Unconditional Surrender – India’s Exceptional Protocol

• “There is a serious danger inherent in the India Additional Protocol”

• “The IAEA would be far better off to offer India a voluntary-offer agreement like it has with the official Nuclear Weapons States”

Robert Kelley, the former IAEA safeguards inspector with three decades of experience in the U.S. national laboratories, has been in the news lately. Writing for IHS Jane’s, Kelley and co-author Brian Cloughley showed that India appeared to be expanding its uranium enrichment program and that fissile material produced at the country’s Mysore facility may support its thermonuclear weapons program. Following publication of the Jane’s report, India moved to ratify its Additional Protocol with the IAEA after years of delay. A copy of India’s AP was published by the Arms Control Law website.  The following is Kelley’s analysis of India’s AP agreement with the agency:

IAEA has allowed India to sign a document called an ”Additional Protocol” to receive support from outside groups such as the US Congress and the Nuclear Suppliers Group. The document, at first glance, looks like an IAEA Model Additional Protocol. But on closer examination, it bears closer resemblance to a sandwich made from two slices of white bread with no meat.

In the first decade of the century the U.S. Congress was consulted about giving India special treatment for nuclear trade even though India had not signed the Nuclear Nonproliferation Treaty. One of the conditions that Congress imposed was satisfactory progress for conclusion of a so-called Additional Protocol with the IAEA. See, for example, the Senate Report 109-288 – UNITED STATES-INDIA PEACEFUL ATOMIC ENERGY COOPERATION AND U.S. ADDITIONAL PROTOCOL IMPLEMENTATION ACT. What Congress sought was a document following the guidelines of IAEA’s MODEL Additional Protocol, INFCIRC/540. But they weren’t very specific and they got something else instead.

The Nuclear Suppliers Group is also looking at a requirement that an Additional Protocol be a requirement for nuclear trade. Respected journalist Mark Hibbs following the NSG writes:

“Without universal application of the Additional Protocol, the effectiveness of both the IAEA and the NSG in combating clandestine nuclear activities will be compromised.”

The NSG, meeting this week in Buenos Aires, is still debating the issue and the outcome is not yet clear, however, it is certain that neither the U.S. Congress nor the NSG intended that a bogus document like India’s, masquerading as an “Additional Protocol” is what was intended.

The term Additional Protocol on its own is nice shorthand but inadequate for legal discussions. Additional Protocols to treaties abound and the IAEA’s use of the term is but one example. This discussion uses the term AP to mean INFCIRC/540.
The Model IAEA AP has a standard introduction, 18 articles and two annexes. The powers granted to the Agency are largely contained in the articles and most of them are gutted or missing in the India-Specific AP. To wit, what is missing?

IAEA has given up the right to ask for the provision of information on:

• Nuclear fuel cycle-related facilities
• Information on gains of effectiveness for declared facility safeguards
• General descriptions of buildings at declared sites along with maps
• A description of the scale of operations at declared sites
• Information about uranium and thorium mines and mills
• Information about nuclear material exempted from safeguards for other uses

Clearly it is true that India reserves certain rights to withhold information on undeclared activities under its ancient (1971) INFCIRC/66 safeguards agreement. One could therefore argue that some general information could lead to unintended knowledge about the military programs. But giving up on declarations, maps and short-notice access to declared sites is astounding. If IAEA is serious about safeguards at declared facilities and about an Additional Protocol, then India must grant the same AP concessions at declared sites.

Complementary Access is one of the key provisions of the Model AP that is familiar to the press and politicians as unannounced access or spot inspections. That is an overstatement but here is what the IAEA gave up:

Everything

The article on complementary access is gone. In every other country inspectors can show up at a declared site and ask to see any activity within the boundaries of the site – but not in India. This single omission makes the document dead-on arrival. This is at the core of a real Model Additional Protocol

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Because IAEA has given up its right to make short notice inspections, enshrined in other APs, it does not need to use any of the following tools and methods it otherwise would have in Article 6 of the Model AP that has disappeared:

• Visual observation
• Collection of Environmental Samples
• Utilization of Radiation detection and measurement devices
• Applications of seals and tamper detecting devices
• And lots of documentation and information described in the Model AP

These tools are in use in the Non-Nuclear Weapons States that have signed Model APs. But India gets a free ride.

The Agency has not received the permission to carry out wide-area environmental monitoring activities but that is also problematic in a state with 30 or more military support nuclear facilities off-limits to IAEA
.

Supporters of the Indian AP will point out that multiple-entry visas are to be granted to any and all inspectors who apply. The purpose of the one-year visa is to facilitate short-notice inspections without the state realizing that inspectors are coming or at least finding out at the last minute. Alas, because the India AP does not allow short-notice inspections there is no reason for these. India didn’t concede anything.

