02 August 2011

NUCLEAR ISSUES : On slippery ground

The NSG's decision to strengthen its guidelines on the transfer of sensitive enrichment and reprocessing technologies will hurt India.

The nuclear Power reactor fuel reprocessing plant and advanced fuel fabrication facility at Tarapur. What India needs are plants with capacities of several hundred tonnes. 

ON June 24, the Nuclear Suppliers Group (NSG), an informal arrangement among 46 countries to control trade and transfer of nuclear technologies, announced after its 2011 plenary meeting at Noordwijk, the Netherlands, that the members had “agreed [by consensus] to strengthen its guidelines on the transfer of sensitive enrichment and reprocessing technologies”, something which had eluded the conclave for over seven years.

Significantly, one of these new “objective criteria” for restrictions on transfers of (nuclear material) enrichment and reprocessing (ENR) technologies, which are additional to the controls that already exist in NSG's Guidelines for Nuclear Transfers (Articles 6 and 7 of INFCIRC/254/Rev. 9/Part I), requires that the recipient country be party to the Nuclear Non-Proliferation Treaty (NPT) and should have put in place Comprehensive Safeguards of the International Atomic Energy Agency (IAEA), also referred to as “full-scope safeguards”, covering all its nuclear installations. Since India is not an NPT signatory and it does not have full-scope safeguards, this has raised the hackles of the Indian nuclear establishment, the Foreign Office bureaucracy and some Indian commentators. For they see it as a reversal, or a “roll-back”, of the waiver given by the NSG in September 2008 for countries to engage in nuclear commerce with India and as being against the letter and spirit of the India-United States nuclear deal, or the 123 Agreement, concluded on August 3, 2007.

Anil Kakodkar, former Chairman of the Atomic Energy Commission (AEC) and one of the key negotiators of the civil nuclear cooperation agreements, in particular the 123 Agreement, wrote thus after the NSG announced its new guidelines on ENR transfers ( The Hindu, July 3): “It negates the positive and forward-looking orientation with respect to ENR issues that was built into bilateral and multilateral agreements developed as part of international civil nuclear cooperation. The NSG waiver for India now seems to have been circumscribed.... The United States, Russia and France have issued statements reiterating their adherence to understandings with India. One would only hope that this does not amount to doublespeak and the NSG waiver in respect of the NPT condition that was granted to India earlier remains undiluted in respect of ENR transfers as well. The statements of these countries are far from being explicit in this respect.”

What is, however, obvious, which Kakodkar too has noted elsewhere, is that the NSG decision will target India alone as it is the only country among the three non-NPT countries that have been granted a waiver for nuclear commerce with NSG countries.

Unless there were behind-the-scenes understandings that Kakodkar is referring to, what appears in cold print in the form of the Manmohan Singh-George W. Bush Joint Statement of July 18, 2005, is that the bilateral agreements with the U.S., France and Russia and the NSG waiver do not say anything about transfer of ENR technologies, except for the 123 Agreement (Article 5(2)) which provides for the possibility of transfer of such sensitive technologies (including heavy water technology), but only following an amendment to the Agreement.

In fact, one could say that Indian officials have been deluding themselves right from the beginning of the India-U.S. nuclear dialogue that ENR technologies are part of the deal, and this misconception has persisted all along through the NSG waiver and to date. One constantly comes across the phrase “clean NSG waiver”, a phrase invented by Indian commentators and used in all their statements, where what is being meant by “clean” is unclear as the waiver is neither clean nor unconditional.

The July 2005 Joint Statement talks of “full civil nuclear cooperation” without defining what full refers to (Frontline, June 29, 2007). But, as per Prime Minister Manmohan Singh's statement to Parliament on August 17, 2006, the Indian perception of “full cooperation” meant technologies relating to “ all aspects of the complete nuclear fuel cycle”.

