Mark HibbsIndia’s Bilateral Obligations

On Monday, February 9 and Wednesday, February 11, the Australian parliament’s Joint Standing Committee on Treaties (JSCOT) will take up Australia’s nuclear cooperation agreement with India. According to a National Interest Statement from the Australian government, the agreement will enter into force after the JSCOT hearing and after parliament finds that the agreement meets Australia’s legal requirements for EIF.

Before lawmakers sign off on the agreement, however, it is possible that on a few points the text will have to be re-negotiated with India and amended.

The Agreement Between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy was concluded on 5 September 2014. The text of the agreement is here.

On the basis of this agreement, Australia’s uranium producing industry aims to export uranium to India.

Last week I explored this subject here. In a nutshell, I said that prior to Australia’s pending negotiations with India over the fine print of terms to facilitate implementation of the agreement, India has weakened the information-sharing provisions in such arrangements negotiated with Canada and the United States. India’s Department of Atomic Energy (DAE) collects data for nuclear security purposes which, if provided to its foreign partners, would permit them to track Canadian and U.S.-obligated nuclear material through India’s nuclear fuel cycle. DAE will not agree to provide tracking information to Canada or the U.S., compelling these countries to derive other, partly indirect ways of tracking the material in India.

The contentious issue is so-called administrative arrangements (AAs) which must be agreed upon by both sides to facilitate the nuclear cooperation agreement.

There are two main rationales for negotiation of AAs in Australia’s bilateral nuclear cooperation agreements: 1.) Providing what Australia calls “safeguards-related” confidence in partner countries’ peaceful use intentions and obligations, and 2.) identifying and locating nuclear material which is subject to Australian obligations.

Peaceful Use Obligations and Intentions

In the big picture, the AAs ultimately follow from Australia’s partner countries’ commitment that they will dedicate to peaceful use all nuclear materials and other items that are supplied under nuclear cooperation agreements with Australia.

This is what the National Interest Statement says about the bilatleral agreement, AAs, and India’s peaceful use committment:

Australia’s bilateral nuclear cooperation agreements provide assurance that Australian-obligated nuclear material (AONM) is used solely for peaceful purposes and is not diverted to nuclear weapons or other military uses. At present, Australia has 23 such agreements in place, providing for the transfer of AONM to up to 41 countries, plus Taiwan. These agreements build on the IAEA’s safeguards system in order to assure the peaceful and non-explosive use of AONM. They also serve Australia’s nuclear nonproliferation security interests by establishing a high standard of safeguards and accountability for a significant proportion of the world’s uranium in peaceful use.

…Article III, paragraph 4 [of the agreement] requires also that nominated national authorities establish an Administrative Arrangement to facilitate effective implementation of the proposed Agreement. Australia’s national authority would be the Australian Safeguards and Non-Proliferation Office (ASNO).

Article III, paragraph 5, requires each Party to establish and maintain a system of accounting for and control of items subject to the proposed Agreement. Both India and Australia maintain systems of accounting and control for nuclear material to meet IAEA safeguards requirements. Additional procedures to separately track nuclear material and other items subject to the proposed Agreement will be addressed in the abovementioned Administrative Arrangement.

The requirement for tracking of Australian-obligated material in India, accordingly, is separate from and complementary to the requirement for IAEA safeguards on the material. But the main thrust in the Australian perspective is this:

Australian policy is to include safeguards-related conditions in nuclear cooperation agreements that are additional to the requirements of IAEA safeguards. These conditions aim to build confidence between the parties (and among other members of the international community) about their peaceful intentions.

‘Safeguards-Related’  Conditions

The conditions in nearly all of Australia’s bilateral nuclear cooperation agreements which go beyond IAEA safeguards, and which provide an important rationale for tracking Australian-obligated material in the recipient state, include:

• Australia’s written consent for transfers to third parties; Š high enrichment; and Š reprocessing

• Fallback safeguards if IAEA safeguards cease to apply in the state concerned

• Internationally agreed standards of physical security are to apply to nuclear material in the state concerned

• Provision for the cessation of supply and the removal of Australian-obligated material in the event of a breach of the agreement

India Irregularities

Kalman Robertson at the Australian National University argues, in an intervention he submitted for next week’s JSCOT hearing, that the Australia-India agreement is unique in a number of aspects. These include:

The broad definition of how Australian-obligated material may be used: The agreement would permit India hypothetically to use fuel containing a mix of 75% unsafeguarded nuclear material and 25% Australian-obligated material in a reactor for a short period of time in order to produce irradiated fuel containing weapons-grade plutonium. Afterward, and provided that 25% of the irradiated fuel remained under safeguards, the other 75% could be taken to an unsafeguarded facility and used as a source of plutonium for nuclear weapons. In this case, “It might be reasonably argued that Australian uranium could indirectly benefit an Indian nuclear weapons program and that this represents a significant lowering of the safeguards standard when compared with [Australia’s] agreements with Russia and China.” It is possible that DAE will not provide tracking data to its foreign partners as a consequence of those governments having granted India the right to use foreign-obligated nuclear material in facilities which also produce material for India’s nuclear weapons program.

