07 September 2008

Dateline Vienna: NSG waiver enables member states to provide India full civil nuclear cooperation

Many countries cite ‘assurances’ on sensitive technology, link with Indian compliance...

NSG waiver enables member states to provide India full civil nuclear cooperation

Siddharth Varadarajan

Vienna: Set up in 1975 as a response to the nuclear test at Pokhran the year before, the Nuclear Suppliers Group is a closed club whose sense of being and identity is closely bound up with India. As the push to get every country to sign the Nuclear Non-Proliferation Treaty gathered steam in the two decades that followed, the club and its lead conductor – the United States – pushed for the tightening of rules governing nuclear commerce so that countries outside the system would be forced to choose between possessing nuclear weapons or accessing civil nuclear supplies from India. Thus, at its Warsaw plenary in 1992, the NSG adopted “full scope safeguards” as a condition of supply and three year later, at the review and extension conference of the NPT, a resolution was adopted endorsing the same condition.

For the NSG to now turn around and lift its 1992 guideline on full-scope safeguards shows the extent to which the world, and India, have changed in the past 16 years. India’s economy, with its rising energy needs, has turned the country into a magnet for global commercial interests. “A systemic change has now occurred which takes India’s interests into account”, a senior Indian official told The Hindu. And India too has declared its willingness to play an important role in moving the international system in a positive direction.

Though several minor changes were made in the India waiver adopted by the Nuclear Suppliers Group on Saturday, the most important change from the point of view of those countries with non-proliferation concerns was the incorporation of a reference to the September 5 statement made by External Affairs minister Pranab Mukherjee reiterating India’s stand on disarmament and non-proliferation.

Among the commitments the statement highlighted were India’s voluntary and unilateral moratorium on nuclear testing, its “policy of no-first-use of nuclear weapons” and several initiatives the country has taken in recent years to press for the elimination of nuclear weapons at the global level.

Turning point

“If you ask me to identify a turning point in our work”, one European diplomat told The Hindu, “it was the circulation of that statement”. Though Ireland and several other states rejected the idea of a “declaratory statement” by India serving as a substitute for the kind of explicit, conditional linkage they wanted between India’s commitments and the NSG’s exemption, many countries saw the Indian text as an essential part of the wider political backdrop against which the cartel was intending to act.

Though India resisted attempts to include Mr. Mukherjee’s statement as a formal part of the NSG decision, a compromise was struck by making a reference to it in the chapeau of paragraph 3 of the waiver. Thus, India’s non-proliferation commitments and actions, including as reiterated by the statement, were described as the “basis” for NSG members adopting their waiver. The statement, per se, does not form a part of the waiver, nor will it be circulated with it.

One consequence of the reference to Mr. Mukherjee’s statement, however, is that the NSG – which includes the five official nuclear weapons states as members – has acknowledged India’s no-first-use pledge and, by default, the reality if not the legitimacy of its possession of nuclear weapons.

At the instance of Argentina and Brazil, which wished to stress that they did not consider restricting the supply of enrichment and reprocessing (ENR) technologies was a ‘non-proliferation measure’ --- the two states aspire to their own national fuel cycle capabilities and have been resisting the tightening of NSG rules on ENR --- the phrase “without prejudice to the national position of participating governments” was also inserted in the chapeau. This, say Indian officials, effectively dilutes the linkage between the preceding paragraph on India’s commitments and the operative paragraph on the waiver decision. And one participating government is enough to block any move in the future to terminate nuclear supplies to India because NSG decisions are always adopted by consensus.

Many countries wanted to amend the waiver to exclude the possibility of India accessing ENR technology and equipment from NSG members. This was resisted by other states for a variety of reasons and the ‘compromise’ struck was to explicitly reference paragraphs 6 and 7 of the existing NSG guidelines which essentially urge members to “exercise restraint” in the transfer of sensitive nuclear technologies. This guideline does not bar ENR sales.

According to officials, minor changes were also incorporated in the waiver paragraphs referring to consultation between member states. “But there is nothing in this waiver which cross our red lines”, a senior Indian official said.

