16 August 2008

Short takes: Reactions to the NSG draft

The text of the proposed NSG waiver for India is here, although why you would still want to see it after I published all its relevant parts on August 12 beats me!

And here are some reactions:

Reuters has a story from Vienna quoting an unidentified "diplomat" as saying: "The Indian left is opposed to any demands coming from the Americans, but if they come from other countries, that may go down better domestically." Either this "diplomat" doesn't know India or is abusing his diplomatic immunity to smoke stuff not normally allowed under Austrian laws...

Brahma Chellaney's critique of the NSG draft is out on rediff. And another critic, former BARC director A.N. Prasad, tells the Asian Age: "There is no way we can carry out tests and still keep the waiver ... to suggest otherwise is humbug".

Well, that's exactly what Daryll Kimball and 150 non-proliferation activists and NGOs are suggesting. What's more, they've even shot off a petition to Frank-Walter Steinmeir, the German FM and current chair of the NSG, demanding changes in the NSG draft to make sure, inter alia, that all supplies are cut off and fuel returned if India tests again.

The NSG draft waiver speaks of non-member adherents to NSG guidelines. Last time I checked, there is only one such country in that category, and that's Israel. Its note verbale announcing adherence was circulated by the IAEA as Inficirc/632 in 2004. If anybody can educate me about why Israel chose to adhere, I'd be grateful...

I wrote about New Zealand's position the other day but a useful account of the thinking of another NSG critic of the nuclear deal, the Netherlands, can be found in the speech made by Peter Potman of the Dutch embassy in Washington to the Carnegie Endowment's 2007 Non-proliferation Conference.

7 comments:

Anonymous said...

See in this context the following article:

http://www.thehindu.com/2005/04/25/stories/2005042505901100.htm

Pakistan too had communicated claiming conformity with NSG export controls in INFCIRC/636. Since India too has communicated its export controls vide INFCIRC/647, though it does not explicitly claim conformity with NSG controls.

Siddharth said...

Anon - Pakistan's communication, circulated as Infcirc/636, is not a claim of NSG compliance but a detailing of the salient points of its new Export Control Act. The Pakistani covering note says "I would be grateful if you could arrange for the circulation
of this letter and the enclosed Export Control Act, 2004, to all the IAEA Member States as an INFCIRC document as a manifestation of Pakistan's support for the objectives of non-proliferation as well as the
Statutory responsibilities of the IAEA."

Anonymous said...

Sorry. It should be INFCIRC/669 f 2006, wherein Pakistan had formally communicated to the IAEA though they had claimed compliance at the time of the passage of Act and during NSG's visit.

Siddharth Varadarajan said...

Anon - Many thanks. But even 669 essentially notes that Pakistan's control lists "encompass the lists and scope of the export controls maintained by the Nuclear Suppliers Group...".

The Pakistani note verbale does not say that Pakistan is or will be in adherence with the NSG's guidelines as contained in Parts 1 and 2 of Infcirc/254, something the Israeli letter of 2004 clearly states.

The Pakistani text can be found here: http://www.iaea.org/Publications/Documents/Infcircs/2006/infcirc669.pdf

Anonymous said...

It essentially means the same thing because it matters litle if a state unilaterally claims that it adheres to NSG Guidelines. The NSG, I dont think, has yet pronounced that the Israeli (or for that matter Indian or Pakistani) export controls to "adhere" (whatever that means) to Infcirc/254. In fact, that may never happen except perhaps in the case of India when the NSG sits down to discuss the waiver for India and takes into account its export controls on nuclear and nuclear related dual-use goods.
What is important from a universal perspective is meeting the requirements of UNSCR 1540. You may be interested in knowing that one of the key Indian officials who was instrumental in drafting the Indian export controls and its SCOMET list is on the UN committee for the worldwide implementation of UNSCR 1540.

Siddharth said...

Anon - The NSG has a specified procedure for adherence, which is that the concerned state must declare its adherence to the guidelines in a communication to DG IAEA and have it circulated to all states. As of today, only Israel fits the bill.

The issue is not just of harmonising lists but a more conceptual one. 254 starts with the following para: "The following fundamental principles for safeguards and export controls should apply to
nuclear transfers for peaceful purposes to any non-nuclear-weapon State and, in the case
of controls on retransfer, to transfers to any State. In this connection, suppliers have
defined an export trigger list." (Emphasis added). Now Israel has no such hang-ups but India will be extremely unwilling to sanctify a category like 'non-nuclear weapon state' in its own documents. Though Infcirc/254 does not define NNWS, its NPT context is clear.

Anonymous said...

The procedure you describe is not prescribed by the NSG; it was long being regaarded as passport to becoming a member. It is no longer the case after the Lucerne meeting of the NSG in 1993-94. If you could become a member by simply doing that the word "adherence" would have some meaning. Otherwise no. Now membership is only by invitation and that too by consensus, and not by unilateral declaration. You may be accorded the status of an observer by your declaration and following the outreach mechanism.

In any case, you have raised one of the intrinsic contradictions in the guidelines. That is, nowhere (the guidelines or elsewhere) the NSG defines a nuclear weapons state. Everyone tacitly assumes that the definition follows from the NPT, but could it without being self contradictory? France was one of the founding members of the NSG but it becaame party to the NPT only in 1992. So how could an NPT definition be applicable to a non-NPT member of the NSG?

I dont know if Israel would not have problems in not being called an NWS. Let us consider the hypotehtical scenario of the three NPT hold-outs exporting and/or reciving Trigger List items between them after having declared adherence and communication to IAEA. Would such a transfer of TL items be violative of adherence? Clearly the concept does not make much sense and in the given situation I do not think there is any prospect of the three becoming members of the NSG if NPT definitions are carried into NSG.

There is another contradiction or a injudicious use of language that I would draaw your attention to.

Consider the following in Guidelines I 4 (a): Suppliers should transfer trigger list items...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.

There is this injudicious use of the adjective "peaceful" thereby by implication seemingly acknowledging the possible existence of non-peaceful activities.

This language is carried from INFCIRC/153 for comprehensive safeguards which in turn has borrowed it from NPT. Interestingly, the same is repeated in the US Atomic Energy Act as well.

By implication, if you could separate peaceful and non-peaceful activities, as India has now done, there is, strictly going by the written word of the document, no need for any waivers at all for any body!