Consent to reprocessing: Unlike other agreements, the agreement with India gives India advance consent to reprocess Australian-obligated material.

 Right of Return: Unlike other Australian agreements including those with Russia and China, the Australia-India agreement does not include any provision dealing with the consequences of a failure by the recipient state to comply with the core provisions of the nuclear cooperation agreement (or a failure by the recipient state to comply with its safeguards agreement with the IAEA).

 Fallback Safeguards: Australia’s agreements with China and Russia provide for fallback safeguards which would be the eqivalent to IAEA safeguards should the IAEA not be able to safeguard Australian-obligated material for any reason. The Australia-India agreement calls only for vague “appropriate verification measures” in such a case.

No Arbitration Clause: The Australia-India agreement departs from most others in this regard. That could spell trouble given considering the weakness of provisions for fallback safeguards and absence of right of return conditions in the agreement. This might also be interpreted to imply that Australia would tolerate a dispute remaining indefinitely unresolved

If JSCOT after the hearings concludes that there are deficiencies in these or other areas, the Australia-India agreement might have to be amended following further discussion or negotiation with India.

John Carlson, who was Australia’s chief safeguards officer from 1989 until 2010, had this to say about whether the agreement concluded last September should stand, in a statement he submitted to JSCOT:

 In 2006, when discussions between Australia and India on a nuclear agreement first started, India insisted on being treated the same as Australia’s other agreement partners. But now India has moved the goal posts, expecting an agreement that contains less than all other Australian partners have agreed to. Far from building confidence in its intentions, India’s position has the opposite effect…that India is not prepared to meet the standards accepted by all our other partners is a strong reason not to proceed on such a basis…[I]n 2006 Indian officials said they wanted the same conditions as Australia has with other countries. Now however it seems they want much less. The fact that India wants to weaken Australia’s longstanding safeguards conditions shows it is not thinking in terms of assuming the same responsibilities and practices as other leading countries – this is not an encouraging start either for this agreement or for a closer bilateral relationship.

It’s also not a very encouraging sign of how India might behave should it be invited to join the Nuclear Suppliers Group. But that’s another post down the road and a subject that will be up for 48 governments to decide for themselves. In the meantime, all three governments that face the consequences of DAE’s policy on information-sharing–Australia, Canada, and the United States–strongly favor Indian membership.

The rest of the submissions to JSCOT on the Australia-India agreement are here.

Comments

  1. krepon (History)

    Mark:
    Thanks for burrowing into this.
    MK

  2. Grampian (History)

    There are two basic assumptions in this post which are factually incorrect. Let me clarify:

    1. India doesn’t need Australian uranium for making nuclear weapons. Indian policy believes in ‘credible minimum deterrence’. Even if it changed to the ‘credible deterrence’ policy in future like China, one is looking at a size of 350-500 nuclear bombs. For this, India has plenty of uranium of its own. So this hypothetical situation of mixing both un-safeguarded and safeguarded uranium is a castle in the air. Its like one of those stupid questions which a customer asks to the insurance salesman : “Whether xyz in an accident is covered, immaterial of the outlandish nature of that event?”

    India needs Aussie uranium for energy purposes i.e. making ELECTRICITY if you don’t get it at all. Its very easy to philosophize on hypothetical situations while sitting in 24×7 electrified homes. Go down there in India and stay in a house which gets electricity once every two days or a week. Then, maybe you will get the essence of the deal. If India opted for coal, the climate change treaty will go for a six. If it opted for solar or wind energy, there’s not enough space to install those. If it stayed on the oil and gas, it would never be able to get out of its vicious circle, especially when oil/gas producing areas are highly unstable. Only nuclear energy is the way out so India will opt for this route whether with the Aussie uranium or without it.

    2. Don’t get into this wishy-washy business of India disturbing the NSG equilibrium or diluting the agreement or not falling in the set pattern of your previous agreements. Because it will not. It has already agreed to a great extent by capping its nuclear weapons program to a large extent and putting most of its reactors under IAEA safeguards. Moreover, tracking data of imported fuel would still be available to supplier countries through IAEA mechanism.

