News

New Nuclear Follies?

By Gary Milhollin

The New York Times
November 25, 1987, p. A27

For nearly 30 years, countries have sold nuclear materials around the world with the requirements that the importing nations promise to use them for peaceful purposes and permit on-site inspection. These two pledges are the main barrier between civil and military use of the atom.

It now appears that – for the first time in history – a country, Israel, has broken the peaceful use pledge. It also appears that a second country, France, may have broken it, and that the civilian exports of a third, Norway – possibly made without the pledge – have gone freely into bombs. With this, the entire framework of nonproliferation seems threatened. Does anyone care?

Israel has just admitted that, for more than 20 years, it has been making plutonium in its Dimona reactor with heavy water imported from Norway. Heavy water, deuterium oxide, is essential to the manufacture of plutonium and tritium: the nuclear weapon materials.

Israel had promised to restrict the plutonium to peaceful use and to allow international inspections of plutonium made with Norway’s heavy water. According to the Central Intelligence Agency, however, Israel is using the heavy water to make bombs. And Israel refused to allow any inspections.

Israel may also have made plutonium by using heavy water imported from the United States under similar pledges. America admits that heavy water sent to Dimona was not inspected for the first 17 years after it was exported. Moreover, America has not asked for the kind of inspection that would show what the water was used for.

France established and continues to build its thermonuclear arsenal with tritium made with heavy water imported from Norway. France gave Norway a string of certificates stating the ”end use” of each heavy water shipment, but Norway won’t reveal what the certificates say. If they don’t require peaceful use, Norway has deliberately helped France make the hydrogen bomb. If they do require it, France, too, has broken the peaceful use pledge.

Neither world security nor the nuclear export trade can accept such a breakdown in nuclear protocol. The nonproliferation treaty, and every other effort to combat proliferation since the 1960’s, assume that the peaceful use and inspection pledges will be kept. To preserve the credibility of their policies against proliferation, Norway and the United States must now enforce their rights.

Under terms of the export agreements, both Norway and the United States have the right to conduct inspections in Israel to assure that the heavy water is and has been used for peaceful purposes. If Israel refuses, both would have the right to withdraw the heavy water summarily. Norway can also demand assurances that France has used its heavy water in peaceful applications.

All these rights are clear. Enforcing them would unquestionably slow the spread of the bomb. They are nondiscriminatory and don’t raise regional issues. They are the one sure way to deal with proliferation.

Why aren’t they used? Why won’t the State Department, perpetually in search of something to do about proliferation, inspect its heavy water in Israel? Why won’t it ask Israel to honor Norway’s rights? Why won’t Norway disclose and enforce whatever rights it has in France? The answer seems to be that the United States endorses Israel’s bomb, Norway endorses France’s and that both America and Norway value smooth relations with their allies above nonproliferation.

World attention will soon focus on the superpower summit meeting, where a minor arms control pact will be signed. In the rest of the world, which is less stable, countries will continue to make bombs they really intend to use. Perhaps it is time to shift our gaze and watch the risks that count.

Gary Milhollin is professor of law at the University of Wisconsin. This article is adapted from a longer version in Foreign Policy.

Heavy Water Cheaters

By Gary Milhollin

Foreign Policy
Winter 1987-1988, p. 100-119

Civilian nuclear exports are founded on two assumptions: No country will export a crucial item without requiring a pledge of peaceful use or use an item imported under such a pledge to make bombs. The same nuclear reaction that makes electricity makes weapons; the importer’s pledge is the only barrier between the two. If countries receiving nuclear imports could freely convert them to arms, the nuclear exporting countries simply would be spreading atomic bomb factories across the world. The human race’s prospects for controlling nuclear weapons would fall rapidly, and so would its chance of survival. To prevent proliferation, the supplier countries routinely require two guarantees—a pledge of peaceful use and inspection of exported material, equipment, and technology. The International Atomic Energy Agency (IAEA), which is based in Vienna and comprises more than 100 member states, conducts the inspections.

It now appears—for the first time in history–that a country has broken the peaceful-use pledge. It also appears that a second country may have broken it, that a third is threatening to break it, and that the civilian exports of a fourth—possibly made without the pledge—have gone freely into bombs. The culprits are, respectively, Israel, France, India, and Norway. Israel has been making plutonium with Norwegian heavy water for more than 20 years and, according to recent evidence, putting the plutonium into bombs; India has been making plutonium with U.S. heavy water for about the same period and is threatening to put that plutonium into bombs. Norway has exported heavy water that France has used to build a thermonuclear arsenal. If these countries can undermine the pledge and avoid the consequences, there is no reason why others will not do the same.

Few people know what heavy water is; yet it has been crucial to the spread of nuclear arms. Nazi Germany pinned its hopes on heavy water from Norway and inspired the United States to launch its own nuclear weapons effort—the Manhattan Project—for fear that Germany would make the bomb first. Heavy water enabled France to begin nuclear research and was used to make the first nuclear explosive material France obtained. The same is true of India. Because of heavy water, France, India, and Israel all have been able to make nuclear explosives free of international control. In addition, the People’s Republic of China, the Soviet Union, and the United States have built atomic bombs with heavy water.

Heavy water looks like ordinary water but is rich in deuterium, a heavy isotope of hydrogen. Heavy water’s outstanding advantage is that it slows down or “moderates” neutrons passing through it. At lower speeds the neutrons can fission the unstable uranium isotope U-235. Each fission releases energy and more neutrons, causing a chain reaction. Heavy water moderates neutrons without absorbing many of them. This feature is essential for reactions with natural uranium, which contains only .7 per cent of the U-235. Heavy water must be extracted from ordinary water—in which it occurs in minute concentrations—through an expensive process requiring large amounts of energy.

Ordinary water also can be used to achieve a chain reaction, but its higher absorption of neutrons means that the uranium must be enriched. In practice, the percentage of U-235 atoms in the uranium must be increased to about 3 per cent. The enrichment process is technically difficult, very expensive, and requires enormous amounts of electricity. It is even more difficult and expensive than producing heavy water. So heavy water is the cheaper way to the bomb. A country needs only a reactor and natural uranium, which is plentiful, as reactor fuel. Plutonium is created in the uranium once the chain reaction is achieved. Every country that has made the bomb, except China, used plutonium for its first explosion.

The Israeli nuclear effort began in earnest in 1957. Israel’s alliance with France produced what essentially was a joint venture in nuclear development that gave Israel three of the five ingredients it needed for nuclear weapons: a small research reactor, a factory to extract plutonium from the reactor’s spent fuel, and nuclear weapon design information. The reactor and extraction plant could produce about 8 kilograms of plutonium per year, enough for two modern fission bombs equivalent to the one dropped on Nagasaki in 1945. France built the reactor and extraction plant secretly in the Negev desert, at a site called Dimona. There is no doubt that France meant to allow Israel to make nuclear weapons. Francis Perrin, high commissioner of the French atomic energy agency from 1951 to 1970, so admitted in an interview published on October 12, 1986, in the Sunday Times of London. Perrin said that after World War II, the United States agreed to allow the French scientists who had worked on the Manhattan Project to apply their knowledge at home, provided they kept it secret. “We considered we could give the secrets to Israel provided they kept it to themselves,” Perrin recalled in the interview. He confirmed the construction of the reactor and the extraction plant, and the cooperation on weapons design. The transactions and their related documents are presented in detail in La deux bombes (1982), a book by the French journalist Pierre Pean.

But Israel still needed two more ingredients: natural uranium and heavy water. The uranium was not difficult to obtain. The earliest supplies apparently came from Argentina, South Africa, Israel’s own phosphate deposits, and French-controlled mines in Africa. For subsequent sources, there was the “plumbat affair.”[1] In 1968 Israel skirted nuclear export controls by diverting 200 metric tons (t) of Belgian uranium in barrels marked Plumbat–the Latin word for lead—on the high seas.

That left only heavy water. It proved to be the only ingredient that Israel could not get without breaking its word. In the early 1960s only the United States and Norway had any heavy water for export, and both restricted exports to peaceful use and opposed the spread of nuclear arms. Israel itself had made small amounts with an indigenous process bur could not make anything near what was needed for Dimona. So Israel had no choice: It had to import U.S. or Norwegian heavy water.

From 1959 to 1963 Israel imported 20t from Norway and 3.9t from the United States. This would supply Dimona indefinitely if the reactor stayed at its rated power of 24 megawatts. Israel pledged to restrict the heavy water to peaceful use—the plutonium made could not be put into bombs—and to allow on-site inspection so the suppliers could ensure that the pledge was kept. However, Israel seems to have taken the water and ignored the promises. It must have broken its pledge to Norway and may have to the United States.

The evidence of Israel’s intentions began to emerge in the 1970s. In a September 4, 1974, CIA memorandum, Prospects for Further Proliferation of Nuclear Weapons, the agency concluded, “We believe that Israel already has produced nuclear weapons.” And then CIA Deputy Director for Science and Technology Carl Duckett told the Nuclear Regulatory Commission in a February 1976 briefing that Israel was making bombs from Dimona’s plutonium. He also disclosed that the CIA had told President Lyndon Johnson as early as 1968 that Israel had produced bombs. French sources, including Perrin, also have reported that Israel has built bombs.

During the 1973 Arab-Israeli war, Israel reportedly assembled 13 bombs and readied them for use.[2] In 1974 then Israeli President Ephraim Katzir said that “it has always been our intention to develop a nuclear potential…. We now have that potential.” And in May 1985 a Los Angeles businessman, Richard Smyth, was indicted for smuggling to Israel 810 high-speed electronic switches, called krytons, which are used as nuclear weapon detonators. Smyth vanished a week before he was to appear for trial. Moreover, Aerospace Daily reported in its May 1, 1985, issue that Israel had deployed Jericho II missiles, with a range of 400 miles, carrying nuclear warheads. In addition, the NBC telecast of “Nightly News” on July 30, 1985, reported that Israel possessed at least 100 nuclear weapons.

Any doubts left by these accounts should be dispelled by the case of Mordechai Vanunu, an Israeli arms technician who worked at Dimona for 8 years. In September 1986 he detailed Israel’s production techniques to the Sunday Times, providing almost 60 color photographs of what he said was Israel’s underground bomb factory and convincing weapons experts on both sides of the Atlantic Ocean that he was telling the truth. According to Vanunu’s data, Israel now has 100 to 200 advanced fission bombs, has mastered a thermonuclear design, and appears to have a number of thermonuclear bombs ready for use. Instead of 8 kilograms of plutonium per year—what a 24-megawatt reactor would normally make—Dimona, according to Vanunu, is producing 40 kilograms per year, which is enough for 10 advanced fission bombs. Dimona is also making tritium and deuterium, the thermonuclear bomb ingredients. After telling his story to the Sunday Times, Vanunu disappeared on September 30. He turned up 2 weeks later in an Israeli jail charged with espionage and other crimes. Vanunu said he was kidnaped in Rome, though Israel refuses to say how he was arrested.

Vanunu’s story is either a spectacular security leak or the political equivalent of a nuclear test. If the story is a plant, Israel could be telling its neighbors once again that the rumors about its bombs are true, as it did after it destroyed Iraq’s Osirak reactor in June 1981, when former Defense Minister and Foreign Minister Moshe Dayan told the New York Times, “We do have the capacity to produce nuclear weapons, and if the Arabs are willing to introduce nuclear weapons into the Middle East, then Israel should not be too late in having nuclear weapons, too.”[3] In short, there is not much doubt that Israel has made nuclear weapons. The remaining question is whether Israel used plutonium made with Norwegian or U.S. heavy water.

To understand the transfer of heavy water to Israel, several points must be kept in mind:

  • The reactor at Dimona is Israel’s only means of making plutonium, and plutonium is Israel’s primary nuclear weapon material. Dimona also is the only facility in Israel that uses heavy water in metric ton quantities. When Dimona opened in 1963, the world’s main heavy water suppliers were the United States and Norway. Israel was producing heavy water only in laboratory quantities. Therefore, it was physically impossible to start Dimona without U.S. or Norwegian heavy water.
  • France and Canada also possessed heavy water in the early 1960s, but Canada has never exported any heavy water to Israel, and all of France’s heavy water had been imported previously from the United States and Norway. France pledged not to re-export it without permission. Thus even if Israel had received a secret shipment from France, the water would have been diverted illegally from U.S. or Norwegian stocks, giving Israel no right to use it.
  • Therefore, all the heavy water Israel imported for Dimona must have come initially from the United States and Norway.
  • Reactors like the one at Dimona lose only about .5 per cent of their heavy water each year. So if U.S. or Norwegian heavy water went to Dimona in 1963, more than 85 per cent of it is still there today.

These facts lead to an irresistible conclusion about Norway’s heavy water: It must have gone into Dimona in 1963, must still be there, and must still be making bombs. Norway was the only conceivable source for Dimona’s original charge of heavy water, and only a small amount of it could have been lost. No other possibility exists, given Dimona’s starting date and loss rate. The use of the U.S. heavy water is less clear, but the evidence indicates that the American water may have been shipped to Dimona as well.

The United States sent 3 .9t directly to Israel in 1963, 3 years after Dimona was discovered by a U.S. spy plane.[4] Why the water was sent remains a mystery. According to [AEA officials, Israel pledged to restrict it to peaceful use and to place it under international inspection. The officials say that the heavy water is still in Israel and still being safeguarded by the IAEA. But these same officials admit that the IAEA; did virtually no inspection of heavy water until the late 1970s. So only Israel knows where the heavy water was for the intervening 17 or so years that followed its export.

The earliest U.S. records say that it went to Dimona. In 1977, when the first version of the International Nuclear Facility Codes was published, Dimona was listed as “RTSG.” U.S. records show that the heavy water was shipped to that facility. The records also show the heavy water as still being at facility RTSG in 1972, when the water’s ownership was shifted to Israel through a bookkeeping transaction. In 1979, however, a new version of the facility codes appeared. It still showed Dimona’s code as RTSG, but also assigned Dimona a second code, “RTSL.” Having two codes contradicted the usual practice of keeping the same code for the same facility. Currently, the codes show RTSG designating a facility in Haifa called Technion and RTSL designating Dimona. The records do not show whether the heavy water was moved. Even if the heavy water is now at Technion, it seems to have gone originally to Dimona. The IAEA’s lax safeguards agreement with Israel does not cover Technion or any of the other locations where the export records show the water was kept.

There is another reported source of Israel’s heavy water, but it is not so well established. Les dens bombes contends that France sent Norwegian heavy water to Dimona secretly in 1960. According to Pean, the shipment came from France’s atomic site at Saclay, outside Paris. A high official of the French atomic energy agency went to the atomic research center at Saclay, picked up a few metric tons of heavy water in barrels, hauled them back to his Paris office in three small trucks, and unloaded the barrels in the underground garage. Moments later, agents of the Israeli secret service, the Mossad, came in, loaded them on another truck, drove them to the military zone at Le Bourget Airport, and put them on a French plane to Israel that landed in Sicily on the way. Did all this really happen?

Unnamed French sources familiar with the Dimona export have described Pean’s account as “99 per cent correct.”[5] France imported 20t of U.S. heavy water between 1956 and 1959, all earmarked for Saclay’s EL-3 (for eau lourde, or “heavy water”) reactor. Since EL-3 needed only 4.1t to start up and lost very little in operation, France had U.S. heavy water left over. In 1960 France imported an additional 16.5t for Saclay, earmarked for a facility called Aquilon. So by 1960 France had imported a total of 36.5t from the United States. This exceeded the needs of the French reactors and would have enabled France to supply Dimona. France was importing Norwegian heavy water at the same time. Reliable Norwegian sources report that France obtained more than 140t from 1950 to 1965.[6]

Pean’s account is the only known evidence that France broke its word. U.S. records do not show any retransfer of U.S. water from France, and government sources in Norway say that records there do not reveal any retransfers either. Still, if France were willing to build Israel a secret reactor and a secret plant to extract the plutonium, it would have been a small matter for France to transfer secretly heavy water. Indeed, it seems implausible to build a heavy water reactor with no heavy water to run it. Heavy water reactors are invariably sold “wet”—with the heavy water included. The 20t Norwegian shipment to Israel was approved only months before it was sent in 1959 and could not have been counted on when the reactor was built. Thus France very likely agreed to supply Dimona’s heavy water along with the reactor.

