What146;s the big rush?

PAKISTAN MISSION TO THE IAEA

Vienna

15 July 2008

Excellency,

1. As you may be aware the International Atomic Energy Agency IAEA has recently circulated the draft text of a proposed Safeguards Agreement between India and the IAEA.

2. The Agreement is to be considered by the IAEA Board of Governors BOG and subsequently by the Nuclear Suppliers Group NSG. Evidently efforts are being made to rush through the agreement through the IAEA-BOG and the NSG.

3. In this regard the following points need to be kept in view:-

i The Safeguards Agreement was circulated to the BOG on 9 July 2008. Under its rules, it can be considered, at the earliest, 45 days later, i.e., 25 August 2008. Consideration of the Agreement cannot be placed on the Agenda for the BOG meeting scheduled on 01 August 2008.

ii There are no good technical or substantive reasons for the BOG to waive the 45 days rule. The political exigencies of either India or the U.S. are not sufficient reason for the BOG to waive the 45 days rule which is designed to enable BOG members to carefully examine the content and implications of any Agreement so as to ensure that it serves the purpose of credible verification of non-diversion for which it is being concluded.

iii On the contrary, the unique and exceptional contents of the India-IAEA Agreement necessitate that time should be provided to BOG members to carefully study the Agreement before it is considered for approval.

iv The requirement for approval of a Safeguards Agreement by the BOG should not be considered a mere proforma exercise. Although the BOG has not sought to amend or reject previous Agreements, this was due to their broad adherence to the existing models for such Agreements INFCIRC 66/Rev.2; INFCIRC 153 and voluntary offer agreements concluded with the NPT nuclear-weapon States. The India-IAEA Agreement does not conform to any of these models.. The Agreement is a unique hybrid reflecting provisions of various models.

v It therefore requires careful consideration, particularly because it is likely to set a precedent for other States which are not members of the NPT and have military nuclear programmes.

vi The draft accords recognition to India as a country with 8220;advanced nuclear technology8221;, despite the fact that there is no agreed definition of an advanced nuclear technology state.

vii A most disturbing feature of the Agreement is the reference and reflection in the Preamble to the India-U.S. Joint Statement of 18 July 2005. The Agreement in preambular para 9, sub-para 2 specifically notes India8217;s 8220;willingness8221; to 8220;identify and separate its civilian and military nuclear facilities8221;. Thus, the IAEA-BOG is being asked to recognize and accept India8217;s nuclear weapon status.

viii This preambular reference is in itself unique, as similar provisions do not exist in other such Agreements. The Preamble prejudges and contradicts the purpose of the Agreement, i.e., to ensure that peaceful nuclear activities do not contribute to the proliferation of nuclear weapons. Thus, if the Agreement is to conform to the 8220;guidance documents8221; mentioned, this reference to the Indo-U.S. Joint Statement in the preambular part of the Agreement should be deleted.

ix Moreover, INFCIRC 66/Rev.2 type agreements have so far been 8220;facility-specific8221;. This Agreement on the other hand is described as an 8220;umbrella agreement8221;. Facilities to be safeguarded have not been listed. They will be added to the Safeguards Agreement as they are notified by India . This raises valid questions. What is the purpose of the Agreement if the facilities to be safeguarded are not known?

x Despite India8217;s refusal to place its Breeder Reactors and its Thorium-based programme under safeguards, the draft recognizes India8217;s three-stage nuclear programme. This is gratuitous legitimization of potential nuclear proliferation and contrary to the IAEA8217;s objectives..

xi Such concerns are compounded further by other provisions of the Agreement, especially a the ambiguous provisions regarding conditions for the termination of the Safeguards Agreements; b access for India to the international fuel markets; and c unspecified 8216;corrective measures8217; which India would be allowed to take to 8220;ensure uninterrupted operation of its civilian nuclear reactorsiquest;8221;, contravening the continuation of IAEA safeguards in perpetuity.

xii As a consequence, India would be able to acquire nuclear fuel for the declared civilian facilities, build up a 8220;strategic reserve8221; for the life-time of the reactors, and then terminate safeguards and divert part of the fuel for weapons purposes.

xiii The Agreement may indeed provide an incentive to India to conduct further nuclear weapons testing, since future termination of the Safeguards Agreement, after India has built up an adequate fuel reserve, would resolve India8217;s problems relating to the shortage of nuclear material for both its civilian and its nuclear weapons programme. However, the Agreement does not even provide that further nuclear explosive testing would result in the termination of peaceful nuclear cooperation and the Safeguards Agreement.

xiv The reference to a 8220;restricted document8221;, GOV/1621 of August 1973, as the yardstick for termination is unsatisfactory. The BOG cannot approve an Agreement with secret clauses. It is vital to expressly incorporate the conditions for the termination of the Safeguards Agreement.

xv There are some other provisions of the Agreement which raise concern. For example, paragraph 28 provides for the suspension of safeguards on 8220;any parts of the facilities 8230;which are removed for maintenance or repair8221;. This could open the door for nuclear fuel and advanced technology provided to India to be diverted for weapons purposes.

xvi The draft does not indicate if India is willing to sign an IAEA Additional Protocol in respect of its civilian nuclear facilities.

xvii The legal and technical aspects flowing from the draft require in-depth examination and the IAEA Board of Governors BoG and NSG are required to carefully weigh the consequences that may ensue from succumbing to expediency over principles.

xviii The IAEA statute does not provide for differentiation between member states on the basis of political consideration nor does it allow for special treatment for a particular state. Calling it an India-specific agreement is therefore unprecedented. Since the IAEA concludes safeguards agreements based on approved models, it will be important that any safeguards agreement adopted by the BoG in respect of India should be available as a model for other non-NPT states.

xix It is quite clear that the proposed agreement has no utility in advancing the cause of non-proliferation. On the contrary, it will enable and encourage further proliferation. And, apart from the consequences for the non-proliferation regime, the agreement threatens to increase the chances of a nuclear arms race in the sub-continent.

4. As is clear from the foregoing, the proposed IAEA-India agreement and the unjustified call for an exemption to India alone from the NSG rules is discriminatory and dangerous. It is important to resist the drive to steamroll this agreement through the IAEA-BOG and the NSG. The short and long term consequences of the agreement necessitate that the text be studied carefully and any decision thereon taken after full deliberation. The overarching consideration in this respect should be to uphold the principles of non-discrimination and equity as well as regional and global peace and stability.

5. Pakistan expresses the hope that, on the basis of a close study of the document, other members of the BOG will join it in seeking appropriate amendments to the Agreement when it is considered in the BOG.