    So during his visit to India in 2015, Obama got his fuel tracking clause accepted in the end, though it was presented to the Indian public as if Mr Obama had done a great favour, which he didn’t. Neither he used his so called and publicised “executive waiver” nor he went silent on it, rather he got it through IAEA route, which was a major loss to Indian negotiators. Indians will have to face questions from Russians now, because they haven’t got it. Obama also ensured that American companies get reactor deals in India now, at the cost of cheap Indian PHWR reactors. Its one issue which is creating lot of heat on the current government in India because it tantamounts to open favouring of imported reactors at the cost of local one.

    The icing on the cake is America banned transfer of enrichment technology to India, the most crucial item which was the main reason for Indians to go after the Indo-US nuclear deal.

    So the bottom line is, India has got just this import of uranium for energy purposes to justify to Indian public that Indo-US nuclear agreement is in its national interest. Even though its quest for import of ENR technology has been denied and banned and numerous nuisance clauses are being inserted in individual agreements with US, Australia, Canada and others, Indian government has stayed on course with the deal. Its not very hard to assume though that if pushed too far, the deal will go down the drain. The hawks in Delhi would love that push, who already hate this deal to their bones.

  3. sohaib (History)

    @grampion
    the author never said that India may use Australian
    Uranium for bomb making. Please read the submissions to JSCOT by Kalman A Robertson and and John Carlson that the author has referred. They are pointing out some peculiarities or weaknesses in the agreement which include the provision that Australian IUranium may be used in unsafeguarded facilities alongwith unsafeguarded Indian Uranium (the spent fuel from Au Uranium will remain safeguarded nonetheless). However it will be somewhat helping in weapon making indirectly.
    There is no provision for tracking
    there is no provision for return of Au nuclear materials in case of a breach by Indian side.
    India will be able to re-export Ausi nuclear materials and technology to third parties on mere assurance from that state that the suplied materials and technology will only be used for peaceful purposes.

  4. mark (History)

    Grampion,

    The separation of peaceful-use from weapons is an important issue.

    This was a critical condition for both the US-India peaceful nuclear cooperation agreement, and the decision by the NSG to waive sanctions on India in 2008

    It is also essential to the NPT which 184 non-nuclear weapons states are parties to. India is one of the very few states with nuclear activities which are not party to the NPT, so the treaty doesn’t matter to India, but Australia, Canada, and the U.S. are parties to the NPT. What kind of terms these three states condlude with others (inside the treaty or outside of it) concerning the separation of peaceful use from military activities matters to those 184 NNWS parties.

    As John Carlson has pointed out more than once, including in his JSCOT submission linked in my post, and the updated version he provided JSCOT on Monday [the link is in the comment below] the separation in the Indian nuclear program is not absolute. Kalman Robertson’s submission to JSCOT explains the case permitted under the Australia-India text agreed to in September 2014 that Australia-obligated material could contribute to the production of nuclear weapons fuel in India.

    For reasons which are not clear, DAE will not provide to Canada or the U.S. data that it has collected for the purposes of making nuclear security commitments to track its nuclear material. We can only speculate why India will not provide this data, especially in light of the fact that other cooperation partners of Australia, Canada, and the U.S. have routinely provided the data under their bilateral nuclear cooperation agreements.

    Absent an explanation why not, it is possible that the reason stems from the fact that the exception referred to above would imply that to effectively track the material using Indian data alone, DAE would have to provide information about the behavior of nuclear material in facilities which are part of India’s nuclear weapons program. India for security reasons may not want to provide others that information. If this is the reason for India’s refusal to provide the data, then Australia will not get the data because of a specific weakness in its bilateral nuclear cooperation agreement with India.

    An alternative explanation for India’s refusal to provide the tracking data is simply that DAE is not committed to cooperating, consistent with its attitude during and after the negotiation of the U.S.-India agreement.

    The simplest explanation (not necessarily the most accurate) would be that India, aware that all three partner countries very strongly support nuclear cooperation with India in line with their perceived strategic interests, is betting that Australia, Canada, and the U.S. will honor India’s sovereign nose-thumbing on a fine-print issue like this. That begs the question whether India, also in the interest of underlining its nuclear sovereignty, might likewise want to take advantage of other provisions in its bilateral nuclear agreements which would blur the line between peaceful and non-peaceful use of imported nuclear materials.

    BTW which you didn’t mention but I will underscore: Australia, Canada, and the U.S. are under pressure from other states which are already exporting uranium to India and which do not track. They don’t because they don’t care really whether India enriches their obligated material to weapons-grade or re-exports the uranium to somewhere else. That’s not required under the NPT. But the point is that their standards, compared to the standards of Australia, Canada, and the U.S., are lower standards, which afford the international community less confidence that uranium they sell to India won’t be used for something else than making electricity.

