Comparison of the NSG drafts and what is it for India

[U.S. Government Circulated] Draft: March 2006 Pre-Decisional
Statement on Civil Nuclear Cooperation with India
At the [blank] Plenary meeting on [blank] the Participating Governments of the Nuclear Suppliers Group agreed that they:

Desire to contribute to an effective non-proliferation regime, and to the widest possible implementation of the objectives of the Treaty on the Non-proliferation of Nuclear Weapons;
Seek to limit the further spread of nuclear weapons;
Wish to pursue mechanisms to affect positively the conduct of those outside the Treaty;
Seek to promote international cooperation in the research, development and safe use of nuclear energy for peaceful purposes, and
Recognize the promise of nuclear power in India as a clean source of energy for sustained economic growth and prosperity.

In this respect, Participating Governments have taken note of steps that India has taken as a contributing partner in the nonproliferation regime and they welcome India’s efforts with respect to the following commitments and actions:
Having publicly designated peaceful civil nuclear facilities which will be submitted to IAEA safeguards in perpetuity;
Having committed to continue its moratorium on nuclear testing, and to work with others towards achievement of a Fissile Material Cutoff Treaty;
Having committed to accept an Additional Protocol covering designated civil nuclear facilities;
Having committed to support international efforts to restrain the spread of sensitive nuclear technologies;
Having adopted a national export control system capable of effectively controlling transfers of multilaterally controlled nuclear and nuclear related material, equipment, and technology;
Having agreed to adhere formally to the Nuclear Suppliers Group Guidelines.

For these reasons, Participating Governments have therefore adopted the following policy on civil nuclear cooperation by Participating Governments with the peaceful safeguarded Indian civil nuclear power program.

Notwithstanding paragraphs 4(a), 4(b), and 4(c), of INFCIRC/254/Part 1 as revised, Participating Governments may transfer trigger list items and/or related technology to the safeguarded civil nuclear facilities in India (a State not party, and never having been a party, to the NPT) as long as the participating Government intending to make the transfer is satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other requirements of the NSG Guidelines.

Participating Governments, in accordance with Paragraph 4(d), will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a).

The NSG Point of Contact is requested to submit this Statement to the IAEA DG with a request that he circulate it to all Member States.


Statement on Civil Nuclear Cooperation with India[Text of Draft U.S. Proposal to NSG, August 2008]

1. At the _____ plenary meeting on ______ the Participating Governments of the Nuclear Suppliers Group agreed that they:

a. desire to contribute to an effective non-proliferation regime and the widest possible implementation of the objectives of the Treaty on the Non-Proliferation of Nuclear Weapons
b. seek to limit the further spread of nuclear weapons
c. wish to pursue mechanisms to affect positively the non-proliferation commitments and actions of those outside the traditional nuclear non-proliferation regime
d. seek to promote fundamental principles of safeguards and export control for nuclear transfers for peaceful purposes
e. recognize the world's need for clean and reliable sources of energy for sustained growth and prosperity

2. In this respect, Participating Governments have taken note of steps that India has taken voluntarily as a contributing partner in the non-proliferation regime and they welcome India's efforts with respect to the following non-proliferation commitments and actions:
a. Deciding to separate its civilian nuclear facilities in a phased manner and file a declaration regarding its civilian nuclear facilities with the International Atomic Energy Agency
b. Conducting negotiations with the IAEA and obtaining approval of its Board of Governors regarding a Safeguards Agreement for application of safeguards to civilian nuclear facilities that is in accordance with IAEA standards, principles and practices (including Board of Governors document GOV/1621)
c. Committing to sign and adhere to an Additional Protocol with respect to India's civil nuclear facilities
d. Refraining from transferring enrichment and reprocessing technology to states that do not already possess these
e. Having adopted a national export control system capable of effectively controlling transfers of multilaterally controlled nuclear and nuclear related material, equipment, and technology.
f. Harmonizing its export control lists with those of the Nuclear Suppliers Group and committing to adherence to NSG guidelines
g. Continuing its unilateral moratorium on nuclear tests and declaring its readiness to work with others towards conclusion of a multilateral Fissile Material Cut-off Treaty.

