THE LEGAL ASPECTS OF THE DEAL
By Dr. Raja Muhammad Khan
Upon his arrival at Toronto, to attend the G 20 moot, the Indian Prime Minister, Dr. Manmohan Singh sought a clarification from Pakistan regarding the Sino-Pak Nuclear Deal. Being a sovereign State, Pakistan rejected the demand for the clarification. The Foreign Office spokesperson, Mr. Abdul Basit retorted the statement by saying that, “Sino-Pak nuclear deal is for peaceful purposes and no country should have any objection. International community knows Pakistan is facing terrorism and energy crises. Nuclear deal with China is crucial to the economic development of Pakistan.” Earlier United States has also sought similar clarifications from Pakistan and China, but those were rejected by both countries, being prejudiced in nature.
Nevertheless, in-spite of scrappy misperceptions, China has elucidated that it will provide nuclear reactors to Pakistan under the years old nuclear deal. As clarified by Qin Gang, the spokesperson of the Chinese Foreign Ministry, that the, “the nuclear cooperation between the two countries was for peaceful purposes and is “totally consistent” with its international obligations and safeguards of the International Atomic Energy Agency”. Under the deal, “China will export two nuclear power reactors to Pakistan. Chinese Foreign Ministry has amply clarified in a news briefing that, “the civilian nuclear co-operation between China and Pakistan is in line with each side’s international obligations. It is for peaceful purposes, and is under the supervision of the International Atomic Energy Agency”.
New Delhi and Washington objects that this deal will breach the international protocol, regarding the trade of nuclear equipment and material. U.S also object that this deal will overstep “the guidelines of the 46-country Nuclear Suppliers Group (NSG), which bars nuclear commerce between Nuclear Non-Proliferation Treaty (NPT) members like China and non-member states like Pakistan”. The states objecting the deal perhaps overlook the fact that, Pak-China Nuclear Deal was concluded in 1986, once China was neither the member of NSG nor it had signed the NPT. China signed the NPT in 1992 and became the member of NSG in 2004. By 2004, almost ¾th progresses had already been made on the deal between Pakistan and China. Therefore, neither of the two is applicable in case of this deal. However, if US pressurize China to follow the current rules of the NSG, even-than, there is precedence available in the form of ‘Indo-US Nuclear Deal-2005’, later finalized in 2008. The agreement provides the sound basis for opening a door for such like deal in the future too. Indeed, after setting precedence by itself, there should have been no legal and moral grounds for the US or its strategic ally, India to object the Sino-Pak Nuclear Deal.
Pakistani Foreign Office has rejected the Indo-US concerns over the Pak-China civil nuclear deal. The spokesperson said that, “Pakistan-China civil nuclear cooperation is going on for years. Our cooperation is under the relevant IAEA safeguards. Therefore concerns, if any, are misplaced”. While tracing the history of Pak-China Civil Nuclear, it is pertinent to note that, a Comprehensive Nuclear cooperation Agreement between Pakistan and then Foreign Minister Sahibzada Yaqub Khan and his Chinese counterpart in the presence of Chinese Premier and PAEC chairperson Dr. Munir A. Khan signed China on September 15, 1986 at Beijing. The salient clauses of the agreement include that, China would construct; four nuclear plants in Pakistan namely; Chasma 1, 2, 3 and 4 by 2011.
Regarding the mandate and origin of NSG, it is worth mentioning that, it was created after the nuclear test of India in 1974, once India diverted the fuel meant for the atom for peace to its weapon programme. NSG was created in 1975, to regulate and standardize the nuclear trade, in reaction to Indian misuse of nuclear material. Legally, the creation of NSG is not governed through an international treaty, but is an international cartel of nuclear technology suppliers. On September 6, 2008, the NSG granted a waiver to India, allowing it to have civil nuclear technology and nuclear fuel from other countries. With these concessions, India became the only country having the nuclear weapons, which was non-signatory to NPT, but allowed to undertake the nuclear trade with rest of the world. The waiver allowed India, “both trigger list and dual-use items (including technology), waiving the full-scope safeguards requirements of the NSG guidelines.” It also allowed India for bi-lateral agreements and regular consultations. Now the question arise, if India, the primary nuclear proliferators, could be given such a concession by the NSG, why Pakistan be deprived from it.
US officials consider that countries that have not signed the NPT so far cannot be granted the facility. The super power is perhaps overlooking the aspects that India is also a non-signatory to NPT. US also consider that, “Additional nuclear cooperation with Pakistan beyond those specific projects that were grandfathered in 2004 would require consensus approval” However, Pakistan and China rejects these, since it is like, “the pot calling the kettle black”. Indeed, “US had not only violated the NPT, but had also violated the Hyde Act 2006, (by finalising a similar deal with India regarding cooperation on nuclear energy for peaceful purposes).” Since the Pak-China deal would be under the IAEA safeguards, therefore, there would be no legal hurdle in its finalization. In the mean time the Chinese Foreign Ministry has clarified that the deal is in accordance with the international law, therefore, rejects the Indian and American objections.
Unfortunately, because of its being the sole super power, both IAEA and NSG were unable to sustain the US pressure for easing their rules for the Indo-US Nuclear Deal, but now creating hurdles for Pakistan. Indeed, in contrast to the 123 Agreements, the Pak-China deal is meant for the power generation only. However, the 123 Agreement, “exempts nuclear reactors from IAEA safeguards allowing sufficient fissile material to make around 280 warheads per year. This is in addition to India’s ongoing programme of 13 fast breeder reactors. As such, it is a misnomer to calls Agreement 123 as ‘US-India Civil Nuclear Deal’. It is indeed US-Indian collusion toward nuclear weapons proliferation programme.” Following the 123 Agreement, India, and US has signed another agreement on nuclear fuel reprocessing to further augment the deal. According to the deal India will be allowed to recycle the US spent nuclear fuel. The agreement would enable the participation of the US firms in India’s rapidly expanding civil nuclear energy sector. To limit this all, there is a requirement that India should establish a Civil Nuclear Liability Regime. Since the damages caused by the Bhopal accident have not diminished fully, therefore, human right activists and labour organizations are likely to react very seriously.
