The hoax of the IAEA draft

After the ‘great performance’ of our steadfast Prime Minister at the G-8 summit and his declaration to the energized nation that “Our relationship with the US has never been in such a good shape,” the mood of the country is euphoric. When political pulsations in the country are running high, no one except the communists seems to be interested about the complex IAEA draft of the “India Safeguards Agreement”. The Government of India has finally made the text public on the Ministry of External Affairs website after keeping it as a secret and refusing to show it to the Left parties. External Affairs minister Mr. Pranab Mukherjee made a statement on 8 July that according to IAEA procedure the Indian government is treating the document as a classified one and therefore cannot disclose it to a third party. Mr. Mukherjee has also made it clear that the government will not go to the IAEA before facing a trust vote in the Parliament.

In less than 24 hours after Mr. Mukherjee made this statement, media started flashing breaking news around midnight that Government of India has approached the IAEA with the draft of safeguards agreement. In a press release the IAEA also confirmed that at the ‘request of the Government of India’, the text has been submitted to the Board for its consideration. The government on 10 July morning made the draft public on the Ministry of External Affairs website. Mr. Prakash Karat commented in his press conference on the same day that while the government and the Congress party were maintaining that the draft of the agreement was a classified one, IAEA officially clarified that the agency could not restrict India from sharing the text. He also said that “some US websites in the US had put the text up even before the MEA site”. In fact it was the Jeffrey Lewis blog ArmsControlWonk, which put out the “restricted” India-specific safeguards agreement within hours after it was circulated to the members of the Boards of Governors of IAEA in Vienna, the IAEA headquarters.

According to the IAEA it is the independent decision of the members (read Government of India) whether to make the safeguards agreements available for public distribution or not. Hence there was no restriction from the IAEA on sharing the document. The utterly baffling thing is why then the government played this tantrum and displayed a deliberate sullenness with the Left? There are indeed clear indications by the government suggesting that they denied showing the draft to the Left on purpose. What was then the purpose? Science and Technology Minister Kapil Sibal is now delivering contradictory statement like “the draft agreement could not be circulated to a third party” and again “Mr. Karat, in most of the meetings of the UPA-Left committee, said he had no interest in the draft agreement.” The Left parties said something different in their 9th July press release ‘On Withdrawal of Support to the UPA Government’:

“The Congress leadership has violated the understanding arrived at with the Left parties in November 2007, wherein the outcome of the talks with the Secretariat of the IAEA was to be presented to the UPA-Left Committee on the Nuclear Deal.”

“The text of the Safeguards Agreement was not given to the Committee to study. So, there can be no findings of the Committee on the basis of which the government can proceed further.”

On the day the government forwarded the agreement for approval, Atomic Energy chief and India’s chief negotiator with the IAEA Anil Kakodkar claimed that the text was yet to be finalized and hence could not be made public. Manish Tewari, the Congress spokesperson went on saying that the text had to be kept under wraps because of the 'threat of terrorism'. On these mottled and contradictory statements issued by the government, Atomic Energy department and Congress party, Mr. Prakash Karat remarked, “At least, put one version of lies and not different lies.”

The Left after studying the draft has given the following reasons on why the IAEA Safeguards Agreement was kept hidden:

In order to suppress the fact that India is about to bind its entire civilian nuclear energy programme into IAEA safeguards in perpetuity without getting concrete assurances for uninterrupted fuel supply, right to build strategic reserves and right to take corrective steps in case fuel supplies are stopped.

The text of the draft makes it clear that the repeated assurances made by the UPA Government in Parliament and outside, on securing uninterrupted fuel supply assurances and strategic fuel reserves have not been fulfilled. There are no concrete corrective measures in the main enforceable body of the Agreement, only a vague mention of “corrective measures” in the preamble.
Under the Hyde Act, IAEA safeguards are to be imposed on India’s civilian nuclear facilities in perpetuity. The key question therefore with respect to IAEA safeguards is: how to ensure that once India’s civilian reactors go under safeguards in perpetuity, the country would not be blackmailed by the withholding of nuclear fuel supplies, as the United States did in Tarapur following Pokhran-I?

IAEA has neither any obligation regarding fuel supplies or building strategic reserves nor does this noting India’s basis for this offer give India any additional rights through this agreement. Therefore to read into this clause either a guarantee for fuel supplies or IAEA's support for building up a strategic reserve is misleading the people.
The preamble of the IAEA Agreement notes: “India may take corrective measures to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies.” Neither the “corrective measures” nor the precise relationship between these “corrective measures” and the in-perpetuity imposition is spelt out in any meaningful terms in the text.
As against the vagueness of the “corrective measures” figuring in the preamble, what is spelt out clearly in the body of the agreement (Paragraph 32) is that India can withdraw its facilities from safeguards only if it is (a) jointly agreed between India and IAEA, and (b) if these facilities are no longer usable for any nuclear activity. What does this mean? It can only mean that India can withdraw any facility it wants out of IAEA safeguards only if it strips it of all capability of producing nuclear energy and that too only after the IAEA determines that “the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards.”
The text of the IAEA Draft Agreement makes clear there are no corrective measures identified in the operative of the clauses of the Agreement. The mention of corrective measures is only in the preamble and here too, no concrete corrective measures have been defined. Unless there are specific provisions in the operative clauses, a phrase such as “corrective measures” inserted in the preamble cannot create either omnibus rights or obligations outside the text of the treaty.

It is clear that the IAEA Safeguards Agreement does not address the fundamental problems in the Hyde Act and the 123 Agreement. As a result of operationalising the Indo-US Nuclear Deal, India will place its costly imported reactors under perpetual IAEA safeguards and risk their permanent shutdown in case it fails to toe the US line on foreign policy issues.