3. In view of the above, Participating Governments have adopted the following policy on civilian nuclear cooperation with the IAEA-safeguarded Indian civilian nuclear program
a. Notwithstanding paragraphs 4(a), 4(b) and 4(c) of Infcirc/254 (Rev. 9) Part 1, Participating Governments may transfer trigger list items and/or related technology to India for peaceful purposes and for use in safeguarded civilian nuclear facilities provided that the transfer satisfies all other provisions of Part 1.
b. Notwithstanding paragraph 4(b) of the Part 2 guidelines, Participating Governments may transfer nuclear-related dual use equipment, etc. for peaceful purposes for use in civilian nuclear facilities under IAEA safeguards, provided that the transfer satisfies all other provisions of Part 2.
c. Participating Governments shall maintain contact and consult through regular channels on matters connected with the implementation of the Guidelines, taking into account relevant international commitments and bilateral agreements with India.

4. In order to facilitate the efforts of non-member adherents to Infcirc/254 Parts 1 and 2 to remain current in their implementation of the Guidelines, the NSG Chair is requested to review proposed amendments to the Guidelines with all non-member adherents on a non-discriminatory basis and solicit such comments on the amendments as a non-member adherent may wish to make. Participation of India in the decisions regarding proposed amendments will facilitate their implementation by India.

5. The NSG Point of Contact is requested to submit this statement to the IAEA DG with a request that it be circulated to all Member States.

Critical analysis
In the August 2008 draft, an effort has been made to distinguish the non-proliferation commitments of India from that of NPT, which is now referred to as “traditional non-proliferation regime”. A NPT door has been kept ajar for future negotiations and expectations from India. A clever/shrewd way of telling India, if need arises in future, that its non-proliferation commitments may not be as comprehensive as the “traditional non-proliferation regime”.

The draft also DOES NOT promote any international cooperation but promotes only fundamental principles of safeguards and export control for nuclear transfers for peaceful purposes. This is significant as safeguards and export controls take precedent to international cooperation in nuclear technology. This may affect our efforts to seek ENR technology. This may be denied quoting inadequate safeguards measures as per NSG guidelines. It is like “spirit is willing but body is not cooperating” syndrome.

In paragraph pertaining to Additional Protocol, it is NOT India’s ACCEPTANCE but India has to SIGN and ADHERE thus bringing in time element. Also very cleverly the phrase “designated” has been deleted to fudge the separation plan and keeping the door open for applying an additional protocol to India’s civil nuclear facilities in addition to “designated” ones as per the separation plan. Agreed, India is yet to finalise the draft Additional Protocol (AP). But an inconvenient aspect is that India-specific safeguards agreement (ISSA) has only been approved by the IAEA but is yet to enter into force. Then only Protocol additional to the ISSA can be thought of. ISSA limits safeguards only to those civil nuclear facilities identified by India. In other words, India designates the civil facilities to the Agency for safeguards. In the NSG draft the word "designated" has been removed. Even though this is only a draft text, but India has agreed to this and knowing the double standards the USA maintains, India should have been extra careful. Remember 'the damaging notion of 'grid connectivity' as a criterion for safeguarding reactors'" And how difficult it was to get it delinked!

Restraining spread of sensitive nuclear technologies has become now India-specific commitment. Earlier it was India’s commitment to support international efforts to restrain spread of sensitive nuclear technologies. India can be taken to task in future for any whimsical reason.

It was reported that at India’s insistence, the last part of Paragraph 4 and the paragraph 5 of March 2006 draft were deleted. But a careful perusal and an objective scrutiny of the paragraphs 3 and 4 in August 2008 draft clearly indicate that India DID NOT get what it wanted. It was a bad bargain. All the so-called objectionable phrases were surreptitiously incorporated in the August 2008 draft also with some shrewd language fixing. In fact something more was included which does not bode well for India. It is elaborated below:

1. The objectionable phrase in paragraph 4 of March 2006 draft is “…as long as the participating Government intending to make the transfer is satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other requirements of the NSG Guidelines”. India’s objection is mainly due to recursive binding on its part of “aforementioned nonproliferation and safeguards commitments”. In the August 2008 draft the phrase is removed and India was SATISFIED!.