The Agency should test India on the visa grant as soon as possible since a large number of states that have signed the Model AP accept this provision but then refuse to implement it. Because it is one of the few rights allowed by India the Agency should test it.

The quality of inspections is also affected in countries like India because inspectors do not to drive due to road conditions unfamiliar to many non-Indians. As a result, transport is arranged with a private taxi firm well in advance or done using state-owned cars. Surprise inspections at Indian facilities are very difficult.

Strangely, the India AP does not contain a section on subsidiary arrangements. These are simply working level documents to describe what, when and how work gets done; points of contact etc. Clearly the AP does not have to contain this article but its omission is strange.

There are two sections of the deal that are commendable. India has granted IAEA the modern AP language on the designation of inspectors. This is a huge benefit because it allows the Agency the right to declare any Agency official as an inspector and India normally would have to accept them except in special circumstances. The India AP also allows modern communications and unrestricted unattended monitoring in keeping with the Model AP
.

What does this all mean?

Clearly the real message is that India will have 20 facilities under safeguards and possibly 30 military nuclear facilities that are not. The non-safeguarded nuclear facilities carry out tasks like mining, milling, plutonium production, uranium enrichment, reprocessing, heavy water production for PHWRs and nuclear weapons manufacturing. Under these circumstances it is hard to conceive why India would consider producing or diverting a single gram of plutonium from a safeguarded facility when they can make all they want with impunity in a facility that IAEA can know about but not inspect. Their HEU cycle is all not-declared so there will be no losses there.

Safeguards on the declared civil facilities, especially the growing number of pressurized light water reactors are expensive and pointless.

The IAEA would be far better off to offer India a voluntary-offer agreement like it has with the official Nuclear Weapons States (China, France, Russia, UK and US). India could offer the same 20 sites to IAEA for safeguards and IAEA could pick one or two, like the Nuclear Material Store at Tarapur, allow both sides to save face and to save a lot of money.

The India-Specific AP treats India like a weapons state and halfway measures are a waste of time and money.

The Assistant Director General of the IAEA was reported to have said that many would regard this as a “Mickey Mouse” AP and that Brazil and Pakistan are watching. Northern neighbor Pakistan is watching with interest and is already making noises about special treatment and possibly even joining the NSG someday. Pakistan’s mix of safeguarded civil facilities and military plants is even more complex and unclear. If Pakistan is allowed the same exemptions as India and allowed to conclude its own “Mickey Mouse” Additional Protocol with IAEA, then the credibility of the entire safeguards system will be in serious doubt.

There is one other possible solution but time is short. Press reports indicate that India has ratified the India-Specific AP or is considering it in the near future. If it is not yet ratified, the IAEA’s Board of Governors could withdraw their approval of the India AP before it is ratified. Then a new negotiating team could go back to the drawing board and create an AP modeled on a weapons state, which has more teeth. But that time is very short or maybe even too late.

6 thoughts on “Unconditional Surrender – India’s Exceptional Protocol

  1. This is actually what we called between the lines or hidden under the joy of India specific IAEA Additional Protocol (AP). Does this AP really matters India nuclear capacity? The answer is No. The country would be smoothly continuing all its nuclear expedition in the defence domain and civilian part would just be used as a cover for a peaceful responsible nuclear weapon state. India used IAEA as an instrumental in order to get the blessings of NSG and international community at large. After this it propagates itself as a ‘responsible nuclear weapon state’ and can efficiently divert world’s attention from its hostile nuclear buildup.

  2. India’s getting membership in NSG would be the only factor which will in fact make the whole regime to suffer and will therefore undermine the true essence of the NSG. Being part of NSG it is mandatory for the state to be a part of NPT where India is out of NPT. If considering the scenario India can get exemption or can be included in NSG then the same waiver would also be offered to Pakistan, which is a responsible nuclear state, a responsible member of IAEA where it has put all of its facilities under the IAEA safeguard and can better differentiate between military and civilian facilites.

  3. It’s ironic how these advocates of Indian inclusion into the NSG are also advocates of nuclear non-proliferation and have given a commitment under Article VI of the Non-Proliferation Treaty (NPT) towards nuclear disarmament. Having already failed on the latter, they would also lose their moral authority over the former. Irony also lies in the fact that the same states that felt hard done by Indian transgression in 1974 are pushing for its membership.

  4. Diplomatic campaigns aside, if India is allowed membership of the NSG, it would set the worst precedents in the non-proliferation regime’s history. Break laws, norms and breach agreements; no punishment will ensue if you provide good economics.