- Negotiations at the IAEA and the NSG: A testing track

Negotiations at the IAEA and the NSG: A testing track

(An Aspect of the 123 Agreement)

By Shiva Kant Jha


THIS author has examined the role of the IAEA under the province contemplated in the 123 Agreement in his 7th article entitled “the India-specific Agreement with the IAEA”. In this article he intends to explore other dimensions and aspects of the IAEA along with those of the NSG as both these international organizations created under treaties are, when all is said, an integral part of the non-proliferation regime the province and norms whereof are articulated in an international treaty called the Nuclear Non-Proliferation Treaty (NPT), which was opened for signature in 1968, and to which 189 states are the parties, but four states are not within its province: they are India, Pakistan, Israel and North Korea.

Though NPT is not mentioned in the 123 Agreement, its provisions should always be kept in mind while evaluating the terms of the Agreement and the other mandated or suggested Agreements which are in the offing. The NPT has three broad objectives: (i) to work for non-proliferation, (ii) to strive for disarmament, and (iii) the right to peacefully use nuclear technology with which goes the duty to promote the use of nuclear technology only for peaceful purposes. This treaty recognises United States ,the United Kingdom, Russia, People's Republic of China, and France as as nuclear weapon states (NWS), and they also happen to be the permanent members of the UN Security Council. Other contracting states under the NPT regime are non-nuclear weapon states (NNWS).

Art I of the NPT Treaty casts mandatory duties on the NWS to ensure non-proliferation of nuclear weapons or other nuclear explosive devices; but Art II puts NNWS under specific limitations: to quote the Article—

“ Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”

Under Art. III each non-nuclear-weapon State Party to the Treaty undertakes “to accept safeguards, as set forth in an agreement (agreements) to be negotiated and concluded with the International Atomic Energy Agency” and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations…. with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” The safeguards would cover “all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere”, and also to prevent diversion of impermissible materials relating to nuclear weapons or other nuclear explosive devices. Art IV recognises “the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes”. The most controversial provision is Art VI which says:

“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

Noam Chomsky rightly says, in his Failed States (p. 79): “The NPT was based on two central agreements: ‘In return for renouncing the option of acquiring nuclear weapons for themselves, ‘non-nuclear-weapon states’ were promised, first, unimpeded access to nuclear energy for non-military use, and second, progress on nuclear disarmament.”

As this author has already put a fleeting focus on IAEA in the article already referred, some discussion of the NSG is well deserved in the context of the 123Agreement. The Nuclear Suppliers Group (NSG) is a multinational body consisting of, as in 2005 , of 45 members which include : Argentina, Australia, Brazil, Canada, China, , France, Germany, Italy, Japan, Kazakhstan, , New Zealand, Russia, South Africa, South Korea, Turkey, United Kingdom, and the USA. The members common in the IAEA and the NSG include Australia, Brazil,Canada, China, France, Japan,Germany, Russia, South Africa, United Kingdom, and United States of America. Members in IAEA but not in NSG include Cuba, Egypt Ethiopia, India, Indonesia, Libya, Morocco, Nigeria, Norway, Pakistan, Syria. Members in the NSG but not in IAEA include Portugal, Romania,Slovakia,Turkey and Portugal. It is possible to speculate about the raison d’etre for the constitution of the NSG, one expert has observed thus:

“It was founded in 1975 in response to the Indian nuclear test of the previous year. The test demonstrated that certain non-weapons specific nuclear technology could be readily turned to weapons development. Nations already signatories of the NPT saw the need to further limit the export of nuclear equipment, materials or technology.”

The NSG is set up to work for the reduction of nuclear proliferation through efforts which include the control of the export and re-transfer of material meant for the development of the nuclear weapons, and for developing safegurds on the nuclear materials, whether ‘dual use’ items or otherwise restricted.