But the sub-pragraph c in Paragraph 3 of August 2008 draft says “Participating Governments shall maintain contact and consult through regular channels on matters connected with the implementation of the Guidelines, taking into account relevant international commitments and bilateral agreements with India” (italics deliberately added). Thise may lead to any type of interpretation. "Taking into relevant international commitments...", whose commitments the draft is talking of? The commitments of participating Governments? or those of India? Either way it is a tricky situation. If the commitments are those of India, then it is not necessary to elaborate what these international commitments are.

The crucial phrase is “taking into account relevant international commitments and bilateral agreements with India”. When India was negotiating the Safegaurds Agreement with the International Atomic Energy Agency (IAEA), Indian negotiators and the Indian Government patted themselves that by inserting the phrase “taking into account” towards end of the Preamble, the Preamble has been made a part of the operative part of the text. Now let us go back to the August 2008 draft. It is very clear that the inclusion of the phrase “taking into account relevant international commitments and bilateral agreements with India” negated all the efforts of India in extracting the deletion of the last part of paragraph 4 of March 2006 draft. And this time also Indian negotiators patted themselves!.

2. The sub-paragraph of paragraph 3 of August 2008 draft has this additional phrase: “…provided that the transfer satisfies all other provisions of Part 1”. What does it mean? It means the transfer of trigger items to India is subject to other provisions of of Infcirc/254 (Rev. 9) Part 1. Similarly in the sub-paragraph b of paragraph 3 of August 2008 draft says” … provided that the transfer satisfies all other provisions of Part 2”. This pertains to transfer of dual-use items. Part 2 means Part 2 of INFCIRC/254 document. A supplier country can, in principle, invoke other provisions any time in the future and resort to any drastic step. As of today India is not a member of NSG and how far the inclusion of these conditional phrases would affect the country is anybody’s guess. It may also be noted that it is not a clean and unconditional waiver that is being proposed to be given to India as other provisions of INFCIRC/254 Part 1 and Part 2 shall have to be satisfied.

Thus the August 2008 draft seems to be a quagmire into which India allowed herself sucked into.

The NSG members thoroughly know the situation India is in. They are simply playing for the time. The US commitment is not towards India. Its loyalty is with non-proliferation lobby and Hyde Act. Even without any further amendments to the draft text, which US and India are now trying, the inclusion of new phrases in the August 2008 draft may tie India forever. International community is playing games. And India is allowing herself to be dragged into the maelstrom.

A CRITICAL ANALYSIS OF INDIA - US CIVIL NUCLEAR COOPERATION AGREEMENT

A number of articles have already appeared on this subject. The Agreement, also known as India's 123 Agreement with USA had been dissected, analytically viewed by many experts both within and without. But there are many minute points that, in my opinion have not been addressed. These relate to the provisions in the Agreement. There have been arguments as to how USA scored on a particular issue or India gained on a particular issue. The text of the Agreement is nearly one year old and is yet to be ratified by both the Countries. Perhaps it is time to have a re-look into the whole affair and analyse the ramifications in the light of events that have taken place or the positions respective Countries, legislators, critics adopted. Let us begin with the text of the Agreement right away.
1. One of the paragraphs in the preamble says:"DESIRING to establish the necessary legal framework and basis for cooperation concerning peaceful uses of nuclear energy;"
The text clearly says that the legal framework and basis for cooperation is not yet ready and the respective Governments are desirous of establishing the necessary framework. One should recall that Hyde Act has already been enacted. The US Government is talking of further and more legal framework and the basis for the cooperation. And only the text of the Agreement has been frozen and not the legal framework. Who does establish legal framework in US? Not the executive certainly. It is the US Congress who has that responsibility. Remember already nearly one year has passed and knowing the ways the USA legislatures and the non-proliferation supporters work, one year is too long a period for establishing the necessary legal framework. And believe me they have been working non-stop since August 2007. For its part India has been sitting prettily with a snug face as if it has achieved its goal. Surprisingly and sadly the Indian polity and the intelligentsia did not bother to take this time factor into consideration.

