In March 2006, the United States of America and India signed an agreement known as US-India Civil Nuclear Agreement – also referred to as 123 Agreement because Section 123 of the United States Atomic Energy Act of 1954 establishes conclusion of an agreement as a pre-requisite for nuclear deals between the US and any other nation. To date, the US has signed about twenty five 123 Agreements with various countries.
The agreement was preceded by a joint statement by the then Indian Prime Minister Manmohan Singh and the US President George W. Bush, under which India agreed to clearly and verifiably separate all nuclear facilities in a phased manner into two distinct categories i.e. civilian and military and place all its civil nuclear facilities under International Atomic Energy Agency (IAEA) safeguards and file a declaration to this effect in accordance with its ‘Separation Plan’. In exchange the US agreed to work with India towards full civil nuclear co-operation.
The deal took more than three years to be concluded as it had to go through several complex stages including amendment of the US domestic law, especially the Atomic Energy Act of 1954, a civil-military nuclear separation plan in India, an India-IAEA safeguards (inspections) agreement and grant of an exemption or ‘Clean Waiver’ by the Nuclear Suppliers Group (NSG) – meaning an exemption from its rules in vogue which forbids nuclear trade with a country which has not signed Nuclear Non-Proliferation Treaty (NPT).
The commitment made by India to the US on this account was assumed as a transparent and unambiguous arrangement to clearly and verifiably separate its nuclear facilities into two distinct categories i.e. civilian and military. Two years later, in 2008, Nuclear Suppliers Group (NSG) granted India ‘Clean Waiver’. Interestingly, the NSG, an export control cartel of 46 countries, was formed in 1974 primarily in response to India’s first nuclear explosion that year.
The waiver was later rescinded when global pressures to strengthen NSG’s guidelines on transfer of sensitive equipment and reprocessing technologies intensified. The US stance on the matter, however, has been typically ambiguous since, on the one hand it supports NSG’s ban on enrichment and reprocessing (ENR) technologies sales to those countries which have not fulfilled the fundamental condition of signing the NPT, which renders withdrawal of clean waiver from India an appropriate action, and on the other, the US insists that withdrawal of waiver does not in any way detract from exemption granted to it by NSG in 2008.
Nearly a decade after Indo-US joint statement, Belfer Centre for Science and International Affairs at Harvard Kennedy School in the United States has now come out with a startling revelation that India’s ‘separation plan’ has not produced the implied two categories of facilities – rather it has produced three streams: ‘civilian safeguarded’, ‘civilian unsafeguarded’ and ‘military’. In practice, the so called separation plan provides for only some of India’s nuclear power reactors, associated fuel fabrication and spent fuel storage under continuous safeguards and does not extend to a number of nuclear facilities which serve civilian functions but can also be used in its military program.
Giving details of facilities in each stream and their relationship, the Belfer Centre report establishes beyond doubt that the ‘overlap’ between three streams is far from transparent. Some civilian facilities, even when operating under certain provisions of India’s safeguards agreement with International Atomic Energy Agency (IAEA), still have loopholes to contribute to India’s stockpiles of unsafeguarded weapons-useable nuclear material.
Procedurally, safeguards in India have primarily applied to nuclear facilities and material supplied to India by other states on condition that they remain subject to inspections. If India imports nuclear material subject to safeguards, the IAEA accounts for it as it goes through India’s fuel cycle and verify its non-diversion towards nuclear weaponry.
But of the non-transparency under discussion here stems out of unique character of India’s safeguard agreement with the IAEA and the additional protocol to this agreement. From the proceedings of recently concluded negotiations between western powers and Iran, it is difficult to imagine how countries negotiating safeguard agreement with India were unaware of these loopholes. On closer examination, it leaves little doubt that it was done by design and there is a deliberate and discernable tilt in favor of India. Needless to say that such biased actions will erode trust and raise suspicions about global non-proliferation initiatives contemplated by major powers.
To create space for its nuclear shenanigans, India concluded a safeguard agreement with IAEA in 2009 as part of Indo-US nuclear agreement, which includes a list of facilities (some of them indigenous) that are subject to continuous (permanent) safeguards. As a general rule, the agreement with IAEA requires application of safeguards to nuclear material, including subsequent generation of material, produced, processed or used in a listed facility or by the use of safeguarded material. However, there are some exceptions like allowing India to store, use, or process nuclear material subject to safeguards, at a facility which is not under permanent or continuous safeguards, provided that India opens the facility to safeguards temporarily while the safeguarded material is present there.
In addition, the agreement contains provisions for substitution of unsafeguarded material for safeguarded material. For states with comprehensive safeguards agreements, the additional protocols create additional reporting obligations and extend to IAEA the right to access nuclear related sites. India, however, has negotiated a very limited additional protocol in which the reporting and access provisions are drastically curtailed.
Resultantly, India’s safeguards agreement and its additional protocol do not have any worthwhile practical applications to its uranium and thorium mines, heavy water production facilities, nuclear fuel cycle related research facilities or plants where it manufactures equipment for its nuclear facilities. It all adds up to introducing potential for safeguarded nuclear activities to contribute to India’s nuclear weapons program. What is alarming is that the ‘overlap’ between civilian and military nuclear activities, which creates all the loopholes, is likely to increase as India expands its nuclear power programs and its reprocessing and enrichment industries because, it will be India’s discretion whether or not to place new facilities under continuous safeguards.
As evidence in support of the above apprehensions, the report cites 500 MW Prototype Fast Breeder Reactor which was expected to achieve criticality in April 2016 and India has not placed it under safeguards. This facility will introduce new pathways to produce electricity as well as unsafeguarded plutonium. India operates a number of facilities, including eight of its pressurized heavy water power reactors (PHWRs), which serve civilian or commercial functions and are not listed in India’s safeguard agreement with IAEA.
These facilities are not subject to safeguards (except where India may introduce safeguarded material into them – and to that extent only). There are three heavy water production plants which India has expressly designated for civilian use as part of the separation plan, but are not subject to safeguards as they are not listed in India’s safeguard agreement neither does India’s additional protocol extend to them. India’s fast breeder reactors (FBRs) and thorium cycle programs fall into the category of civilian unsafeguarded (as opposed to military programs), although both are capable of producing unsafeguarded weapon-useable nuclear material. India has excluded the FBRs from safeguarded facilities on the strange logic of avoiding ‘encumbrances’ during development stages.
The said report considers this ‘incompleteness’ of separation of India’s civilian and military programs as a serious matter and has called upon the NSG to take the matter into consideration in their deliberations to determine conditions for civil nuclear co-operation. These revelations are a matter of serious concern to Pakistan especially as India spares no opportunity on the international scene to malign Pakistan’s nuclear program.
NSG’s failure to take cognizance of this serious matter will tantamount to failure in its stated aim of seeking to ensure that its policies and actions are not contributing to nuclear arms race in South Asia.
The writer is a retired Vice Admiral and former VCNS of Pakistan Navy. E-mail: [email protected]
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