    And this has nothing to do with India. Australia requires this assurance from its allies, including South Korea, European countries, and the U.S. So what is India’s problem here?

  5. mark (History)
  6. Grampian (History)

    @Mark

    The DFAT seems to have done its homework and there is a feeling that JSCOT will agree to the treaty. What do you say? Here is the JSCOT hearing transcript on 12 Feb 2015:

    http://bit.ly/1KPFDKv

    1. About Kalman Robertson’s submission: There is difference between a PhD research project and real-life bilateral negotiations. Often, a major focus on tactical picture blurs the strategic scope of the issue.

    2. A counter-question to your question implying suspicious nature of India’s refusal for agreeing to individual tracking requirements:

    If Australia/US want to insist on individual tracking of their nuclear materials, why is the facade of IAEA still standing? What is its relevance then? Have Aussie/US institutions started replacing international mechanisms?

    A candid clarification from US/Australia that IAEA inspections are not trustworthy would be useful here. Insist that nuclear agreement with India will only happen if Aussie or American inspectors (or spooks in disguise) are allowed to roam through Indian nuclear reactors and check the peaceful use of nuclear materials.

    Let me assure you then, given the sensitivity related to India’s colonial past, any hint of India becoming answerable to another nation (for anything) will bring this entire drama crashing down. You will thenceforth not even hear about the Indo-US nuclear deal, ever in Delhi. Moreover, after this week’s defeat in his own national capital, Prime Minister Modi will now be extra careful because ongoing perception is that he getting too close to the west.

  7. mark (History)

    Grampian,

    A few points of clarification:

    1.) You suggest that what US and Australia have in mind for the AAs is that “…Aussie or American inspectors (or spooks in disguise) are allowed to roam through Indian nuclear reactors and check the peaceful use of nuclear materials.”

    The testimony of Australia’s national safeguards officer at DFAT, Rob Floyd, on Feb. 12 spells out that unleashing Australian inspectors or spies in Indian nuclear installations is not what Australia has in mind.

    To wit: “We are interested to make sure that the obligations that are made with us are being honoured and are true and correct. That does not go to us conducting inspections in third-party countries.”

    Again, at issue in the AAs are information which can most easily be provided by India to facilitate the tracking which is required under Australian law for the cooperation agreement to enter into force. I have strong reasons to conclude that India has this information. It will not so far provide this tracking data to the US or Canada pursuant to bilateral nuclear cooparation agreements with these countries. Whether India provides it to Australia will depend on the outcome of ongoing negotiations between Australia and India.

    Note that Rob Floyd says in his testimony that the negotiations between the US and India have not “broken down.” This is correct in my understanding.

    What is happening however is that the refusal of India to provide all the data requested is compelling Australia and the US to seek presently an alternative, indirect and in part cumbersome solution to get the information they need (in the case of Australia, information which would be necessary for the Australia-India agreement to comply with the Australian Safeguards Act.) Looking at the means the US wants to use to get assurances, it isn’t clear that in the Australian case that fix will work because Australia so far has anticipating supplying at least some unenriched and unfabricated uranium to India. All this would be much simpler if India would agree to provide the data which the U.S., Canada, and Australia must compensate for.

    2.) It would be very misleading and wrong to describe the IAEA’s verification activities in this case as a “facade.” The IAEA carries out safeguards on uranium suppplied to India. It is doing that for material now being supplied by Kazakhstan, and it would do that for any uranium supplied to India in the future by Australia, US, or Canada. The AAs at issue here concern bilateral obligations beyond IAEA safeguards which are spelled out in the Australia-India agreement for cooperation. In the case of the Australia-India agreement, the tracking provides confidence that the material is not being enriched above 20% U-235, and that it is not being re-transfered. The tracking would also facilitate resolution of any dispute should for any reason the bilateral agreement be terminated in the future. IAEA safeguards do not provide this confidence for these specific issues because IAEA safeguards do not consider the origin of the material subject to verification.

    3.) If India’s reluctance to fully cooperate with its foreign partners in Australia, Canada, and the US ultimately derives from what you call “the sensitivity related to India’s colonial past” and that India will not be “answerable to another nation (for anything)” then the members of the NSG and other multilateral trade control arrangements should be very careful indeed about how they proceed with India concerning its potential membership in bodies which are dedicated to restraining activities which are viewed by all states (including without any doubt India) as an expression of national sovereignty.

    The details of these AAs are confidential and technical in content. If India and its partners smoothly come to an agreement on their terms, and should DAE honor Government of India information classification rules for national security, Prime Minister Modi should not have to worry that their terms would be interpreted by his political adversaries as a betrayal of India’s sovereign national interests.

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