Written By: Dr. Zafar Nawaz Jaspal

The decision of the Obama Administration would have serious repercussions for the nuclear non-proliferation regime. It is because New Delhi has not made a legally binding commitment to pursue nuclear disarmament in reciprocity to the Indo-US nuclear deal. Admittedly, New Delhi made promises to respect and honour the principles of nuclear nonproliferation regime. But, India’s history of violating its peaceful nuclear use agreements to build nuclear weapons provide little confidence in India’s promises, especially if the consequences of noncompliance are not made clear by the United States. Moreover, the integrity of NPT would be severely damaged.

Since its announcement in summer 2005, the Indo-US nuclear deal has been controversial and viewed as a destabilizing arrangement for both nuclear non-proliferation regime and regional security. Notwithstanding, the American nuclear-commercial-lobby and strategic enclave have successfully pacified the nuclear cooperation pessimists in the United States. The American nuclear-commercial-lobby has been desperately looking for ways to find a nuclear market in India. As the New Delhi has both money and a need for large nuclear power reactors, it is very attractive for the American and European nuclear reactor and nuclear fuel supplier companies. Though the nuclear non-proliferationists have scientifically underlined the negativity of nuclear-fuel supply and nuclear-reactor technology transfer to India, yet the Obama Administration has seriously been engaging New Delhi to kick start the Indo-US nuclear cooperation without conceding its perilous severe repercussions for both the nuclear non-proliferation regime by institutionalizing a double standard and South Asian strategic environment.

Ironically, the proponents of Indo-US nuclear cooperation have misguided the international community by claiming that the American built reprocessing and nuclear reactor facilities would operate under the safeguards of IAEA.

President Obama visited New Delhi to boost enhance Indo-US strategic partnership on January 25, 2015. During his visit he had especially expressed his sincere desire to revive the Indo-US nuclear cooperation, which was brought to a standstill due to the Indian liability law, i.e. Indian Civil Liability for Nuclear Damages Act provides for two-part recourse – through Section 17(b) and Section 46 – against nuclear equipment suppliers if the nuclear plant blows up. Section 17(b) of the Indian Act allows the operator to sue equipment suppliers. The Rules to the Act, however, limit supplier liability to Indian Rs. 1,500 crore in damages or the value of the contract, whichever is less. Section 46 of the Liability Act potentially exposes suppliers to unlimited tort liability under relevant Indian laws. In simple words, it lays the liability on both operators and manufacturers in case of accidents at the nuclear power plant. Accordingly, the Indian law makes a supplier directly liable in case of a nuclear accident. Notably, the other national laws around the world make an operator primarily liable in such an event. This arrangement is not acceptable to the Indians. Because, if New Delhi follows global norms; the entire liability in case of an accident would fall upon the Nuclear Power Corp of India, a government-owned company that operates all the nuclear power plants in the country. Hence, the Indian government would be responsible for damages in case of a mishap. Another hindering issue in this deal was that US domestic law requires tracking by US authorities of nuclear supplies made to countries like India that have not ratified the Nuclear Non-Proliferation Treaty (NPT). India found the requirement unduly intrusive as it was in addition to International Atomic Energy Agency (IAEA) verification.

President Obama had tried to convince the Indian ruling elite to revise their liability laws, according to the established international nuclear trade norms. It was reported in February 2015 that both sides agreed to set in motion a long-stalled civilian nuclear cooperation agreement between the two countries. It was reported that President Obama agreed to exempt supplies to India from US inspections meant to ensure non-proliferation goals. In return, Prime Minister Modi approved a publicly funded insurance pool that would be set up to indemnify foreign suppliers and cover the liability under Section 17(b). Section 46 is sought to be neutralized through a legal opinion offered by the Attorney General. According to this arrangement, in case of a nuclear accident, a supplier or manufacturer of equipment used to build a nuclear reactor in the country will not be directly liable for damages, but the operator can claim damages from the supplier, if the contract so stipulates. Consequently, several American companies, such as, the General Electric Co., the privately held Westinghouse Electric Co. LLC, etc. would be able to establish nuclear power plants in India. In addition, the change in the Indian liability law encourages many European companies to supply the nuclear reactor material as well as transfer nuclear technology to India. For instance, France already has a civil nuclear cooperation with India under which the French company Areva is to set up six nuclear reactors (6x1650 MWe EPR – a third generation pressurized water reactor) in Jaitapur.