However, the U.S., it must be pointed out, has never given such an interpretation to it. Indeed, both the preamble and the text of the 123 Agreement (Article 2(2d)) refer to only “full civil nuclear energy cooperation covering… aspects of the associated nuclear fuel cycle” with the word all significantly excluded, which was a clear indication that ENR technologies are unlikely to be part of the deal (emphasis added throughout). And this should have also been clear from the statements made by U.S. officials at various points of time leading up to the agreement, including the provision in the Hyde Act, the specific legislation passed by the U.S. Congress to enable the 123 Agreement with India.

During the November 2, 2005, hearings of the U.S. Senate Foreign Relations Committee, in reply to a question by the Chairman, Richard Lugar, the then Under Secretary of State, Robert Joseph, said: “We do not export enrichment or reprocessing technology to any state. Therefore, ‘full civil nuclear cooperation' with India will not include enrichment or reprocessing technology. We have not determined whether such a prohibition would extend to heavy water production” ( Frontline, August 11, 2006).

Later, at the April 5, 2006, hearings, Condoleezza Rice, the then U.S. Secretary of State, clarified: “Our draft [123] agreement for peaceful nuclear cooperation provides that SNTs [Sensitive Nuclear Technologies, which include, besides ENR, heavy water production technology] may not be transferred without an amendment to the agreement, which would be subject to congressional review.... There has been no discussion of possible transfers of enrichment and reprocessing technology to India or any Indian request for such technology”.


PRIME MINISTER MANMOHAN Singh with President Barack Obama in New Delhi on November 8, 2010. The U.S. assured India of its support for India's entry into four multilateral regimes, including the NSG. 

Further, Article 103(5) of the Hyde Act of December 2006 stated as a matter of U.S. policy to be pursued: “Given the special sensitivity of equipment and technologies related to the enrichment of uranium, the reprocessing of spent nuclear fuel, and the production of heavy water, work with members of the NSG, individually and collectively, to further restrict the transfers of such equipment and technologies, including to India”. Further, Article 104(d)(4) of the Act restricted the transfer of SNTs only to multilateral facilities participating in IAEA-approved programmes. Recently, in the wake of the wide expression of concern in India, Michael Krepon of the Stimson Centre highlighted some more of such statements made by U.S. officials at various times and pointed out that the U.S. position as regards the ENR issue in the India-U.S. deal has all along been consistent ( The Hindu, July 12).

The part of the NSG waiver (Clause 3a) relevant to the discussion here relates to Articles 4 (a, b and c) of Guidelines (Part I) – requiring “full-scope” safeguards. The waiver states: “… Participating Governments may transfer trigger list items and/or related technology to India for peaceful purposes and for use in IAEA-safeguarded facilities, provided that the transfer satisfies all other provisions of INFCIRC/254/Part I, as revised, and provided that transfers of sensitive exports remain subject to paragraphs 6 and 7 of the Guidelines”. The current revision of guidelines, which seek to restrict ENR transfers to non-NPT countries, has essentially amended Guidelines 6 and 7. But, significantly, the waiver did not say that Guidelines 6 and 7 would not be amended. Nor did it provide for grandfathering the waiver in case of amendments subsequent to September 2008.

However, the waiver does have a provision (Clause 4) for the NSG Chair to consult with India in case of proposed amendments to the guidelines. Since the amendments relating to the transfer of ENR technologies have been under discussion for some time, it is reasonable to presume that India was well aware of these imminent amendments soon after November 2008 itself when the NSG adopted the so-called “clean text” for the proposed amendments that laid down criteria-based approach to limiting ENR transfers. The final revision is essentially the same as the “clean text”, barring minor changes with regard to ENR technology recipients bringing into force Additional Protocol. The amendment now provides for the (weaker) Argentina-Brazil material accounting and control arrangement as well instead of the Additional Protocol.

