Proliferation and the US -India Treaty
July 2, 2008 8:31 |by Karel Koster
According to prominent American politicians, nuclear disarmament is not a luxury but a necessity. These politicians wrote an opinion piece earlier this year in the Wall Street Journal, arguing for active steps to be taken towards nuclear disarmament, a message with which many will agree in principle. The only question is by what means this can be achieved. There remain, after all, thousands of nuclear weapons operational, while the peaceful use of nuclear technology, supported by the opinion article's authors, itself presents a proliferation danger. This emerged from the laborious negotiations around the nuclear treaty between India and the United States, a treaty which is intended to make possible the development of the country's nuclear industry while at the same time offering no support to India's nuclear strike capacity. A difficult, if not impossible goal, writes Karel Koster.
The Non-Proliferation Treaty (NPT) is under threat, an opinion which is widely shared. The last review conference, in 2005, ended in failure, when participants could not even agree on a final declaration. The meeting failed because in the last instance the nuclear weapons states, under the leadership of the Americans' unilateral diplomacy, were unwilling to take any real steps in the direction of nuclear disarmament. Even support for a previously adopted programme of such measures, the so-called "13 steps", is now up in the air. Such unshakeability meant that any chance of heightening the possibility of agreements for disarmament and non-proliferation being reached on the basis of a broad political consensus was torpedoed.
Even before these events, the coming into force of the comprehensive nuclear test ban treaty of 1996 had been halted by the refusal of the US and China, amongst other countries, to ratify it.
At the basis of each of these failures lay the same mistrust between the nuclear weapons states and the rest of the world. In the NPT it was, after all, laid down that the five recognised nuclear powers (China, France, Russia, the United Kingdom and the United States) in compliance with Article VI of the treaty, would take serious steps towards nuclear disarmament. In reality, all of them maintain substantial nuclear strike capacities and will do so for the foreseeable future. This is making the non-nuclear weapons states exceptionally unhappy. Most have nevertheless held to the treaty's specifications, the most important of which was to distance themselves from any military application of nuclear energy. This has been overseen with varying success by the International Atomic Energy Agency (IAEA), already half a century old. At the same time full use is made of Article IV, which guarantees access to nuclear technology. Three countries stood outside the NPT - India, Pakistan and Israel - refusing to sign it and developing their own nuclear weapons. In addition, in April 2003 NPT member state North Korea left the treaty..
The risks of the proliferation of nuclear arms technology had as its consequence that the nuclear weapons states in their disarmament proposals laid the emphasis primarily on such dangers. How could one prevent signatory states from furnishing themselves with all of the necessary technology, exercising their right under Article X to resign from the treaty, and then going off and building their own bomb. From the moment the treaty came into force there was an inherent contradiction in relation to the nuclear question. In fact, it was already there in the institution of the IAEA, established in the 1950s to promote the use of nuclear technology for peaceful purposes. At the same time, respect for the treaty was to be verified by means of inspections of the technology supplied to ensure that it was not being used for military ends.
The established rules have not always been followed. The nuclear industry of all three informal nuclear armed states - Israel, India and Pakistan - which formed the basis for their nuclear weapon arsenals was in each case developed with the aid of a number of industrialised countries, with officially sanctioned supplies, for example from Canada to India and from France and the United States to Israel. Better known is the illegal work done by the atom spy Abdul Qadeer Khan, who delivered nuclear know-how to Pakistan from the Netherlands.
At the end of the Cold War in 1990 emphasis switched from the international policy of nuclear disarmament to the prevention of the spread of technologies for weapons of mass destruction (WMDs). The rules for inspections by the IAEA were, because of serious breaches, tightened up by means of an "additional inspection protocol", which is however far from being universally applied. Following the attacks of 2001, measures were also sharpened against the possible proliferation of WMDs by so-called 'non-state-connected actors". In 2004 Security Council Resolution 1540 was also adopted, making further legislation against such proliferation obligatory.
The nuclear weapons states and their allies did nevertheless take some far-reaching steps, which did not however come to fruition within the disarmament process of the various international organisations. The Netherlands directed its attention to the weapons' delivery system, proposing an international Code of Conduct against Ballistic Rocket Proliferation. This came into force at the end of 2002. 
