India Finally Ratifies its Additional Protocol, but Does it Mean Anything?
Posted: June 23, 2014 Filed under: Nuclear 5 CommentsLast week, our friend Robert Kelley, along with Brian Cloughley, published a report for IHS Janes in which they reviewed and analyzed information about a possible new uranium hexafluoride plant at the Indian Rare Metals Plant (IRMP) near Mysore, India.
Toward the end of the report (which is damned difficult to locate in full text online, by the way, and is also paywall protected) the authors addressed the relevance to this discovery of India’s Additional Protocol with the IAEA:
The divergence between Mysore and the usual level of publicly available information on India’s nuclear programme may have its roots in two international agreements. The first is between India and the IAEA, the second between India and the United States. . .
Neither India, Pakistan, nor Israel have signed the NPT, nor agreed to the 1972-era voluntary agreements. India signed a version of the Additional Protocol in 2009, but never brought it into force. This Additional Protocol does not follow the Model Protocol that other non-nuclear weapons states sign and has no provisions for site access.
In 2008, India agreed to another set of constraints under a special agreement brokered by the US; the 123 Agreement, which governs nuclear co-operation between the US and India. This reaffirms that India is to declare its civil nuclear facilities but not necessarily its military facilities. This agreement allows both parties to enrich uranium up to 20%, but does not explicitly prevent India enriching uranium to higher levels to obtain HEU.
This seems at odds with the wider US nonproliferation agenda, which has aggressively sought to prohibit higher enrichments and repatriate any HEU to the country of origin. . .
On India’s IAEA agreements, in diplomatic cables released by Wikileaks in 2011, the US mission to international organisations in Vienna expressed concern that “the [Indian] Additional Protocol does not go as far as even Russia’s or China’s”, which are already exceptionally weak. The US Congress’s stipulation that the 123 Agreement must be contingent on India completing an “Additional Protocol” is subverted because it is not a “Model Additional Protocol”, and is a very weak one. Moreover, it has not yet been ratified, so is not even officially in force. . .
Notably, the Mysore enrichment plant is not a declared facility for either set of agreements. This is perhaps why India keeps its enrichment plant plans so secret. It only needs to declare civilian facilities, and by not declaring Mysore as a nuclear facility at all, New Delhi is making a tacit admission that it may have a military purpose, such as enriching uranium for nuclear submarine reactors or second stages in thermonuclear bombs.
Despite apparently going against the spirit of the 123 Agreement, India is still formally in compliance with its international commitments, and Washington can claim ignorance of any suspected enrichment in excess of 20%. The secrecy of Mysore is therefore driven by a need to not bring attention to breaking the spirit of the 123 Agreement, and furthermore it exploits the old IAEA agreements that limit powers of inspection.
This is pretty explosive stuff, if you’ll pardon the pun. From the announcement of the US-India nuclear partnership in 2005, through the negotiation of the 123 agreement in 2008, and in that same year as the issue of a waiver for the partnership was before the Nuclear Suppliers Group, India promised over and over again to sign and ratify an Additional Protocol with the IAEA.
It turns out that until this week, they had not followed through on that promise, and it further appears that the Kelley and Cloughley report, which was widely reported in the media, had something to do with scaring them into finally doing it – making the connection as it did to the US 123 and possible endangerment of US-India nuclear trade.
Indeed, it was widely reported yesterday that India has now sent an instrument of ratification of an Additional Protocol to the IAEA, which should bring the agreement finally into force.
But recall the February 27, 2009 US diplomatic cable released by Wikileaks, which Kelley and Cloughley referenced above. You can see the cable here, and here is a longer excerpt from it:
The IAEA has added to the Board agenda for next week an Additional Protocol (AP) for India. The document was circulated for Member State consideration mid-day Thursday, 26 February. The draft text basically contains an obligation to provide limited reporting on exports to non nuclear weapons states (NNWS). It does not even go as far as the AP’s for Russia and China, the weakest among NWS, and is viewed in the Safeguards Department and the Office of the Legal Advisor as setting a bad precedent for not only Pakistan, but Brazil.
So it’s really questionable whether India’s new AP – now that it actually is in force as a legal source – is really of any marginal advantage to the safeguards regime between India and the IAEA. A friend has referred to the new India AP as a “Mickey Mouse” AP, that really should not be considered to constitute a proper Additional Protocol, on par with those signed and ratified by NPT NNWS.
I have obtained a copy of India’s new Additional Protocol agreement, and the IAEA BOG discussion approving it. I will insert links to both documents below. You can then compare the India AP to the Model Additional Protocol document (INFCIRC/540) that all NPT NNWS are encouraged to sign by the IAEA in its entirety. You can see the Model AP here.
Arms Control Law 
Capitulation
IAEA has conceded that it has no influence in India and that India has completely outwitted the Agency on the “additional protocol.” The Secretariat presented the Board of Governors with an empty sham document and railroaded a conclusion. It is not anything like the Model Additional Protocol (INFCIRC/540) that is was supposed to be. Even then India let the darn thing lie fallow for 5 years not even allowing the Agency to enforce the puny measures it contains. Now India is possibly going to ratify it according to the press. The opportunity to amend this sham document will be lost and IAEA will sit outside the fence looking into India with none of the tools available through the additional protocol. It is a dark day for the NPT. Darker yet for the credibility of the IAEA.
