Opinion - News Analysis

India, the NSG and cluster bombs

— Photo: AFP

Major initiative: Any weapon causing unacceptable damage to the civilian population should be banned.

The Indo-U.S. nuclear deal is not part of the principal agenda of the Nuclear Suppliers Group which is meeting this week in Berlin for its annual plenary. Though Indian negotiators have finalised the draft of an India-specific safeguards agreement, the lack of domestic political consensus means the government is not yet in a position to submit the agreement to the International Atomic Energy Agency Board for formal approval. Vienna being a porous place, one can safely assu me the United States has a pretty good idea of what India and the IAEA secretariat have negotiated. New Delhi, on the other hand, is completely in the dark about what kind of exemption the Bush administration is prepared to seek from the nuclear cartel’s export guidelines for India.

Washington circulated a short “pre-decisional” draft in March 2006 but that text has since undergone substantial revision. According to the February 2008 report of the Congressional Research Service, U.S. Nuclear Cooperation with India: Issues for Congress, the United States has now developed a second draft incorporating the suggestions of other NSG members. “However, Washington has not yet circulated the proposal to the NSG Consultative Group out of concern that it would leak, thereby enabling the Indian leftist parties to use the draft to raise additional objections to the deal and stop discussions between New Delhi and the IAEA,” the CRS report states. The source it quotes is a “personal communication” by an unidentified State Department official.

Indian officials have no idea what changes the U.S. has incorporated in its first draft, which envisaged a fairly clean exemption for India without any of restrictions or conditions on the sale of components for safeguarded enrichment and reprocessing plants, reprocessing spent fuel and the like envisaged by the Henry Hyde Act of December 2006 and the U.S.-India bilateral nuclear cooperation agreement (i.e. the 123 agreement) finalised last July. The CRS report notes that the U.S. intends to unveil its new draft at an NSG Consultative Group meeting only after the IAEA Board of Governors has approved India’s safeguards agreement.

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This secrecy is of a piece with the gag order the State Department has imposed on members of the House Committee on Foreign Affairs to ensure its answers to a number of detailed clarifications sought by Congressmen on the nuclear deal do not leak out. The questions were framed by the Committee after House Resolution 711 “expressing the sense of the House of Representatives concerning the U.S.-India nuclear cooperation agreement” was referred to it last October. The resolution states that it is in the U.S. interest to ensure the NSG does not approve an exemption for India “that allows other countries to engage in civil nuclear commerce with India that is prohibited under U.S. law, thus putting U.S. firms at a competitive disadvantage.” The operative part of H.R.711 is that the administration should not move for any revision of the NSG’s guidelines until it has (1) answered “all outstanding questions raised by Congress” on “apparent inconsistencies” between the Hyde Act and the 123 agreement, and (2) resolved “all differences of interpretation” of the 123 agreement’s provisions with India.

What does this mean for India, assuming the nuclear deal is able to pass the gauntlet of Left opposition and move on to the next stage? For one, that the U.S. will likely attempt to claw back the concessions it made in the 123 agreement and close the window on India getting at the international level what U.S. vendors are unable to provide under domestic law. India, for example, does not need enrichment and reprocessing technology from others but would like to import components for safeguarded fuel cycle facilities. The 123 agreement excludes this but the NSG at present has no separate bar on the sale of such components. Second, the Indian interpretation of many of the 123 agreement’s provisions — especially on the right of return — differ significantly from the American one. Since it is this deliberate ambiguity of language which allowed the 123 text to be sold by the two governments to their respective publics, any attempt to resolve these “differences of interpretation” could well lead to the agreement itself unravelling.

Until now, India was willing to swallow some of the unpleasant provisions of the 123 agreement because it knew that what mattered in the final analysis were the NSG guidelines. After all, the 123 agreement gets “operationalised” only when India buys nuclear equipment and fuel from the U.S. And so long as the NSG guidelines allow India to buy what it wants from other countries, a prudential strategy would be one which postpones this operationalisation for a few years. It is precisely this sequencing loophole in the nuclear deal that the U.S. is now trying to plug by denying India the "clean exemption" it wants from the NSG. All indications are that the NSG hurdle will be the hardest of all. But India will always have the option of walking away from the table if the nuclear cartel seeks to impose unreasonable restrictions on the country.

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One of the issues being discussed in the Berlin NSG plenary is a U.S.-initiated proposal to adopt new rules governing the export of enrichment and reprocessing (ENR) technology and equipment. Altering the Nuclear Non-Proliferation Treaty and NSG rules governing ENR has been an American priority for several years now. At present, neither the NPT nor the NSG envisage separate restrictions. The NSG guidelines only prescribe full-scope safeguards as a condition for the sale of nuclear material and equipment and do not impose additional conditions on ENR equipment. Until now, the U.S. has advocated a complete international ban on the sale of ENR technology to countries which did not already posses it, something NSG members have always resisted.

Last month, the U.S. changed tack to propose that the NSG adopt separate rules for such exports. Among the restrictions the U.S. envisages are (1) NPT membership (thereby ruling out India), (2) adherence to the Additional Protocol providing for snap inspections (something India will not allow since it possesses nuclear weapons), and (3) “black box” technology, whereby importing countries would not be able to replicate the safeguarded equipment they buy for use in some hidden facility.

At a meeting of NSG officials in Vienna in April, the U.S. clashed with Canada, Brazil and South Africa over the “black box” proposal.

With enriched uranium emerging as a fuel of the future, countries like Canada (with large uranium deposits) and South Africa (with enrichment technology) do not want the energy market to be cornered by the handful of countries which today supply nuclear fuel. However, it is more than likely that the NSG will adopt an "NPT only" rule for ENR sales. And that the exemption the U.S. seeks for India will not relax the proposed new rules on enrichment and reprocessing.

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A major arms control initiative gets underway this week in Ireland with the convening of the Dublin Diplomatic Conference on Cluster Munitions. A cluster munition is a bomb which contains multiple explosive submunitions that disperse deadly bomblets over a wider area after the principal detonation occurs. Such munitions violate the norms of war because they spread over a wide target area, causing civilian casualties. During Israel’s invasion of Lebanon in 2006, for example, thousands of cluster bombs were dropped in heavily populated areas causing hundreds of civilian deaths and injuries. At the end of the war, one million unexploded bomblets lay strewn across southern Lebanon.

Prompted by the international outcry that Israel’s indiscriminate use of cluster munitions provoked — and the failure of the U.N. Convention on Certain Conventional Weapons (CCW) to move towards prohibiting these deadly bombs — Norway invited concerned countries at the end of 2006 to attend a conference to work towards a ban. The Oslo process led to subsequent meetings, most recently in Wellington, where a Declaration on Cluster Munitions was adopted. The Dublin Conference, at which more than 100 countries are participating, is aimed at drafting a Convention prohibiting the use, production, transfer and stockpiling of cluster munitions. The U.S. is officially staying away.

So is India.

Though India is a party to Protocol V of the CCW dealing with explosive remnants of war and is thereby committed to the “responsible use” of cluster munitions, it is wary of the Dublin process. First, it would rather deal with the issue through the U.N. And second, it believes cluster bombs serve a useful military purpose. So as with Ottawa process, which led to an international convention against landmines, India prefers to sit outside. This is unfortunate. Every weapon serves a “useful military purpose” but when it causes unacceptable damage to the civilian population its use should be banned.

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