In 2003 the US established the Proliferation Security Initiative, an informal cooperation network primarily consisting of western powers and their allies, the aim being to intercept any technology suitable for the manufacture of WMDs.
The Nuclear Suppliers Group, set up in reaction to the Indian nuclear test of 1974, is a cooperation network of all countries who can supply nuclear technology. Rules have been laid down and lists constructed of technology which must be subject to strict export controls. The member states meet regularly in order to discuss the enforcement of these rules. 
The United States also acts unilaterally, entirely outside international legislation. The core of this policy was the American pre-emptive doctrine of 2002 (National Strategy to Combat Weapons of Mass Destruction). This doctrine laid the emphasis on the waging of preventative war, including the possible use of nuclear weapons, against countries threatening to develop WMDs. This became a rationale for the waging of wars of aggression, such as the one against Iraq in 2003. With this step the monopoly position of the established nuclear weapons states was underlined. Moreover, a number of the international treaties discussed above were characterised by the fact that they were supported primarily by industrialised, for the most part western states. That meant that implementation of these agreements quickly acquired the character of a confrontation between a nuclear elite and the countries dependent on their nuclear supplies.
The US-India Treaty ("123 Treaty")
An important and current example of the problems connected to the question of proliferation is the US-India Treaty for nuclear cooperation, the subject in 2005 of a provisional agreement. In August 2007 the two countries signed, after intensive negotiations, the definitive agreement for cooperation between their governments regarding the peaceful use of nuclear energy, the so-called 123 Agreement.
This marked the beginning of a lengthy ratification process that at the time of writing is far from complete. The reasons for this lie in India's exceptional nuclear status: a de facto nuclear weapon state that is not defined as such. In the negotiations over the NPT it was, remember, only those countries which were, on January 1 1967, in possession of nuclear weapons and had performed a nuclear weapons test which were defined as nuclear weapons states.
Those countries which have not signed the NPT and yet are nuclear weapons states - India, Pakistan and Israel - thus fall in a twilight zone. India began the development of an independent nuclear industry directly after the independence of the country itself in 1947 and has since its first nuclear test in 1974 had available a nuclear strike capacity. This was confirmed in 1998 by a new series of nuclear tests. Within a few weeks, Pakistan had also performed nuclear tests, and the regional nuclear arms race became fact.
A permanent problem for India was the limited availability of nuclear technology and raw materials. Its own stocks of nuclear fuel were insufficient for the maintenance of a nuclear strike capacity and the planned build-up of the nuclear industry. For this, the import of both nuclear technology and nuclear fuel would be necessary. Yet this was put into question by the existence of strict international rules overseen by the above-mentioned Nuclear Suppliers Group, of which every supplier of nuclear technology was a member. This grouping, which takes decisions regarding export directives on a unanimous basis, must approve the US-India treaty. This would only be made possible by ascribing an exceptional status to the treaty, as the American government has sought to do, which means that at the very minimum it would have to include a safeguard agreement between India and the IAEA.
If the Nuclear Suppliers Group agreement comes to pass, a non-signatory of the NPR would be recognised de facto as a nuclear weapons state, and 'bad behaviour' would be rewarded. While the rest of the world to a large extent follows the rules laid down in the NPT, permission would have been given for a country which abjures that treaty to develop its nuclear industry still further. This stands in stark contrast to the treatment meted out to the NPT member state Iran, whose nuclear industry is under discussion because of suspicions about a possible nuclear weapons programme.
There is, however, a more practical argument against the 123 Treaty: the technology and materials supplied could be used indirectly to support the nuclear weapons programme. Nuclear fuel intended for the civil programme controlled by the IAEA could free up India's own existing stocks of uranium which could then be used for the nuclear weapons arsenal.
A further concern relates to the consequences for the treaty of any new nuclear test by India. India is seeking a guaranteed supply of nuclear fuels as well as the option to conduct nuclear tests in the future. This would be possible through the separation, referred to in the treaty, of the military section of the Indian nuclear infrastructure from the civil.