The Norwegian water, in fact, went to Great Britain before it reached Israel. Britain had purchased the water but decided not to use it. Influential supporters of Israel in Norway—including a former defense minister—set up a corporation called Noratom to buy it back. Then they quietly pushed an export license through the Norwegian foreign ministry. The license allowed Noratom to ship the unused water directly from Britain to Israel, which it did.

The last question about Dimona is its size. Dimona is widely assumed to be both cooled and moderated by heavy water. The heavy water also removes the heat caused by the chain reaction. Under this assumption, Dimona needed about 18t of heavy water to start operation. The 18t can be derived from the scale of India’s new Dhruva reactor, which is cooled and moderated by heavy water (it uses three-fourths of a t per megawatt) or from the scale of India’s older Cirus reactor, which was only moderated by heavy water but which would have used three-fourths of a t per megawatt if it also had been cooled by heavy water.

The figure of 18t, however, assumes that Dimona remained at its original power. Evidently it did not. For the reactor to produce the 40 kilograms of plutonium per year described by Vanunu, it would have had to be scaled up to more than 100 megawatts. The reactor would need more heavy water and a larger cooling circuit. The plutonium extraction plant would have had to be expanded, too. According to Pean, the Israelis convinced their highly placed French supporters to boost Dimona’s size when it was built, quietly making its key components three times as big as called for in the Israeli-French agreement.

These accounts could explain why Israel imported so much heavy water. For Dimona to produce more than its rated power, Israel would need more than 18t. Israel had imported 20t from Norway and 3.9t from the United States, 33 per cent more than the original 18. If France supplied enough to start the reactor, which seems logical, the “few” t Pean reports could have been any amount up to 18. How much plutonium could this heavy water make? Plutonium production depends upon reactor power, and power can be increased by changing the fuel design. Simply by using one-half- rather than one-inch fuel rods, reactor power is increased by a factor of four. But the power increase releases heat, which must be removed by the cooling system, which in turn is limited by the supply of heavy water.

Dimona uses twice as much moderator as coolant, so multiplying its cooling capacity would not mean multiplying its need for heavy water by the same amount. If the amount of coolant were quadrupled, which could allow quadrupled power, Dimona would need about 36t of heavy water—12t of moderator and 24t of coolant. The 36t is slightly less than the total that Israel could have received from Norway, the United States, and France. Thus Vanunu’s reports of plutonium production are consistent with Pean’s reports of additional heavy water exports.

France’s Stunning News

On May 22, 1980, the French national assembly received a remarkable document from the commission on national defense and the armed forces. The commission reported that France was making tritium in two reactors called Celestin I and Celestin II. According to the French government’s nuclear agency, Cogema, Celestin I went critical—that is, achieved a chain reaction—on May 15, 1967, and Celestin II on October 30, 1968. Cogema noted that the reactors were making tritium “used for thermonuclear armaments.” Tritium produces fusion in thermonuclear bombs and is bled into the core of fission bombs to boost or vary their yields. The report disclosed that the reactors were cooled and moderated by heavy water. That was stunning news because when they were started, France had no heavy water of its own to put into them.

France did not produce significant amounts of heavy water until December 1967, when it opened a small production plant at Mazingarbe. The plant’s annual capacity was limited to 20t–25t by the supply of feed gas from an ammonia plant. It operated until January 30, 1972, when it exploded, and reached 90 per cent of capacity only in its second year. Therefore, it could not have produced more than 80t of heavy water in its lifetime. Because Mazingarbe started in December 1967, it could not have furnished the original charge of heavy water for Celestin I in May 1967. Nor could its first 10 months of production, even at full capacity, have furnished Celestin II in October 1968. Both reactors reached full power—and needed their full inventory of heavy water—immediately after going critical. Indeed, Mazingarbe’s entire lifetime production was not sufficient for Celestin even if, by magic, Mazingarbe’s water could have gone into the re-actors before it was made. A March 15, 1969, article in the French daily Le Monde affirmed that Mazingarbe was meant to furnish only “a part” of Celestin’s needs. Therefore, the Celestin reactors could not have been started with French heavy water. They had to use an import, and the only sources were the United States and Norway.

Each Celestin reactor required from 60t to 80t of heavy water to produce its 200 megawatts of power. This estimate is derived from the heavy water requirement of France’s EL-3 reactor, which used about .3t per thermal megawatt, and of its EL-4 reactor, which used about .4t per thermal megawatt. The EL-3 and EL-4 reactors use enriched uranium fuel, as does Celestin, which reduces the need for heavy water. Because the reactors operate at low temperature and pressure, they do not lose much heavy water from leaks—surely less than the 1 per cent per year normally lost by power reactors. That means that more than 80 per cent of the heavy water originally put into the Celestin reactors still should be there, still making bombs.

France had imported more than 140t from Norway by the time the Celestin reactors started. Norway got neither inspection rights nor, ac-cording to Per Paust, a spokesman for the Norwegian foreign ministry, an overall pledge of peaceful use. Thus Norway committed a deliberate act of proliferation.

This was a departure from Norway’s stated policy of always requiring peaceful-use guarantees for its heavy water exports. Paust said that instead, France promised not to re-export the heavy water without Norwegian permission and gave Norway a string of certificates stating the “end use” of each shipment. Norway now says that it can restrict France to the uses listed in the certificates. However, as this article went to press, Norway declined to reveal what the certificates require. Do they prohibit use in building nuclear weapons? France, too, when asked in September 1987 about the lack of French heavy water to run the Celestin reactors, refused to comment. Thus the questions remain, Did Norway deliberately help France make H-bombs, or did France break a series of promises that Norway has not bothered to enforce?

France needed at most 150t of heavy water for its civilian reactors up to the time the Celestin reactors started. It needed 4.7t for EL-I in 1948, 6t for EL-2 in 1952, not more than 17t for Aquilon in 1956, 4.1 t for EL-3 in 1957, and not more than 115t for EL-4 in 1965—a total of not more than 147t. If 1 per cent is added for losses, which surely overestimates actual losses, the grand total is just under 150t. But France, it turns out, imported more than that for these same reactors from the United States.

France imported 168t from the United States from 1956 to 1967. The water was covered by pledges of peaceful use, no re-export, and inspection by Euratom, the European Common Market nuclear agency. It was earmarked for the EL-3 reactor, the Aquilon critical assembly, and EL-4, for which the United States furnished the entire inventory. France already had imported from Norway the small quantities needed to run EL-1 and EI-2. Thus the U.S. imports alone were enough to fill and run every civilian reactor in France. In all, France imported more than 308t from the United States and Norway, although it did not need more than 150t for its civilian reactors. This left idle by 1967 about 158t of expensive material—imported for no apparent reason. In fact, however, it had to supply the 120t–160t that the Celestin reactors needed in 1967 and 1968.

The conclusion has to be that France imported about twice the heavy water it needed for its civilian program and used the surplus to make bombs. Tritium from Celestin was reportedly destined for France’s first hydrogen bombs—tested in 1968—and its first tritium-boosted missile warhead. These warheads were the first to be installed on French submarines and had a 500-kiloton yield, enough to destroy a city.

In the future, Celestin’s tritium could prove even more important. France has been considering the manufacture of neutron bombs. Celestin’s tritium would be needed to build the warheads and, because the half-life of tritium is only 12 years, to keep them ready for use. Such warheads could help France change the nuclear equation in Europe.

From France and Norway heavy water technology spread to India. Mazingarbe employed a novel process that promised great economy for middle-sized plants—those making 100t or less of heavy water annually. In 1969 and 1971 India ordered two plants similar to Mazingarbe from its builders, a French-Swiss consortium called GEL-PRA. The first was built at Baroda and the second at Tuticorin. Norway sent Jomar Brun, the chief engineer of Norsk Hydro’s heavy water plant, to offer technical assistance. France reportedly refined the uranium for India’s first heavy water reactor, from which India made its first plutonium. The plants, the uranium, and Brun’s advice were not restricted in any way, and India made no pledge of peaceful use or international inspection. Everything received was free for bombs.

India has not missed the opportunity. Heavy water from Baroda and Tuticorin is now going into three new Indian reactors that are free of controls. The reactors are giving India—for the first time—plutonium that can legally go into weapons.[7] The new Indian stockpile is increasing the pressure on neighboring Pakistan to go nuclear and is making that country’s program more difficult to control.

Norsk Hydro also shipped heavy water and deuterium gas, which is used in thermonuclear bombs, to South Africa for research in 1961; applied for permission, which the government refused, to ship heavy water to India in 1976; and inquired how the government would view a heavy water export to Pakistan in 1974 (the government said no). For a 3-year period during the 1960s, when Noratom was advertising plutonium processing devices, it sent Israel laboratory equipment costing then about $215,000.

The 1968 Treaty on the Nonproliferation of Nuclear Weapons, as well as every other effort to combat proliferation since the 1960s, assumes that peaceful-use and inspection pledges will be kept. Nonproliferation efforts make no sense otherwise. The supplier countries’ promises not to export without controls are meaningless if the controls are not enforced. To retain any credibility for their nuclear export policies, Norway and the United States must enforce their rights in Israel, France, and India.

The rights are plain. Norway’s foreign ministry says that Israel made three pledges when it imported the 20t in 1959: to restrict the water to peaceful use, to retransfer it only with permission, and to allow inspection of any facility where it was used. These pledges would cover any plutonium made by a reactor using the heavy water. The agreement was secret when made, but Norway released the details in October 1986. Israel imported an additional t in 1970 under the same restrictions. After long silence, Norway asked Israel in February 1987 to let the IAEA inspect the heavy water. The request was compelled by questions from Norway’s parliament and articles in the press showing that Norway had not enforced its rights. It had inspected the water only once, in 1961, 2 years before Dimona started.

In an April 1987 response, Israel did not deny receiving the water, making the pledges, or, apparently, using the water. Instead, Israel said that it did not trust trust the [AEA to be objective.[8] This excuse is ridiculous. The IAEA has inspected U.S. heavy water in Israel since the 1980s without objection. If the [AEA. can inspect U.S. heavy water in Israel without bias, it can do the same for Norway’s water. The IIAEA’s objectivity does not depend upon the heavy water it is inspecting.

Norway finally made a formal demand for international inspection on September 30, 1987, and Israel finally refused. Norway then announced that it would ask to do its own inspection, a right Norway clearly has. In such an inspection Israel will have to show Norway that the heavy water has not been used, or has been used for peaceful purposes. To demonstrate the former, Israel must produce 21t of heavy water that have never entered a reactor. Otherwise, it must show about 18.5t (allowing for operating losses) of heavy water that are in a reactor or have been in one. It then must put the reactor’s plutonium under inspection to honor the peaceful-use pledge. Fortunately, it is easy to tell if heavy water has passed through a reactor. Irradiation forms tritium in heavy water. Even after “detritiation,” irradiated heavy water contains about 1,000 times more tritium than heavy water that has not been used.

If Israel refuses all inspection, the 1959 agreement states that Norway can take back its heavy water. Retrieving the more than 85 per cent of Norway’s water that must still be in Dimona probably would shut down the reactor and sever Israel’s main supply of nuclear weapon material. The United States holds the same inspection rights as Norway. To ensure that Israel produces the full 24.9t for testing, the United States should join Norway’s inspection request and have both countries’ water tested at the same time.

Norway and the United States also should enforce their rights in France. Norway should ask France for assurance that the no-re-export pledge has been kept, and, if necessary, for the data to back up the assurance. Norway also should reveal what France promised in the end-use certificates. If France pledged peaceful use, Norway should ask for records that this pledge, too, was honored.

The United States is entitled to peaceful use of all the plutonium made by the EL-3 and EL-4 reactors and to have the plutonium inspected. EL-3 yielded about 30 bombs’ worth of plutonium from its opening in 1958 to its shutdown in 1982-84. EL-4 made more than 200 bombs’ worth from 1967 to 1985. The United States is also entitled to have segregated and restricted for peaceful use the roughly 130t of heavy water removed from these decommissioned reactors. That France is a declared nuclear weapons state does not change its obligations. The United States cannot ignore peaceful-use pledges by bomb-making countries and expect other states to keep the pledge. Such a policy would reward proliferation.

The United States also carries rights in India that, if pursued, could call India to account for the plutonium it has made with U.S.-supplied heavy water. That plutonium remains India’s largest single source of nuclear weapon material.

Selective Proliferation

If the United States and Norway do nothing, the lesson will be clear. They will be operating under a policy of selective proliferation—winking at proliferation by friends, or even aiding it, while denouncing it by others. Doing nothing also will mean that Washington cannot deal with proliferation in its own back yard, because France, Israel, and Norway are U.S. allies. If the United States cannot stop proliferation by them, how will it stop proliferation in South Asia or South America? Finally, doing nothing will mean that nuclear export controls really can be ignored. Israel, for all appearances, is violating a peaceful-use guarantee to Norway, and may have broken one to the United States. France appears to be making bombs with a “civilian” import and may have broken the promises of no re-export and peaceful use.

The stakes in Israel and in France are not the same. France is a world power at the center of the Atlantic alliance. Israel is a small country surrounded by hostile neighbors. Israel can escalate any conflict in the volatile Middle East to the nuclear level. The United States—as Israel’s backer—and the Soviet Union—as a backer of Israel’s rivals—could be pulled into the fight. Armed with nuclear warheads, Israel’s aircraft could destroy most of North Africa and all of the Middle East and could threaten the Soviet Union. The July 1987 issue of International Defense Review reported that in a May 1987 test over the Mediterranean Sea, Israel’s Jericho II missile flew 510 miles. It probably will eventually attain its design range of 900 miles, enough to reach the Soviet border. Not surprisingly, the Soviets strongly protested the flight.

Would Israel, its back to the sea and its existence at stake, be saved by nuclear deterrence? The Soviets inevitably would come to the aid of Syria or another client state threatened with nuclear weapons. Soviet support would have little credibility otherwise. The United States then would have to come to Israel’s aid because Israel could not confront the Soviets alone. The French foresaw in 1959 that the Israeli bomb was meant . to compel U.S. support in a crisis. Perrin, quoted in the October 12, 1986, Sunday Times, put it bluntly: “We thought the Israeli bomb was aimed at the Americans, not to launch it against America but to say `if you don’t want to help us in a critical situation we will require you to help us, otherwise we will use our nuclear bombs.’ ”

Policymakers should be asking whether it is in America’s interests to guarantee Israel’s security in such an indirect and dangerous way. Is the United States ready to give Israel the same power as Britain and France to drag America into war? What are Israel’s responsibilities in return? Can Israel be trusted in a crisis not to push things over the edge? The same questions apply to Pakistan. Should the American people be hostage to the decisions of a succession of allies who obtain nuclear weapons? In July 1986 the Soviet Union, at India’s request, gave Pakistan a stiff warning to cool off its nuclear weapons effort. The Reagan administration replied that Pakistan was a U.S. ally and would not be bullied. So the prize for a U.S. ally that acquires nuclear weapons exceeds the weapons themselves: It is a promise of U.S. support.

For their part, the Soviets have handled this problem better. Only Moscow controls the East bloc’s nuclear weapons. The United States is not facing a research reactor like Israel’s in Cuba or Nicaragua. Through their irresponsible exports, France and Norway have injected a nuclear arsenal into the Middle East which they do not control, but to which they are hostage. This can only decrease their own security.

