Reality, one bite at a time

The Anglo-Americans want a Security Council resolution allowing for the eventual use of force. Iran must play its cards very carefully from now onwards.25 March 2006The HinduThe game plan on Iran is becoming clearerSiddharth VaradarajanTHIS WEEK, the fog of Anglo-American diplomacy on the Iranian nuclear question parted momentarily to give the world a rare glimpse of the drive to war that lies behind. On Wednesday, the Times of London reproduced a letter written last week by John Sawers, the British Foreign Office pointman on Iran, to his counterparts in the United States, France, and Germany outlining the line of action the four allies should follow in the United Nations Security Council.Stripped of the verbiage and the too-clever strategising on how to choreograph Russian and Chinese consent for sanctions and war, the main point in Mr. Sawers' letter is that the Iranians need to know that "more serious measures" are likely from the Security Council than just a Presidential Statement.Mr Sawers elaborates on what the E3+US has in mind: "This means putting the Iran dossier onto a Chapter VII basis. We may also need to remove one of the Iranian arguments that the suspension called for is 'voluntary'. We could do both by making the voluntary suspension a mandatory requirement to the Security Council, in a Resolution we would aim to adopt in, say, early May".Chapter VII is that part of the UN Charter dealing with threats to international peace and security. Putting the Iranian dossier on to a Chapter VII basis would allow the Anglo-Americans to do two things. First, circumvent Iran's legal right to uranium enrichment, as enshrined in the Nuclear Non-Proliferation Treaty (NPT), its safeguards agreement, its Additional Protocol, and in every single resolution passed by the International Atomic Energy Agency Board of Governors on the Iranian issue. Secondly, generate a minimally plausible but absolutely essential legal fig leaf for military action against Iran in the likely event that the Iranians do not comply with such a Chapter VII resolution.So far, the Russians and Chinese have made it clear that they are not prepared to appease the "Christmas in Teheran" folks in Washington and London. But in allowing the Iranian file to reach the Security Council, Moscow and Beijing have allowed the U.S. to ratchet up the rhetoric and pressure. This drive to penalise Iran in some way will become a test case for how seriously Russia, China, and the world have learned the lessons of the 2003 invasion of Iraq.The reason the U.S. is keen to bring in Chapter VII is because it would like to provoke Iran into walking out of the NPT. If Iran were ever to commit this folly, the U.S. regime change plan will move swiftly into high gear. As and when force is used, it would likely be a Yugoslav-style prolonged air war aimed at targeting civilian and industrial infrastructure rather than an Iraq-style invasion.So fluid is the situation that the Iranians need to carefully consider all their legal and political options and build a strategy aimed at widening the circle of countries opposed to confrontation and in favour of dialogue and diplomacy.In legal terms, both Article XVII of the IAEA Statute and Article 22 of Iran's Safeguards Agreement with the IAEA provide for a dispute resolution mechanism through arbitration or the involvement of the International Court of Justice. Article 22 of the ICJ Statute is clear on this point: Any question or dispute concerning the interpretation or application of this Statute which is not settled by negotiation shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.[Emphasis added]The Sawers letter suggests the E3+US are trying to create a situation where the IAEA Statute would not be applicable to Iran any longer, particularly the rights that devolve upon an NPT non-nuclear weapons state whose facilities are safeguarded.Alongside this is the growing number of threats of use of force by the United States and Israel, an issue that has already been formally raised by the Iranian ambassador to the UN, M. Javad Zarif, in a note verbale to the Secretary General on March 21: "These statements and documents, in view of past illegal behavior of the United States, constitute matters of utmost gravity that require urgent, concerted and resolute response on the part of the United Nations and particularly the Security Council."It is indeed regrettable that past failures have emboldened senior US officials and even others to consider the threat or use of force, both of which are specifically rejected under Article 2(4) of the Charter as violations of one of the most fundamental principles of the Organization, as options available on the table."The United Nations has