Opinion - News Analysis   

An agreement and a problem with semantics

R. Ramachandran

India would seem to be caught in the semantics of the agreement that equates it with non-nuclear weapons states. It would rather like to see the language used for nuclear weapons states in the Indo-U.S. agreement, though operationally it matters little.

INDIA'S REJECTION of the draft Indo-U.S. umbrella nuclear agreement — the so-called `123 Agreement' — that contains a provision for the cessation of the agreement in the event of India detonating a nuclear device, actually reflects its obsessive desire to be granted de facto status of a nuclear weapons state.

For, given India's commitment to "continued unilateral moratorium on nuclear testing" in the joint statement of July 18, 2005, and the fact that Section 129 (1)(A) of the U.S. Atomic Energy Act (AEA) prohibits all exports of "nuclear materials, equipment and sensitive nuclear technology" if India were to conduct a nuclear test, such a specific provision in the bilateral agreement hardly makes a difference.

India would seem to be caught in the semantics of the agreement that equates it with non-nuclear weapons states (NNWSs), which it does not like. It would rather like to see the language used for nuclear weapons states (NWSs) in the Indo-U.S. agreement as well, though operationally it matters little.

The AEA requires nine conditions to be met by the cooperating party but the U.S. President may grant an exemption with regard to any of these, "if he determines that inclusion of any such requirement would be seriously prejudicial to the achievement of U.S. non-proliferation objectives or otherwise jeopardise the common defence and security."

In the draft bill that was introduced in the U.S. Congress on March 15-16, President George W. Bush has sought a waiver of the application of `full-scope safeguards' provision for NNWSs as required under Section 123 a.(2) of the AEA in the case of the Indo-U.S. nuclear agreement.

India is an NNWS as defined by the nuclear non-proliferation treaty (NPT).

`No-test condition'

The specific inclusion of a `no test' condition in the cooperation agreement, on the other hand, arises from Section 123 a.(4) of AEA, which is applicable only to NNWSs. This stipulates that the U.S. "shall have the right to require the return of any nuclear materials and equipment transferred... and any special nuclear material produced through the use thereof, if the cooperating party detonates a nuclear explosive device... "

In any case, for an NNWS, Section 129 (1)(A), that bars nuclear exports in the event of a nuclear test, will always come into play.

If the above `no test' condition pursuant to Section 123 a.(4) has to be withdrawn from the agreement, a presidential waiver would be required for this clause as well. And, the AEA provides for such a waiver. However, the significant difference between the two waivers is that in the case of the `full scope safeguards' condition, the cooperation agreement has to go through a formal Congressional oversight and review. In the case of all other conditions, there is no such requirement.

But any such move would complicate matters greatly and make Congressional approval enormously difficult.

For agreements with NWSs, Section 123 a.(4) of the AEA does not apply. But there is a restrictive provision arising from 123 a.(3), which only prohibits the use of nuclear materials and equipment or sensitive nuclear technology supplied under the agreement, and special nuclear material produced through the use of these, "for any nuclear explosive device, or for research on or development of any nuclear explosive device, or for any other military purpose."

For the NNWS, however, the condition 123 a.(4) implies that any test whatsoever - not just one that uses U. S. supplied material - would lead to a cessation of the agreement.

The U.S. has nuclear cooperation agreements with all NWSs except Russia; with France and the U.K. under the combined agreement with Euratom, the European consortium nuclear company, and a separate agreement with China. Since member-countries of Euratom include NNWSs as well as NWSs, the agreement with Euratom brings out very clearly the difference in the `no test' conditions applicable to the two groups.

Article 7.2 of the Agreement incorporates the condition required by 123 a.(4), which is applicable to all member-countries. That is, material supplied pursuant to the agreement cannot be used in the production — not detonation — of a nuclear explosive device. Article 13.3, applicable to NNWSs, incorporates 123 a.(4) and prohibits the (European) Community or an NNWS member of the Community from detonating any nuclear explosive device.

Article 13.4, applicable to NWSs, on the other hand, prohibits an NWS member of the Community from detonating a nuclear explosive device only using any item supplied under the Agreement.

Less restrictive deal with China

The agreement with China is somewhat different and, interestingly, less restrictive than the Euratom agreement with regard to nuclear tests. It has only a clause similar to Article 7.2 of the U.S.-Euratom Agreement, that which incorporates 123 a.(3) and prohibits using materials and equipment provided pursuant to the cooperation agreement in the development — not detonation — of a nuclear explosive device or other military purpose.

Significantly, there is no termination of the agreement in the event of any detonation whatsoever, including that using U.S. supplied material.

It only calls for a consultative process with each party reserving the right to terminate the agreement.

All other agreements with other NNWSs, such as Japan, Australia, Canada or Switzerland, incorporate clauses that prohibit nuclear tests using material supplied under the agreement as well as clauses that terminate the agreement in the event of any nuclear test, not just with materials supplied pursuant to the agreement.

In this regard, the Ministry of External Affairs (MEA), it would seem, would like the agreement to be similar to that with NWSs. However, being actually an NNWS, its unrealistic position could make Congressional approval extremely difficult.

Likewise, the MEA is also likely to object to the language of the draft proposal made by the U.S. to the Nuclear Suppliers Group (NSG) for making an India-specific amendment to its guidelines. The NSG Guidelines are applicable only to NNWSs. Paragraph 4 (a) requires application of full-scope safeguards.

The U.S. draft states: "Participating Governments, in accordance with Paragraph 4(d) [of the Guidelines], will continue to strive for the earliest possible implementation of the policy referred to in Paragraph 4(a)."

Even though this does not have any direct implications for the safeguards regime to be put in place, the MEA might still have problems with the semantics.

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