Nuclear Thread - 4

[acharya]

<b> As Pakistan hails ‘precedent,’ other IAEA members express doubts, fears</b>

Siddharth Varadarajan

Agreement satisfies India’s needs while maintaining IAEA’s legal requirements: El Baradei

Even hardened veterans of IAEA politics taken aback by Austria’s vehemence

No other conditions for discontinuation of safeguards, says IAEA chief

New Delhi: After publicly opposing the India safeguards agreement, Pakistan on Friday did a turnaround, describing the IAEA’s approval of the draft as “a historic decision … A step has been taken towards accommodating the interests of a non-NPT nuclear weapon state by evolving an innovative and new model. A significant departure has been made from the standard norms pertaining to verification and global non-proliferation, which, inter alia take into account the imperatives of promoting civilian nuclear cooperation,” its Ambassador, Shahbaz, said. “This constitutes an acknowledgement of ‘new realities’,” he added.

Though Pakistan stressed the importance of the ‘new’ precedent that had been set, Mr. Shahbaz, who took the floor after the Indian agreement was adopted, said he wished to enter into the record the “considered position” Pakistan’s National Command Authority (NCA) had taken on the India-U.S. nuclear deal. The NCA had criticised the agreement, called on the NSG to adopt a criteria-based exemption to its rules rather than an India-specific exemption and warned of the negative implications the deal would have on “strategic stability” in South Asia.

But if India got unexpected support from unwelcome quarters, it also had to contend with a raft of unsolicited advice from member countries who were expected to adopt a more uncritical stance towards the agreement as well as from well-known critics.

The debate over the India safeguards agreement in the International Atomic Energy Agency was never expected to be easy but even hardened veterans of the nuclear watchdog’s politics were taken aback by the vehemence with which Austria railed against the draft.

In his opening remarks, IAEA chief Mohammed El Baradei emphasised that the Indian draft was “an Infcirc/66-type safeguards agreement based on the Agency’s standard safeguards practices and procedures” for states that are not party to the Nuclear Non-proliferation Treaty. Though many states, including India, stressed the importance of the IAEA’s “guidance documents,” Austria would have none of it. Its Ambassador said he disagreed with those who argued the Indian text was simply an “umbrella agreement” based on the standard template. Describing the draft as “an empty shell,” he declared that it was only out of respect for the DG and the Secretariat that Austria had decided to join the consensus in favour of the draft. The Irish Ambassador, too, expressed strong reservations about the agreement and said that if the matter had come to a vote, he would have been forced to abstain.

While Austria, Ireland and Switzerland were outliers in terms of the depth of their criticism of the nuclear deal, diplomats present in the board meeting told The Hindu that a range of countries gave free vent to their views on the wider context, stressing, variously, that India give up nuclear weapons, join the NPT, and sign the Comprehensive Test Ban Treaty. Brazil took the floor early to express its reservations about the implications of the safeguards agreement for the NPT system. Mexico and Japan also voiced their concerns. Iran, which took the floor as an observer, said it respected India’s sovereign decision not to join the NPT as well as its desire to develop civilian nuclear energy. But it blasted the U.S. for “double standards” and warned that the Indian agreement should not become a precedent for legitimising Israel’s possession of nuclear weapons.

China noted that many countries had raised questions and concerns about the safeguards agreement and said these should be addressed. The Chinese Ambassador added that international non-proliferation norms should be respected and, in a nod to Pakistan’s case, stressed that the IAEA should not have a discriminatory approach towards other states which might come forward to negotiate a similar agreement.

Indian diplomats characterised the South African intervention as one of the most supportive they had heard from a country that had been at the forefront of the non-proliferation lobby internationally.

Just before the lunch break, after all delegations had had their say, Dr. El Baradei took on the arguments raised by Austria and others. The agreement was not an empty shell, he said, urging member states not to lose sight of the fact that India was not obliged to safeguard its facilities and was coming forward voluntarily. As a lawyer, he said, he saw no problems with the text. Referring to questions raised by some about “corrective measures” compromising the perpetuity of safeguards, he said the termination and duration provisions in the agreement were standard and that the principle of rebus sic stantibus (things thus standing) in international treaty law itself provided for the end of obligations if the fundamental conditions of an agreement changed.

“Perpetuity is a misnomer. There is no such thing in international law,” he said.

In his opening remarks, he described the Indian draft as an “umbrella agreement” providing for any facility notified by India to become subject to Agency safeguards in the future. The IAEA DG said he expected to begin implementation of safeguards at new Indian facilities in 2009. The “umbrella” nature of the agreement provides for a “more efficient mechanism for ensuring that safeguards requirements can be met,” he argued, adding, “It satisfies India’s needs while maintaining all the Agency’s legal requirements.”

In a reference to Pakistan’s request to be treated the same as India, the IAEA chief said “such an ‘umbrella’ approach could also be used for the conclusion of other 66-type safeguards agreements.”

Attempting to allay the fears of several European states that India may invoke the agreement’s preambular references to “corrective measures” in order to withdraw facilities from safeguards at some point in the future, Dr. El Baradei insisted there were no conditions for the discontinuation of safeguards other than those provided by the safeguards agreement itself.

“The termination provisions contained in the agreement are the same for other 66-type agreements,” he said.

But in a nod to the Indian interpretation of the agreement, he added: “Naturally, as with all safeguards agreements, this agreement is subject to the general rules of international law. Therefore, the agreement should be read as an integral whole. The preamble provides for contextual background and safeguards are implemented in accordance with the terms of the agreement.”

In a brief statement, U.S. Ambassador Gregory Schulte said the agreement was “little different than those of other agreements based on Infcirc/66” and that under it, “safeguards would be applied to nuclear facilities in India using the same methods applied elsewhere in the world.”

Urging approval of the draft, he said that “without this agreement, the safeguards activities, and the assurance of peaceful use provided by them, will not be possible.”

Speaking on behalf of the European Union, France noted the EU’s understanding that the Indian agreement followed standard IAEA safeguards procedures and provisions, including on the duration of safeguards. France said it supported the agreement since it was fully consistent with international non-proliferation norms.

Diplomatic sources told The Hindu that Austria had opposed this formulation and delayed the framing of the EU statement for several hours before backing off. Austria also tried to garner support for a joint statement by several countries with reservations about the Indian agreement. However, this attempt fizzled out when it became clear that all other members preferred to make their own individual statements rather than creating the impression of a “gang up” on the question.