a fundamental responsibility to reject those assertions and to arrest this trend."It will be highly appreciated if this letter and its annex were circulated as a document of the General Assembly under Agenda Items 9, 82, 87, 94, 95, 97, 110 and of the Security Council.The General Assembly Agenda Items referred to by Ambassador Zarif include, inter alia, prohibition of the development and manufacture of new types of weapons of mass destruction and new systems of such weapons, establishment of a nuclear-weapon-free zone in the region of the Middle East, conclusion of effective international arrangements to assure non-nuclear-weapon states against the use or threat of use of nuclear weapons, and general and complete disarmament.What the E3+US are doing is subverting the NPT system by attacking the core bargain underlying it: that countries which renounce the right to make nuclear weapons shall not be prevented from developing civilian nuclear technology. There are valid legal grounds for considering the IAEA Board of Governors' referral of Iran to the UN Security Council as ultra vires the IAEA Statute and the U.N. Charter.As Michael Spies of the Lawyers' Committee on Nuclear Policy, New York, has argued: The authority of the Board to refer matters to the Security Council is granted by the IAEA Statute, the Safeguards Agreements, and the Additional Protocol when applicable. Under the Statute (Art. 12(C) and the Safeguards Agreement the Board may only refer Iran to the Security Council if it finds that, based on the report from the Director General, it cannot be assured that Iran has not diverted nuclear material for non-peaceful purpose. In the past findings of "non-assurance" have only come in the face of a history of active and ongoing non-cooperation with IAEA safeguards. The pursuit of nuclear activities in themselves, which are specifically recognized as a sovereign right, and which remain safeguarded, could not legally or logically equate to uncertainty regarding diversion.None of the reports of the Director General have ever said that inspectors has not been able to verify that there has been "no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices," the condition under which the Safeguards Agreement with Iran allows the IAEA to "make the reports provided for in paragraph C of Article XII." What the Director General has consistently said is that there has been no diversion of safeguarded nuclear material but that he is not yet in a position to say there are no undeclared nuclear activities. But since more than 100 countries have yet to ratify the Additional Protocol, this is a "finding" the Director General will have to make for not just Iran alone. Interestingly, China, which voted in February to refer Iran to the Security Council, explicitly stated in its explanation of vote that this referral was not a referral as construed by Article XIIC of the IAEA Statute.In the light of the foregoing analysis, this much is clear. First, the E3+U.S. want to render inoperative the IAEA Statute and the NPT as far as Iran is concerned. Secondly, the E3+U.S. want to rewrite, through a Chapter VII resolution, the provisions of a Treaty, the NPT, that 188 countries are currently signatories to. Thirdly, the U.S. and Britain have used force in contravention of the U.N. Charter and international law to attack a neighbour of Iran's barely three years ago. Fourthly, Iran has real and justifiable fears that it too will be subjected to an armed attack.On the basis of these bald facts, Iran should try and get the U.N. General Assembly to seek an Advisory Opinion from the International Court of Justice under Article 96 of the U.N. Charter on the following question: Non-nuclear weapon state parties to the NPT have the right to develop civilian fuel cycle technology. The E3+U.S. insistence on unilaterally imposing new rules on NPT signatories is not in the interest of international peace and security. Right from the outset, Iran has had the law on its side. Even as it displays an open mind on the question of participating in multinational fuel cycle arrangements with Russia, China, and other potential partners, Iran cannot be compelled to give up legal rights, which devolve upon it as an NPT signatory. Nor is it in the interest of other NPT members or non-members that the Security Council arrogate to itself the right to dictate changes to treaty law. In the run-up to its vote against Iran at the IAEA, India said it did not want to see any other state in its neighbourhood acquire nuclear weapons. It is only fitting that India should also state openly that it does not want to see any other state in its neighbourhood subjected to armed aggression in the name of weapons of mass destruction. For the rest of the article, click here

