The key recommendation is that the Government bring the Agreement into force but not approve any sales of uranium to India until certain conditions are met, which are:
India has achieved the full separation of civil and military nuclear facilities as verified by the International Atomic Energy Agency (IAEA).
India has established an independent nuclear regulatory authority under law.
The Indian nuclear regulator's existing policies and arrangements have been reviewed to ensure its independence.
The frequency, quality and comprehensiveness of onsite (safety) inspections at nuclear facilities have been verified by the IAEA as being best practice standard.
The lack of sufficient planning for the decommissioning of nuclear facilities has been rectified.
These stipulations are for the most part unexpected (though the separation of civil and military programs is a principle long supported by Australia), they will also irritate India and will almost certainly be side-stepped in the Government's response (the next and necessary step prior to the Agreement entering into force).
India has only very reluctantly opened its nuclear regulatory environment to international scrutiny, and the implied criticisms of these recommendations will be most unwelcome. It would also be quite unprecedented to bring an agreement into force and then apply further preconditions for the fulfilment of its primary purpose – the sale of uranium. The better treaty making practice would be to fix these matters prior to entry into force as urged by a minority of JSCOT members.
The other recommendations in the report are:
More 'diplomatic resources' be devoted to encouraging India to make a legal commitment to stop nuclear weapon testing (by joining the Comprehensive Test Ban Treaty), and to stop producing more plutonium and highly enriched uranium for weapons (by negotiating a treaty banning the production of those materials). These objectives are already long-standing Australian policy – doing 'more' will not be a problem.
Australia should 'consider' facilitating negotiations to slow the nuclear arms race in South Asia (specifically to forestall the deployment of thermonuclear weapons). The Government can argue that this is one of the objectives of its strategic security dialogue with India.
The Government outline the legal advice it has received including on the compatibility of the Agreement with Australia's obligations under the South Pacific Nuclear Weapons Free Zone Treaty. The Government generally holds its legal advice to be confidential and so is unlikely to reveal the full advice it has received on these matters.
Still the Government would do well to take these points seriously. We should support the US efforts to bring India into the broader counter-proliferation architecture, including membership of the four export control regimes which discipline trade in items used in WMD and conventional arms. We should also look at practical collaboration with India: safeguards and safety, R&D and exercises would be a good start. There will be those in India who will still positively remember cooperation in the 1960s between our national nuclear research centres.
A deputy secretary of the Department of Foreign Affairs and Trade led the negotiation of the Agreement, but it fell to the Australian Safeguards and Non-Proliferation Office (ASNO) to defend it in JSCOT. The strategic agenda with India is core foreign policy work and deserves Ministerial level attention to support the recently resuscitated officials' level talks. Foreign Minister Bishop should show leadership in this regard. It is also inexplicable that during his visit to India last week Defence Minister Andrews made no reference on the public record to nuclear issues or the Agreement, but was instead keen to promote trade. However, according to The Hindu, the Indian side did urge Australia to speed up finalisation of the nuclear Agreement.
That fact that the JSCOT report is supported by all Committee members comes as a surprise, and adds to the weight that the Government will need to accord it. Despite the report's uncritical acceptance of the (totally unrealistic) promise that the Indian market will result in a doubling of Australia's uranium sales, there is no apparent urgency about the conclusion of major sales contracts, so there is time in which attention could be given to JSCOT's recommendations. There is no question that if New Delhi took the identified actions it would improve India's nuclear credentials in the eyes of the international community.
One can speculate that the Labor Party's differences with the Government over ChAFTA would have made the Opposition highly averse to simultaneously putting a serious road-bump in the way of concluding a strategically vital, and potentially financially rewarding agreement, with another emerging great power. Accordingly, Labor's more trenchant criticism of the Agreement has been included as 'additional comments' rather than in a formal separate dissenting report. Unfortunately the Government is not obliged to respond to these 'additional comments' as it would have been had a dissenting report been issued.
It was evident from the JSCOT proceedings that all members were concerned to limit damage to Australia's nuclear safeguards policies which have enjoyed bipartisan support for some 40 years, and have provided the foundations of the non-proliferation policies for which Australia is so rightly famous.
While not part of the agreed report, the 'additional comments' contain powerful arguments which the Government would be wise not to ignore, even if there is no will to remedy them. The comments, authored by the Hon Melissa Parke MP and Senator Sue Lines, conclude that rather than bringing India into the 'non-proliferation tent' the Agreement as it stands 'entrenches India's nuclear deviance and privileges it ahead of Australia's other nuclear cooperation partners, thereby undermining the non-proliferation regime as a whole'.
Most damning is the report's conclusion that in a number of vital areas the Committee needed to rely on trust in the assurances of officials rather than the terms of the treaty itself. Critically, JSCOT had to take it on trust from ASNO that:
We would be able to track Australian origin nuclear material through India's fuel cycle in accordance with the requirements of Australian law.
And that Australia's prior written consent will be required before Australian material is reprocessed to extract weapons-useable plutonium.
These concerns will remain so long as the Government fails to clarify its understandings with India on the record.
This article was originally published in The Interpreter. To view the original article, please click here.