ENR transfers

The previous NSG guidelines on ENR transfers were simply that “[s]uppliers should exercise restraint in the transfer of sensitive facilities… (Paragraph 6)” and that neither the enrichment facility nor the technology transferred “will be designed or operated for the production of greater than 20% enriched uranium… (Paragraph 7)”. The new Guideline 6 expands on the old one and stipulates that “suppliers should not authorise the transfer of enrichment and reprocessing facilities, and equipment and technology… if the recipient does not meet, at least, all of the following [six] criteria”, the most significant one among them being “Party to the Treaty on the Non-Proliferation of Nuclear Weapons [NPT] and… full compliance with its obligations under the Treaty”.

Likewise, Guideline 7 builds on the earlier one by adding, “Suppliers should… [a]void as far as possible, the transfer of enabling design and manufacturing technology associated with such items; and seek from recipients and appropriate agreement to accept sensitive enrichment equipment, and enabling technologies, or an operable enrichment facility under conditions that do not permit or enable replication of the facilities.”

Discussions at the NSG to restrict transfers of ENR technologies began in 2004 following President George Bush's speech of February 11, 2004, wherein he proposed that NSG members should not transfer ENR equipment and technologies to any state that did not already possess the full-scale capability, technology and functioning plants. Following this, the U.S. made a major diplomatic push to have the NSG revise its guidelines along the lines of Bush's proposal of ban on ENR to those who did not already have them. Considering that the U.S. piloted the move to bring about changes in the conditions for ENR transfers, even before the India-U.S. nuclear dialogue began, it should have been obvious to Indian officials that ENR technologies would not be easy to come by. However, the U.S. failed to obtain support for such a ban at the NSG. Most NSG members preferred a flexible non-proliferation criteria-based approach than an outright ban. The criteria-based approach was first put forward by France and later modified by other members. The French proposal significantly included, among other things, the requirement that the recipient be an NPT signatory with a comprehensive safeguards agreement and Additional Protocol in place.

The U.S., however, disagreed on the criteria-based approach with the other members of the NSG and stuck to its line of a ban on those who did not already have them. After months of wrangling between the U.S. and others, the U.S. finally came around in early 2008 to accepting a criteria-based approach. However, the U.S. added a few additional criteria, including the black-box approach, which means that the transfer must take place under conditions that will not enable replication of the technology. This criterion now finds place in the revised guidelines though in a somewhat weaker form because there was severe opposition to the original suggestion, particularly from Canada.

Similarly, there were other dissenters to the other two new criteria proposed by the U.S., particularly the one relating to whether a transfer of ENR technology would trigger other countries in the region to seek ENR capability or might lead to instability in the region. Similarly, there was opposition from the Netherlands and Canada to the criterion initially mooted by France and supported strongly by the U.S. that suppliers should take into account “if the recipient had a credible and coherent rationale for pursuing enrichment and reprocessing capabilities”. It may, however, be pointed out here that if the NSG had agreed to the original U.S. proposal of an outright ban on the have-nots, and without any other condition, the NSG waiver would have, in principle, given India access to ENR technologies.

Finally, in the Consultative Group meeting on November 20, 2008, nearly all the dissenters (which included Canada, the Netherlands, Argentina and Brazil) were brought on board and the NSG was able to come up with a draft, which came to be called the “clean text”. However, even this “clean text” eluded consensus because inclusion of certain “subjective criteria”, including the issue of regional instability, was not acceptable to Turkey. On the other hand, South Africa continued to insist that NPT adherence should be the only criterion for ENR transfers. At the 2010 plenary of the NSG at Christchurch in New Zealand, Turkey came around after modifications to the criteria, but South Africa continued to hold out on the grounds that the criterion of Additional Protocol, being a voluntary arrangement, went beyond the NPT and was not required by the NPT. Though the NSG was close to a consensus since 2008, it could not be secured even at Christchurch.

Given the worrisome developments at the NSG, the then Indian Foreign Secretary, Shivshankar Menon, wrote in February 2009 to the U.S. Under Secretary, William Burns, that the U.S. initiative on an ENR ban at the NSG constituted a “derogation” of the 123 Agreement. According to WikiLeaks ( The Hindu, June 18), Ambassador David Mulford stated in a cable to Washington that Shivshankar Menon's letter made a legal claim that an ENR ban would be inconsistent with Article 5.2 of the 123 Agreement, which provided for the possibility of amendments to the Agreement to permit ENR transfers and that a ban would preclude the possibility of such changes.

