Why the US – India Trade Agreement Threatens the NPT - Part 2

Part 1 here.

At the Carnegie Nonproliferation Conference, one of the sessions was titled “Forging Nonproliferation Consensus after US – India Civil Nuclear Cooperation.” Unfortunately, the Carnegie website doesn’t have a transcript of that session posted, so I’ll have to work from my notes.

At that session, Peter Potman, a counselor in the Political Department of the Netherlands Embassy to the United States, gave an official view of the agreement. The Netherlands is an NPT non-nuclear-weapon state.

The issues, he said, are not just academic or political. They are very important to the Netherlands and its participation in the NPT. He said that the agreement should have three characteristics to satisfy the non-nuclear-weapon states:
1. It should address strategic restraint on the part of India.
2. It should require an additional protocol for India.
3. It should not provide a “back door” to allow a non-nuclear-weapon state to leave the NPT and then be recognized with nuclear weapons.

Let’s see how the 123 agreement, as actually negotiated after Potman’s talk, measures up.

1. Strategic Restraint. The 123 agreement contains less on this issue than does the July 2005 Joint Statement between President Bush and Prime Minister Singh. That statement says

India would reciprocally agree that it would be ready to assume the same responsibilities and practices…as other leading countries with advanced nuclear technology... These responsibilities and practices consist of identifying and separating civilian and military nuclear facilities and programs in a phased manner and filing a declaration regarding its civilians facilities with the International Atomic Energy Agency (IAEA); taking a decision to place voluntarily its civilian nuclear facilities under IAEA safeguards; signing and adhering to an Additional Protocol with respect to civilian nuclear facilities; continuing India's unilateral moratorium on nuclear testing; working with the United States for the conclusion of a multilateral Fissile Material Cut Off Treaty; refraining from transfer of enrichment and reprocessing technologies to states that do not have them and supporting international efforts to limit their spread; and ensuring that the necessary steps have been taken to secure nuclear materials and technology through comprehensive export control legislation and through harmonization and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines.

India has identified its nuclear facilities as civilian and military, with the balance skewed toward the military, nonsafeguarded side. The declaration is to be filed with the IAEA at a later stage in the process. The 123 agreement does not use the words “Additional Protocol,” but rather “an India-specific agreement.” The issue of how India’s moratorium on nuclear testing comprised much of the negotiation; the Indians were unhappy with the US Congress’s requirement that nuclear trade be suspended if India tested. Nothing in the 123 agreement about a Fissile Material Cut Off Treaty (FMCT). Less is said about refraining from technology transfer than about security. NSG approval is yet to come.

I don’t recall a rigorous definition of strategic restraint from the Carnegie conference, although the phrase was used repeatedly in reference to India. I take it to mean India’s stabilizing or ramping down the size of its weapons program, including its breeder reactors and reprocessing plants, along with a continued test moratorium and working toward an FMCT, with careful stewardship of its nuclear knowledge. The Joint Statement appears to cover much of this, but the 123 agreement undermines what was promised in the Joint Statement.

In fact, the 123 agreement says

Accordingly, nothing in this agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. This Agreement shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes.

Short version: India can make as many nuclear weapons as it wants, and the US won’t say boo.

The 123 agreement contains a series of assurances to India that fuel supplies will not be cut off summarily. It also gives India prior consent to reprocess fuel supplied by the United States. I’ve discussed this in Part 1. Although the word “testing” doesn’t occur in the 123 agreement, that is what the assurances are about. So the bottom line is that the United States will be expected by India to ask nicely if India decides that resumption of nuclear testing is in its interest, and India can reprocess US fuel if it decides that the US has not asked nicely enough. The one bar that the 123 agreement specifies is that the reprocessing be done in an IAEA-safeguarded facility, which India does not currently have.

Bottom line on strategic restraint: hardly any.

2. Requires an additional protocol for India. Although Undersecretary Nicholas Burns is reported to have presented the 123 agreement as requiring an “Additional Protocol” of India, the words of the agreement, which India is sticking with, is “an India-specific agreement.” The difference, given the skill of Indian negotiators on the 123 agreement, is important.

An Additional Protocol is an agreement between an NPT signatory and the IAEA for increased safeguards on its nuclear facilities. Each additional protocol is specific to each country, but a general form with expected coverage has been worked out. An India-specific agreement has no requirement to follow this form.

Bottom line on an additional protocol: not really.

3. The “Back Door.” This one is hard to evaluate because it goes more to the fact of the agreement itself than to the specifics of the 123 plan and the 2005 Joint Statement.

Will non-nuclear-weapon states decide that the United States’s disregard for its obligations to the NPT mean that they should play a sharp game too? Withdrawal from the NPT is still a very weighty decision; only a nation that it determined to flout the overwhelming consensus would take that step today. If the US Congress approves the 123 agreement as supinely as it did the waivers to make such an agreement possible, some erosion will take place. If the US uses hard tactics to press the NSG to approve a deal for India, there will be more erosion. Other events will also factor in. We won’t know whether a back door has been opened until it is too late.

I’m looking forward to hearing more from the non-nuclear-weapon states.