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Stopping the Indian Bomb

Published online by Cambridge University Press:  27 February 2017

Gary Milhollin
Gary Milhollin*
Affiliation:
University of Wisconsin Law School
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Extract

South Asia is now poised for a nuclear arms race. Pakistan has learned how to make enriched uranium—the material that destroyed Hiroshima— and has been buying the electronic switches and hollow steel spheres used for implosion. It has tested, successfully, an implosion bomb with a dummy core. On the Indian side, Prime Minister Rajiv Gandhi has been saying that India could make an atomic bomb “in a matter of several weeks” and “could have done so for the past ten or eleven years.”

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 3 , July 1987 , pp. 593 - 609
Copyright
Copyright © American Society of International Law 1987

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References

1 Woodward, , Pakistan Reported Near Atoms Arms Production, Wash. Post, Nov. 4, 1986, at A1 Google Scholar; see also Spector, L., The New Nuclear Nations 115–16 (1985)Google Scholar.

2 John, Scali, interviewed on Good Morning America (ABC television broadcast, July 11, 1985)Google Scholar, discussed in L. Spector, supra note 1, at 120–21.

3 Interview in Le Monde, June 4, 1985.

4 See 22 U.S.C. §2429a (1982); see also International Security and Development Cooperation Act of 1985, Pub. L. No. 99–83, 99 Stat. 190 (primarily codified in various sections of 22 U.S.C. (Supp. III 1985)).

5 Agreement for Cooperation Concerning Civil Uses of Atomic Energy, Aug. 8, 1963, United States–India, 14 UST 1484, TIAS No. 5446, 488 UNTS 21 [hereinafter Tarapur agreement].

6 Assuming 8 kilograms per bomb. In normal operation, Tarapur produces “reactor grade” plutonium, which contains about 20% Pu 240, an isotope that can lower the yield of a weapon. However, the open literature on bomb design assumes such weapons are reliable. A fledgling nuclear weapon state may be content with lower yield weapons.

7 “Weapon grade” plutonium is formed only in fuel taken out of the reactor after a short irradiation time. It is called “low burnup” fuel. At the burnup that was average up to 1977, Tarapur’s plutonium would be 85–90% free of undesirable isotopes. Benedict, M., Pigford, T. & Levi, H., Nuclear Chemical Engineering 88 (2d ed. 1981)Google Scholar. Also, there is a variation in burnup across the reactor’s core. Id. at 94. Finally, the burnup varies along the length of each fuel rod. Id. at 111. It is weapon grade on the ends. Id. According to newspaper accounts, India could cut off the low-burnup ends and extract that plutonium separately. India Makes Another Bomb, Sunday Observer (Bombay), Aug. 30, 1981. The result is that Tarapur’s spent fuel contains a fair amount of weapon grade, or near–weapon grade plutonium. By grouping the low burnup rods for separate reprocessing, one could achieve a degree of purity of about 90%. By cutting off the ends of the rods, one could achieve a higher purity than that. If only 10% of the 1,800 kilograms of plutonium produced by 1993 were lightly irradiated, that would make 180 kilograms of weapon grade, or near–weapon grade plutonium—enough for 36 bombs at 5 kilograms per bomb. Hildenbrand, , Fast Critical Masses of Fissile Material for Nuclear Explosives, in Nuclear Proliferation Factbook 295 (1985)Google Scholar (paper presented at Atomic Industrial Forum Conference on International Commerce and Safeguards for Civil Nuclear Power, March 1977).

8 For histories of the Indian nuclear program, see generally Wohlstetter, R., The Buddha Smiles: Absent-Minded Peaceful Aid and the Indian Bomb (1977)Google Scholar; Bhatia, S., India’s Nuclear Bomb (1979)Google Scholar; and Hart, D., Nuclear Power in India (1983)Google Scholar.

9 Letter from Kratzer, Myron B., United States Department of State, to Benjamin Huberman, United States Nuclear Regulatory Commission (July 20, 1976)Google Scholar.