As the United States and India move forward to implement their agreement on civil nuclear cooperation, one hurdle which must be crossed is the Nuclear Suppliers Group to which all significant suppliers of nuclear-related material belong.Paragraph 4(a) of the Nuclear Suppliers Group's revised Guidelines for the Export of Nuclear Material, Equipment and Technology -- adopted in 1992 and formally circulated as an annex to INFCIRC/254/Rev.2/Part 1 by the International Atomic Energy Agency in October 1995 explicitly prohibits "nuclear transfers" to a country like India: Suppliers should transfer trigger list items or related technology to a non-nuclear-weapon State only when the receiving State has brought into force an agreement with the IAEA requiring the application of safeguards on all source and special fissionable material in its current and future peaceful activities.The two exceptions to this rule are transfers "deemed essential for the safe operation of existing facilities" (Paragraph 4(b)) and transfers pursuant to "agreements or contracts drawn up on or prior to April 3, 1992... or [in the case of countries joining the NSG after that date] to agreements (to be) drawn up after their date of adherence" (Paragraph 4(c)).ArmsControlWonk.com has just uplinked, via Daryl Kimball of the Arms Control Association, the text of the draft "Pre-Decisional Statement on Civil Nuclear Cooperation with India" submitted by the United States to a meeting of the NSG Consultative Group in Vienna on Wednesday. In a nutshell, the U.S. wants this offending paragraph waived for India.In brief comments to ArmsControlWonk.com, Kimball, a prominent critic of civil nuclear cooperation agreement with India, says the proposed arrangment "would further erode rules-based efforts to curb the spread of nuclear weapons related technology".With all due respect, I think Kimball is barking up the wrong tree. Here's why. This is the operative bit of the U.S. proposal:In exchange for (a) having publicly designated peaceful civil nuclear facilities which will be submitted to IAEA safeguards in perpetuity,(b) having committed to continue its moratorium on nuclear testing, and to work with others towards achievement of a Fissile Material Cutoff Treaty,(c) having committed to accept an Additional Protocol covering designated civil nuclear facilities, and also committing generally to having good export control systems &c.the draft says the NSG will over-ride Paragraphs 4(a), 4(b) and 4(c) and allow its members to sell nuclear equipment, fuel and technology to "safeguarded civil nuclear facilities in India" provided they are satified India is adhering to all its commitments.By way of abundant caution, the U.S. draft text refers to India as "a State not party, and never having been a party, to the NPT".This is a clever bit of drafting. Paragraph 4(a) talks of non-nuclear weapon states. Now the only legal definition of an NNWS is via the NPT. Since India is not and has never been party to it, India cannot, by definition, be an NNWS. Presumably, this allows the integrity of Paragraph 4(a) to be maintained, a point reiterated by the U.S. draft in also stressing that NSG members "will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a)".Two other states have never been parties to the NPT -- Pakistan and Israel -- and it will be interesting to see whether China will suggest to the NSG that transfers to Pakistan be allowed under the same set of commitments.In the fog of debate, and there has been tonnes of it ever since July 18, 2005, people tend to forget that neither the Nuclear Non-proliferation Treaty (NPT) provisions nor the NSG rules prior to their amendment in 1992 prohibit nuclear commerce with countries which do not accept safeguards on all source and special fissionable material in its current and future peaceful activities, i.e. full-scope safeguards (FSS).Let me repeat this point so everyone is clear about it.The NSG, was created as an explicit response to India's first nuclear test in 1974 but it did not ban the sale of either nuclear reactors or nuclear fuel to India. All it required was that anything sold to India (or other non-signatories to the NPT) be placed under safeguards.This is what the original NSG guidelines said in Paragraph 3: Suppliers should transfer trigger list items only when covered by IAEA safeguards, with duration and coverage provisions in conformance with the GOV/1621 guidelines. Exceptions should be made only after consultation with the parties to this understanding.So why did the NSG feel compelled to revise this sensible guideline and insist on FSS and NPT membership as a condition for nuclear exports? Because in the aftermath of the First Iraq War, the IAEA found that