Israel’s official nuclear defense policy is one of “ambiguity”—making or being able to make nuclear weapons, but stopping short of open deployment or testing. This is really a policy of regional dominance. Whatever benefit ambiguity has disappears once a rival becomes ambiguous too. Nuclear rivals must each react to what the others do, or appear to do. Freedom of action is inevitably lost, and the rivals slide from a covert to an overt nuclear arms race. Preserving ambiguity may have been the real reason for Israel’s attack on Iraq’s reactor. Iraq was not threatening Israel’s military position nearly as much as it was Israel’s ability to remain “ambiguous.” Ambiguity in Iraq would require Israel to test and deploy in order to maintain Israel’s advantage. To retain its current policy, Israel must remain the only nuclear power in the Middle East.

Israel’s arsenal constantly presses the Arabs to build their own arsenals. It is naive to think that Arab bombs will never be made, or could not be delivered to the United States. If nuclear arms do spread through the Arab world, humanity’s net control over the atom will have approached the vanishing point.

The alternatives are to do nothing—the current posture—or to take proliferation seriously. Israel depends on U.S. economic support, weapons, and, ultimately, U.S. assurance of Israel’s survival. In return, it is reasonable for the United States to ask Israel to keep its pledges of peaceful use of heavy water. An Israeli refusal would mean that Israel wants nuclear weapons more than alliances or that Israel does not believe that Norway and the United States have the will to enforce their rights.

By right, Norway may inspect all the plutonium its heavy water has ever made in Israel. In theory, this means dismantling virtually every nuclear weapon in Israel. The United States has the same right for any plutonium made with its water. Also by right, Norway may ask France for assurances to back up the no-re-export pledge, and, if there is a peaceful-use pledge, for proof that the pledge has been honored. In theory, this means that France may have to present its heavy water records, dismantle a large number of French nuclear weapons, and possibly postpone any French deployment of neutron bombs. Is it feasible to enforce such rights? Will France and Israel give up nuclear firepower, or France embarrass itself, merely to uphold an agreement?

France has changed since the days when it started Celestin. As a first-line nuclear exporter, it now has an interest in preserving controls. France is trying hard to sell reactors and fuel across the world to keep its nuclear industry going. It is demanding pledges of peaceful use, no re-export, and international inspection. It obviously expects these promises to be honored. But how can France ask others not to make bombs with its exports if France itself makes bombs with Norwegian exports? The question in France should be one of precedent and example. To safeguard the system that France now uses as a supplier, France should reveal its heavy water data and account for Celestin.

Israel’s position is more delicate. Israel’s, indispensable protector and benefactor, the United States, has publicly staked its entire nonproliferation policy on the idea that thepeaceful-use pledge should be respected. So has Norway. Indeed, so have all the nuclear supplier countries that subscribe to either the Nonproliferation Treaty or the Nuclear Supplier Guidelines. To save the credibility of the nuclear export trade, Israel must keep the faith—or appear to do so.

A bogus or superficial inspection is an obvious temptation. It would give the appearance of compliance and free both Israel and Norway from obligation. But if Norway settled for looking at heavy water in barrels without checking it for tritium, Norway would surrender all hope of controlling the plutonium made with the water in the past. Even if Norway saw the water in barrels, however, Israel still would have a problem. Once Norway’s heavy water was located, Norway would have the right to have it inspected in the future. Inspectors could check it so often as to prevent its return to a reactor without their knowing. Therefore, after declaring the water to be Norwegian, Israel could not use it in Dimona without putting the reactor’s plutonium under inspection—or at least a fraction of it equal to the fraction of the reactor’s heavy water that came from Norway.

If Israel put the water back into Dimona and elected to run the reactor partly for military and partly for civilian use, it would be crucial to identify the Norwegian water Israel obtained from France. Doing this would show that virtually all of Dimona’s water came from Norway and thus was restricted. Virtually all of the plutonium therefore would be restricted as well. This essentially would remove Dimona as a future source of atomic bombs.

The same result seems likely if Israel refuses inspection. A failure to cooperate would allow Norway to demand the water back. This would deprive Dimona of its use, probably forcing the facility to dose. Could Israel both refuse inspection and refuse to give the water back? Such a renegade act would repudiate a clear obligation. Norway could punish and isolate Israel diplomatically. Not even the United States could oppose Norwegian-sponsored sanctions, such as a motion to expel Israel from the IAEA.

Regardless of how one feels about applying the peaceful-use pledge to past events, there are rights that can and should be enforced in the future. France and Israel easily could stop making bombs with imported material. India could stop threatening to do so. France, by its good example, would bolster the integrity of export controls; Israel, by cutting back bomb production, would ease its nuclear pressure on the Arabs; and India, by keeping its word, would improve its relations with the United States and reduce the threat to Pakistan. All of these outcomes would enhance world security at a fair and reasonable cost.

In the future, controls on heavy water should be improved. No other supplier should duplicate Norway’s reckless exports. Exporters should enforce their rights and demand an inspection system able to determine where their heavy water is and for what it is used. Today neither Euratom nor the IAEA guarantees the whereabouts or use of heavy water. If the recipient country officially adheres to the Nonproliferation Treaty, the inspectors merely keep track of its plutonium. They do not look at the heavy water because the treaty requires that all the recipient’s plutonium—whether made with heavy or light water—be placed in an inspected inventory. The inspectors assume that the inventory eventually will include any plutonium that heavy water makes. But because no one is looking at the water, the recipient can break the no-re-export pledge without being caught. The recipient simply can refrain from using the water and ship it elsewhere.

If the recipient has not joined the treaty, the inspectors are supposed to keep track of the water so that it cannot be put in an uninspected reactor. However, they do not check the water for tritium, so they cannot know whether the water has been in a reactor. This practice allows Israel, for example, to assert that the U.S. water has not been used since 1963. The problem will continue even if Israel agrees to future inspection’ unless Norway either tests the water for tritium or checks it frequently enough to prevent its being shifted around.

Loose controls on heavy water exports now have enabled Israel and possibly France to break the peaceful-use pledge, tempted India to do so, and brought Israel to the verge of breaking the inspection pledge. These developments throw all nuclear trade into question and threaten global security. Norway and the United States have the responsibility and the power to enforce the pledges and should do so now. Regardless of the political discomfort of applying the pledges to the past, they can and clearly should be enforced in the future.

Footnotes

[1] See Elaine Davenport, Paul Eddy, and Peter Gillman, The Plumbat Affair (Philadelphia: Lippincott, 1978); Steve Weissman and Herbert Krosney, The Islamic Bomb (New York: Times Books, 1981), 124.

[2] “How Israel Got the Bomb,” Time, 12 April 1976, 39.

[3] New York Times, 25 June 1981, A1.

[4] New York Times, 10 November 1986, A10.

[5] “Former Official Says France Helped Build Israel’s Dimona Complex,” Nucleonics Week, 16 October 1986, 6-7.

[6] The only published report is by Knut-Einar Norberg, “New Norwegian Attempts at Heavy Water Control” (in Norwegian), Dagen, 5 April 1987, stating that Norwegian sold France more than 100t in the 1950s and 1960s.

[7] See Gary Milhollin, “Dateline New Delhi: India’s Nuclear Cover-up,” FOREIGN POLICY 64 (Fall 1986): 161-162.

[8] New York Times, 26 May 1987, A13.

How Many Norwegian A-Bombs Do You Have?

By Gary Milhollin

Arbeiderbladet (Oslo)
October 24, 1987

At the end of last month, Israel finally rejected Norway’s request for international inspection of the heavy water Norway sent to Israel in 1959. Norway wanted to insure that the water had not been used to make atomic bombs. Israel said “no.” As a result, Norway’s foreign minister has announced that Norway will do its own inspection, a right that Norway clearly has. These developments pose two questions: first, what does Israel’s response reveal, and second, what should a Norwegian inspection do?

The Dimona reactor is the only facility in Israel that uses heavy water in ton quantities. Since 1963, Dimona has been making plutonium. The CIA and almost everyone else think the plutonium has gone into atomic bombs. Norway’s exports are the only known source of the heavy water needed to start Dimona and keep it running. The exports were either directly from Norway–twenty tonnes in 1959–or indirect by way of France–which is said to have reexported several tonnes of Norwegian water secretly to Israel in 1960. Israel was able to make small amounts of heavy water itself in a pilot plant, but nothing near what it took to start Dimona.

If Israel had not used Norway’s water in Dimona, international inspection would have been easy. Israel could have shown the inspectors the unused water in drums, allowed the drums to be sampled, and sealed them up again until the next inspection. This is the standard practice for heavy water in storage. The fact that Israel refused to do this is strong evidence that Norway’s water has been used.

Israel’s excuse for not allowing international inspection was that the International Atomic Energy Agency is “biased” against Israel. This objection is ridiculous: the Agency has been inspecting U.S. heavy water in Israel for many years without objection. If the IAEA can inspect U.S. heavy water in Israel without bias, it can inspect Norwegian heavy water in Israel without bias. In fact, the Agency is only an accountant. It comes in and looks at the books. Israel is like a business, suspected of diverting money, that has hidden its records because the auditor may be unfair.

Norway itself could clarify the situation. There is no longer any reason to keep the Israeli export agreement secret. Indeed, if the agreement had been public in 1959, the current situation would not have come up. Everyone would have known about the inspection right and Norway would have been compelled to use it long ago. Nor is there any reason not to publish a list of Norway’s other nuclear exports. The government should describe the “laboratory equipment” sold to Israel by a Norwegian company that specialized in processing plutonium. It should also reveal the amount of heavy water sold to France, and the terms on which the exports were made. If there are more agreements like the one for Israel’s heavy water, the sooner they are public the better. In peaceful exports for civilian purposes, there is no reason for secrecy.

A Norwegian national inspection can accomplish two things in Israel: it can discover whether Norway’s water has made atomic bombs in the past, and can prevent it from making them in the future. Norway’s long experience with heavy water provides the experts to do the job.

With respect to the past, Norway can ask Israel what it has done with the heavy water since 1959. That fact is in records that Israel can show to prove peaceful use. If the records say that the water has not been used, Israel could prove that fact by exhibiting the water in drums for sampling. Tests for tritium and deuterium concentration would reveal whether the records were right. If the records say that the water has been in a reactor–which could only be Dimona–Norway has the right to peaceful use of the plutonium the reactor has made.

Norway can also ask to see the water. Even if the water has been in Dimona since 1963, about eighty percent of it is still left. Reactors such as Dimona only lose about .5% of their heavy water each year. Once the water is identified as Norwegian, Norway has a right to seal it in drums and prevent its further use except in inspected locations. Israel would then have a choice: either stop using the water, or use it in Dimona and put the reactor’s plutonium under inspection. Israel would, no doubt, stop using the water. This would probably shut the reactor down, and halt Israeli bomb production. Thus, regardless of what Norway’s heavy water has been used for in the past, a national inspection would stop the water from making bombs in the future.

There seems to be every reason to demand a national inspection, and do so at once. Israel has taken nine months to refuse international inspection. It will probably take as long as it can to respond to a national inspection. If Israel refuses that, it will breach the export agreement. Norway can then demand its heavy water back. This too would probably shut down the reactor. Since Dimona is now reported to be making about ten bombs’ worth of plutonium per year, Norway should push for a quick solution. For every six months that Norway waits, Israel can make five more bombs with heavy water.

Gary Milhollin is a professor at the University of Wisconsin Law School.

India’s Back Door to the Atomic Club

By Gary Milhollin

The Philadelphia Inquirer
September 29, 1987, p. 22-A

Pakistan has been trying to smuggle its way to the atomic bomb, and has got caught. A Pakistani native is to be tried in Philadelphia for illegaly shipping bomb-making materials out of the United States. The out-cry, though justified, is drawing attention away from Pakistan’s neighbor India, which is trying to lawyer its way to the bomb. India’s method may be worse.

India is now importing enriched uranium-reactor fuel under an agreement with the United States. India plans to convert all the plutonium made from that fuel to nuclear weapon status as soon as the plutonium is physically ready, which will be in about six years. Plutonium is the gray metal that made the world’s first nuclear explosion and destroyed Nagasaki.

India will make this conversion despite the fact that the U.S. agreement restricts the plutonium to peaceful use. India also plans to convert the two U.S.-supplied power reactors at Tarapur — which are receiving the fuel — from peaceful to military production status at the same time. If these plans succeed, India will be able to shift about 1,800 kilograms of plutonium to military status — enough for 225 atomic bombs.

India justifies all this by arguing that in six years, when the U.S. pledge to supply fuel to the Tarapur reactors ends, all other rights under the trade agreement end as well. This means that the entire stockpile of plutonium made by the reactors will leave international inspection, India’s pledge to restrict the plutonium to peaceful use will end, and so will India’s obligation not to transfer the plutonium to other countries or groups. India thus hopes to change the U.S. agreement into an option contract for bombs. India would get the bomb simply by performing the agreement to the end. India’s argument lacks any legal or plausible basis.

India is also hinting that it may immediately convert about 40 bombs’ worth of U.S. and Canadian-origin plutonium from peaceful to military status. The plutonium has been made by the CIRUS reactor, which Canada exported to India in the early 1960s. The United States exported the heavy water (deuterium oxide) needed to run the reactor. This conversion would boost enormously India’s military stockpile, which now consists of only six to 10 bombs’ worth of plutonium.

This conversion too violates a pledge of peaceful use — which India made to Canada to get the reactor, and to the United States to get the heavy water. After India exploded a bomb in 1974 with the CIRUS reactor’s plutonium — which India called a “peaceful nuclear device” — Canada ended nuclear trade with India.

However, Canada has never waived India’s right to peaceful use of the plutonium and neither has the United States. India is simply hoping that neither Canada nor the United States will enforce its rights. So far, India has been correct. Neither supplier is demanding that India acknowledge the pledge, nor abandon its plan to violate it.

The United States, Canada and other nuclear suppliers should act now to prevent India from breaking its word. If they don’t, the lack of enforcement will create a nuclear proliferation disaster. The additional plutonium will multiply the number of bombs India can make, weaken the credibility of export controls, and cripple the effort to restrain Pakistan.

There are clear remedies for Indian defiance. If India does acknowledge U.S. and Canadian rights, the United States should ask France to cut off the fuel supply to the Tarapur reactors. France is supplying the fuel under the U.S. trade agreement, and has agreed to follow U.S. instructions in the event of a dispute with India. This would shut down India’s largest supply of nuclear electricity.

If nuclear trade remedies are not enough, the United States can cease making high-technology exports to India, such as the technology for building computers and fighter-plane engines and can drop plans to sell the supercomputer that it wants.

As a last step, the United States — which is India’s largest trading partner — could use its power over international trade and lending. Canada could join in the trade remedies, and the Soviet Union, usually a solid supporter of nonproliferation, could stop exporting the heavy water that India needs to run all of its other nuclear reactors. If this were done, the Indian bomb would become an astronomically expensive substitute for the India nuclear power program, rather than a cheap adjunct to it. India might then see that it could become less, rather than more powerful by having atomic bombs.

Gary Milhollin is a professor at the University of Wisconsin Law School. This is adapted from an article recently published in the American Journal of International Law.

Stopping the Indian Bomb

By Gary Milhollin

The American Journal of International Law
July, 1987, 81 A.J.I.L. 593

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.[1] It has tested, successfully, an implosion bomb with a dummy core.[2] 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.”[3]

These developments pose two risks. The immediate one is that Pakistan will conduct an explosive test, which would force an Indian deployment, or that the Indians will deploy, which would force a Pakistani test. Under current U.S. law, a Pakistani test ends U.S. aid and effectively ejects the United States from Pakistan.[4] If this happened, South Asia would be left with a pair of nuclear-armed rivals face to face, and the Soviets still in Afghanistan.