10 Id.

11 Nucleonics Week, July 1, 1976, at 6–7; R. Wohlstetter, supra note 8, at 153–54.

12 India has no right to “substitute” other heavy water for the U.S. water in CIRUS through a bookkeeping transaction. Many nuclear trade agreements give such rights, which allow the recipient to consider water supplied under restrictions as being in whichever facility is convenient, as long as safeguarded heavy water is in a safeguarded facility. No such right was given to India.

Agreement, Mar. 16, 1956, United States Atomic Energy Commission–India, §9.

13 The Canadian agreement is described in Hunt, , Canadian Policy and the Export of Nuclear Energy, 2 U. Toronto L.J. 69, 77 (1977)Google Scholar.

14 Milhollin, , Dateline New Delhi: India’s Nuclear Cover–up, 64 Foreign Pol’y 161 (1986)CrossRefGoogle Scholar.

15 Id.

16 Agreement of Jan. 27, 1971, United States–India–International Atomic Energy Agency, sees. 4, 12, 22 UST 200, TIAS No. 7049, 798 UNTS 115.

17 International Atomic Energy Agency, The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (Corrected) (Vienna 1972). India is not a member of the Treaty (done July 1, 1968, 21 UST 483, TIAS No. 6839, 729 UNTS 161) and so is covered by IAEA Doc. INFCIRC/66/Rev.2 (Sept. 16, 1968). The IAEA takes the position, however, that its current practice is to apply INFCIRC/ 153 even to non–NPT countries. International Atomic Energy Agency, Iaea Safeguards, An Introduction (Vienna 1981). See also Herron, , A Lawyer’s View of Safeguards and Non–Proliferation, 24 IAEA Bull. No. 3, 1982, at 34–35 Google Scholar.

18 International Atomic Energy Agency, IAEA Contribution to Infce 7 (Vienna 1979).

19 Herron, supra note 17, at 37.

20 A. Wohlstetter, Addendum H to R. Wohlstetter, supra note 8, at 236. A. Wohlstetter provides a thorough discussion of the consequences of allowing reprocessing of Tarapur plutonium.

21 Nuclear Non-Proliferation Act of 1978, Pub. L. No. 95–242, §303(a), 92 Stat. 120, 127–31 (codified as amended at 42 U.S.C. §2160 (1982)) [hereinafter Nuclear Non-Proliferation Act].

22 International Atomic Energy Agency, IAEA Safeguards Technical Manual 36 (Vienna 1976).

23 See, e.g., U.S. General Accounting Office, Report No. EMD-80-38, Nuclear Fuel Reprocessing and the Problem of Safeguarding Against the Spread of Nuclear Weapons 13 (1980).

24 Sunday Observer (Bombay), Oct. 16–23, 1983, at 1.

25 Nuclear Non-Proliferation Act, supra note 21, §306 (codified at 42 U.S.C. §2157 (1982)).

26 For a discussion of the Tarapur problem and its history, see Clausen, , Nonproliferation Illusions: Tarapur in Retrospect, ORBIS, Fall 1983, at 741 Google Scholar.

27 Cable New Delhi 22, 789 (Nov. 29, 1982); Note to the United States from India (Nov. 30, 1982); Note to India from the United States (Nov. 30, 1982) (on file at U.S. Dep’t of State).

28 Id.

29 Times of India (Bombay), May 7, 1983, at 1.

30 Personal communication with Bertrand Barre, Nuclear Attaché, Embassy of France (Feb. 2, 1984). In the negotiations on the takeover, the French tried to get India to agree specifically that pursuit and perpetuity would attach to fuel deliveries, but the Indians resisted and the question was left open. Donnelly, W. & Miller, N., Termination of U.S. Nuclear Cooperation with India (Cong. Research Serv. Issue Brief No. 81,087, 1983)Google Scholar; Nucleonics Week, Dec. 2, 1982, at 1.