The advances in Indo-US nuclear deal manifests the significance and overbearing of monetary and political interest over the values and norms in the global politics. Simultaneously, it denounces the rhetorical support of President Obama to the nuclear non-proliferation regime. It highlights severe contradictions to what President Obama committed himself in Prague on April 5, 2009, i.e. a vision of a world without nuclear weapons. The recent developments clearly demonstrate how rhetorical and meaningless is President Obama’s vision of a world without nuclear weapons. Perhaps, President Obama’s nuclear non-proliferation approach requires halting uranium-enrichment and weapon-grade-plutonium manufacturing programmes in India. Ironically, the proponents of Indo-US nuclear cooperation have misguided the international community by claiming that the American built reprocessing and nuclear reactor facilities would operate under the safeguards of IAEA. It was reported that according to the reprocessing agreement between New Delhi and Washington, the former would reprocess the US spent nuclear fuel at two nuclear reactor park sites in Andhra Pradesh and Gujarat. The US State Department stressed that these new facilities would be established under IAEA safeguards and therefore only be used for energy generation. It germinates an impression that India would not use the transfer of the United States reprocessing technology for its nuclear weapons programmes. Neither IAEA, nor India’s nuclear record support the State Department’s claim.

Presently, Australians and Indians are endeavouring to materialize the uranium deal. Perhaps, purchasing uranium from Australia for running the nuclear plants to generate electricity would allow India to use its indegenious uranium reserves entirely for producing fissile material to increase its nuclear arsenal.

The archives of the IAEA reveal that the agency’s safeguards mechanism is only successful in those states which are not willing to manufacture nuclear weapons or have been enjoying nuclear positive secuirty assurances from the nuclear weapon states. The states which desired to evade the Agency’s safeguards procedures were successful in dodging the agencies’ inspectors and pursuing their clandestine nuclear weapon programmes. Such states normally take advantage of their peaceful use of nuclear programmes for their military pursuits.

India is a known violator of its commitments with the nuclear supplier states and breacher of IAEA safeguards arrangement. For instance, in May 1974, and again in May 1998 it conducted its nuclear explosions by using plutonium which it assembled from its CIRUS reactor. Since the very beginning, the CIRUS reactor has been under the IAEA safeguards. The violation of CIRUS agreement provoked Washington and thereby it successfully lobbied for the constitution of Nuclear Supplier Group (NSG) in 1975, which became operative in 1978. The NSG member states only transfer nuclear technology to those recipient states, which observe comprehensive safeguards of the IAEA. Nevertheless, Bush Administration managed to secure an amendment in NSG trade laws in favour of India in October 2008.

On September 6, 2008, the 45-member NSG agreed in Vienna to exempt NPT hold-out India from its guidelines that require comprehensive international safeguards as a condition of nuclear trade. Safeguard measures, such as inspections and remote monitoring, are supposed to deter and detect misuses of civilian nuclear facilities and materials to build nuclear weapons. The NSG waiver has not only facilitated numerous foreign firms to supply sophisticated nuclear technology to India having declared eight unsupervised nuclear power reactors, but also it rolled back three decades of nuclear trade restrictions on India. These restrictions were imposed in a reaction to New Delhi’s violation of peaceful nuclear cooperation agreements by detonating its first nuclear bomb on May 18, 1974. Nevertheless, India’s immunity set a precedent that facilitates nuclear trade between nuclear suppliers and recipient states without paying serious attention towards the IAEA comprehensive safeguards mechanism.

The amendment in the NSG trade laws has legitimized nuclear trade with India, despite the fact that India is neither a party to the NPT nor committed to sign the Comprehensive Test Ban Treaty (CTBT) in the near future. Consequently, in addition to the American companies, many other nuclear supplier states’ nuclear companies have been negotiating nuclear deals with India. On July 28, 2010, British Prime Minister David Cameron gave an impression that his government wants to push ahead the civil nuclear cooperation with India. Earlier France, the Russian Federation and Japan had expressed their willingness to increase the cooperation with India in the nuclear realm. Presently, Australians and Indians are endeavouring to materialize the uranium deal. Perhaps, purchasing uranium from Australia for running the nuclear plants to generate electricity would allow India to use its indigenous uranium reserves entirely for producing fissile material to increase its nuclear arsenal.