Similarly, according to another cable from the U.S. Embassy in New Delhi, during the India-U.S. strategic dialogue in November 2009, Foreign Secretary Nirupama Rao asked the U.S. Under Secretary for Arms Control, Ellen Tauscher, that the U.S. position in favour of a global ban on ENR not be seen as a “roll-back” of the NSG decision and that India could not be seen as “half in and half out (of the NSG)”, the latter remark referring to the pending proposal for India's admission to the NSG. While Shivshankar Menon's remark may be valid, but only in a technical sense, Nirupama Rao's remark was clearly off the mark because the NSG waiver did not automatically assure ENR transfers as, to reiterate, the waiver was only with regard to Articles 4 (a, b and c) that relate to full-scope safeguards.


SEPTEMBER 6, 2008: External Affairs Minister Pranab Mukherjee, flanked by National Security Adviser M.K. Narayanan (left) and Atomic Energy Commission Chairman Anil Kakodkar, at a press conference in New Delhi when India secured the NSG waiver. 

Even as India was lobbying hard with key NSG members after the adoption of the “clean text” and expressing its concerns to U.S. officials that the India-specific waiver of September 2008 must remain unaffected by proposed changes in NSG Guidelines and that India should be eligible for all nuclear transfers including ENR, at L'Aquila, Italy, in 2009, the G-8 declared as part of its statement on non-proliferation that pending consensus at NSG, the G-8 members would all implement the “clean text” nationally in the interim.
This came as a bombshell and as an anticlimax to the ongoing lobbying efforts. This would have given the lie to the Prime Minister's statement in Parliament in 2006 that all technology barriers would now be lifted following the India-U.S. nuclear deal. The government seemed to put on a brave front when Pranab Mukherjee told the Rajya Sabha on July 13, 2009: “We have a clean waiver from the NSG. We have India-specific agreement with the IAEA. We are not concerned with what position G-8 takes.” He probably did not realise that all the potential suppliers of ENR technologies are G-8 members.

Though India was relieved by the eluding consensus at the NSG, it was also getting increasingly concerned by the reaffirmation by the G-8 at Deauville in 2010. The G-8 statement said: “While awaiting the completion of this [NSG] work, we agree to continue to apply on a national basis the set of relevant export control criteria indicated in the declaration adopted at the L'Aquila Summit and re-endorsed at Muskoka in 2010 [to abide by the ‘clean text']”.

Thus, even without the recent consensus at the NSG, the U.S., France and Russia were effectively implementing the revised Guidelines already through national legislation/licence policies since 2009. Besides the fact that it was the U.S. that spearheaded the move at the NSG, it should be remembered that it was France that first proposed a criteria-based approach, which included NPT membership to be the chief criterion. Also, Vladimir Putin passed Resolution No.992 on December 4, 2009, which allowed the export of enrichment plant, reprocessing of irradiated fuel as well as related equipment and technologies only to non-nuclear weapon states that are party to the NPT. The resolution has been subsequently reissued every year.

But Indian officials continue to harbour an illusion that the cooperation agreements with these countries include transfer of ENR technologies. This is apparent from the manner in which they seem to be interpreting the statements made by officials of these countries that the NSG decision does not in any way detract from the NSG waiver given to India and the civil nuclear cooperation agreements with these countries. Consider the U.S. statement made on June 23 on the eve of the imminent NSG announcement. “Nothing,” the statement from the U.S. Department of State said, “about the new ENR transfer restrictions agreed to by the NSG members should be construed as detracting from the unique impact and importance of the U.S.-India agreement or our agreement to full civil nuclear cooperation. Efforts in the NSG to strengthen controls on the transfer of ENR are consistent with long-standing policy that pre-dates the Civil Nuclear Agreement and have been reaffirmed on an annual basis by the G-8 for years. This new guideline reflects a consensus among all NSG members. The NSG's NPT references, including those in ENR guidelines, in no way detract from the exception granted to India by NSG members in 2008 and in no way reflect upon India's non-proliferation record.”