Iraq had been fairly successful in developing a secret nuclear weapons programme on the basis of imported dual-use equipment. But while this explains the tightening of rules for nuclear-related dual-use transfers it does not explain the insistence on FSS rather than facility-specific safeguards for those countries which were not members of the NPT.After all, Iraq had been a member of the NPT and had been subject to full-scope safeguards. Fat lot of good that did.The IAEA had the right idea when it sought to plug the loophole by coming up with the Additional Protocol as an add-on to the normal safeguards system. But the NSG simply came up with wrong medicine for the right disease. Iraq hid a secret weapons programme despite accepting FSS. How did it help to insist, as a cure, that India and Pakistan must accept FSS?In April 1992, when the NSG adopted its revised guidelines, 35 countries other than India, Pakistan and Israel had not signed the NPT. Between then and October 1995, when the guidelines were circulated by the NPT, all except four of the 35 signed up: Slovenia, Uzbekistan, Croatia, France, Azerbaijan, Niger, Namibia and Myanmar (1992), Czech Republic, Slovakia, Belarus, Armenia, Guyana, Mauritania (1993), Tajikistan, Kazakhstan, Georgia, Kyrgyzstan, Bosnia, Turkmenistan and Moldova (1994), Algeria, Argentina, Macedonia, Eritrea, Monaco, Palau, Micronesia, Chile, Vanuatu, UAE and the Comoros (1995).The remaining four, too, slowly came on board: Angola and Djibouti (1996), Brazil (1998) and Cuba (2002). One new country, Timor Leste, came into being and joined the NPT in 2003 while North Korea formally withdrew from the treaty that year.Has the revised NSG guideline played a role in preventing the spread of nuclear weapons technology? Nobody can seriously make this claim. If we set aside the bulk of the non-NPT signatories during that period -- the Pacific Island states, the former Soviet and Yugoslav republics -- the only serious hold-outs with a potential nuclear weapon capability were Argentina, Brazil and Algeria. But Argentina and Brazil acceded to the Treaty of Tlatelolco (the South American Nuclear Weapons Free Zone) in 1994, effectively ending all speculation about weapons, one year before the revised guidelines were circulated by the IAEA. And Algeria, though opposed to the discriminatory nature of the NPT (like India), accepted IAEA safeguards in January 1992, allowing its El Salam reactor at Ain Oussera -- suspected by the U.S. and Spain to be a cover for weapons-related activities -- to be inspected three years before it eventually acceded to the NPT.In other words, the NSG Revised Guidelines Paragraph 4(a) was a panic reaction to the discoveries made by IAEA in Iraq in 1991 and 1992. It was a pointless rule which gave the nuclear cartel and the wider international community no additional protection against the spread of nuclear weapons technology.Far from being an integral part of the non-proliferation architecture, it was an unaesthetic and pointless adornment that looked good on paper but served no real purpose.It is not the suspension of this paragraph for India (and eventually Pakistan) which will lead to the non-proliferation regime unravelling but the American and European insistence, in the context of the Iran crisis, that the "core bargain" of the NPT system be scrapped.The NPT is built around countries giving up the "right" to possess nuclear weapons in exchange for the right to develop civilian nuclear power including the fuel cycle and the right to expect that the nuclear weapons states take meaningful steps to disarm. India was never a part of the non-proliferation system and restoring the status quo ante as it existed in October 1995 or April 1992 will not make the system unravel. But the doctrines of pre-emptive war and regime change, missile defence, weaponisation of space and the lunacy of usable nuclear weapons are what will push the system to breaking point. If I were Kimball, these are the issues I would be losing sleep over. Not the prospect of a new civil reactor coming up in India under international safeguards in perpetuity.For the rest of the article, click here

