• Our worst apprehensions confirmed; • PM flouts his own assurances to Parliament; • India to be in bondage as a Non-Nuclear Weapons State in perpetuity

Shri L.K. Advani, Leader of the Opposition (Lok Sabha), along with leaders of the constituent parties of the NDA, addressed a press conference on 8 July accusing the UPA Government of making India a laughing stock in the eyes of the world for the deceitful manner in which it approached the International Atomic Energy Agency (IAEA) without first seeking a vote of confidence in the Lok Sabha.

Subsequently, the BJP has studied the draft Safeguards Agreement between India and the IAEA, which has been circulated to the Agency’s board members. Before we present our substantive comments on the draft, the BJP takes strong exception to the fact that a document that has serious long-term implications for India, and which has been made available to the governments and peoples of other countries — indeed, to the entire world through the Internet — was kept hidden from the political parties and people in India.

The draft Safeguards Agreement has made a mockery of the assurances that Prime Minister Dr.Manmohan Singh had repeatedly given to the nation. Speaking in the Lok Sabha on July 29, 2005, had said: “We shall undertake the same responsibilities and obligations as … the US”; “we expect the same rights and benefits” as the US; and “India will never accept discrimination”. This assurance has been flouted in the Agreement, which does not recognize India as a Nuclear Weapons State (NWS) on par with the United States, Russia, Britain, France and China.

The PM had assured that the Agreement would be “India-specific” – that is less onerous and intrusive than the Agreements with the Non-NWS. He had assured Parliament on August 17, 2006, that, “As a country with nuclear weapons, there is no question of India agreeing to a safeguards agreement or an Additional Protocol applicable to non-nuclear-weapons states of the NPT”.

Far from it being an India-specific agreement, the accord resembles IAEA agreements with non-nuclear-weapons states. With the exclusion of the first two pages that contain the preamble, and a couple of other exceptions, the text is largely modelled on IAEA safeguards agreements with non-nuclear-weapons state. As sought by the United States, the text of the India-IAEA accord has been drawn from the strengthened INFCIRC-66/Rev.2 (16 September 1968) model for NNWS.

India will have none of the rights that the five established nuclear-weapons states have vis-à-vis the IAEA. Nuclear-weapons states accept only voluntary, revocable inspections. Moreover, these five nuclear powers have the sovereign right to terminate their safeguards agreement with the IAEA.

The India-IAEA safeguards accord comes with perpetual, legally irrevocable obligations, which India cannot suspend or end, even if the supplier-states cut off supply of fuel and replacement parts. The IAEA inspections in India will not be nominal but stringent and invasive, of the type applicable to non-nuclear-weapons states.

The draft Agreement is exactly the same – word for word, para by para – as what the US Administration had wanted. India has not only accepted stringent “routine” inspections with “access at all times”, but also “Special Inspections”. Paragraph 63 of the India-IAEA accord states the “Agency may carry out special inspections if: (a) the study of a report indicates that such inspection is desirable; or (b) any unforeseen circumstance requires immediate action. The Board shall subsequently be informed of the reasons for and the results of each such inspection”.

In other words, the Agency will have the right to carry out “special inspections” if it believed any activity at a safeguarded Indian facility or any report raised questions. In the North Korean case, the board had approved the special inspections which the Pyongyang refused to allow. But India, in its accord with the IAEA, has consented to be subject to special inspections without the Board’s prior consent.

Under Clauses 34 and 39-42, India has agreed to supply design information as soon as India makes a decision to build or modify a facility. Thus, not just INFCIRC-66; but all the three instruments available to IAEA under INFCIRC-153 will be applicable to India. By Clauses 117 and 127, not just the 14 reactors, but in addition, 21 other institutions and sites, including in particular ‘R&D facilities’ will be placed under safeguards. This means : While the five established nuclear powers have offered only 11 facilities in total — less than 1% of their total facilities — for IAEA safeguards, India has agreed to place 35 of its facilities under IAEA inspection, according to the civil-military separation plan presented to Parliament by the Prime Minister in 2006.

These facilities include 14 power reactors; three heavy-water plants at Thal-Vaishet, Hazira and Tuticorin; six installations at the Nuclear Fuel Complex in Hyderabad; the PREFRE reprocessing plant at Tarapur; and nine research facilities, such as the Tata Institute of Fundamental Research, Board of Radiation and Isotope Technology and Saha Institute of Nuclear Physics. In addition, the Prime Minister has agreed to shut down by 2010 the Cirus research reactor, which is one of the two research reactors in India producing weapons-grade plutonium.

Several of these are generic facilities: nuclear medicine, irradiation of foodgrains, nuclear energy, and also nuclear weapons. This is exactly what we had said in Parliament.

India’s facilities will be under safeguards in perpetuity, exactly as per Section 104(b) (2) of Hyde Act. This was repeated several times over by Condoleezza Rice and others, and in Joint Conference Report.