Only in March did India and the IAEA come to an agreement in which this question was settled. Once this is approved by the Board of Governors of the IAEA, the NSG must give its unanimous permission for an exception to its rules on the export of nuclear technology. The comprehensive safeguards agreement between India and the IAEA would be a necessary condition for such an exception to be allowed. Implicitly permission would thus be given for the continued operation of the military sector of the Indian nuclear programme. For Dutch politics the NSG is of interest because the Netherlands is a member of this body and must therefore approve the exception specified for India.
Before the safeguard agreement is presented to the executive council of the IAEA, India's political leadership must itself agree to the treaty. At the end of June , this was by no means certain. The Left, a cooperating group of left parties which underwrites the government's majority in parliament, has publicly declared that they do not agree with the treaty, as has the opposition BJP. Some Indian commentators think, however, that a minority government can nevertheless take the matter further, persevering via the IAEA executive council and the NSG even if the Left withdraws its support from the government. Another scenario involves the Indian government gaining support from another party, the Samajwadi Party, to compensate for the loss of the Left votes in parliament. Elections as of this time would be inconvenient for Congress, the major government party, because of socio-economic issues which will cost them dearly at the polls. A last-minute agreement, without leading to a loss of parliamentary support, despite being thought very unlikely by most commentators, may still be pushed through by mid-July. It will then come down to the decision-making at the NSG. The ground there has already been prepared through intensive lobbying of the member states by the French government, on the look-out for lucrative nuclear contracts with the Indian government.
Because, after approval by the NSG, the US Congress must also in the end give its approval, the American government has repeatedly urged haste. Otherwise there is a good chance that the treaty will become a campaign issue in the coming American presidential election. A further crucial element is shaped by the negotiations between Iran and Pakistan over the building of a gas pipeline which would provide an alternative source of energy to the development of the nuclear sector. The American legislation which makes the 123 Treaty possible forbids just such contracts with Iran, a condition unacceptable to the Indian government.
The position of the Netherlands
The Dutch government has not committed itself to any particular standpoint regarding the US-India treaty. In answer to questions from SP Members of Parliament Harry van Bommel and Krista van Velzen, Foreign Minister Maxime Verhagen stated that the treaty could make India's own limited stocks of uranium available for the building of nuclear weapons. Nevertheless he did not believe that this was a matter involving nuclear weapon proliferation. The government has also declared that it had argued both for India's accession to the Comprehensive Test Ban Treaty (CTBT) and for a moratorium on the production of fissile materials (the 'fiss-ban' or Fissile Materials Cut-off Treaty). These statements did not, however, represent a specification of the Netherlands' position in the NSG. The safeguards agreement between India and the IAEA would be studied by the minister, who also promised to keep parliament informed on the matter.  As for the remaining problems highlighted by the American experts, amongst which was the need to exclude the possibility that India would use the treaty as grounds to build up a reserve of nuclear fuel, as well as possible sanctions in the event of renewed nuclear weapons tests, on these matters the minister had nothing to say.  It is also abundantly clear that if Parliament wants to continue playing any significant role, then the content of the safeguard agreement between the IAEA and India must be disclosed in good time before the Nuclear Suppliers Group meets to discuss the matter.
In the NSG more opposition can certainly be expected. New Zealand and other member states would also hesitate and would want to attach a series of demands to any stipulated exception. Amongst these would be the signing of the Nuclear Test Ban Treaty and support for a treaty forbidding the manufacture of fissile material.
