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India-Specific Safeguards Agreement: Indian and American Responses

Rekha Chakravarthi , Gretchen Smith
Gretchen Smith, Research Intern, IPCS

The India-Specific Safeguards Agreement drew support and ire in India and the US after it was made public on 9 July 2008. The Agreement galvanized Indian opposition to the Indo-US nuclear deal and further provoked the non-proliferation lobby in the US. Nuclear analysts in India and the US came out en masse to offer their perspectives on what the document meant for their nations' interests and the future of the international non-proliferation regime.

In India, the positions of the Congress, the Left and the BJP for the India-Specific Safeguards Agreement mirror their views on the deal itself. The Congress values the deal and deems itself committed to it. The Left parties and the BJP remain obstinately opposed.

The Department of Atomic Energy, which led the negotiations with the IAEA Secretariat, believes that the Agreement gives India enough elbow room by way of taking "corrective measures" in case fuel supplies are interrupted. The opposition disagrees. The Left parties argue that a reference in the preamble of the Agreement to "reliable, uninterrupted and continuous" fuel supply and India's right to invoke corrective measures is not legally binding, as it is not mentioned in the operational sections of the Agreement. Indian Foreign Secretary Shiv Shankar Menon responded by pointing out that Article 31 of the Vienna Convention on the Law of Treaties made it clear that preambles and annexes are a part of the text. Further, the weight of these initial words carry through to the operational section, as evidenced by the statement at the end of the preamble, that "taking into account the above, India and the Agency have agreed as follows" to whatever follows thereafter (The Hindu, 13 July 2008). However, placing these conditions in the operational section could possibly provide India with a stronger case to defend in the event of fuel disruption; it is more a matter of implicit versus explicit reference.

Regarding uninterrupted fuel supply, Anil Kakodkar, Chairman of the Atomic Energy Commission, has stated that India can, under Article 52(c), raise the issue of fuel supply disruption as a material violation of the Agreement. Thereafter, India can invoke its right to take corrective measures to ensure the continuity of fuel supply. According to Kakodkar, the underlying principle of the Agreement is permanent safeguards if the permanence of fuel supplies is assured. Corrective measures, he explained, are unspecified sovereign rights that arise if this understanding is breached (The Hindu, 13 July 2008).

The BJP has also expressed concern that the Safeguards Agreement does not recognize India as a nuclear weapons state. The government has responded by explaining that India is not seeking a formal recognition of its nuclear weapon status. Further, the preamble's reference to India "identify[ing] and separat[ing] its civilian and military nuclear facilities," makes the Agreement "India-specific," and is very different from IAEA agreements signed with non-nuclear weapon states.

Meanwhile, support for the India-specific Safeguards Agreement in the US is found in the same group of government aides and consultants who have the 123 Agreement. They stress that bringing India under fuller IAEA safeguards is a coup for the non-proliferation regime. When the Safeguards Agreement was released, vaguely positive statements were released. However, not all lawmakers support the Indian-specific Safeguards Agreement. Democratic Congressman Edward Markey, a well known critic of the 123 Agreement, has blasted the Safeguards Agreement stating that the document is unacceptable given the skillful insertion of loopholes that make the Agreement far from permanent. More specifically, Markey argues that "this agreement lays out a path for India to unilaterally remove international safeguards from reactors."

Non-proliferation advocates echo Markey's criticisms regarding the chameleonic nature of the text. In a recent article, co-written by Darryl Kimball of the Arms Control Association and former UN Under-Secretary-General for Disarmament Affairs, Jayantha Dhanapala; the authors explain that this scenario could become a reality if India's chooses to exercise its right to take "corrective actions," in response to an interruption in the fuel supply. They explain that such an event would be a "non-proliferation disaster" as nuclear weapons testing could be one reason for fuel interruption (Carnegie Proliferation Analysis, 10 July 2008).

Other analysts are concerned about the real intention behind the need for the proposed fuel reserve. Indian lawmakers argue that this clause is designed to prevent a situation similar to the one that arose in the aftermath of its peaceful nuclear explosion in 1974. However, this argument is far from comforting to non-proliferation experts who point to this event as proof, given the ambiguous language in the text, that India plans to test again. In a recent op-ed, Henry Sokolski wrote that this proposition would allow India to "stockpile uranium fuel against future nuclear fuel supplier cutoffs that might occur???following a future nuclear test" (The Wall Street Journal, 10 July). Former Bush aide and proponent of the Indo-US nuclear deal, Ashley J Tellis, counters that such an event is very unlikely; given that India has so much more to lose than gain by testing. (India Defence, Report 3899, 9 July).

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