The second risk is longer term, but possibly greater: the international controls on nuclear exports may simply collapse after such a failure in South Asia. Why? Because India and Pakistan have built their programs from imports. In nuclear South Asia, nothing is “indigenous.” Almost every essential facility in India and Pakistan has been imported directly, copied from imports or built with foreign designs. If these two countries deploy atomic bombs, it will be obvious that the export control system has not worked.

It is India that dominates the South Asian arms race. India’s greater wealth, population and conventional strength mean that Pakistan must either match India in nuclear arms or be dwarfed. Pakistan has now struggled up to the ability to test; therefore, India must decide the next step. It could be to build an arsenal. If India does, it will be by using exports from the United States, Canada and the Soviet Union.

This poses a serious issue for all these countries, and especially the United States. So far, the United States has been India’s largest nuclear supplier. Controls attached to U.S. exports require the peaceful use of power reactors, research reactors and nuclear fuel. In the past, the controls have not been used wisely; at present they are hardly used at all. But it remains true that if the controls were used vigorously, and in league with India’s other nuclear suppliers, there is still a chance that India’s program could be restricted to peaceful ends. If this were achieved, the next stage of escalation in South Asia would be headed off, and the world’s struggle against nuclear arms would get a giant boost.

U.S. CONTROL

United States control comes from reactors and the materials needed to run them. As these words are written, uranium is being enriched under the U.S.-India agreement covering the Tarapur reactors.[5] That uranium will be shipped to India by 1987 or 1988, made into reactor fuel by 1989, burned in and removed from reactors by 1992, and cooled in a reactor storage pool until about 1993. Then, according to India, the spent fuel’s plutonium will be legally free for atomic bombs. Plutonium, like high-enriched uranium, is a nuclear explosive: 6 kilograms of it destroyed Nagasaki in 1945. It is created whenever uranium fuel is irradiated in a reactor. India contends that in 1993, just 6 years from now, the two reactors at Tarapur and all the plutonium in their spent fuel will be free for use in bombs. India relies on an implausible and stubborn reading of the expiration clause of the Tarapur agreement. This reading, which will be discussed below, would give India about 1,800 kilograms of completely unrestricted plutonium, enough for 225 atomic bombs.[6] By using only the “weapon grade” plutonium in this stockpile, India could make about 36 bombs.[7]

If India gets its way, it will mean the following: first, that plutonium made from all the enriched uranium now being supplied, and all the enriched uranium to be supplied under the Tarapur agreement will be free for use in bombs as soon as the plutonium is physically ready; second, that the U.S.-supplied Tarapur reactors will have functioned as military production reactors for their entire lives, if India so chooses; third, India will have become the first country in the world to declare a peaceful U.S. nuclear export program free for military use, and will have done so openly and, according to India, legally; and fourth, India will have torn a precedential hole in the legal fabric surrounding U.S. nuclear exports, because most U.S. agreements have the same language on expiration as India’s. In general, India will have shown that the United States cannot control its nuclear exports. If India shows that, the U.S. effort to restrain other nuclear suppliers will be set back, and India will have struck a second blow in favor of nuclear arms proliferation. The first was in 1974, when India became the first and only country in the world to explode an atomic bomb made from “peaceful” nuclear imports.

How did the United States get into such a position? And what can be done about it?

INDIA’S NUCLEAR PROGRAM

India wants two things from its nuclear program: electricity, and the option to make atomic bombs.[8] The second is as important as the first. In 1976 India accepted an expensive delay in getting its second reactor built at Rajasthan, rather than bow to Canada’s demand for peaceful use of other Indian facilities. And in the early 1980s, India let a fully completed reactor in Madras remain idle for 2 years, because importing the heavy water to run it would have meant restricting it to peaceful use.

But progress toward arms has been slow. Until 1986, supplier controls stood in the way. India started its first important reactor, called CIRUS, in 1964. Canada supplied the reactor, and the United States the “heavy water” to run it. Heavy water (deuterium oxide) is needed to achieve a chain reaction with the natural uranium fuel that CIRUS uses. India promised Canada and the United States to restrict CIRUS to peaceful use, but CIRUS was not covered by international inspection; consequently, in 1974 India could test a bomb made with plutonium from CIRUS’s spent fuel and call it a “peaceful nuclear device.”

After the explosion, the Department of State was asked for explanations. It said that India had “commingled” U.S.-supplied heavy water with domestic Indian heavy water, and that the commingled water was used in CIRUS.[9] But State admitted that U.S. heavy water was the only water in CIRUS when CIRUS was started up, and that U.S. heavy water must have been in CIRUS when it made the plutonium for the test.[10] Nevertheless, State claimed that there was no way to establish the origin of the plutonium “conclusively.” Although Congress was outraged, State did nothing about the explosion and did not insist on any system for keeping track of U.S. heavy water. The result is that the United States still has a clear right to peaceful use of at least some of CIRUS’s plutonium — tha is, of a fraction equal to the fraction of U.S. heavy water in the reactor. Given the way CIRUS operates, the fraction could be large. Heavy-water losses from a reactor such as CIRUS amount to about 0.3 percent per year,[11] which would add up to a 1-tonne loss out of a 19-tonne inventory over 23 years of operation. Thus, unless India deliberately took the U.S. water out,[12] all except 1/19 of CIRUS’s water is still of U.S. origin and the United States has the right to peaceful use of all except about 1/19 of the CIRUS plutonium.

India also gave Canada a guarantee of peaceful use for the CIRUS reactor.[13] Canada ended its nuclear cooperation with India because of the explosion in 1974, but that did not put Canada in breach of its CIRUS agreement or excuse India from performing it. In view of India’s action, Canada was entitled to suspend its performance until India promised not to make nuclear weapons. Since India has not given this promise, Canada’s performance remains suspended while India’s duties remain.

In short, some and probably most of the plutonium produced by CIRUS is covered by a peaceful use pledge to the United States, and all of it is covered by a similar pledge to Canada. However, as the plutonium is not under international inspection, there is no official way of knowing what it is being used for.

For its next two sets of reactors, India had to agree to international inspection — called safeguards — as well as peaceful use of all the plutonium they would make. These promises covered the twin Tarapur reactors, built by the United States in the late 1960s, and the twin Rajasthan reactors, built by Canada in the 1970s and early 1980s. It was not until 1983, with the first reactor at Madras, that India began to escape controls. India itself had built Madras by copying Canada’s design for Rajasthan. But because “replication” was not forbidden by the India-Canada agreement, India could say that Madras was indigenous, and its plutonium unrestricted.

There was still, however, a hitch. Madras, like Rajasthan, needed heavy water to operate. And for it to operate free of safeguards and pledges of peaceful use, India itself would have had to produce the heavy water. India could not make enough on its own — it was short a vast amount — hence India was still not free. There were only four suppliers of heavy water in the world: Canada, China, the United States and the Soviet Union. All except China required peaceful use and international inspection of any plutonium made with their nuclear exports. There is very strong evidence that in 1983, when Madras was started up, India either imported 100 metric tons of heavy water from China — secretly — or diverted that amount from international  inspection.[14] India had to do one or the other to fill the gap in its own production. Whichever it did, Madras was started free of controls, which made its plutonium available for bombs.

India began to extract the Madras plutonium in 1986. Extracting plutonium from spent fuel requires a special factory with heavy shielding, and takes several months. The plutonium emerges in pure form, and can be used to fuel additional reactors or to make atomic bombs. Through 1986, India could have extracted about six bombs’ worth — not quite enough for an arsenal.

Soon there will be enough. In 1985 India started a second reactor at Madras — another copy of Rajasthan — and a second research reactor called Dhruva — a scale-up of CIRUS. Neither is restricted. Together with the first reactor at Madras, they make enough plutonium for about 15 bombs per year. But they all require heavy water. India’s heavy-water shortage in 1985 was even worse than in 1983;[15] therefore, these reactors too must be using the Chinese import, or heavy water diverted from safeguards.

Finally, India operates the Fast Breeder Test Reactor, built with help from France. It is fueled by plutonium from CIRUS; thus, any plutonium it makes should be covered by CIRUS’s peaceful use restriction. The Canadian and U.S. agreements under which India got CIRUS exclude “use” for any military purpose. If CIRUS is used to make plutonium cores for the Breeder, and those cores are used to breed plutonium for a weapon, then CIRUS will in fact have been “used” for a military purpose. There is a direct causal chain. Without CIRUS, there would be no weapon, regardless of whether one made a weapon from CIRUS’s product directly or by using the product in additional manufacturing.

An example may make this clearer. If the United States supplied a country with a valuable organism for biological research in which the organism would be used to create others, both the first generation of other organisms created and the subsequent ones would have been created by the “use” of that organism. At the time of the CIRUS agreement, it seemed clear that the peaceful use guarantee would reach all generations of fissile material CIRUS would make. The guarantee would not have much meaning otherwise. In ordinary understanding, peaceful use means that CIRUS will not be used in a weapons-manufacturing process, regardless of whether CIRUS is one or two steps away from the final product. The Breeder just started, and will make slightly more plutonium than it uses.

What, then, does one conclude about the Madras reactors, Dhruva and the Breeder? First, they all give India, for the first time, nuclear weapon material — plutonium — that India says is unrestricted. As a result, they destabilize South Asia and directly threaten Pakistan. Second, it is very doubtful whether this material is really unrestricted. India’s great shortage of unsafeguarded heavy water means that India owes some explanations to its suppliers. If India refuses to place the Madras and Dhruva plutonium under safeguards, India should explain where it got the heavy water to run those reactors. Third, the plutonium bred by the Breeder will be made, at least for several years, by using plutonium from the CIRUS reactor. It thus falls squarely within the guarantee that neither CIRUS nor its heavy water will be “used” for any military purpose.

In sum, India owes more duties to its nuclear suppliers than it admits. And the duties, in the aggregate, are enough to pull its program back to peaceful use. But the duties will have to be enforced.

 

THE TARAPUR REACTORS

Extracting Tarapur Plutonium

Two of the thorniest problems that India has with the United States concern the Tarapur reactors. The first, which was mentioned above, is the dispute over what happens in 1993. The second is India’s claim that it can extract Tarapur’s plutonium. India says that it has the right to do so now. The United States says that India has no such right without U.S. consent. Extraction — called reprocessing — now would give India about 1,300 kilograms of plutonium, enough for 160 bombs.

Under the Tarapur agreement, India cannot extract plutonium unless the United States finds that safeguards can be “effectively applied” to the extraction plant. India says that this finding is no longer necessary, because of two facts. First, India, the International Atomic Energy Agency and the United States agreed in 1971 that the IAEA would administer U.S. safeguards rights in India.[16] Second, in 1980 the IAEA decided that safeguards could be applied to the extraction plant and signed an agreement with India to that effect. The plant, called PREFRE (Power Reactor Fuel Reprocessing Plant), is now extracting spent fuel from the Rajasthan reactors, and the IAEA is safeguarding (inspecting) the plutonium. India contends that if the IAEA can safeguard Rajasthan plutonium at PREFRE, the IAEA can safeguard Tarapur plutonium at PREFRE.

Is India correct? Have U.S. rights been superseded? The answer is no. According to the IAEA, safeguards are effective if they detect a diversion of nuclear material within the time needed to convert it to a bomb. Detection is “timely” if it occurs within the “conversion time” of the material being inspected.[17] The conversion time for plutonium oxide, the material coming out of PREFRE, is 1 to 3 weeks.[18]

Timely detection is not the same as timely warning. The IAEA will not warn anyone of a diversion within the conversion time; it will only detect a diversion within that time. When the IAEA finds material unaccounted for, there is a period of time for technical evaluation, a period to report it to the Director General, and a period for him to report it to the Board of Governors, who then meet and decide: (1) whether to ask the country concerned to remedy the discrepancy; (2) whether to report the discrepancy to all members of the IAEA; or (3) whether to report it to the United Nations.[19] This process will obviously take longer than 1 to 3 weeks. It has been estimated to take 6 months.[20]

Timely warning is different. Its purpose is to prevent bomb making. For warning to be timely, a diversion must be detected early enough to allow other countries to intervene in time to stop manufacture. Under U.S. law, the United States, before allowing foreign extraction of U.S.-origin plutonium, must consider whether the United States will receive “timely warning . . . of any diversion well in advance of the time at which the. . . state could transform the diverted material into a nuclear explosive device.”[21] At PREFRE, the IAEA could never warn the United States of a diversion within the 1 to 3 weeks it would take to put the plutonium into a bomb.

There is another problem at PREFRE, peculiar to plutonium extraction. The theoretical limit of accuracy in measuring the throughput of an extraction plant is plus or minus 1 percent.[22] The practical limit can be as high as 10 percent.[23] This means that 13 of Tarapur’s 1,300 kilograms of plutonium could be diverted without detection within the theoretical limits of accuracy. Within the practical limits, 130 could be diverted. The former amount could make 2 fission bombs; the latter, between 15 and 20.

Skepticism about inspection at PREFRE was confirmed in 1983. A news article in October disclosed that six kilograms of plutonium were missing.[24] According to the article, uncertainties in measuring plutonium at PREFRE were running at a level of 10 percent. Moreover, after the loss was discovered, India withheld it from IAEA officials and did not acknowledge it until the LAEA inspectors demanded details. The missing plutonium was about enough for one bomb.

The last and most telling point against extraction is that India does not need Tarapur’s plutonium for civilian purposes. The Rajasthan, Madras and CIRUS reactors will supply more than enough plutonium to fuel the Fast Breeder. The Breeder and Tarapur are the only reactors in India that could use plutonium fuel; all the others use natural uranium. Thus, the only legitimate need for Tarapur’s plutonium is to make fuel for Tarapur itself. But India has no facility for making such fuel, and even if it did, it would cost far more than the low-enriched uranium that Tarapur now uses.

For all these reasons, the United States can find that safeguards would not be effective at Tarapur. Extraction would prevent timely warning, remove the last time barrier between spent reactor fuel and weapons, and create a large plutonium stockpile having no peaceful purpose.

Perpetuity: Are There Rights After 1993?

Safeguards in “perpetuity” mean that inspection and the pledge of peaceful use continue as long as the recipient has the export. India says that all rights end in 1993, when the Tarapur agreement expires. The State Department says that perpetuity is inherent in peaceful cooperation, and that the agreement legally imposes it.

The agreement provides in Article X that it “shall remain in force for a period of thirty (30) years.” One can read this to mean that not a single provision remains in force a day longer. Safeguards, peaceful use and the U.S. right to approve extraction would all end in 1993. But one can also read Article X as only limiting the obligation to sell and buy reactor fuel. Since the agreement is silent, the issue becomes one of interpretation. Everyone agrees that, in interpreting agreements, one seeks the intention of the parties.

Did the parties intend India’s meaning? If they did, the agreement would work as follows:

(1) In 1993 the Tarapur reactors could be converted to military production.

(2) In 1993 India could use all of Tarapur’s plutonium for bombs, which would mean that the Tarapur reactors would have been military production reactors for their entire lives.

(3) After 1993, India could transfer the Tarapur plutonium, or weapons made from it, to any country or group India chose.

(4) Enriched uranium shipped during the early years of the agreement would carry safeguards for almost 30 years, but enriched uranium shipped during the later years would carry safeguards for almost no time at all. Enriched uranium shipped in 1987, loaded in the reactor in 1989, discharged in 1992 and cooled for a year in a storage pond would have formed plutonium to which no safeguards would ever apply.

(5) If India stored Tarapur’s spent fuel until 1993, the U.S. right to approve plutonium extraction would never arise.