Internationally managed nuclear fuel stocks
The relationship between nuclear energy for peaceful and for military purposes, which forms the background to the developments described above, is of crucial importance. Given that Article IV of the NPT gives all signatories unlimited access to nuclear technology, this at the same time means that they have also in principle the possibility to use this technology for the building of nuclear weapons. That is the case if a country is in possession of a uranium enrichment installation, as is true of Brazil and Iran. The uranium enriched in such a facility can be used for both peaceful purposes - if it is low-enriched - and nuclear weapons - if it is highly enriched. The IAEA safeguard agreements are aimed, among other things, at controlling these enrichment processes. This leaves, however, the possibilities already listed above open for a country to first of all develop its nuclear technology and then to withdraw from the treaty and make a nuclear bomb. Proposals from IAEA Director General Mohamed Al Baradei and many others foresee the creation of an internationally managed enrichment installation capable of guaranteeing the delivery of uranium for peaceful purposes. The Netherlands, Germany and the United Kingdom stand in an advantageous position in relation to this, as they are joint owners of an existing high-value enrichment installation, known as Urenco. It would be commercially attractive to fulfil, or jointly fulfil, the role of a centralised and internationally recognised nuclear fuel supplier. The three countries made an offer on this basis to the IAEA in the autumn of 2007.  There are, however, a number of catches to this: the signatories of the NPT are exceptionally sensitive regarding the rights accorded them under Article IV. Iran's prickly attitude regarding its enrichment capacity is certainly no exception. The guarantees given by the host countries to continue supplying fuels, even if, for example, political pressure is exercised for the suspension of such deliveries, is the sensitive point. Given that it is unthinkable that any international institution could avoid such political pressure, the various proposals will continue to be the subject of intensive negotiations. It is, after all, not entirely fanciful to imagine that the international supply of nuclear fuel should become an instrument of political power, managed by the nuclear weapons states and their allies. The development of the Americans' Global Nuclear Energy Partnership (GNEP) can also be seen from this point of view. 
Towards a nuclear weapons free world?
Approval of the existing treaty by voting to support the granting to India of an exceptional status would send the world an extremely bad message. The Netherlands, after all, likes to see itself as taking intends to take the lead in the diplomatic circuit when it comes to nuclear disarmament. Foreign Minister Verhagen has just recently declared his support for nuclear disarmament. He could give content to proof of this support by means of concrete measures: not only by organising opposition to approval of the US-India treaty in the Nuclear Suppliers Group, but also in regard to the NATO nuclear weapons tasks which the Dutch Royal Air Force continues to carry out from its base in Volkel.
Karel Koster works for the SP Research Bureau. This article first appeared in Dutch in a slightly different form in the Internationale Spectator, June 2008
1. Shultz, Perry, Kissinger, Nunn,"Toward a nuclear-free world", Wall Street Journal, 15 Jan 2008
2. See Jean du Preez and William Potter "North Korea 's Withdrawal From the NPT: A Reality Check"
3. David Martin "Exporting Disaster ~ The Cost of Selling CANDU Reactors", Nuclear Awareness Project for the Campaign for Nuclear Phaseout, Ontario, Canada November 1996
4. Frank Barnaby "Israel , the Bomb & Peace in the Middle East" (1993) h
5. Joop Boer, Henk van der Keur, Karel Koster and Frank Slijper "A.Q. Khan, Urenco and the proliferation of nuclear weapons technology: The symbiotic relation between nuclear energy and nuclear weapons" 4 May 2004
6. "Security Council decides all states shall act to prevent proliferation of mass destruction weapons"
UN Press Release SC/8076; 28/04/2004 ;
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10. For the text, see here
12. "Gas pipeline tops Iran-India agenda", Financial Times 29/04/2008
13. Answered on 29th Aug.2007 and 4th Oct. by Foreign Minister Maxime Verhagen
14. "Verslag Algemeen Overleg vaste commissie Buitenlandse zaken" (Report of the General Meeting of the Standing Committee on Foreign Affairs), 12th Feb.2008;
15. Daryl G.Kimball, "Contradictions Still Plague U.S.-Indian Nuclear Deal", Arms Control Today, March 2008
16. "NSG drafting exemption conditions anticipating India-IAEA agreement", Nucleonics Week 13 March 2008
18. Letter to Parliament regarding the attempt with Germany and the UK to contribute to the making of agreements in the framework of the IAEA over guaranteed delivery of nuclear fuel, (in Dutch), 12 Nov 2007
20. Speech (in English) by Verhagen to the Atlantic Commission, 27-03-2008
21. "De Nederlandse kernwapentaak - tijd voor afschaffing" (The Dutch Nuclear Weapons Task - time to end it) by Captain Jan van de Griendt, Internationale Spectator, May 2007