31 This is elementary contract law. See, e.g., Restatement (Second) of Contracts §318 (1979). It applies to international agreements. Article 60 of the Vienna Convention, note 47 infra, provides that “[a] material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” Article 2(1) defines a treaty as “an international agreement concluded between States in written form . . . whatever its particular designation.”

32 International Atomic Energy Agency, INFCIRC/254 Appendix: Guidelines for Nuclear Transfers §4 (1978), incorporating the durational requirements for safeguards stated in IAEA Doc. GOV/1621 (1973).

33 Nuclear Non-Proliferation Act, supra note 21, §306 (codified at 42 U.S.C. §2157 (1982)).

34 Atomic Energy Act of 1954, ch. 1073, §123, 68 Stat. 930,940 (1954) (codified as amended at 42 U.S.C. §2153(1982)).

35 Bettauer, , The Nuclear Non-Proliferation Act of 1978, 10 Law & Pol’y Int’l Bus. 1105, 1125 (1978)Google Scholar, stating: “the full scope safeguards requirement mandates termination after a stated time limit of U.S. cooperation with those recipients that do not meet the requirement.”

36 42 U.S.C. §2153d (1982).

37 H.R. Rep. No. 587, 95th Cong., 1st Sess. 12 (1977).

38 Letter from Powell A. Moore, U.S. Dep’t of State, to Ottinger, Richard L., U.S. House of Representatives (Jan. 27, 1983)Google Scholar.

39 Parties may consent by a special agreement referring a dispute to the Court, by a treaty or convention preceding the dispute that refers such disputes to the Court or by a declaration accepting compulsory jurisdiction over the dispute under the “optional clause” of Article 36 of the Court’s Statute. Statute of the International Court of Justice, 59 Stat. 1055 (1945), TS No. 993, Art. 36; 2 Oppenheim, L., International Law: A Treatise 58–59 (Lauterpacht, H. 7th ed. 1952)Google Scholar. None of these conditions is met here.

40 Office of Financial Management, Agency for International Development, Status of Loan Agreements 70 (1985).

41 Loan Agreement Between the President of India and the United States of America, Dec. 7, 1963, AID Loan No. 386-H-091. The loan is discussed in R. Wohlstetter, supra note 8, at 82; and in D. Hart, supra note 8, at 39.

42 Agency for International Development, Standard Form Loan Provisions Annex §D.3(d).

43 Id. §D.2(c).

44 Office of Financial Management, supra note 40, at 78.

45 Id.

46 Agency for International Development, Congressional Presentation for Fiscal Year 1984, Ann. II, Asia, at 43.

47 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18, 232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

48 22 U.S.C. §2429a (1982).

49 See, e.g., Restatement (Second) of Contracts §250 (1979); U.C.C. §2-610 (1978).

50 Restatement (Second) of Contracts §251 (1979); U.C.C. §2-609 (1978).

51 India has argued that safeguards apply to the Tarapur reactors only because they use fuel supplied under the U.S. agreement. This is clearly wrong. The operative language of Article VI of the agreement gives the United States the right to review the design of any facility used to separate plutonium “produced in the Tarapur Atomic Power Station.” This catches plutonium furnished by non–U.S. suppliers, and therefore means that the reactors themselves are safeguarded. Article VI, para. B(2), which requires a system of records, is written the same way. It catches all material, from whatever supplier, “produced in . . . Tarapur.” In addition, the pledges of peaceful use in Article VIII, and the right to approve extraction in Article II, catch material produced with all U.S. exports, including the reactors.

52 The Vienna Convention, supra note 47, provides in Article 60 that a “material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” It also provides that a “material breach . . . consists in . . .a repudiation.”

53 IAEA Doc. GOV/1621, supra note 32.

54 Id. §14.

55 Wash. Post, Feb. 7, 1986, at A21.

56 Id.

57 N.Y. Times, Oct. 1, 1986, at A15; Wash. Post, Jan. 7, 1987, at A16.

58 Wash. Post, July 8, 1986, at D1; and Dec. 12, 1986, at A45.