The question arises that why Pakistan should be deprived of such a deal, once it is in the dire need of energy. Its industry is dying for the want of energy. Electricity is available to less than 50% of its over 170 million population. In spite of a very poor record of accomplishment of its nuclear energy usage, did Pakistan or Pakistani intellectuals have ever objected its nuclear deal with a number of other countries. India concluded the biggest nuclear agreement with the US in 2005, through Indo-US Nuclear Deal. Through this deal, it would have enormous nuclear facilities for the civil purposes and its current reactors and nuclear material would remain dedicated for the nuclear weapons.
Apart from the Indo-US Nuclear Deal, in December 2009, India clinched a historic civil nuclear deal with the Russian Federation. The deal aimed at ensuring the transfer of nuclear technology and an un-interrupted supply of nuclear fuel to the Indian nuclear reactors. Under the deal, Russian Federation will set up four nuclear reactors in Kudankulam area of Tamil Nadu State and one in the West Bengal area. This deal is unique in the sense that, Russia would not stop the supply of nuclear fuel and material, even if India opts for the conduct of future nuclear tests. In the case of 123 agreements, U.S has specified that in the event of any new nuclear test by India, nuclear cooperation will be scrapped. Besides, nuclear deal, in December 2009, India and Russia also concluded a 10 years military and technological cooperation agreements, commencing from 2011. These agreements would help in enhancing the operational capability of Indian defence forces in the days to come.
More recently, India and Canada also concluded a nuclear deal, during the visit of Indian Premier to Canada on June 27, 2010. According to deal, Canada will assist India in the establishment of nuclear reactors, as well as import of uranium to India. This deal also includes cooperation in the management of nuclear waste and radiation safety. As declared by Indian Premier, Dr. Manmohan Singh, that the deal “breaks new grounds in the history of bilateral cooperation in the sector and committed themselves to the ratification of the agreement and completion of all remaining steps necessary to ensure its early implementation”. In a joint statement issued after the meet, the leaders also underscored the potential for mutually beneficial civil nuclear cooperation and trade. With these worldwide nuclear deals in its credit, how can India point a finger on Pakistan for a very smaller deal of two nuclear reactors with China?
In the wording of Indian Defence analyst, C. Raja Mohan, India has serious reservations against the Sino-Pak Civil Nuclear Deal. India has already communicated these reservations to the China through its diplomatic channels. Indian establishment even links the routine visit of General Ashfaq Pervez Kayani with the deal. After having gone through most of the Indian literature, reports of their think tanks and analysts, it appears to me as if they all have a unanimous view point that China should not strike a civil nuclear deal with Pakistan to fulfil its energy needs. This is the limit of a narrow-mindedness of a nation of 1.3 billion. They cannot accept their smaller neighbours like Pakistan to live with ease and in opulence. If this is the state of minds of the Indian intellectuals, one can easily reach out the mental state of its political leadership, who are elected to reach the assemblies on the anti-Pakistan slogan and promotion of Hinduism in India and its export to rest of the South Asian countries.
As far as the US is concerned, it otherwise cannot afford to object this deal for a long, as it has lot of stakes attached to China or Pakistan. Chinese consent is essential for imposing the enhanced sanctions on Iran, currently underway. The issue of North Korean nuclearization and security threats it is posing to other regional countries like South Korea cannot be resolved without the assistance from the China. On the economic fronts, US stakes are quite high. Economists’ view that the falling US economy has been sustained by China largely, as US is biggest trade partner of China at the global level. As regards Pakistan, United States cannot stay a day in Afghanistan without the active support of Pakistan. It is otherwise loosing the Afghan war and need Pakistani assistance more than earlier. Otherwise, on the issue of Indo-US Nuclear Deal, China did not oppose as a member of NSG. Now, once China is providing only a friction of that to Pakistan, why should US obstruct it?
Apart from the precedence set by the Indo-US Nuclear Deal-2005, the Pak-China deal has the legal cover. It was concluded much earlier than the China became the member of NSG or NPT. Moreover, it is under the IAEA safeguards, hence has nothing to do with the proliferation of nuclear material. It is purely meant for the production of nuclear energy. Pakistan’s energy shortages are known to the world. It is facing worst energy shortages of its history. Being a traditional ally, US should have catered for the Pakistan’s energy needs. Instead of herself providing the facilities to Pakistan like India, she should not become a hurdle in the provision of this facility by China. In its entire history, Pakistan has been doing everything for the US and West, what did they do for Pakistan is a big question mark?
However, in-spite of Indo-US pressures and a propaganda campaign by Indian and Western media on the Sino-Pak Nuclear Deal, there has been no reaction on the Sino-Pak Nuclear Deal, in plenary meeting of Nuclear Suppliers Group (NSG) held in New Zealand towards the end of June 2010. This is a clear indication of the fact that, NSG is well aware of the legality of the deal and heed no attention to the uncalled for propaganda by some of the global actors. Indeed, the major global powers have a responsibility in this regard. They must realise that, their discriminatory policies are promoting negative impacts at the international level; therefore, they need to adopt the even-handed approach while dealing with the South Asian nuclear-armed rivals.
The writer is an analyst of international relations.