Paragraph 4(a) of the Nuclear Suppliers Group's revised Guidelines for the Export of Nuclear Material, Equipment and Technology -- adopted in 1992 and formally circulated as an annex to INFCIRC/254/Rev.2/Part 1 by the International Atomic Energy Agency in October 1995 explicitly prohibits "nuclear transfers" to a country like India:
Suppliers should transfer trigger list items or related technology to a non-nuclear-weapon State only when the receiving State has brought into force an agreement with the IAEA requiring the application of safeguards on all source and special fissionable material in its current and future peaceful activities.The two exceptions to this rule are transfers "deemed essential for the safe operation of existing facilities" (Paragraph 4(b)) and transfers pursuant to "agreements or contracts drawn up on or prior to April 3, 1992... or [in the case of countries joining the NSG after that date] to agreements (to be) drawn up after their date of adherence" (Paragraph 4(c)).
ArmsControlWonk.com has just uplinked, via Daryl Kimball of the Arms Control Association, the text of the draft "Pre-Decisional Statement on Civil Nuclear Cooperation with India" submitted by the United States to a meeting of the NSG Consultative Group in Vienna on Wednesday. In a nutshell, the U.S. wants this offending paragraph waived for India.
In brief comments to ArmsControlWonk.com, Kimball, a prominent critic of civil nuclear cooperation agreement with India, says the proposed arrangment "would further erode rules-based efforts to curb the spread of nuclear weapons related technology".
With all due respect, I think Kimball is barking up the wrong tree. Here's why.
This is the operative bit of the U.S. proposal:
In exchange for
(a) having publicly designated peaceful civil nuclear facilities which will be submitted to IAEA safeguards in perpetuity,the draft says the NSG will over-ride Paragraphs 4(a), 4(b) and 4(c) and allow its members to sell nuclear equipment, fuel and technology to "safeguarded civil nuclear facilities in India" provided they are satified India is adhering to all its commitments.
(b) having committed to continue its moratorium on nuclear testing, and to work with others towards achievement of a Fissile Material Cutoff Treaty,
(c) having committed to accept an Additional Protocol covering designated civil nuclear facilities, and also committing generally to having good export control systems &c.
By way of abundant caution, the U.S. draft text refers to India as "a State not party, and never having been a party, to the NPT".
This is a clever bit of drafting. Paragraph 4(a) talks of non-nuclear weapon states. Now the only legal definition of an NNWS is via the NPT. Since India is not and has never been party to it, India cannot, by definition, be an NNWS. Presumably, this allows the integrity of Paragraph 4(a) to be maintained, a point reiterated by the U.S. draft in also stressing that NSG members "will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a)".
Two other states have never been parties to the NPT -- Pakistan and Israel -- and it will be interesting to see whether China will suggest to the NSG that transfers to Pakistan be allowed under the same set of commitments.
In the fog of debate, and there has been tonnes of it ever since July 18, 2005, people tend to forget that neither the Nuclear Non-proliferation Treaty (NPT) provisions nor the NSG rules prior to their amendment in 1992 prohibit nuclear commerce with countries which do not accept safeguards on all source and special fissionable material in its current and future peaceful activities, i.e. full-scope safeguards (FSS).
Let me repeat this point so everyone is clear about it.
The NSG, was created as an explicit response to India's first nuclear test in 1974 but it did not ban the sale of either nuclear reactors or nuclear fuel to India. All it required was that anything sold to India (or other non-signatories to the NPT) be placed under safeguards.
This is what the original NSG guidelines said in Paragraph 3:
Suppliers should transfer trigger list items only when covered by IAEA safeguards, with duration and coverage provisions in conformance with the GOV/1621 guidelines. Exceptions should be made only after consultation with the parties to this understanding.So why did the NSG feel compelled to revise this sensible guideline and insist on FSS and NPT membership as a condition for nuclear exports? Because in the aftermath of the First Iraq War, the IAEA found that Iraq had been fairly successful in developing a secret nuclear weapons programme on the basis of imported dual-use equipment. But while this explains the tightening of rules for nuclear-related dual-use transfers it does not explain the insistence on FSS rather than facility-specific safeguards for those countries which were not members of the NPT.
After all, Iraq had been a member of the NPT and had been subject to full-scope safeguards. Fat lot of good that did.
The IAEA had the right idea when it sought to plug the loophole by coming up with the Additional Protocol as an add-on to the normal safeguards system. But the NSG simply came up with wrong medicine for the right disease. Iraq hid a secret weapons programme despite accepting FSS. How did it help to insist, as a cure, that India and Pakistan must accept FSS?
In April 1992, when the NSG adopted its revised guidelines, 35 countries other than India, Pakistan and Israel had not signed the NPT. Between then and October 1995, when the guidelines were circulated by the NPT, all except four of the 35 signed up: Slovenia, Uzbekistan, Croatia, France, Azerbaijan, Niger, Namibia and Myanmar (1992), Czech Republic, Slovakia, Belarus, Armenia, Guyana, Mauritania (1993), Tajikistan, Kazakhstan, Georgia, Kyrgyzstan, Bosnia, Turkmenistan and Moldova (1994), Algeria, Argentina, Macedonia, Eritrea, Monaco, Palau, Micronesia, Chile, Vanuatu, UAE and the Comoros (1995).
The remaining four, too, slowly came on board: Angola and Djibouti (1996), Brazil (1998) and Cuba (2002). One new country, Timor Leste, came into being and joined the NPT in 2003 while North Korea formally withdrew from the treaty that year.
Has the revised NSG guideline played a role in preventing the spread of nuclear weapons technology? Nobody can seriously make this claim. If we set aside the bulk of the non-NPT signatories during that period -- the Pacific Island states, the former Soviet and Yugoslav republics -- the only serious hold-outs with a potential nuclear weapon capability were Argentina, Brazil and Algeria. But Argentina and Brazil acceded to the Treaty of Tlatelolco (the South American Nuclear Weapons Free Zone) in 1994, effectively ending all speculation about weapons, one year before the revised guidelines were circulated by the IAEA. And Algeria, though opposed to the discriminatory nature of the NPT (like India), accepted IAEA safeguards in January 1992, allowing its El Salam reactor at Ain Oussera -- suspected by the U.S. and Spain to be a cover for weapons-related activities -- to be inspected three years before it eventually acceded to the NPT.
In other words, the NSG Revised Guidelines Paragraph 4(a) was a panic reaction to the discoveries made by IAEA in Iraq in 1991 and 1992. It was a pointless rule which gave the nuclear cartel and the wider international community no additional protection against the spread of nuclear weapons technology.
Far from being an integral part of the non-proliferation architecture, it was an unaesthetic and pointless adornment that looked good on paper but served no real purpose.
It is not the suspension of this paragraph for India (and eventually Pakistan) which will lead to the non-proliferation regime unravelling but the American and European insistence, in the context of the Iran crisis, that the "core bargain" of the NPT system be scrapped.
The NPT is built around countries giving up the "right" to possess nuclear weapons in exchange for the right to develop civilian nuclear power including the fuel cycle and the right to expect that the nuclear weapons states take meaningful steps to disarm. India was never a part of the non-proliferation system and restoring the status quo ante as it existed in October 1995 or April 1992 will not make the system unravel. But the doctrines of pre-emptive war and regime change, missile defence, weaponisation of space and the lunacy of usable nuclear weapons are what will push the system to breaking point. If I were Kimball, these are the issues I would be losing sleep over. Not the prospect of a new civil reactor coming up in India under international safeguards in perpetuity.