Begum Khaleda Zia comes to India today on her first visit as Prime Minister of Bangladesh but Delhi and Dhaka remain firmly stuck in a diplomatic groove. The two countries have made no substantive progress on any bilateral issue for nearly a decade. Rather than a 'big-bang' agreement, then, perhaps it is time they started looking at smaller confidence-building measures as a way of establishing trust.20 March 2006The HinduNew Delhi, Dhaka looking at `CBMs' routeSiddharth VaradarajanNew Delhi: Confidence-building measures (CBMs) -- that staple of the India-Pakistan peace process -- could provide a way out of the bilateral logjam on India's eastern front with this week's state visit of Bangladesh Prime Minister Khaleda Zia provid9ing the perfect occasion for the two sides to engage in some creative diplomacy.Begum Khaleda, arriving here on Monday, will hold talks with Prime Minister Manmohan Singh on Tuesday. The visit, her first in her current tenure as Prime Minister, comes even as Bangladesh slowly slips into poll season. General elections are due to be held no later than January 2007.With Bangladesh holding SAARC chairmanship, Begum Khaleda's visit has a formal focus on regional issues but both sides are anxious to get the bilateral agenda on to a firmer political footing. After a long period during which normal institutional mechanisms for bilateral discussion on different subjects had fallen into disuse, India and Bangladesh have managed over the past year to revive high-level engagement in trade, security and water management.For sustained engagementThe Indian side sees the visit as the culmination of that process. "From now on, we want to make sure there is sustained and continuous engagement with Bangladesh", a senior official told The Hindu.Though the agenda of discussion is fairly open-ended, each side is expected to bring to the table issues that are of particular concern to itself. For Bangladesh, this means trade and water. Dhaka wants Delhi to cut or eliminate tariff and non-tariff barriers so that Bangladesh has a fair chance of reducing its yawning $2 billion annual trade deficit with India.Apart from cheaper or easier access to Indian markets, Dhaka is looking for unilateral concessions on some specific product lines and an "early harvest package" under the proposed free trade agreement.Water issueOn water management, Begum Khaleda will want to hear Dr Singh reiterate the earlier assurances made by Priyaranjan Dasmunsi when he was Water Resources Minister that India's river-linking plans would not cover water in which Bangladesh has lower riparian rights.In addition, Dhaka is anxious about the effect the proposed Tipaimukh barrage would have on dry season flows of the Surma and Kushiyara rivers.Indian officials concede that there have been crossed signals in the past and the slow progress on joint water management has not helped either side. "There are 53 rivers (other than the Ganges) waiting to be shared," said an official.The landmark 1996 Ganges Treaty created the space for a rational discourse on joint river use and development projects but this was not taken forward.On his part, Dr Singh will raise issues such as security - with the alleged presence inside Bangladesh of training camps of Indian insurgent groups from the northeast a perennial irritant - as well as transit and transport infrastructure linkages.Road, rail connectivityIndia has been seeking to improve connectivity with Bangladesh and between the north-eastern States and West Bengal."I am afraid the agenda is the same as it's always been and so is the mindset", a former Indian ambassador to Dhaka told The Hindu. "I don't believe anything of substance will come out of this visit". He criticised Bangladesh Foreign Minister Morshed Khan for once again ruling out transit rights to the North-East for India by either road or rail because of the poor transport infrastructure inside the country. "His comments are a rehash of what we've been hearing for the past 30 years".Bangladeshi officials disagree. They say that Prime Minister Khaleda is open to discuss India's security concerns as well transit and transport issues.Reports from Dhaka suggest the government is apparently ready for "forward movement on connectivity" between the two countries. Among the rail and road links on the agenda are revival of the Sealdah-Tongi and Agartala-Akhaura-Chittagong rail lines as well as a bus service between Shillong and Sylhet with onward connections to Guwahati and Dhaka. These will be intended for passengers or perhaps point-to-point trade but they do open up the possibility of a more generalised and efficient movement of goods.As the experience of cross-LoC transport in Jammu and Kashmir has shown, the movement of passengers gives rise to pressure for the movement of goods. Economists who have been active in Track-II dialogues suggest that rather than pressing for a big-bang approach to transit rights and unilateral tariff concessions, India and Bangladesh should initiate sub-regional border trade as a first step.This might involve granting preferential access to the north-east for certain Bangladeshi product lines via traditional but now defunct border trading points like Daugarghat, and combining this with transit rights for India.© Copyright 2000 - 2006 The Hindu For the rest of the article, click here