What's Perpetuity Among Friends?

Momentarily lost in the hullaballoo over North Korea’s probable failed nuclear test is the last state to test a nuclear weapon as well as lie about the yield: India.

Oh, they are going to love that statement on the Bharat Rakshak BBS.

Okay, I am just winding those guys up; India at least refused to sign the NPT in the first place, which counts for something.

India’s Sweetheart Deal Breaking Down Over Safeguards?

But India has done rather better than North Korea in getting away with building and testing nuclear weapons and now stands on the verge of a sweetheart deal that would open up US law and NSG guidelines and end India’s nuclear isolation—if only they could negotiate a safeguards agreement with the IAEA.

Mark Hibbs—an international man of mystery so awesome his byline has two cities (Vienna and Bonn)—has a pair of stories in Nucleonics Week and Nuclear Fuel that detail just how broken that process has become.

On September 28, Hibbs reported (subscription only) that the IAEA Board of Governors and India were at an impasse, because India will not negotiate a safeguards agreement based on INFCIRC/66/Rev.2, which does not allow a state “to unilaterally suspend or terminate a safeguards agreement.”

Seems fair to me. We’re calling this the Tony Soprano rule of nonproliferation: Once you enter this Family, there is no getting out.

Now, in the October 9 edition Hibbs (still subscription only) has a massive 1,900 word monster declaring that India has yet to notify the IAEA that it intends to negotiate a safeguards and the US-India bilateral negotiations on a nuclear cooperation agreement, as a result, have “bogged down”—all over this question of “in perpetuity.”

You’re going to love this little wrinkle …

The Administration, in answer to questions from lawmakers, stated that India must sign an INFCRIC/66 agrement and that GOV/1621 is the basis for safeguards being applied “in perpetuity.”

GOV/1621 is restricted, so I don’t actually know what it says. Sources, however, told Hibbs that GOV/1621 has to do specifically with safeguarding items which are transferred to a state from third parties—a loophole those experts told Hibbs would allow India to interpret the agreement as excluding the 8 indigenous Pressurized Heavy Water Reactors New Delhi offered to place under safeguards pursuant to the US-India agreement (see the shaded reactors in the table, below).

That would mean that India’s safeguards obligations on the reactors are voluntary, allowing India to terminate or suspend safeguards on these 8 reactors after removing any imported fuel.

At least one description of GOV/1621 seems to support this view, describing the duration of safeguards on the transfer of fuel:

This reflects IAEA policy with regard to perpetuity flowing from the recommendations made by the IAEA Director General in a memorandum. GOV/1621, supra note 62. Paragraph 2 of the Annex to the Director General’s Memorandum states:

The primary effect of termination of the agreement, either by act of the parties or affluxion of time, would be that no further supplied nuclear material, equipment, facilities or non-nuclear material could be added to the inventory. On the other hand, the rights and obligations of the parties, as provided for in the agreement, would continue to apply in connection with any supplied material or items and with any special fissionable material produced, processed or used in or in connection with any supplied material or items which had been included in the inventory, until such material or items had been removed from the inventory.

Antonio F. Perez, “Survival of Rights Under The Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards,” 34 Va. J. Int’l L. 749 (Summer 1994).

A similar summary—for those without lexis-nexis—is provided in a conference presentation by Laura Rockwood— Principle Legal Officer, and Section Head for Non-Proliferation and Policy-making, in the Office of Legal Affairs of the IAEA.

Now, I don’t think India will get away with this little maneuver—I believe the folks in the Administration, Congress and IAEA who say they are serious about a safeguards agreement in perpetuity. And the loophole—if it exists—would be easy enough to close: the BOG should insist that the PHWRs themselves are put under safeguards “in perpetuity”—not just the material or other items supplied under the safeguads agreement.

But these are the kind of little things one wants to make sure are all wrapped up, all neat and tidy before we carving out exceptions for India in US law and NSG supplier guidelines.

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Guess who else has noticed India’s attitude toward INFCIRC/66 and is using to kick our arse all over Vienna? Our buddies in Iran: “Iran has said,” one Western told Hibbs, “that states must join the NPT if they want to get access to nuclear trade, and that rewarding India with a special safeguards agreement letting them terminate safeguards if they are outside the NPT weakens the NPT itself.”

Oh, I see, we’re all about honoring that safeguards agreement now.

When foreign policy disasters collide!

A former safeguards official described Iran’s position on India as “win-win”: Iran can use the argument to enhance its NPT credentials and obstruct at US foreign policy initiative, “while preparing the ground for being able to quit the NPT sometime in the future in part because giving India nuclear trade rights reserved only for NPT states will have made the NPT meaningless.”