The decision of the Obama Administration would have serious repercussions for the nuclear non-proliferation regime. It is because New Delhi has not made a legally binding commitment to pursue nuclear disarmament in reciprocity to the Indo-US nuclear deal. Admittedly, New Delhi made promises to respect and honour the principles of nuclear nonproliferation regime. But, India’s history of violating its peaceful nuclear use agreements to build nuclear weapons provide little confidence in India’s promises, especially if the consequences of noncompliance are not made clear by the United States. Moreover, the integrity of NPT would be severely damaged. The NPT’s Article I states: “Each nuclear-weapon State Party to the Treaty undertakes… and not in any way to assist, encourage, or induce any non-nuclear-weapon States to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.” The finalization of liability agreement entails entry-into-force the Indo-US nuclear deal.

The entry into force of the said deal, certainly, set in motion the American nuclear technology transfer to India – a non nuclear weapon state. Though India in May 1998 tested nuclear weapons and declared itself as a nuclear weapon state, but NPT Article IX, clause 3 states: “For the purpose of this Treaty (NPT), a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.” Thus, India is a non-nuclear weapon state. The Indo-US nuclear deal would have encouraging rather discouraging influence on the Indian nuclear weapons programme. This encouraging attitude is a violation of the Article 1 of the NPT. It’s because, the nuclear analysts have a consensus that the Indo-US nuclear deal would improve Indian nuclear infrastructure, which have positive impact on the Indian nuclear weapons programme. Secondly, the American nuclear fuel sales to India for Indian power reactors will free up India’s limited domestic uranium supplies to be used exclusively for bomb-making. So, New Delhi continues to produce fissile material and expand its nuclear arsenal.

President Obama also reiterated, during his January 2015 Delhi visit, his administration’s earlier stance to support India’s NSG candidature. Ironically, President Obama had completely ignored the foundational logic of the NSG in 1975, which entered into force in 1978. Neither, he pressurized India to join the NPT for the sake of nuclear technological assistance, nor he was preserving the philosophical constructs of the NSG. India’s NSG membership would be having strategic and economic dividends for New Delhi. The NSG membership would not only elevate India’s stature in the community of nations, but it also facilitates its entry into other important strategic cartels, i.e. the Missile Technology Control Regime (MTCR), the Australia Group and the Wassenaar Arrangement. These three voluntary cartels have decisive contribution in controlling the spread of military technology. In simple words, primary responsibility of these cartels is to deny military technology to the developing states or preserve the strategic imbalance between the military-technologically advantageous nations and militarily disadvantageous states.

India is interested to export nuclear technology for its economic and political pursuits. Importantly, even before becoming the member of NSG, India had signed an “agreement on cooperation in peaceful uses of nuclear energy” with Sri Lanka on February 16, 2015. Prime Minister Modi stated: “The bilateral agreement on civil nuclear cooperation is yet another demonstration of our mutual trust.” Under the deal, India would facilitate cooperation in transfer and exchange of knowledge and expertise, sharing resources, capacity building and training of personnel in peaceful use of nuclear energy including the use of radioisotopes, etc.

The breakthrough in nuclear realm between India and United States is destabilizing for the nuclear non-proliferation regime because it would seek to relax the guidelines for commercial ends rather than strengthening the norms of nuclear non proliferation regime. India gains recognition as the first non-NPT nuclear weapon state which would blow apart the regime’s foundation. Indeed, it is equally alarming for Pakistan. It further cements the strategic partnership between India and United States. Consequently, the New Delhi would be able to purchase sophisticated weapons and nuclear technology from the United States.

To conclude, it would be having productive impact on the Indian military muscle entailing military asymmetry in South Asia, which may lower the nuclear threshold between India and Pakistan. Simultaneously, it would severely damage the well conceived twentieth century nuclear nonproliferation regime.

The writer is Director and Associate Professor at the School of Politics and International Relations, Quaid-i-Azam University, Islamabad. He contributes for print and electronic media regularly. This email address is being protected from spambots. You need JavaScript enabled to view it.
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