The parties could not have intended these results. The United States does not supply fuel or reactors for military production. India could not have thought the United States was doing so. Nor does the United States allow the unrestricted retransfer of U.S.-origin plutonium to other countries or groups. India could not have believed the United States was doing that either. Under India’s interpretation, the United States would have cared about peaceful use and inspection only of fuel shipped during the first part of the supply period. Toward the end, the United States would progressively lose interest. From 1986 onward, according to India, the United States would have intended to ship uranium with the knowledge that plutonium made from it would become unrestricted as soon as it left the reactor storage pool. And finally, the United States would not care about plutonium extraction unless it happened before 1993. This view is untenable, and obviously destroys rights that the agreement meant to confer.

For the Tarapur agreement to make sense, the 30-year clause must be squared with the rest of it. The only way to do that is to interpret the clause as a limit on the fuel supply commitment. Thirty years is the expected life of the Tarapur reactors. Since the reactors can be operated only with U.S.-origin fuel, it is logical for the fuel commitment to equal the reactors’ expected lifetime. By interpreting Article X this way, one avoids defeating other rights that obviously must survive it. If the 30-year provision ended all rights, the agreement would be an option contract for weapons. The recipient country would earn the right to weapons simply by performing to the end. The parties cannot have intended that result, and since they did not, India’s position is clearly wrong.

The French Takeover

France took over the fuel supply to Tarapur in 1982. After 1980, the Nuclear Non-Proliferation Act (NNPA) banned the further export of U.S. reactor fuel to a non-nuclear weapon state that had not put all of its facilities under international inspection — inspection known as full-scope safeguards.[25] India refused. India warned the United States that a halt in the fuel supply would breach the agreement, cancel safeguards and end peaceful use. India was probably bluffing. Its legal position was weak and it would have faced even stricter controls from other suppliers.[26] But the United States got France to take over the fuel supply, and a showdown was avoided.

Under the takeover, the United States and India waived their rights to supply and receive Tarapur’s fuel, and France agreed to complete the supply schedule.[27] These were the only changes. France’s supply was “within the framework” of the Tarapur agreement, and peaceful use, safeguards and plutonium extraction controls remained, as well as India’s promise, made in 1974, to restrict Tarapur’s plutonium “exclusively to the needs . . . of the Tarapur Station.”[28] India received the first French shipment in May 1983.[29]

There are two ways to view this change. Either the United States has dropped out of the picture and France has a new contract with India, or the United States remains in the contract and has only delegated the duty to supply fuel.

The latter has clearly happened. Under the documents exchanged, the United States still controls everything required by the agreement. It controls the right to approve plutonium extraction, to maintain safeguards (through the IAEA) and to insist upon peaceful use. Moreover, if France should halt deliveries, India would look to the United States for performance. India has not released any of the U.S. duties. Thus, there is only a delegation of duty, not a new agreement. India has agreed that the United States may delegate the duty of fuel supply to France; France has agreed to assume that duty; and that is all. France has not received any of the U.S. rights, nor has France promised India anything more than the United States promised.[30]

This point has important implications. It means that if India breaches the agreement, the United States can suspend or terminate France’s performance.[31] Extracting Tarapur plutonium without consent would be such a breach, and so would failure to maintain safeguards or to keep the pledge of peaceful use. It would also be a breach for India to repudiate future duties.

The French takeover has therefore changed very little. In a sense, this result was required by the position of France. The Nuclear Suppliers’ Guidelines, to which France adheres, require safeguards in perpetuity for the export of reactor fuel to a non-nuclear weapon state.[32] If France’s supply to India had been a new commitment, it would have violated France’s pledge to abide by the Suppliers’ Guidelines unless France declared that perpetuity was inherent in the U.S.-India agreement. France avoided this problem by agreeing only to serve as delegee. Consequently, the United States still controls the agreement, including France’s performance.

The French takeover also raises questions under U.S. law. If France did not make a new commitment, and France’s performance is still the performance of the United States, the United States may be violating the Nuclear Non-Proliferation Act. Either the United States has dropped out of the agreement and is complying with the NNPA because the French have taken over the contract, or the United States has not dropped out and is circumventing the NNPA through supply by a delegee. The present position of the United States is that it retains all rights under the agreement — the French and the Indians agree with this — but is not really “exporting” the fuel. The NNPA requires full-scope safeguards “as a condition of continued United States export of . . . special nuclear material.”[33] Is a shipment by a foreign delegee of the United States from a point outside the United States an “export” if done to perform a U.S. agreement for cooperation? Is it “cooperation”? Does the NNPA intend to end “cooperation” as well as “exports”? Since exports of enriched uranium cannot be made except through cooperation,[34] it certainly seems so. Indeed, the State Department’s principal lawyer on these matters reads it this way;[35] so does the NNPA itself in section 405, which allows “cooperation” to continue during a grace period;[36] and so does the House report on the NNPA.[37]

The United States is still “cooperating” with India. This is clear. The United States stands as guarantor of France’s fuel deliveries; the United States insists that all its rights under the agreement remain in effect; the United States bases these rights upon France’s performance as delegee; and the United States has arranged for France to follow U.S. instructions on plutonium extraction, as well as other U.S. interpretations of the agreement. India’s duties run to the United States, not to France. Deliveries by France have not and could not take place without U.S. consent. In effect, the United States is continuing its agreement with India through a delegee. The State Department has said specifically that it does “not view the U.S.-India exchange as amending the U.S.-India Agreement for Cooperation or creating a ‘new’ agreement.”[38] Therefore, by cooperating with India, the United States seems to be violating the NNPA.

 

REMEDIES IN THE NUCLEAR TRADE

What can the United States and India’s other suppliers do to enforce their rights? There are two choices. They can either pursue the remedies in the nuclear trade — which are limited, and depend upon what India does — or decide that nuclear arms in South Asia are such a threat that all diplomatic levers will be used to stop them.

Acts Triggering Remedies

Three acts by India could trigger remedies: India could extract Tarapur plutonium without consent, set off another test or deploy a nuclear weapon. The first would breach the Tarapur agreement. Could India be brought before the International Court of Justice? The answer is no. The jurisdiction of the Court is by consent and there is no reason why India would consent.[39]

Could the United States take action on the Tarapur loan? The U.S. Agency for International Development (AID) lent India $ 80 million in 1963 to build the Tarapur reactors. India still owes $ 45.8 million.[40] A breach of the Tarapur agreement entitles the United States to immediate repayment.[41] If India does not pay, it defaults on all other AID loans. There is a standard clause under which failure to make a required payment on one AID loan is a default under all others to that country.[42] AID can suspend disbursements under current loans and accelerate the principal due on all past loans.[43] Suspending disbursements would cut off about $ 248 million in U.S. foreign aid to India.[44] Acceleration would affect about $ 2.4 billion of principal still outstanding.[45] India could avoid the effects on other loans by paying the $ 45.8 million due on Tarapur.

How effective would this remedy be? First, $ 248 million in current disbursements is puny compared to India’s total foreign aid. India now gets about $ 2 billion per year from all sources.[46] The $ 2.4 billion in outstanding debt is more significant. But accelerating this amount would strain bilateral relations to the limit. India would say that it had not breached the Tarapur agreement, that the Tarapur loan was not due and that the $ 2.4 billion was not due either. The United States could protest but would have to settle for its unilateral remedy of suspending disbursements. Even this would carry some risk, because the cash coming into the United States from India’s loan repayments now exceeds the cash going out to India in new disbursements. Other remedies, discussed below, would be more effective.

If India deployed a nuclear weapon, it would probably not say which plutonium it used. If the bomb were made with Rajasthan or Tarapur plutonium, IAEA safeguards and India’s pledges to just about everyone would be breached. That probably will not happen. If India used CIRUS plutonium, it would breach the peaceful use pledge to Canada for the reactor and to the United States for the heavy water. Because CIRUS plutonium is not being inspected, however, there is no way to tell the difference between it and Madras or Dhruva plutonium, which, according to India, is unrestricted.

Regardless of the plutonium used, deploying a weapon would fundamentally change U.S.-India nuclear trade relations. Under international law, it would allow the United States to suspend or terminate the Tarapur agreement. When circumstances change radically from those assumed as the basis for agreement, and make one party’s performance fundamentally different, then performance is excused unless the party assumed the risk that the change might occur. This is the doctrine of rebus sic stantibus, or “fundamental change of circumstances,” contained in Article 62 of the Vienna Convention on the Law of Treaties.[47]

It is fairly clear that if India deployed a weapon, it would be a “fundamental change of circumstances.” India would have decided to make bombs from its civilian nuclear program. After a change of this magnitude, the essential purpose of the United States — to aid India in the peaceful use of nuclear energy — could no longer be achieved. The United States could therefore suspend its performance under Article 62.

If India set off another nuclear test, India would say the device was peaceful. It would probably not say which plutonium was used. Nevertheless, another test would be a “fundamental change of circumstances” under the Vienna Convention. A test is indistinguishable from a bomb. It shows that the country has taken the road to weapons, and cannot be squared with a peaceful nuclear import program. Like deployment, it would allow the United States to suspend the Tarapur agreement and stop the fuel supply. U.S. domestic law also forbids nuclear “exports” to a non-nuclear weapon state that detonates a nuclear explosive device, “peaceful” or not.[48] If ending exports means ending cooperation, as argued above, then U.S. law would require the United States to stop the French fuel deliveries.

Perpetuity: The Heart of the Matter

India says all rights end in 1993. What this means has already been described. The Tarapur reactors would have spent their lives making unrestricted plutonium. That plutonium could be extracted without U.S. consent and transferred to anyone, or made into weapons that could be transferred to anyone. No records would be kept; no one would know when the plutonium was separated, how it was stored, whether it had been stolen or anything else about it. The United States would have set a terrible precedent.

What can the United States do? By rejecting perpetuity, India has already repudiated an obligation that it assumed under a fair reading of the Tarapur agreement. In effect, India has declared that it will not perform when the time comes. That is a present breach under established contract law.[49] Each party to a contract is entitled to assurance that the other will perform. When a party has reasonable grounds to believe that the other may not perform, it can demand assurances, and if they are not received, suspend performance.[50] The United States has the right to three assurances from India: that India will never use the Tarapur reactors or their fuel for any military purpose; that India will never extract Tarapur plutonium without U.S. consent; and that India will maintain safeguards on the Tarapur reactors and their fuel as long as either is in India.[51] India has refused repeatedly to give these assurances — which is a clear repudiation. It therefore allows the United States to suspend performance under international law.[52]

What are the risks of this remedy? India could stick to its rejection of perpetuity, which would deny that the United States was entitled to assurances or to suspend performance, and cause India to claim that the United States itself had breached. India could say that after such a breach, it was entitled to extract the plutonium, end safeguards and forget about peaceful use.

How would the United States respond? It could offer to go before the International Court. But if India refused, the parties would be at loggerheads. Each would deny the rights of the other, and India would have to give in or face an end to the fuel supply. Would France end it under such conditions? France has agreed to follow U.S. interpretations of the Tarapur agreement. It is bound to as delegee. If France continued deliveries after being asked to stop, it would amount to a new supply commitment between France and India. But under its adherence to the Nuclear Suppliers’ Guidelines, France cannot make such a commitment without requiring perpetuity.[53] Neither can any other potential supplier; they all adhere to the Guidelines. The Guidelines require that, in the event of an “illegal termination or violation of IAEA safeguards by a recipient, suppliers should consult promptly . . . [and] pending the early outcome of such consultations . . . not act in a manner that could prejudice any measure . . . adopted by other suppliers concerning . . . that recipient.”[54] Since neither France nor another supplier would be likely to “prejudice any measure” adopted by the United States, France would follow its delegor’s order and other suppliers would stay out of the fight. India’s choice would be limited: provide assurances or close Tarapur.

Should the United States force such a choice? If the Indians are truthful about what they will do in 1993, what can the United States look forward to? Six years from now, the Indians will do what they wish with U.S.-supplied plutonium. Why continue to supply until then? So India will have more? No one knows whether India will ever want Tarapur’s plutonium for bombs; even India may not know. Nonetheless, India will still have the plutonium. If the United States allows its delegee to continue deliveries, there will simply be more of it. Would the Indians close Tarapur rather than give in? Perhaps. If they did, they would probably extract and stockpile the plutonium. But that is what they say they will do anyway after 1993. Does it make a difference whether it happens now or then?

The present U.S. policy is to continue to supply and hope India will come around to the U.S. view by 1993. But what strategy does the United States have if India does not? The worst possible result would be for India to get deliveries up to 1993 and then repudiate: India will have got its way costfree, and shown the world that the United States cannot enforce its agreements. The United States must ask itself what leverage it will have when the last shipment arrives. As long as the supply continues, India can simply wait. Consequently, there appear to be only two alternatives: a showdown now or a drift to 1993. Would the showdown be better?

With a showdown, there is at least a chance that India will give in. India may find electricity from Tarapur, and good relations with the United States, more valuable than its strained reading of the agreement. When India could not operate the Rajasthan reactors without imports, it accepted safeguards in perpetuity to get Soviet heavy water. If, however, India prefers to close Tarapur now rather than accept perpetuity, how likely will India be to accept perpetuity in 1993, when the reactors will be closing anyway? As 1993 approaches, the reactors approach the end of their useful lives, and India’s cost becomes smaller and smaller. Time erodes the U.S. position.

For all these reasons, the nuclear trade remedies are limited. If a country misuses a nuclear export, one cannot do much more than halt further nuclear exports. One may have the “right” to get back what one supplied — the Tarapur agreement allows the United States to get back what it supplied if India breaches — but one cannot dismantle and retrieve a reactor. Or even, in the case of Tarapur, get back the spent fuel. There is a shortage of available shipping casks, and limits on the railroad from Tarapur to Bombay. It would take many years and great expense to bring Tarapur’s spent fuel back to the United States. Nor can one retrieve technology. The United States has trained more than one thousand Indian scientists; there is no way to make them forget what they have learned.

 

GENERAL DIPLOMATIC REMEDIES

Diplomatic remedies can touch every aspect of India’s relations with the United States. And they can touch India’s relations with other countries and international institutions. In 1984-1985, India was allowed to buy between $ 1 and $ 2 billion per year in high-technology U.S. products — two or three times as much as it was allowed to buy in 1983-1984.[55] These purchases include the technology for building computers[56] and fighter plane engines.[57] The United States is also considering India for a supercomputer,[58] whose export is sensitive militarily and a mark of high favor. All this could be stopped.

If India and Pakistan continue to do what they are doing now, the following will happen: Pakistan will be able to produce enough high-enriched uranium within the next few years for several bombs. It may perform a test, or assemble weapons quietly. It seems to have the competence to do either. Pakistan will have done this for fear of India, which, meanwhile, will have declared as unrestricted — and therefore free for weapons — the plutonium coming out of three heavy-water reactors and one fast breeder test reactor. The plutonium will be enough for a small arsenal, and will have been made either with secret imports, with heavy water diverted from safeguards, or by using the restricted CIRUS plutonium as fuel. At Tarapur, India will continue to build up a large plutonium stockpile, which it says will be free for bombs in 6 years. This is what will happen if nothing else happens. What are the implications?

First, the next Indo-Pakistani war may be fought by enemies with nuclear weapons. If it is, the world will be forced to learn whether a conventional war between nuclear-armed rivals is possible. It may not be. If it is not, and the superpowers are dragged in, things could go badly. Second, the effort to control proliferation will have been flouted by two important countries. If it cannot survive this test and begins to unravel, one can expect regional nuclear confrontations in several places. All this is worth some trouble to avoid. It still can be avoided — just barely — if the United States, Canada and the Soviet Union act decisively.