2. "ARTICLE 2 - SCOPE OF COOPERATION
1. The Parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this Agreement. Each Party shall implement this Agreement in accordance with its respective applicable treaties, national lwas, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes."
While the preamble text says the need for establishing legal framework and basis, the operative part of the Agreement clearly says the conditions under which the Agreement is to be implemented which is as per the respective national laws. Does India has any national legislation for implementation?. I do not know if the Atomic energy act of that country has enough 'teeth' to address international cooperation agreements. Where as the US Atomic energy act of 1954 is constantly amended to take care of any international nuclear cooperation. Added to that, new legislation is introduced almost regularly to circumvent any, what they perceive as 'inconvenient' provisions, that might have been included in these international agreements. Inconvenient to whom? to the non-proliferation lobby who takes the non-proliferation philosophy a bit too seriously and what is glaring in all these situations is adopting a convenient definition for non-proliferation and proliferator.
Indian side has been shouting from the roof tops that the Hyde Act is only an enabling provision for civil nuclear cooperation and so no need to worry about that Act. What about many nuclear draft legislations that have been introduced in the US Congress specifically to address many of the so called 'concessions' India got in the 123 Agreement. It is astounding to know that neither the Indian Government nor the so called self-proclaimed vigilant hawks ever mentioned about these draft legislations and the repercussions or consequences India may have to face once the 123 Agreement is enforced.

3. "ARTICLE 5 - TRANSFER OF NUCLEAR MATERIAL, NON-NUCLEAR MATERIAL, EQUIPMENT, COMPONENTS AND RELATED TECHNOLOGY
3.2. -------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."
Only India could think so naively that the US applicable laws enable transfer of these items. According to India US legislation has no role to play in implementing the 123 Agreement. Leave the Hyde Act. It permitted the US president's waiver only under certain conditions. At the same time nothing prevents the US legislation to enact new laws to take care of whatever imaginary concerns that the non-proliferation lobby perceives as abetting nuclear proliferation once India's 123 Agreement is enforced.

4. "ARTICLE 6 - NUCLEAR FUEL CYCLE ACTIVITIES
iii) With a view to implementing full civil nuclear cooperation as envisioned in the Joint Statement of the Parties of July 18, 2005, 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. Consultations on arrangements and procedures will begin within six months of a request by either Party and will be concluded within one year. The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. These arrangements and procedures shall include provisions with respect to physical protection standards set out in Article 8, storage standards set out in Article 7, and environmental protections set forth in Article 11 of this Agreement, and such other provisions as may be agreed by the Parties. Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards."
Declaring that India has acquired upfront reprocessing rights may give satisfaction to some. But let us do a reality check. First 123 Agreement has come into force. International civil nuclear cooperation should result in nuclear fuel supplies to Indian safeguarded nuclear reactors, the spent fuel coming out of these reactors which is again under safeguards shall have to be reprocessed in a dedicated national reprocessing facility. Agreed 123 Agreement talks of only US supplied nuclear fuel. With the current logistics, building a reprocessing plant exclusively for the safeguarded nuclear fuel is capital intensive, technology intensive and safeguards intensive not to speak of the prolonged time of implementation. The US AEC Act 1954 is very clear on reprocessing. Article 131 will surely bog the Indian establishment. Japanese are yet to start their reprocessing plant which has seen time and capital overruns.
Getting the so-called upfront reprocessing rights is, at the most, only a Pyrrhic victory for India. The US negotiators were well aware of this.
The more time Indian Government and the opposition take to come to an agreement on India's 123 Agreement, the worst it would become. Already precious time has passed and poor India is playing into the hands of the US legislation.