Through the United States-India Peaceful Atomic Energy Cooperation Act ( 2006) the United States permits the amendments in the laws of the USA to carry on civilian nuclear trade with India. The 123 Agreement is sequel to this step. It is called 123 Agreement as it harks back to Section 123 of the Atomic Energy Act, 1954 of the USA. The caption of this article is “Negotiations at the IAEA and the NSG: a testing track”: hence this author would dwell, in brief, the problems which are sure to bedevil the negotiations if at all they begin. This exploration is important as the prescribed pre-conditions are (i) an India-specific Agreement with the IAEA, (ii) an Agreement with the NSG. The US Congress has not granted a blank check to the Executive government: it would appraise the whole gamut before the Deal becomes final and operational vis-à-vis the USA. It is quite competent to reject the whole deal on considering it in entirety, or it may make it mandatory for the government to renegotiate, as had happened on some occasions in the past.

The points and issues which deserve to be taken into account include some of these:

1. India did not sign the NPT for many good reasons: (i) the classification inter se the NWS and NNWS had no ethical basis as the classification had no nexus with the objectives of the NPT regime; (ii) the NPT regime did not address India’s concern for security against Pakistan and China with whom she fought in the past, and there are reasons which cannot be evaded under the current global realpolitik; (iii) the NPT regime has been severely detracted from by the acts of the NWS as obligations under Art VI of the NPT had been systematically frustrated and evaded for non-sustainable reasons (the report-card of the USA is rather the worst); (iv) the operative realities have shown, as MccGwire says (in International Affairs, Jan. 2005) “that, whatever be the original intentions, the NPT is now a convenient instrument of US foreign policy”, and it is widely evident in the US asserions to exempt itself from international law and treaty obligations; (v) the lesson which India got on observing how the Persian Gulf War and the bombing of Serbia in 1999 were choreographed, and what would have happened if they too would have effective nuclear deterrence; (vi) the genius of India cannot accept reduction to the level to become a client state.

2.India would have, under the proposed Deal, the benefits of a NNWS in availabling of facilities for conduct of peaceful and civilian purposes, though as a matter of established facts India is now, in effect, a NWS, and deserves to be treated that way. The notion of the club of the “nuclear haves” is incongruent with the norms of fairplay, and is not acceptable. Under the Law of Recognition in Public International Law, States are recognised as members in the comity of nations once their existence is proved by operative facts. The fact of India’s achievement must not be ignored by keeping it outside the circle of the the celebrated Five. If others States also become entitled to that status, so be it.

3.The US is supposed to assist in the negotiations with IAEA and NSG, but what happens if its assurances do not fructify, or if later on some vital changes are brought about in the Statute of the IAEA which are inclement or onerous tor us, or if there are policy changes in the NSG as its members would have their own constraints under which to work The hegemonial status of the USA may itself become precarious.

4. Under the 123 Agreement, the US undertakings are conditional, and can be unilaterally disrupted, and there is no perpetual assurance help, though there is a perpetual limitation imposed in the 123 Agreement, and there is clear likelihood of no less onerous impositions of limitations on our civil nuclear programme under the India-specific guidelines to be framed after negotiations. It is for our experts to tell us if the limitations would be sans insidious effects on our work in the nuclear segment where our freedom to march ahead would be available.


One thing is obvious: the negotiations in the IAEA and NSG would be quite tough as many members may not appreciate a gross undermining of the NPT regime. Besides, they may impose terms to drive India virtually to the NPT fold without granting it its legitimate status. Many countries may make mountain out of the molehill of the fact that the facilties meant for peaceful uses had once upon a time been used by India for nuclear miltary purposes. Those who prefer disarmament would naturally be annoyed. Those who would hear the footfalls of the World War III would have serious reservations. In many countries there may be perceptual differences in the approaches of the ruling parties and the opposition parties (as in Australia), which may create a risk; and the apple cart may get upset sooner than later. And with all these goes our apprehension that our interests may be betrayed by improper conduct of negotiation as was done in 1994 while signing secretly the Uruguay Round Final Act (the WTO Treaty) which is verily a national disgrace. - Links on Shivakantjha - Links on Shivakantjha

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