These countries can do a number of things. First, they can insist upon the broadest reasonable interpretation of India’s duties under the nuclear trade agreements. This means that India owes the United States a pledge of peaceful use and safeguards in perpetuity for Tarapur plutonium. It means that India owes the United States and Canada the peaceful use of CIRUS plutonium and any plutonium the Breeder makes from CIRUS plutonium. It means that India owes the United States, Canada and the Soviet Union a duty to safeguard and restrict to peaceful use the plutonium from Madras and Dhruva unless India can prove it made that plutonium with unsafeguarded heavy water. If India were to perform these duties, its nuclear program would resume a peaceful course. One could then hope for similar behavior from Pakistan.

If India rejects the duties, the nuclear trade remedies could be pursued. The United States could cut off Tarapur’s fuel and make the Tarapur reactors worthless to India for their remaining lives. India cannot make the fuel for Tarapur and no other supplier would sell to India after a U.S. cutoff. Canada and the Soviet Union could get their heavy water back provided that India had misused it, which Canada and the Soviets could assume to be the case if India could not explain where it got the unsafeguarded heavy water to run Madras and Dhruva. The return of Soviet and Canadian heavy water would shut down most of the reactors in India and make a shambles of its nuclear energy program. Even a halt in exports of Soviet heavy water would close some of India’s reactors. India would still have the plutonium from Tarapur, Rajasthan and CIRUS, and a small amount from Madras, but at a staggering cost. It would make the Indian bomb an astronomically expensive substitute for the Indian nuclear energy program, rather than a cheap byproduct of it.

If these costs were not enough, one could halt analogous trade. India would not get its computer technology, or its fighter plane engine technology or the supercomputer. To counter the old argument that India would be pushed into the arms of the Soviets, the Soviets would have to cooperate. They would have to cut back or stop conventional arms sales, or other transfers beneficial to India. The final step would be economic. The United States could use its influence over international lending and trade. The United States is India’s largest trading partner. The resulting costs could well be high enough to convince India that it would be weaker, rather than stronger, with the atomic bomb.

What are the chances that this will be done? They are not very great. To take effective action, the United States, Canada and the Soviet Union would have to change their way of thinking about nuclear arms proliferation. The old way — accommodation in the short term and finger crossing for the long term — has produced a nuclear arms threshold in South Asia. If the threshold is crossed, it will be because of decisions in Washington, Ottawa and Moscow.

Footnotes

[1] Woodward, Pakistan Reported Near Atoms Arms Production, Wash. Post, Nov. 4, 1986, at A1; see also L. SPECTOR, THE NEW NUCLEAR NATIONS 115-16 (1985).

[2] John Scali, interviewed on Good Morning America (ABC television broadcast, July 11, 1985), 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. M. BENEDICT, T. PIGFORD & H. LEVI, NUCLEAR CHEMICAL ENGINEERING 88 (2d ed. 1981). 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) (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 R. WOHLSTETTER, THE BUDDHA SMILES: ABSENT-MINDED PEACEFUL AID AND THE INDIAN BOMB (1977); S. BHATIA, INDIA’S NUCLEAR BOMB (1979); AND D. HART, NUCLEAR POWER IN INDIA (1983).

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

[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).

[14] Milhollin, Dateline New Delhi: India’s Nuclear Cover-up, 64 FOREIGN POL’Y 161 (1986).

[15] Id.

[16] Agreement of Jan. 27, 1971, United States-India-International Atomic Energy Agency, secs. 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.

[18] INTERNATIONAL ATOMIC ENERGY AGENCY, IAEA CONTRIBUTION TO INFEC 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.

[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 Attache, 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. W. DONNELLY & N. MILLER, TERMINATION OF U.S. NUCLEAR COOPERATION WITH INDIA (Cong. Research Serv. Issue Brief No. 81,087, 1983); 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), 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 Richard L. Ottinger, U.S. House of Representatives (Jan. 27, 1983).

[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 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 58-59 (H. Lauterpacht 7th ed. 1952). 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.

 

Gary Milhollin is Professor of Law, University of Wisconsin Law School.

Israel’s Answer a Fabrication

By Gary Milhollin

Arbeiderbladet
May 11, 1987

In 1965, Kirk Douglas led a group of courageous Norwegians across the silver screen to Telemark. Their objective? Norwegian heavy water. They would — and did — stop the Nazis from using it to make atomic bombs.

In 1987, a second group of courageous Norwegians — this time political leaders — must stop Israel from succeeding where the Nazis failed.

Israel imported twenty tonnes of Norwegian heavy water in 1959, pledging peaceful use and on-site inspection. This past March, Norway finally requested inspection after repeated reports that Israel was making atomic bombs. A week or so ago, Israel turned Norway down. Israel said it was too difficult to distinguish Norway’s heavy water from other heavy water it had imported, and thus Norway’s water couldn’t be tracked. Israel refused to say who the other exporters were.

Israel has thus set a precedent. It has become the first country in history to break the inspection pledge on a nuclear import.

Now, Norway must decide what to do. It should keep the following facts in mind:

  1. Heavy water in tonne quantities is used only in reactors. There is only one reactor in Israel that uses heavy water, the one at Dimona. It was built secretly by France in the late 1950s and started in 1963. It is Israel’s only source of plutonium, a nuclear weapon material. The CIA says Israel has been building atomic bombs with plutonium since 1968.
  2. In 1963 when Dimona started, there were only two sources of heavy water in the world: the United States and Norway. France and Canada planned to produce heavy water, but French production did not begin until 1968, and Canada was a heavy water importer until the late 1970s. Israel produced heavy water only in laboratory quantities. Therefore, it was physically impossible to start Dimona without U.S. or Norwegian heavy water.
  3. Israel imported four tonnes of U.S. heavy water in 1963, under inspection. It has imported none since. This was not enough to start Dimona, which required at least eighteen tonnes. Therefore, most of Dimona’s water had to be Norwegian.
  4. France and Canada were the only other possessors of heavy water in the early 1960s. But France had imported all its heavy water from Norway and the United States. France had pledged to restrict it to peaceful use and not to reexport it without permission. Therefore, even if Israel got a secret shipment from France before Dimona started, the water would have been illegally diverted from Norwegian or U.S. stocks, giving Israel no right to use it. A diversion from U.S. stocks would have violated Euratom inspection, and no such violation has been reported. A diversion from Norwegian stocks would not have been detected because Norway’s stocks were not under inspection.
  5. Canada has never exported any heavy water to Israel.
  6. By 1968, when France began to make its own heavy water, France required inspection of all its nuclear exports. There is no French heavy water under inspection in Israel. Thus, France never sent Israel any French heavy water.
  7. Therefore all the heavy water Israel has ever imported has come from Norway except the four tonnes from the United States. This means that there is no factual basis for Israel’s claim that it received heavy water from diverse sources, or that it cannot identify Norway’s heavy water.
  8. When heavy water is irradiated in a reactor, tritium is formed in it. The tritium cannot be totally removed. Thus, it is possible to determine with certainty whether Norway’s heavy water has been in a reactor.
  9. If Norway’s water has been in a reactor — which could only be Dimona — Norway has the right to inspect any plutonium the reactor makes to insure that it has not been put into bombs. This right was given by the 1959 agreement.
  10. Reactors such as Dimona only lose about .5% of their heavy water each year. This means that if Norway’s water went into Dimona — which is inevitable — about eighty percent of it is still there after twenty four years of operation.

What do these facts show? At least, they show Israel’s response for what it is: a fabrication. Israel knows precisely how much heavy water it got from Norway, where the heavy water is, and what has been done with it. Israel also knows what it did with the heavy water it got from the United States. Israel’s refusal to account for what happened to the water has no basis. It is a clear breach of the 1959 agreement and entitles Norway to remedies.

The agreement says explicitly that Norway can get its heavy water back if Israel refuses inspection. Retrieving heavy water is simple — it is shipped in barrels. Its loss to Israel would probably shut down the Dimona reactor, the key to Israel’s nuclear weapon program.

Should Norway demand its water back? If it doesn’t, it must watch helplessly while Israel uses it to make atomic bombs. If it does, it will take a stand that other suppliers must support. The entire world nuclear trade is based on the assumption that importers will not break the inspection pledge. If countries could import nuclear materials under the pledge, and then break it, the nuclear supplier countries would simply be selling bomb factories. Not even the United States could endorse such a breach. If Norway wanted to, it could embarrass Israel and isolate it diplomatically.

A courageous stand by Norway could have very great effects. By its example, it could cause other suppliers to keep a closer eye on their recipients. It might even start the world thinking that there should be fewer countries with nuclear weapons, instead of more. If Norway could achieve that, the heroes of Telemark would be proud.

Gary Milhollin is Professor of Law, University of Wisconsin Law School.

UW Nuke-watcher’s Office Is the World

By George Hesselberg

Wisconsin State Journal
March 15, 1987, p. 1.

Gary Milhollin is a nuclear warrior in a wrinkled trenchcoat.

He has carried his briefcase to Three Mile Island, where he was an administrative law judge on a three-person Nuclear Regulatory Commission panel deciding the future of the nuclear reactor there. He officially concluded management was inept.

His nuclear blasts have reverberated worldwide and have come in the form of carefully researched charges that the spread of nuclear weapons is out of control despite international regulations.

The wrinkled trenchcoat comes from being stuffed in overhead compartments during regular trips between Washington, D.C., and Madison, where he has been a professor at the UW-Madison Law School since 1976. He splits his time evenly between the two places. His wife, son and daughter live near Washington.

During the past 18 months, while he has been on leave from the university, Milhollin has been a busy man.

As recently as last month, Milhollin helped persuade the government of Norway to use, for the first time since 1961, its rights to inspect heavy water sold to Israel nearly 30 years ago.

Heavy water, or deuterium oxide, is a rare isotope of water needed in making the fission trigger to an atomic bomb.

The inspection, which a Norwegian Foreign Ministry official last week said would be requested “very shortly” of the International Atomic Energy Agency, would decide if Israel is following an agreement to use Norwegian heavy water only for peaceful purposes.

If it isn’t, “Norway and the United States have every right to demand the materials back,” says Milhollin.

Milhollin’s research also contributed to the international furor following reports in the Sunday Times of London provided by an Israeli nuclear technician, Mordechai Vanunu, that Israel has already made at least 100 nuclear weapons.

Last fall Milhollin sent nuclear-industry establishments in China and India into an uproar over his charges in an influential publication that India, possibly using heavy water from China, is evading international nuclear controls to increase its nuclear weapons-building capabilities.

For Milhollin, the topic of the spread of nuclear weapons has become nearly all-consuming in the past 18 months.

His reports and comments have been featured in the respected Foreign Policy Quarterly and have made headlines worldwide, from the Times of India to Aftenposten in Norway and Nucleonics Week.

What has gotten Milhollin attention from New Delhi to Oslo, Washington to Paris, is apparently not only what he says but how he backs it up. He has credibility borne of experience, education and research.

“His work is always first-rate,” said Doug Waller, who keeps track of nuclear-weapons issues as a legislative aide to U.S. Sen. William Proxmire, D-Wis.

Milhollin says he is not “another shrill voice at the rallies,” nor does he wear his politics on a lapel button. In fact, he says he is pro-nuclear energy.

He is an Indiana native with a degree in mechanical engineering from Purdue University, so, when he talks about nuclear reactors, he has technical expertise.

He has been a visiting professor at the Woodrow Wilson School of Public and International Affairs at Princeton University and, since January 1976, has been a professor at UW-Madison, teaching about contracts, conflict of laws and nuclear arms proliferation.

He has worked since 1975 as a consultant to the United States Nuclear Regulatory Commission as administrative judge, one of three members of an Atomic Safety and Licensing Board Panel. One of the people to be convinced a license to start a nuclear reactor is necessary is Milhollin.

“It helps,” he says, “if you know a little about technology.”

Milhollin, 48, is well traveled, an avid fisherman and tennis player, fluent in French, and worked for a Wall Street law firm for two years- one year in the firm’s office in Paris, where he met his wife.

The combination of experience and his current position makes him a reliable source on nuclear-arms proliferation for specialist reporters from the Times, the Washington Post and the Wall Street Journal.

“I wandered into this arena partly by chance,” he said between bites of a catfish lunch at the University Club last week.

“It is a way to use my technical and legal background for publicly useful work” he said.

His nuclear “awakening” came just after he served as judge for hearings on the restart of the Three Mile Island nuclear reactor, he said.

“I concluded that the contribution of nuclear power in energy seemed to be on the decline, but the contribution of nuclear power to weapons seemed to be on the increase. I decided to spend my available time working on the weapons side.”

He has concluded that “we have dangerously exaggerated our ability to control nuclear weapons,” he said.

Milhollin’s strategy has been to get the facts, educate the public, get the attention of all concerned then demand that something-and he has been specific about what that something is-be done.

His research has propelled him into a bookwriting project, which he hopes to finish in six months, that is part textbook, part detective non-fiction.

“It shows how the bomb could be slowed or even stopped, if the developed countries used their diplomatic powers and their power over the nuclear trade,” he said, citing the Norwegian inspection example.

As for the detective work, Milhollin turned nuclear gumshoe, using government records and trade publication accounts to track nuclear exports all over the world. That is how he came up with the 20 metric tons of heavy water sold by Norway to Israel in 1959 (the United States later chipped in with four more metric tons, first revealed by Milhollin) and how he discovered that Norway, in a secret agreement, retained the right of inspection over that material to make sure it was used only for peaceful purposes.

That is also how he came up with the statistics to show that India is somehow in possession of far more heavy water than it had the capacity to use, or make alone, leading to the conclusion that India either diverted nuclear material from international inspection or imported it secretly from China.

These statistics and agreements are important, said Milhollin, because some of the unstable relatives in the world’s nuclear family are getting their hands on the triggers of nuclear bombs.

The responses from authorities in India and Israel have ranged from “baseless” to “absurd.” Israel, in fact, still formally denies it has nuclear weapons, a claim which had been contradicted by United States intelligence for 20 years. The responses have also included revelations about India’s purchase of (strictly regulated) heavy water from the Soviet Union.

“These responses are frustrating, but they also indicate that the countries are not really afraid of the United States,” said Milhollin.

“It is important that our State Department never contradicted me on the facts. They know I’m correct. If I were not, they would quickly say so, just to accommodate India” said Milhollin.

The “institutional memory” of the nuclear export business is weak, he says. No one remembers “who has received what, under what controls.”

“The Norwegian public did not know of the controls (over Israel’s use of the imported heavy water), and our State Department didn’t know, either, even though making bombs is about as flagrant a violation of the peaceful-use agreement as you are going to find,” he said.

Because both Norway and Israel are allies of the United States, this country is in a position to pressure both those countries to follow the rules, said Milhollin.

So what?

“The whole nuclear export system is based on the notion that buyers will follow peaceful-use restrictions. If this case is what we already know it is, then the whole nuclear export business, including those restrictions, is a fraud,” he said.

Milhollin points to the contradiction in United States’ policy, which is, he said, to retain current alliances, do little about proliferation, and accept additional risks.

So, “the United States is spending billions to control its own arsenal while Israel and Pakistan build arsenals over which there is no control at all.”

It is not so odd, he said, that the Soviet Union is wearing a white hat when it comes to control over nuclear exports.

“They have been very strict, probably because their commercial interests came along later, and because they were less confident of being able to control other countries through simple promises,” said Milhollin.

“We are lucky they have been so strict. Imagine if the Soviets gave to Cuba what the Norwegians and the United States and France gave to Israel.”

Milhollin’s own support comes from small grants from four foundations, the Rockefeller Brothers Fund, the Ploughshares Fund, the W. Alton Jones Foundation, and the Winston Foundation.

For that, he gets an office and the part-time use of a secretary with the Natural Resources Defense Council in Washington D.C. His office is called the Wisconsin Project on Nuclear Arms Control, of which he is the director, staff and membership.

He has been on leave for the past 18 months but is now back teaching.

