Govt may have got it right

Contemporary international politics — characterised by both complex interdependence and anarchy — reveals what may have always been instinctively obvious. States are best able to advance their interest in bilateral and multilateral negotiations not by sticking to absolutist policies or by shrill ideological posturing, but by striking a balance between what is desirable and what is possible.

Once this is clear, imaginative diplomacy, nuanced negotiations and hard bargaining can, with sufficient political support, lead to optimal outcomes that serve the country’s medium-term and long-term interests.Implicit in this, of course, is that small tactical concessions may also be needed to secure larger strategic gains.Will the ‘Draft Agreement between the IAEA and Government of India for the Application of Safeguards to Civilian Nuclear Facilities’, if approved, lead to such a positive outcome?

The draft text is not stand-alone and intrinsically and inseparably linked to the “nuclear deal” between India and the US (including the July 2005 joint statement by Prime Minister Manmohan Singh and President George W. Bush, the 123 Agreement and, for some critics, even the Hyde Act).

In the Manmohan Singh government’s view, it has struck a balance: a middle path between a virtually unfettered autarkic nuclear programme, handicapped by limitations of technology and fuel and viewed with suspicion and concern by the international community, and a programme that has been surrendered to the discriminatory nuclear order.

In this view, the draft agreement between India and the IAEA, embedded in the larger nuclear deal, may circumscribe aspects of India’s nuclear estate by international regulations, which would obviously impose some restrictions, but New Delhi would, by and large, retain its strategic autonomy.

In other words, not only would India’s nuclear deterrent capability not be compromised, but also, we could witness the robust growth of the now almost stagnant civil nuclear programme by ensuring a lifetime supply of nuclear fuel for the country’s power reactors.

A close reading of the text would suggest that the Manmohan Singh government may have got it right.

The IAEA has signed agreements with 145 states that have submitted their nuclear facilities, materials or activities to the scrutiny of IAEA inspectors.

These safeguards are essentially either (i) comprehensive full-scope (covering all facilities in a non-nuclear weapon state, which has, for instance, signed the nuclear non-proliferation treaty); (ii) nuclear reactor/plant-specific safeguards, governed by Information Circular 66 (INFCIRC 66) and its two revisions; (iii) and safeguards intended for facilities in the five “recognised” nuclear-weapon states.

The draft agreement is, therefore, unique. There is no other country for which a specific agreement has been drafted. Much of the technical part of the agreement does bear close resemblance to INFCIRC 66, but there are significant differences. The preamble to the text contains the essence of the understanding between the two parties from the Indian point of view.

Five critical areas need to be highlighted from the preamble and the text.

First, India’s sovereign and inalienable right to carry out nuclear research and development activities for the welfare of its people and other peaceful purposes is recognised;

Second, India is described as a state with advanced nuclear technology, which wishes to expand civil nuclear co-operation for its national development;

Third, the relevance of the Indo-US joint statement of July 18, 2005, in which India, inter alia, has stated its willingness to identify and separate its civilian and military nuclear facilities and programmes in a phased manner, is recognised. And this is the basis for India’s decision to enter into an agreement with the IAEA.

In other words, without explicitly recognising India as a nuclear-weapon state, the draft accepts India as a state with advanced nuclear technology and military facilities.

Fourth, the draft recognises that the “essential basis of India’s concurrence to accept agency safeguards under an India-specific safeguards agreement… is the conclusion of international cooperation arrangements creating the necessary conditions for India to obtain access to the international fuel market, including reliable, uninterrupted and continuous access to fuel supplies from companies in several nations, as well as support for an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India’s reactors.”

And, if this were not to happen, “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies”. In short, India has a large number of possible options (and these need not be stated explicitly) available in case its nuclear partners renege on their understanding with New Delhi as they did in the case of Tarapur.

Finally, it is India, on the basis of its sole determination, which shall notify the agency in writing of its decision to offer for agency safeguards any of its facility purely voluntarily. The annexure, which lists the facilities to be safeguarded, is — not surprisingly — still blank.

Critics have argued that the preamble may not be legally binding on either party. This does not hold true. Article 31(2) of the 1970 Vienna Convention on the Law of Treaties clarifies that in terms of legal binding effect, no distinction can be made between the provisions of the preamble to a treaty and other provisions.

In other words, the provisions of the preamble are equally substantive, and creative of rights and obligations, as other provisions of the treaty.

How will these commitments impact on the nuclear weapon capabilities of India? Clearly, India will only offer those facilities to be safeguarded that will not impact on its military programme. The draft agreement does not take a view on a further nuclear testing by India, as that issue is clearly beyond its scope. What, however, should be clear is that the inspection at the facilities to be safeguarded will be intrusive, as is clear from the text.

This, however, is a small price to offer for being mainstreamed into the nuclear regime. Retaining the nuclear weapons programme while securing nuclear cooperation. This is not clearly a deal which will curry favour with the nuclear non-proliferation shankaracharyas in the US or elsewhere. For the agreement is designed not to box India and its nuclear programme into a corner but to welcome a rising India as a partner in the management of the international security system.

(Source: The Telegraph, 14/07/08)