A source of grave concern for India is the fact that the so-called “Corrective Measures” in the draft Agreement, in the event of disruption of fuel supplies, are dangerously vague and non-specific. As mandated by the Hyde Act, the India-IAEA safeguards accord is firmly anchored in the GOV/1621 (1973) document. For example, the safeguards accord’s Clause 29 reads: “The termination of safeguards on items subject to this Agreement shall be implemented taking into account the provisions of GOV/1621 (20 August 1973)”. Although the text of the GOV/1621 document is not public, its central stipulation is well-known — that facility-specific safeguards shall be “in perpetuity”, allowing for no suspension of international safeguards and shutting out room for corrective measures. Such are the known conditions of GOV/1621 that the rights and obligations of the parties continue perpetually on all nuclear materials until the materials have been returned or all the fissionable material supplied, produced or processed goes out of the inventory.

Under Clause 32 of the India-IAEA accord, New Delhi can withdraw a facility from safeguards with the prior consent of the IAEA but only after “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards,” which means the installation’s nuclear capability has been dismantled or permanently disabled to the Agency’s satisfaction.

That is in keeping with the fact that all INFCIRC/66/Rev.2 agreements since 1974 have been tied to the actual use in the recipient-state of supplied material or items, rather than to fixed periods of time. The safeguards, however, extend to all subsequent generations of produced nuclear material derived from original supplies. The INFCIRC/66.Rev.2 standard also precludes a country withdrawing any designated civilian facility from safeguards on national security grounds.

It is also worth noting that the reference to “corrective measures” appears only in the Preamble, and not in operative part of the Agreement.

Another cause of concern is that in case of disagreement or dispute, there is no arbitration. India can only represent its case to the Board (Clauses 104 to 106), whose decision has to be implemented by us. If India does not act on its directive, the Board will report India’s non-compliance to the UN General Assembly and Security Council. Past experience has shown that India has rarely received justice when India-related disputes have gone to the UNSC.

Much has been made of there being an “Additional Protocol” as if some great concession to India, some special treatment, has been offered to India. In fact, it only represents another screw turned against our country. And this too is as specified in the Hyde Act.

The “Additional Protocol” will seek to ensure that specialized equipment, trained personnel, and designs and operating manuals are not transferred from the civilian programme to the military programme. The Hyde Act demands that the “Additional Protocol” for India be “based on a Model Additional Protocol as set forth in IAEA information circular (INFCIRC) 540” — that is, the Protocol applicable to non-nuclear-weapons states. In contrast, the Prime Minister had assured Parliament on August 17, 2006, that, “As a country with nuclear weapons, there is no question of India agreeing to a safeguards agreement or an Additional Protocol applicable to non-nuclear-weapons states of the NPT”.

The following are not provided at all: (a) Assured, uninterrupted fuel supply; (b) strategic reserves of fuel. In 123 Agreement, the promises for uninterrupted fuel supplies are all prospective. In August 2006, the PM had told Parliament, for instance, that: “An important assurance is the commitment of support for India’s right to build up strategic reserves of nuclear fuel over the lifetime of India’s reactors”. The Draft with IAEA carries no reference to the continuation of India’s safeguards obligations being contingent on perpetual fuel supply. The agreement indeed explicitly blocks India from ever undertaking real correction in response to a fuel supply cut-off — the lifting of IAEA safeguards.

In fact, what was provided even in the 123 Agreement has been given the go-by. Article 5© of the 123 Agreement specified, “In the light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards 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.” [pp. 10-11]

Clause 3 of the IAEA draft Agreement provides: “The purpose of safeguards under this Agreement is to guard against the withdrawal of safeguarded nuclear material from civilian use at any time” Notice that the words are exactly as provided in the 123 Agreement. But the words that follow in the 123 Agreement are conspicuously missing! Similarly, no reference in operative parts to strategic reserves. Quite rightly too: it is no job of IAEA to help us build stocks of fuel – yet Government spokesmen are saying that the Agreement provides for these!

Lastly, the BJP has been demanding from the Government, right since July 2005, to know the cost of separation of military and civilian facilities. The Government has not given a reply to this important question till date.

In his press conference in Washington DC on 20 July 2005, the Prime Minister had said: “…It goes without saying that we can move forward only on the basis of a broad national consensus.” Nearly three years later, there is no broad national consensus on the Indo-US nuclear deal. The PM has broken the consensus, which had existed since the time of Smt. Indira Gandhi and continued till Shri Atal Bihari Vajpayee.

This is because of the duplicity and deceitfulness of the UPA government. While the Government has all along said that the deal is exclusively about nuclear energy, the US Administration and America’s bipartisan political class has left no one in doubt that the deal is all about bringing India into the non-proliferation regime.

The BJP charges the leadership of the Congress party and the Government with assisting the US in realizing its most important foreign policy objective vis-à-vis India in a manner that has undermined India’s strategic autonomy while promising illusory energy security.

In summary, the BJP states emphatically that all the apprehensions that we had expressed have been borne out. All the crucial assurances that the PM had given have been violated. Nevertheless, the Government has been purveying untruths.