“I am only one person,” he said.

“I am personally trying to make sure this is not swept under the rug. I am doing the original research, I am trying to bring pressure on governments to react. I’m trying to raise money, I’m teaching and I’m trying to finish this book,” he said.

He shies away from anti-nuclear weapon causes, groups and rallies, he said.

“I wouldn’t feel comfortable and I’m not necessarily anti-nuclear,” he said.

“I just think nuclear power can be used in a safe way that doesn’t include the bomb.”

Who Controls the Israeli Bomb?

By Gary Milhollin

Arbeider Bladet (Oslo)
January 21, 1987

The results are now as official as they can get: Israel has the bomb. The revelations of an Israeli arms technician, and a string of U.S. intelligence reports, have established the fact beyond much doubt. The technician’s sixty photographs and other evidence show the unmistakable details of an advanced nuclear weapon program. The CIA began reporting nuclear weapons in Israel in 1968, and has consistently reported them since.

But there is a second fact about Israel’s bomb that few people know, yet it is almost as important as the bomb itself. It is that Norway has the right — and also the obligation — to control it.

Israel’s arsenal is based upon plutonium, and Israel’s only source of plutonium is the Dimona reactor, secretly built by France in the Negev Desert during the early 1960s. To achieve a chain reaction, the reactor requires a substance known as “heavy water.” Israel imported twenty tonnes of it from Norway, and four from the United States, before the reactor started up in 1963. Israel was forced to make the imports because the United States and Norway were the only suppliers of heavy water in the world until the mid-1970s.

It is clear that the Norwegian water went into the Dimona reactor. There was no other source for Dimona’s heavy water at the time, and Dimona was the only facility in Israel that used heavy water in quantities greater than a tonne. Israel itself had the ability to make heavy water on a laboratory scale, but nothing approaching the quantities needed for Dimona. Norway’s twenty tonnes supplied almost all of Dimona’s original heavy water inventory, and is the major part of that inventory today.

In 1979, and again recently, Norway’s Foreign Ministry has said specifically that any Israeli plutonium made from Norway’s heavy water is covered by inspection rights and a pledge of peaceful use. These rights were granted to Norway in the original export agreement. This means, inevitably, that Norway has the right to an accounting — to look at what its heavy water has produced. An inspection would no doubt show that the heavy water has been in Dimona, producing Israel’s stockpile of plutonium. It would also show that the plutonium forms the heart of Israel’s nuclear arsenal. Norway can ask for an inspection simply by picking up the telephone.

Norway adheres to the Nonproliferation Treaty and the Nuclear Supplier Guidelines. These are the main barriers to the spread of nuclear arms, and are founded upon the guarantee of peaceful use. The accords obviously mean little if countries such as Norway do not enforce them. To preserve the accords, as well as its self respect, Norway must enforce its rights in Israel. If Norway’s heavy water has been used to make bombs, as it now appears, Norway should require them to be dismantled and the accords to be respected.

What is the true purpose of the Israeli bomb? Will Israel, it back to the sea and its existence at stake, be saved by nuclear deterrence? Unfortunately, Israel’s bombs, like those of the United States, cannot be used without involving the Soviet Union. The Soviets would inevitably come to the aid of Syria or another Arab state threatened with nuclear weapons. Soviet support would have little credibility otherwise. This means that the United States would then have to come to Israel’s aid, since Israel could not confront the Soviets alone. This would draw in U.S. allies, including Norway, and place all Europe at risk. Israel’s possession of these weapons also forces the Arab states to get them. It is probably only a matter of time until they do. Everyone’s security is reduced by the situation.

It is both decent and reasonable to ask Israel to keep its promises. What is not decent and reasonable is to pretend that nothing is happening. Israel is, so far as the experts can tell, the first country in the world to break the peaceful use pledge, and Norway is the first victim — the first country to have its peaceful nuclear exports converted into bombs. It is hard to see why Norway should accept such a humiliation, or set such a dangerous precedent.

Gary Milhollin is a professor at the University of Wisconsin Law School.

Dateline New Delhi: India’s Nuclear Cover-Up

By Gary Milhollin

Foreign Policy
Fall, 1986, p. 161-175

In 1974, India became the first and only country in the world to explode an atomic bomb made from materials imported for peaceful nuclear purposes. India made the bomb with plutonium extracted from spent reactor fuel. Canada supplied the reactor and the United States provided the heavy water needed to run the reactor. India had promised to use the reactor and the heavy water for peaceful purposes only; thus it insisted on calling its bomb a peaceful nuclear device.

Heavy water was essential to the Indian bomb then; it is just as essential now. It is an ingredient that most of the country’s reactors—and all of its newest reactors—need to operate. India’s chances of becoming a genuine nuclear weapons state and of operating a successful nuclear power program depend upon an adequate and steady supply of heavy water.

A close study of India’s heavy water inventories reveals a large gap between this supply and India’s demand. This gap leads to one of two conclusions. Either India is illegally diverting heavy water from international safe-guards, or India has received a secret import—probably from China. New Delhi could also be pursuing both courses. India is using this illegally or secretly acquired water to run three new reactors outside international inspection.

These three new nuclear reactors will in-crease dramatically India’s nuclear-weaponsbuilding capability. Up to now, India has accumulated only small amounts of plutonium—enough for between 5 and 10 bombs but this material is restricted to peaceful use by Indian pledges to nuclear supplier countries. The new reactors, however, may pro-duce enough plutonium for 15 bombs per year, and the plutonium will not be restricted to peaceful use.

India has either secretly imported heavy water from China or diverted it illegally from international inspection to run its new nuclear facilities.

Both India and China have denied the contention that India covertly imported unsafeguarded heavy water from China, and India has denied any diversion from safe-guards. Yet despite invitations to do so, neither country has provided any information to support its denial. Neither country has signed the 1968 Treaty on the Non-Proliferation of Nuclear Weapons or agreed to adhere to the export control guidelines of the Nuclear Sup-pliers Group. Thus neither was breaking any international obligations by secretly trafficking in heavy water. Both, however, are members of the International Atomic Energy Agency (IAEA). The agency’s central purpose is the safeguarding of all important nuclear exports. China, moreover, has now specifically pledged to the United States that it will not use its nuclear exports to help other countries develop nuclear weapons. Both India and China will continue to need nuclear imports for their civilian programs, and both wish to import other high technology from the West. Until these large discrepancies in India’s heavy water balances are explained, nuclear supplier states should reconsider not only nuclear trade with India and China, but also any sensitive high-technology commerce with these countries.

India has manufactured its own heavy water since 1962, and though it can do what it pleases with the domestic product, India has never come close to meeting its needs. The country has been forced to import heavy water and to promise that all plutonium made by reactors using this water will be restricted to peaceful purposes.

Heavy water, scientifically known as deuterium oxide, is found in minute concentrations in ordinary water. To produce it, one must separate it physically from ordinary water in an expensive process that uses large amounts of energy. Its main advantage is that it allows a country to run reactors on natural uranium, which is widely available, rather than .on enriched uranium fuel, and thereby avoids the peaceful-use and safeguard restrictions that suppliers of enriched uranium require.

India’s disturbing shortages exist because domestic production has been very low, need has been high, and publicly acknowledged imports have been inadequate to make up the difference. In fact, an examination of India’s production, need, and imports reveals a gap of 68 metric tons (t) of unsafeguarded heavy water in 1983 and 293t in 1985. India in effect has been running reactors on water it does not admit having.

Domestic Production. India’s domestic production is the first factor in the heavy water equation. India produces heavy water at four principal facilities: Nangal, Baroda, Tuticorin, and Kota. Minute quantities may have been produced at a fifth plant called Talcher. Overwhelming operating problems and de-sign flaws have prevented these plants from producing more than a small part of their capacities. In testimony to the Indian Parliament in spring 1986, Shri Srinivasan, chief executive of Heavy Water Projects of India’s Department of Atomic Energy, reported that all domestic heavy water facilities have operated far below capacity and expectations. Despite a total annual production capacity of more than 300 metric tons (a unit of weight roughly 10 per cent more than a U.S. short ton of 2,000 pounds), the public record reveals that India never produced more than 50t of heavy water annually until fiscal year 1984–85, the last year for which figures are available. (India’s fiscal year runs from April to April.)

The Nangal plant has been India’s best producer. The Times of India science reporter Praful Bidwai reported on May 9, 1984, that Nangal has steadily produced between 10t and 12t of heavy water annually. However, according to the February 18, 1982, issue of Nucleonics Week, Nangal produced only 9t in fiscal year 1979—80. Production must have been at about this rate in fiscal year 1980—81 as well, because the plant was closed for at least 3 months.[1]

A wide range of authoritative sources con-firms low output for the three other plants. The biweekly Nuclear Fuel, on June 3, 1985, quoted Raja Ramanna, the chairman of the Indian atomic energy commission, as saying that a combined production of 80t at the Baroda and Tuticorin plants would be “approaching the maximum feasible capacity.”[2] This issue of Nuclear Fuel also cites the Indian government as acknowledging production of 7t at Tuticorin in 1979. Bidwai pegs Tuticorin’s annual production at 14t and 15t in fiscal years 1980—81 and 1981—82, respectively. For fiscal year 1983—84 he reports production at about 30 per cent of capacity, which would yield roughly 23t. In January 1983, the Hindu, a Madras daily, claimed that total production at Tuticorin for 1980 through mid-1982 was even lower. And Chemical Weekly’s August 9, 1983, issue cited a fiscal year 1982—83 figure of only 4t.

Baroda began producing heavy water in 1981, and the private Nuclear Assurance Corporation, which collects production data from nuclear facility operators around the world, reported an output of 12t for that year. Chemical Weekly, in the aforementioned issue, reported Baroda’s fiscal year 1982—83 output at 5t, and the Times of India, on May 8, 1984, reported a 13.6t figure for fiscal year 1983-84.

Precise production figures for fiscal year 1984—85 are not available for either Tuticorin or Baroda. Those in Table 1 are generous estimates that double production at both facilities from the previous year, to a total of 74t in both 1984 and 1985. As previously noted, Ramanna has stated that such levels for both plants would be “approaching the maximum feasible capacity.” Finally, Bidwai reports heavy water production of 5.2t at Kota in fiscal year 1983–84, according to the Times of India of May 7, 1984.

Heavy Water Demand. The second factor in the heavy water equation is demand. India’s demand for heavy water can be documented just as precisely as its production. The country currently operates two research reactors, Cirus and Dhruva, two nuclear power plants in the northwestern desert province of Rajasthan (RAPP-I and RAPP-II), and two near the southern port of Madras (MAPP-I and MAPP-II). All require heavy water, but only the two RAPP reactors are subject to IAEA inspection.

According to official U.S. export records, the Cirus research reactor required 19t of heavy water when it started up in 1960. Its annual losses are probably negligible: The Cirus design anticipates a loss rate of only .3 per cent annually, or t during its first 20 years of operation.[3]

RAPP-I started up in 1972 with an inventory of 216t of heavy water. Following pressurization in 1972, the reactor lost 11.4t of heavy water, raising the facility’s total need in that year to more than 227t. David Hart, then of Imperial College of London, reported in the 1983 book Nuclear Power in India: A Comparative Analysis that the heavy water losses at RAPP-I between 1977 and 1981 totaled 100t. The figures in Table 1 are based on the assumption that no losses took place in 1982 or 1983, when the reactor was shut down. The figures are. also based on the assumption that RAPP-I lost 5t of heavy water in fiscal year 1984–85, when the reactor operated for roughly one-fourth of the year, and 6t in fiscal year 1985–86, when the reactor operated for roughly 4 months. RAPP-II’s beginning inventory was probably the same as RAPP-I’s, but the figures in the table are based on the assumption of smaller loss rates—16t annually—because of likely improvements in design.

MAPP-I’s requirement of 250t of heavy water for its 1983 start-up comes from statements by Indian Minister of State for Science and Technology C. P. N. Singh that appeared in the Hindu on July 29, 1982. He estimated losses of 10t–15t of heavy water annually for the plant.

MAPP-II, which is identical to MAPP-I, also required 250t of heavy water when it began operating in 1985.

Dhruva, India’s newest research reactor, required 78t of heavy water for start-up in 1985, reported Nuclear Europe in September 1985. And its annual loss rates are assumed to be similar to those of Cirus. Although Dhruva has not operated for most of 1986, its heavy water was still required for start-up at a time when MAPP-II was already operating.

Heavy Water Imports. Imports are the final factor in India’s heavy water equation. India’s first import came from the United States, which supplied 19t in 1960 to start up Cirus. To start RAPP-I in 1972, India imported 120t of U.S. water through Canada and 80t from the Soviet Union. It is not clear whether the 80t sent by the Kremlin were provided subject to safeguards, but for the purposes of the table they are considered unsafeguarded to give India the benefit of the doubt. These 80t may be subject to a peaceful-use guarantee imposed retroactively when Moscow began to supply the heavy water for RAPP-II in 1976. To keep RAPP-I running and to start RAPP-II, the Soviets agreed to provide 456t from 1976 to 1985. The Soviet import figures are reported by William C. Potter of the Rand/UCLA Center for the Study of Soviet International Behavior.[4] These figures were confirmed by the late Indian Prime Minister Indira Gandhi in March 1983, when she told the Indian Parliament that the country’s heavy water imports had reached 547.6t. This figure includes the 19t from the United States in 1960, the 120t from the United States through Canada in 1962, the 80t from the Soviets in 1972, the 200t from Moscow between 1976 and 1979, and the roughly 12t from the Soviet Union between 1980 and 1982. The remaining 135t were probably imported from the Soviet Union between 1983 and 1985.

Uncertainties. These are the factors in the equation. They show that in 1985 India faced enormous heavy water shortfalls—157t in its overall supply and 293t in its unsafeguarded supply. Can the shortfalls be explained by errors in the table‘s estimates? How far off can the estimates be? First, the actual start-up inventories of MAPP-I and MAPP-II could each have been 240t instead of 250t. The number 240 has been mentioned occasionally. This figure would reduce the total need by 20t. Second, the loss rates could be slightly lower than those shown in the table. How-ever, the only loss figures not based upon Indian government or other actual published reports are the estimated annual 5t and 6t losses in fiscal year 1984-85 and fiscal year 1985-86 for RAPP-I and the estimated annual losses for RAPP-II and MAPP-I. The sum of these loss estimates is 80t. If, by extraordinary good fortune, India had reduced these losses by one-half—unlikely in view of the record—the figures in the table would overestimate the actual loss by 40t. Thus the maximum credible error in the table is roughly 60t, consisting of a possible overestimation of need by 20t and a possible overestimation of loss by 40t. This error cannot explain the 157t and 293t short-ages in 1985. Moreover, an overestimation of the heavy water loss by 40t would overestimate the unsafeguarded loss by only 8t, since the heavy water inventory from which the loss occurred was about 80 per cent safeguarded and 20 per cent unsafeguarded.

How Did India Do It?

India’s supply of heavy water kept up with its need until 1983. But in that year India decided to start MAPP-I without safeguards. Consequently, MAPP-I’s output of plutonium would not be monitored by international inspection and would be available for atomic bombs. This decision also required India to supply MAPP-I’s heavy water itself, presumably from unsafeguarded domestic production.

Yet India’s domestic production and re-serves in 1983 were insufficient to start MAPPI and still run the other operating reactors. In fact, India was 68t short. Its reserve—the heavy water remaining after meeting the needs of the on-line reactors—did contain 73t of heavy water. But that water was safeguarded and could not legally be put into unsafe-guarded MAPP-L So in 1983, India began for the first time to run more reactors than its supply of heavy water appeared to make legally possible.

