside of international regimes regulating weapons technology trade, such as the Missile Technology Control Regime, restricts its ability to obtain technology and materials from the international market.

The revelations also came at an inopportune moment as the United States and India attempt to move forward with a nuclear cooperation agreement (see page 30 ).

Separately, India successfully tested the nuclear-capable Agni III missile. This marked the first successful test after a failed attempt last year. The intermediate-range ballistic missile flew for about 15 minutes on April 12. The missile’s makers say it has a maximum payload of 1.5 metric tons and can travel more than 3,000 kilometers.

The international response to the test was muted. China, whose main eastern cities would be in range of the missile once it is inducted into the Indian arsenal, did not protest. Chinese officials have downplayed the risk of a missile race with India, possibly because China’s arsenal size and reach far outrivals India’s.

Pakistan, already in India’s nuclear reach, received prior notification as required under bilateral agreements. Its government refrained from comment.

Prior to last year’s test, Chairman of the Joint Chiefs of Staff General Peter Pace signaled U.S. approval of such tests. Speaking June 5 in India, he said, “India will decide what India wants to do about testing missiles” and described such tests as “not destabilizing.”

The test’s domestic impact was more pronounced. It appears to have invigorated India’s interest in missile and anti-missile technology.

The head of the Defence Research and Development Organisation (DRDO), which developed the Agni series, advertised DRDO’s ability to develop an ICBM within two to three years. He added that the decision to do so would be a political one.

The DRDO also announced an upcoming missile defense test this summer. The anticipated interception will occur within the atmosphere, following last November’s successful test at an altitude of 50 kilometers.

Ballistic missiles can be intercepted in different phases of flight. November’s test targeted the latter portion of the mid-course phase, while the planned endoatmospheric interception aims at the terminal phase at 30 kilometers altitude.

The Agni III’s development was not aided by Cirrus’s transfers. Instead, the transfers went to laboratories working on the Prithvi series of ballistic missiles, which have a shorter range.

Three other systems were recently tested, beginning March 30 with a naval version of the Prithvi, the Dhanush. The supersonic cruise missile BrahMos underwent a 14th trial flight April 22 as part of its ongoing induction in the Indian army. Between these two tests, the Indian government conducted one of an unnamed system, possibly the Sagarika cruise missile.

In the meantime, Sudarshan is being held by authorities pending a May 1 status hearing. His sole U.S. employee is pleading not guilty and has posted bail. The trial is expected to take place in the summer or fall.

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