We need experts like yourself to highlight this issue at home as well as internationally. As a person of Indian ancestry, I can attest to the incompetency of the Indian government and the corruption inherent in every walk of life in India. So at the very least, it is extremely irresponsible for us to blindly trust the Indian government and its so called safeguards. While I am not suggesting that every single Indian nuclear facility be scrutinized, there needs to be a clear distinction between military and civil nuclear facilities. It is in the best interest of every human for India (and other nuclear capable countries) to have comprehensive safeguards ensuring that radiological materials are not diverted. Why cant countries like the United States ( that have been handling these materials for almost a century) develop guidelines for “friendly” countries such as India?
II have no brief to defend any aspect of India’s safeguards agreement, its additional protocol, or the U.S. agreement. But I find the original post and this comment to be divorced from the underlying background. As a result, each draws conclusions that are unwarranted and exaggerates the import of the outcome.
The Model Protocol is designed to strengthen the IAEA’s capabilities to detect undeclared nuclear material in states with comprehensive safeguards agreements. It also improved the operation of safeguards by improving the designation procedures and communications of the IAEA. The goal of detecting undeclared nuclear material has no meaning in the NPT NWS and other states with unsafeguarded nuclear activities.
INFCIRC/540 is the model agreement for NPT NNWS. It is not the model for other states. They were invited to select measures that each thought would strengthen safeguards and nonproliferation. Read the Foreword to the Model Protocol.
The five NPT NWS have Additional Protocols. They have every different structures and scope. India now has one. Each of these agreements contains provisions that improve safeguards in NPT NNWS, including India’s, and each has provisions that improve designations and communications when safeguards applied to themselves.
So, you may find the scope of any of these agreements to be inadequate. But the fact that they are not the same as the Model Protocol is irrelevant.
A few more points:
The India agreement is weak but not a “sham.”
The Agreement was approved by the Board of Governors, the executive authority of the IAEA.
The suggestion that the IAEA, if that means the Secretariat, can “railroad” a conclusion is at odds with how the Board works.
The IAEA is not an NPT organization. As such the Additional Protocol of India is not particularly relevant to the NPT nor, I think, to the credibility of the IAEA.
In the notes of Board debate:
Switzerland complains that the AP was submitted rather late and the Board members had limited time to consider it.
Ireland complains that it is not the first time an important proposal had been presented at short notice and hopes it will not continue.
India speaks about how the new protocol drew on elements of the Model additional protocol. Read that one carefully
From the American cable
Some states are beginning to express concern about the lateness of the document and its limited nature. Railroad?
“The IAEA has added to the Board agenda for next week
an Additional Protocol (AP) for India. The document was
circulated for Member State consideration mid-day Thursday,
26 February. The draft text basically contains an obligation
to provide limited reporting on exports to non nuclear
weapons states (NNWS). It does not even go as far as the
AP’s for Russia and China, the weakest among NWS, and is
viewed in the Safeguards Department and the Office of the
Legal Advisor as setting a bad precedent for not only
Pakistan, but Brazil.”
“Secretariat officials in the Department of Safeguards
and Office of the Legal Advisor describe the negotiations as
very similar to those to conclude the India safeguards
agreement. They put a lot of work into drafting a text,
using the opportunity to set a good example, with the goal of
providing for safeguards on India’s civilian nuclear program,
and eventually permit implementation of integrated safeguards
on the civil program, thus achieving efficient and effective
safeguards implementation in India. They now feel they
wasted their time. In the view of these officials, the
Indians approached the discussions trying to get away with as
little as possible. They stripped out much of what the
Secretariat had proposed. Operations officials are visibly
disappointed, and reluctant to discuss the matter. ”
I agree. This speaks well of the secretariat who see the disaster looming. They believe they wasted their time. Wasted their time.
The assistant director general of the IAEA says the following:
“Assistant Director Vilmos Cserveny
acknowledged that some would consider this a “Mickey Mouse
Additional Protocol.” However, he underlined, this agreement
should be understood as another step forward in the ongoing
process of bringing India into the nonproliferation
mainstream. ”
The agreement is possibly not a sham, just “Mickey Mouse.”
The Board was not given time to consider the proposal properly but had their arms twisted. Is that a railroad? That is EXACTLY how the Board works. The Board is the IAEA; not the Secretariat. The Board must take responsibility for their vote. Maybe I should have said the secretariat was railroaded.
I agree the IAEA is not an NPT organization, it is a verification organization, an excellent verifier of nuclear materials. It does the world a disservice by making people think it has increased power in India.
When India gets away with everything and gets rewarded the NPT is in trouble. Who needs it if flaunting is the highest honor.
And while the secretariat rose to the challenge, only to be squashed, it is not a high point for the board.
There is a relevant article here:
http://atomicreporters.com/2014/06/25/unconditional-surrender-indias-exceptional-protocol/