Why the US - India Trade Agreement Threatens the NPT

by CKR

The purpose of the Nuclear Nonproliferation Treaty is to limit the spread and numbers of nuclear weapons. The thinking behind it is that nuclear weapons are so destructive that they could severely disrupt or destroy human, perhaps all, life on earth. Thus, it is a good thing, perhaps a necessary thing, that nuclear weapons be limited.

As the NPT developed in the 1960s, there were five nations with nuclear weapons: the United States, the Soviet Union, Britain, France and China. They were not about to give up their nuclear weapons then and there, so the NPT defined two kinds of states: nuclear weapon states (those just named) and non-nuclear-weapon states (everyone else who signed the treaty). The bargain that justified this inequity was that the nuclear weapon states agreed (somewhat cynically) to work toward eliminating nuclear weapons and, further, toward general disarmament if the non-nuclear-weapon states would continue to forego nuclear weapons.

We live in a world of a broad consensus that nuclear weapons should be limited and eliminated. This is because all nations but three have ratified the NPT; only one (North Korea) has withdrawn from it. But in the 1960s, the world was quite different. Brazil and Argentina were unfriendly, and both thought that a nuclear capability might be a good deterrent to the other. South Africa worried about maintaining its apartheid regime. Sweden considered its historic place as a major power in northern Europe. India considered its historic place as a major power in South Asia and the threat from a nuclear China and its rival, Pakistan. Israel needed a counterbalance to the hostile Arab presence. Pakistan considered India. In the sixties, nuclear weapons looked like a good bet to many nations.

Brazil and Argentina undertook a long series of negotiations that led to mutual inspections and eventually to ramping down their nuclear weapons programs. South Africa built six nuclear weapons and then dismantled them along with apartheid. Sweden decided that its place was better served by pushing peace instead of war. All of them joined the NPT. India, Israel and Pakistan built nuclear weapons and did not join the NPT.

By joining the NPT, the nuclear weapon states at least gave lip service to the goal of nuclear and general disarmament. After the number of nuclear weapons in the world exceeded 70,000, the two largest manufacturers, the United States and the Soviet Union, decided that that just might be too many and began to take some out of service. Mutual agreements (SALT, START) led to further reductions, along with mutual inspections to verify that those reductions were taking place. At times, the goal wavered into sight of reality, as in Reykjavik, between Ronald Reagan and Mikhail Gorbachev in 1986. The world is now down to about 26,000 nuclear weapons; the United States and Russia have thousands, while the other nuclear weapon states, in and out of the NPT, have a couple of hundred each.

India continues to live in a pre-NPT world: nuclear weapons are their right as a major power, and a deterrent to their enemies. Arms control does not exist in India’s world; many Indian commentators have pointed out that the agreement negotiated with the United States is a trade agreement, not an arms control agreement. India has negotiated no arms control agreements with any other nation.

But the viewpoint of those within the NPT is different. If nuclear trade is to take place with a country that used supposedly peaceful nuclear trade to build up its weapons program and which insists on remaining outside the NPT’s bargain, then that trade should serve the purpose of decreasing the danger from nuclear weapons. If a non-NPT nuclear weapon state wants nuclear trade, it must move in the direction of acting like an NPT nuclear weapon state. Otherwise, all the states that have vowed not to build nuclear weapons have signed up for a hollow bargain: they could have gone India’s way and still had the benefits of nuclear trade.

It’s possible to object that the NPT nuclear weapon states are not upholding their side of the bargain, and therefore those who haven’t bothered to sign up to the maintenance of this unfair regime should certainly have no such obligations. Nuclear testing and production of ever more fissile material are outside any agreement that might ever be struck; they are the inherent right of a sovereign country to provide for its defense. This has been India’s position since the 1960s.

All international agreements, however, involve each side’s giving up some of its sovereignty. That may mean improving environmental standards so that dolphins are not caught in tuna nets or agreeing to a border that does not include all the territory that could historically be justified as part of a sovereign nation. The trade proposed with India includes conventional arms; India has used peaceful nuclear trade to build its nuclear arms program in the past. Of course the question of nuclear weapons is part of this agreement in a world that respects the NPT.

India has managed to turn these concerns on their head. When it was found that India had used materials supplied by the United States, Canada and France to produce its “peaceful” nuclear test in 1974, trade in those materials was suspended, and India was left with fuel elements that could not be reprocessed and could not be shipped. India is still smarting from this and so insisted in the recent negotiations that continuity of fuel supply is essential, no matter what India does, testing nuclear devices, manufacturing enough fissionable material for thousands of weapons. The United States caved.

The Parties recognize that reliability of supplies is essential to ensure smooth and uninterrupted operation of nuclear facilities and that industry in both the Parties needs continuing reassurance that deliveries can be made on time in order to plan for the efficient operation of nuclear installations.

India’s insecurity on this point is assuaged in two articles explicitly, and two articles detail all the things that might be done if India tests: much negotiation and conversation in which India would put its case that the testing was absolutely necessary to its national security. Which most likely would mean that Pakistan had tested again, and India felt it necessary to match the macho.

And, we may ask, what does India commit to in return?

an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing 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. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.

The word is “India-specific” to indicate the agreement negotiated between India and the IAEA, repeated twice. Apparently Undersecretary of State Nicholas Burns has referred to the agreement as an Additional Protocol, which implies certain types of safeguards coverage. The Indians are using the words of the 123 agreement.

We also have to consider the very limited number of reactors that India has declared as civilian. Because of its development of both weapons and power technology within the same institutions, India has minimized the number of current facilities designated as “civilian” for this agreement; power reactors to be built in the future will be considered “civilian,” but only eight additional facilities are to be put under safeguards in the near future. Six reactors are already under safeguards.

India also agrees to provide adequate physical protection and accounting of materials supplied by the United States, that the materials will be used for peaceful purposes only, and that all materials supplied by the United States will be safeguarded “in perpetuity” by the IAEA under an agreement to be negotiated. It also agrees to follow “best practices for minimizing the impact on the environment.”

One of the sticking points was advance consent for India to reprocess spent fuel supplied by the United States. The usual procedure for one nation supplying nuclear fuel to another is to require that the spent fuel be returned for reprocessing. The issue is, of course, what will be done with the enriched uranium and plutonium recovered by reprocessing, which can be used in power plants or in weapons. Again, India’s desire for that advance consent is driven by the memory of that fuel embargo in response to their underground test.

…the Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement and nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred. To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility…The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. …Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards.

So India may reprocess US-supplied fuel, but only in a new facility, under IAEA safeguards. That’s a significant hurdle. However, if relations sour, it would not be beyond the bounds of India’s historical behavior for it to use its existing unsafeguarded facility, just as it would not be beyond the bounds of the US’s recent behavior toward treaties to stop supplying fuel.

Some things are excluded from the trade, at least for now.

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. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties’ respective applicable laws, regulations and license policies.

In other words, additional negotiation resulting in an amendment to the agreement will be necessary for all these technologies and equipment.

What has to happen next? Congress must approve the 123 agreement. Then the Nuclear Suppliers’ Group must change its guidelines to allow nuclear trade with a nation that has not ratified the NPT. Along the way, India must negotiate a safeguards agreement with the IAEA.

The bottom line, not at all explicit in the agreement, is that the Hyde Act, passed by Congress earlier this year, is still operative.

Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful
purposes.

That, and much of the material about cessation of cooperation, means that if India tests, the agreement is ended. Or perhaps not, if President Bush’s signing statement on Congress’s earlier waivers to existing law is what he hopes it is.