Given that the 123 Agreement had no reference to the U.S. agreeing to transfer ENR technologies, the above is a perfectly self-consistent statement. Consider the statement of Jerome Bonnafont, the French Ambassador to India. His country is, he said, “committed to the full implementation” of the cooperation agreement on the development of peaceful uses of nuclear energy signed on September 30, 2008. “France confirms that this NSG decision in no way undermines the parameters of our bilateral cooperation” and these parameters did not specify ENR transfers. “The scope of cooperation is defined and decided by the parties, consistent with their national policies and international obligations, including the NPT, as far as France is concerned,” he added, which statement is a clear indicator of France's decision to adhere to the NSG's decision.
The Russian statement is also similar. “The decision to strengthen ‘sensitive' nuclear export controls… does not affect in any way the September 2008 decision of the group to unfreeze peaceful nuclear cooperation with India.” To construe that these statements, which may well have been orchestrated by the NSG members, imply that India will gaining access to ENR technologies would be a fallacy.

It must, however, be added that all of them are resorting to this hyperbole in their statements without stating, as Kakodkar had noted, explicitly whether they would transfer ENR technologies or not. Given the aggressive posture of Nirupama Rao when she said the Indian nuclear market would be open only to those who do not deny ENR technology to India, this hyperbole is likely to continue.

Indeed, at the press conference addressed by U.S. Secretary of State Hillary Clinton, after the India-U.S. strategic dialogue got under way on July 19, there was a pointed question by a journalist from Indian Express: “Can you, Madam Secretary, today set the record straight on the NSG intentions?... Can you also clarify whether the U.S. will provide ENR technology to India?” To this she gave an evasive reply by just repeating the statement of June 23 by the Department of State.

The above hyperbolic response, and the fact that there has been no clear-cut statement after the recent strategic dialogue with the U.S. delegation headed by Hillary Clinton, is indeed telling. To continue to pin hopes on ENR transfers from overseas after the NSG's new restrictions on them would be a mistake. The Indian power programme does not need enrichment technology as much as it needs large-scale reprocessing technology, which would undoubtedly be needed as nuclear power undergoes rapid expansion through imports. According to the present Chairman of the AEC, India will need to put up eight to ten times the present reprocessing capacity in the coming years to handle the spent fuel from the increasing number of reactors.

Having made the huge mistake of entering into the India-U.S. nuclear deal, it would be prudent now to focus on scaling up indigenous reprocessing capacity as a priority. The new facility opened early this year at Tarapur is also of only 100-tonne capacity. What we need are plants with capacities of several hundred tonnes. Given that the gestation period of these new plants is six to seven years, there is adequate time for expanding the reprocessing capacity. The flip side, of course, is that these new plants will have to be brought under IAEA safeguards.

NSG membership

The other related issue is the NSG membership that India is seeking. The U.S. has put its weight behind this quest as was evident from the Manmohan Singh-Barack Obama joint statement of November 2010, wherein the U.S. assured India of its support for India's entry into four multilateral regimes – namely, the NSG, the Australia Group, the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement.

Following the recent NSG decision, the NSG is considering a ‘thought paper' on the issue piloted by the U.S.
It is now clear that India, having got a waiver for nuclear commerce with NSG members, does not stand to gain anything more by being an NSG member unless it hopes to gain some foothold and push for amending the NSG amendment on ENR transfers without NPT-related conditions. The Foreign Office and the Department of Atomic Energy (DAE) would do well to give serious thought to the pros and cons of accepting NSG membership.

-R. Ramachandran
Courtesy: Frontline July 30 - Aug 12, 2011

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