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India, uranium, and the Rarotonga objection

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This post is part of the Selling Australian uranium to India debate thread. To read other posts in this debate, click here.

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30 November 2011 16:06


This post is part of the Selling Australian uranium to India debate thread. To read other posts in this debate, click here.

John Carlson is a Visiting Fellow at the Lowy Institute and the former Director-General of the Australian Safeguards and Non-proliferation Office.

The Treaty of Rarotonga (South Pacific Nuclear Free Zone Treaty) is being held out as an obstacle to Australia supplying uranium to India. The Howard Government had legal advice this was not the case. Sharing its legal advice is for the present government to decide, but if the legal position is as clearly against supply to India as is claimed, neither the Howard Government nor the Gillard Government would be considering supply to India. 

Article 4 of Rarotonga says that parties are not to provide nuclear material or items to any non-nuclear-weapon state unless subject to the safeguards required by Article III(1) of the Nuclear Non-Proliferation Treaty (NPT). The latter article requires each non-nuclear-weapon state party to the NPT to conclude a safeguards agreement with the IAEA applying to all its nuclear material (ie. 'full-scope safeguards').

India, of course, is not a party to the NPT, and has not concluded such an agreement with the IAEA. Thus, the Treaty of Rarotonga is being interpreted as an impediment to Australian uranium trade with India.

But what is a 'non-nuclear weapon state'? A literal reading of the NPT suggests that, other than the five nuclear-weapon states identified by the Treaty (US, Russia, UK, France and China), all states (even non-members of the NPT such as India) are classified as 'non-nuclear-weapon states'.

Yet as Don Rothwell says, this is a legal fiction — it is a fact that India is nuclear-armed. As a practical matter, therefore, India's circumstances are not specifically covered by the NPT. India is sui generis, a unique case, as the 46-member Nuclear Suppliers Group decided when agreeing the 'India exception' to the NSG nuclear supply guidelines.

While Australia has historically interpreted the NPT as requiring full-scope safeguards (the application of safeguards to all nuclear material and facilities) for all non-nuclear-weapon states, even those who are not members of the NPT. However, this has never been a consensus view, and a number of key NPT parties, including the US, never accepted the full-scope safeguards interpretation. The full-scope safeguards interpretation is a matter of policy, and policy is subject to change to reflect changing circumstances, as is the case with India.

The wording of NPT Article III(1) by its own terms does not encompass India, and the full-scope safeguards interpretation of the NPT is a matter of policy and does not represent the internationally agreed interpretation of the NPT. Can the cross-reference to the NPT in the Rarotonga Treaty be interpreted as requiring full-scope safeguards when it is not agreed that the NPT itself requires this?

Taiwan has been cited as an example of Australia interpreting the Rarotonga Treaty as requiring full-scope safeguards for a non-NPT party. But Taiwan signed the NPT as the Republic of China, then lost international recognition before it could ratify — so Taiwan attempted to become a party to the NPT as a non-nuclear-weapon state, and has acted consistently with this status (ie. having full-scope safeguards arrangements with the IAEA). So the Taiwan case shows only that Australia has treated Taiwan consistently with its full-scope safeguards status.

None of this means, of course, that nuclear supply to India can be free of safeguards. International practice is for IAEA safeguards to apply to all nuclear material and items transferred to India, and the Australian government would proceed on this basis.

After the NPT was launched, the full-scope safeguards policy had an important purpose — to encourage as many states as possible to become parties, in support of efforts to universalise the Treaty. Now this policy has served its purpose; the NPT is as close to universal as it is likely to be. We are down to the determined hold-outs — India, Israel and Pakistan — who will never join in current circumstances (and there is North Korea, which announced withdrawal in 2003).

India has a rapidly expanding electricity sector. It will meet growth in base-load demand by increased coal burning, but can offset some of this by nuclear energy. To do this on any significant scale India needs access to imported reactors and uranium. Engagement with India – bringing it into the nuclear 'mainstream' – has benefits in terms of: (a) opportunity to influence behaviour in nuclear and other areas; (b) increased nuclear safety, through access to modern technology; (c) cooperation on nuclear security; and (d) greenhouse gas mitigation. 

Australia needs to find a more constructive basis for engagement with India, especially to further dialogue on nuclear non-proliferation and disarmament.

Photo by Flickr user IAEA Imagebank.

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