In August 1985, India started MAPP-II and Dhruva without safeguards. By now, the country’s total public heavy water shortage stood at 157t. India was running four power reactors with only enough heavy water in the public records to run three. And because MAPP-II and Dhruva were started without safeguards, none of their heavy water could legally come from safeguarded imports. Therefore, the 136t of safeguarded reserve in 1985 were not legally available to MAPP-II and Dhruva, and the public shortage of unsafe-guarded heavy water was more than 290t—about one and one-half reactors’ worth.

These shortages mean that India cannot be running its nuclear power program honestly. The data show that India must be increasing its total supply of heavy water by some secret means, and must also be increasing its supply of unsafeguarded heavy water, probably by the same means. There are only two ways to do this: transfer heavy water from another Indian reactor or import the water secretly.

To bring MAPP-I to full power at the end of 1983, India needed 68t of unsafeguarded heavy water. Heavy water reactors need a full inventory of heavy water to operate, so heavy water could be shifted from another reactor only if that reactor were shut down. RAPP-II was operating in 1983, but RAPP-I was not.

RAPP-I had operated until March 1982, when it was shut down because of leaks. It did not start operating again until January 1985. RAPP-I, therefore, could have been drained to start MAPP-I in 1983. When RAPP-I closed, there was reactor-grade heavy water in its cooling and moderating systems and “degraded” heavy water collected from its leaks. Heavy water is called degraded when it leaks out of a reactor and mixes with ordinary water from the air. All of that heavy water was sitting idle and could have been shifted to MAPP-I. The portion that had leaked out could have been shifted after a process of upgrading, which means reconcentrating the heavy water by removing the ordinary water mixed with it, or the portion from the reactor could have been shifted directly at reactor grade.

India has done a great deal of upgrading. According to Hart, in Nuclear Power in India, from 1974 to 1976 the Indian government collected and upgraded at RAPP-I 60t to 70t of degraded heavy water each year. Bidwai re-ported in the Times of India on July 27, 1983, that India transferred about 100t of degraded heavy water from Rajasthan (RAPP-I) to Madras (MAPP-I) during the 2 years before MAPPI’s start-up. And according to Indira Gandhi, MAPP-I was started up by using 140t of upgraded heavy water.[5]

These statements all show that at least part of MAPP-I’s start-up inventory came from RAPP-I and that the shift occurred after upgrading. It is unclear how much heavy water was involved. If Gandhi’s figure of 140t is accurate, India would have had to remove about 60 per cent of RAPP-I’s inventory and all of RAPP-I’s unsafeguarded heavy water.

The amount of unsafeguarded heavy water in RAPP-I at any particular time depends upon how losses are replenished. Fifty-five per cent of RAPP-I’s original 216t inventory consisted of 120t of safeguarded water exported from the United States through Canada. Therefore, it is logical to assume that 55 per cent of RAPP-I’s yearly loss would be of safeguarded heavy water. As the table shows, RAPP-I lost a total of 176t during the 9 years from 1973 to 1982. Fifty-five per cent of this quantity equals about 100t. This 100t loss reduced the 120t under safeguards in the original inventory to 20t. Yet from 1980 through 1982, India added 46t of safeguarded Soviet heavy water to RAPP-I to make up for annual losses. This addition increased the safeguarded inventory to a total of 66t. Thus there were 66t of safeguarded heavy water and 150t of unsafeguarded heavy water in RAPP-I when it was shut down in 1982. India had to use the rest of the safeguarded Soviet imports received through 1982 in RAPP-II, the only other safeguarded reactor. Thus all the heavy water in RAPP-II is safeguarded.

The alternative to upgrading was simply to shift reactor-grade heavy water directly from RAPP-I to MAPP-I. Based on the previously cited requirement for MAPP-I, previously cited loss estimates for RAPP-II, and India’s domestic production, India needed 68t of unsafeguarded heavy water to start up MAPPI legally in 1983. RAPP-I contained 150t of unsafeguarded water, making that transfer both possible and legal.

Whether India shifted heavy water from RAPP-I to MAPP-I after upgrading, or transferred it directly, RAPP-I’s heavy water inventory would have been cut. If India had shifted only the 68t of unsafeguarded heavy water that MAPP-I needed, RAPP-I would have been left about 70 per cent full. If India had shifted 140t, as Gandhi said, the effect would have been to leave RAPP-I 65 per cent empty—unlikely in light of the fact that RAPP-I began operating again in January 1985.

At the beginning of 1985, India’s reserve surplus stood at some 103t. With this quantity India could have started MAPP-I in 1983 by draining RAPP-I, and operated MAPP-I through 1984 with the RAPP-I water. Then, in 1984, India could have shipped other water—produced in the interim—back to RAPP-I and restarted it with a full heavy water inventory in January 1985. This means that RAPP-I could have been the sole source of the extra heavy water needed to start MAPP-I in 1983.

In 1985, India started Dhruva and MAPP-II without safeguards. Its apparent shortage of heavy water was vast—some 157t. Its apparent unsafeguarded shortage was even larger — some 293t. Where did the heavy water to start Dhruva and MAPP-II come from? Could RAPP-I have been drained again?

After RAPP-I started up in January 1985, it stopped operating in early summer and remained shut down through the end of 1985. Therefore, its water was in theory available be drained out again—between its shut-down in early summer and the time Dhruva and MAPP-II went critical in August. Yet this means that India planned to bring to criticality two reactors for which it had no water until shortly before they were due to go critical; produced that water by taking off the country’s power grid another reactor that had just started up in another part of India; and transported large amounts of heavy water almost overnight. This scenario seems far-fetched.

In fact, MAPP-II and Dhruva could not have started solely on heavy water from RAPP-I. First, RAPP-I did not have enough heavy water. After RAPP-I shut down in early summer 1985, the residual decay heat from its core still had to be removed continuously by the heavy water in its cooling system. According to the reactor’s specifications, that system required about 70t. The rest of the inventory, about 145t, acted only to moderate the reaction and would have been available for transfer. But these 145t are still some 150t shy of covering India’s 293t shortage.

Second, by 1985, only 140t of RAPP-I’s heavy water were unsafeguarded and legally available for MAPP-II and Dhruva. This 140t is calculated by starting with the 66t of safeguarded heavy water RAPP-I contained when it shut down in 1983, and adding 11t of safeguarded make-up water for its operation during calendar year 1985. This makes a total of 77t under safeguards. The balance of the 216t inventory, which is roughly 140t, was unsafeguarded. Using those 140t would also still leave India some 150t shy of covering its 293t shortage. Thus there is no way India could have covered the shortage in 1985 solely with water from RAPP-I. India was 150t short even after draining all heavy water out of RAPP-I that was legally and physically available.

If RAPP-I’s water was insufficient, what were the other possible sources? RAPP-II, MAPP-II, and Cirus were all running in 1985, making their heavy water unavailable. The only heavy water left in India in 1985 was the 13t of safeguarded reserve. India either diverted it illegally or got a secret import.

Enter the mysterious shipment from Bombay. Bidwai reported in the Times of India on July 27, 1983, that 100t of reactor-grade heavy water were shipped from Bombay to MAPP-I several months before MAPP-I started up in 1983. Bidwai stated that only 70t of reactor grade water were available at MAPP-I in September 1982, in addition to 70t in accumulated domestic production in spring 1983—a total of 140t. This leaves a shortage of about 100t to start MAPP-I in summer 1983. These estimates are quite close to the amounts shown in the table. That total represents all the heavy-water in India, including all the water from upgrading, all the domestic production, and all the previous imports—which at the time were keeping reactors running. Nothing more could be in the system. Then, suddenly, 100t of absolutely pure reactor-grade water reportedly appeared in Bombay from unknown sources. And it arrived in the nick of time to start MAPP-I.

One must conclude that by August 1985 India had either diverted heavy water illegally from safeguards or received a clandestine import. No other explanation suffices. RAPP-i, still possible as the source of MAPP-I’s water in 1983, could not have provided heavy water for RAPP-II and Dhruva in 1985. Even had India used all of RAPP-I’s 140t, it would still have been short 150t of unsafeguarded heavy water. The mysterious shipment from Bombay shows that India probably received an import sometime before mid-1983—in time to use it in MAPP-I.

China is the only country in the world that could legally export this quantity of heavy water without safeguards. The world’s only other significant manufacturers of heavy water are Canada, the Soviet Union, and the United States. Canada cut off nuclear trade with India in response to India’s peaceful nuclear device in 1974. Canada’s decision was public, firm, and has been rigidly adhered to.

The Soviets are bound by the nonproliferation treaty and by their membership in the Nuclear Suppliers Group not to export heavy water without safeguards, and they have adhered strictly to those obligations. Indeed, the Soviet requirements on the heavy water for RAPP-II were the strictest ever imposed on heavy water—stricter than Canada’s requirements on the water for RAPP-I. Moscow presented New Delhi with a set of strict controls and demanded that India accept them. The Soviets have had one of the best export records of any major supplier. They have never been willing to sacrifice nonproliferation goals to gain a political advantage. In fact, the field of nonproliferation is the only one in which the superpowers have maintained a united front against other countries. Therefore, China is the only heavy water source remaining.

Yet China maintains close ties with India’s near-nuclear neighbor and rival, Pakistan. And China and India have long been regional rivals. Would China help a powerful neighbor build a nuclear arsenal?

That is precisely what may have happened. China needs foreign exchange. Beijing was forced recently to scale back its nuclear pro-gram for lack of it. And it has been willing to make just about any nuclear deal to get foreign exchange. China has even offered to take in, for a price, the high-level nuclear waste of other countries. Press reports and congressional statements based on U.S. intelligence information have stated that China has negotiated the transfer of sensitive nuclear technology to Iran, helped Pakistan operate its unsafe-guarded uranium enrichment plant, conducted a nuclear test in the presence of a high-level Pakistani official, provided nuclear weapons design data to Pakistan, sold enriched uranium without safeguards to South Africa, and provided heavy water to Argentina without safe-guards in 1985 and from 1980 to 1982.

Given China’s record and heavy water capabilities, India is obliged to provide some information on the source of the mysterious 293t of heavy water. To date, India has simply said that its heavy water production is adequate, and has refused to supply any figures to back this statement up.

India’s conduct has grave implications for the spread of nuclear weapons. Its unexplained shortages mean either that export controls are being ignored by an important supplier, which appears to be China, or that the IAEA cannot safeguard heavy water. Worse, India could be both circumventing safeguards and importing from China. Until the matter is cleared up, both China and the IAEA safeguards system are suspect.

The remedy—and there must be a remedy if controls mean anything—is to halt nuclear trade with India as long as the public short-ages of heavy water remain. Moscow should not provide New Delhi with any more heavy water. The United States should not sell India anything with a possible nuclear application, such as the supercomputer now being considered. These actions are the minimum necessary. In particular, a Soviet cutoff of heavy water probably would prevent India from operating one or more of the new reactors it is now constructing.

These remedies, however, could all be defeated by more nuclear shipments from China. Washington insists that in mid-1984, China pledged to stop unsafeguarded exports. Beijing must be encouraged in the strongest way possible to comply. China now wants to import nuclear reactors and other high-technology products, and to open its economy to the West. Rather than leaping into the new market, suppliers must first insist that China make internationally binding promises to change its export behavior.

If the United States and the Soviet Union take action, India’s program can be pulled back in the direction of accountability. If the suppliers as a group act against China, China can be pulled in the direction of a responsible export policy. If no one takes any action, India can continue officially to thumb its nose at the world, and the suppliers will have once again failed to get tough on nuclear arms proliferation.

Gary Milhollin is a professor of law at the University of Wisconsin. A consultant for the Nuclear Regulatory Commission from 1976 to 1986, he is currently working on a study of U.S. plutonium policy.  The author acknowledges the helpful comments of Professor Frank von Hippel of Princeton University on a previous version of this paper.

Footnotes

[1] The Patriot (New Delhi), 28 December 1981, 1,7.

[2] “Commissioning of Vitrification Facility Affirms India’s Self-Sufficiency Claims,” Nuclear Fuel, 3 June 1985, 10.

[3] “State Says ‘Substitute Clause’ Gets India off of Heavy Water Hook,” Nucleonics Week, 1 July 1976, 6-7.

[4] William C. Potter, “Soviet Nuclear Export Policy,” in Limiting Nuclear Proliferation, ed. Jed C. Snyder and Samuel F. Wells, Jr. (Cambridge, Mass.: Ballinger Publishing Company, 1985), 213-252.

[5] Unclassified telegram 13373, from the U.S. embassy, New Delhi, to the secretary of state, July 1982.

Is India Dodging Nuclear Controls?

By Gary Milhollin

The New York Times
September 8, 1986, p. A23

Do controls on nuclear exports really work? Or are they just a veil behind which nations buy and sell the means to make atomic bombs? India is now forcing these questions on the world. India has either diverted nuclear material from international inspection or imported it secretly from China and is using it to increase dramatically its ability to build a nuclear arsenal.

The material at issue is heavy water (deuterium oxide). It is needed to create a chain reaction in India’s reactors fueled by natural uranium.

India asserts that its three newest reactors – two at Madras and one at Trombay – are being operated exclusively with Indian-produced heavy water. Thus, India argues, it should not be subject to the same international controls on heavy water that India has imported from Canada, the United States and the Soviet Union.

Under controls of the International Atomic Energy Agency, plutonium made by a reactor using imported heavy water is restricted to peaceful uses and open to inspection. By asserting the water is not imported, India could use the plutonium from its reactors to make atomic bombs.

So far, India says it has accumulated only small amounts of plutonium and pledges to use it only for peaceful purposes. The new reactors, however, would not be subject to such a pledge and could produce enough plutonium for 15 bombs a year.

The problem is that India has never made enough heavy water to run these reactors without imports. An analysis of India’s heavy water needs, imports and production shows a staggering shortage unexplainable by possible error in data. In effect, India is now dishonestly running five reactors with barely enough heavy water to run three. It is either shifting safeguarded heavy water illegally to a reactor not covered by safeguards or getting secret imports.

India’s first reactor at Rajasthan – itself under international safeguards – is suspect. It has been closed each time India has started a new reactor outside such safeguards. At any of these times, the Rajasthan reactor’s safeguarded heavy water could have been diverted.

Secret imports could come from Canada, China, the United States or the Soviet Union. These are the only countries that export heavy water in the quantities India needed. But Canada cut off nuclear trade shortly after India detonated a ”peaceful nuclear device” in 1974. The Russians are bound by the Non-Proliferation Treaty and Nuclear Suppliers Group guidelines not to export heavy water without safeguards. It is inconceivable that these countries would illegally supply water.

China is the only source remaining and the only supplier that accepts no restrictions. According to published accounts, China has supplied heavy water to Argentina without safeguards and a nuclear weapons design to Pakistan. It is also desperate for foreign exchange and scaled back its nuclear program for lack of it.

China has denied making exports to India, and India has denied receiving any. But India has also denied any diversion from safeguards and refused to provide data to back up the denial.

Canada, the United States and the Soviet Union cannot be sure their heavy water exports are not being used to make bombs. The remedy is to halt nuclear trade with India until the shortages are explained.

The United States should not sell India anything with a possible nuclear application, such as a supercomputer now under consideration. A Soviet cutoff of heavy water probably would prevent India from operating one or more of the new reactors it is now constructing.

These remedies, however, could all be defeated by secret shipments from China. China wants to import reactor technology and open its economy to the West. Rather than leap into the new market, foreign suppliers must first insist that China make internationally binding promises to change its export behavior.

If the United States and the Soviet Union acted, India’s program could be made accountable. If the suppliers acted as a group against China, it could be forced to accept a responsible export policy. If no one does anything, India can officially thumb its nose at the world and show that nuclear export controls don’t work.

Gary Milhollin is professor of law at the University of Wisconsin. This was adapted from an article in the fall issue of Foreign Policy.