Naysayers agreed ‘reluctantly’

Asked for his assessment of the waiver, a diplomat from a European country which initially wanted much stronger conditional language said his government had joined the consensus “very reluctantly”. “I wouldn’t say we’re happy”, he said, adding that his country and several others had been “leaned on at the highest levels”.

The diplomat said the final form of the waiver was an improvement over the previous draft, especially the chapeau of paragraph 3 which established what he described as a “strong link” between commitment and action. Nevertheless, his country agreed to sign on mainly because it had received two key assurances during consultations within the various steering committees. First, that no participating government (PG) currently intended to transfer ENR equipment to India, and second, that PGs would take India’s compliance with its commitments into account before agreeing to any nuclear transfers. The diplomat added that his government, and many others, had reiterated these assurances in their national statements before adoption of the waiver decision. Though there was no separate chairman’s statement elaborating these assurances, the diplomat said the national statements now formed part of the NSG’s internal records and could always be referred to in the future.

Among the countries which made national statements at the plenary expressing varying degrees of discomfort at the decision were Austria, Japan, Ireland, New Zealand, Norway and Switzerland. Germany made a milder statement, while China reiterated its desire for there to be a “balance” between upholding nonproliferation obligations and encouraging wider access to civilian nuclear energy.

Describing the process by which the draft was finalized, a senior Indian official told The Hindu the NSG plenary recessed on Friday morning to allow smaller committees to look at all outstanding issues separately. As these committees came up with draft language, this was communicated to the Indians by the U.S. and modified, accepted or rejected. This tiring and often painful process ended shortly before 11:30 pm on Friday with India signing off on a final draft. But a handful of countries continued to object, with Austria, Ireland and New Zealand being the most vocal. China, the official said, did not articulate specific objections but said it needed time to get clearance from Beijing. As the night wore on, tempers on the 27th floor offices of the Japanese mission where the NSG was meeting started getting frayed. As the US worked on individual countries in small committees, most delegates were left 'hanging around' wondering when the plenary would reconvene. This is when the Chinese delegation, according to an
account provided by a European diplomat, grew testy with two senior officials deciding to leave for the day, leaving behind their junior colleagues.

“It was clear to us that as long as these countries were a group, they would remain a problem”, a senior Indian official said. “But we also knew none of them wanted to be the last man standing”. So between the United States and India, a determined political effort was made late Friday night to ensure each of the four came on board. The first to agree was China, said the official, and the last New Zealand, with Ireland and Austria also dropping their objections in between. Though the last three communicated their decision to Washington, the official said the Chinese side directly informed India that it intended to back the consensus.

On his part, John D. Rood, who led the U.S. side on the last two days of the NSG meet, hailed the NSG’s decision as a contribution to the nonproliferation regime and emphasised the importance of the “U.S.-India strategic partnership to which both countries are committed.”


Anonymous said...

Hey Siddharth

Thanks for this excellent piece. It does give a flavor of the goings on without you falling in the usual trap of making value judgements.
By the way, is there any dope on how the capitals worked during this period? It would be interesting to know how Washington and Delhi backed up their representatives.

Congratulations on a job well done.


Anonymous said...

Good piece Sidd.

Please tell me as some one who has been following this deal for quite some time what was your immediate reaction when you heard the final news on waiver. Did you shout at the roof or thought it was the second-best outcome.


Sid said...

@ Nayantara

Having seen this game from close for three years, I did not exult until I was able to speak to some of the sources I trust. By evening, believe me, I was celebrating. But these are celebrations tinged with concern. Because I wonder whether our politicians will have the stomach to address the issues I raised in my 'Berman Bombshell' oped, or to engage in the kind of creative diplomacy needed to protect India's enlightened national interest, deal with future political pressures from the U.S. and others, push for a more democratic and equitable and just international system, and, most crucially, create the kind of internal social and political renewal needed to unleash the creative and human potential of the millions of Indians currently excluded from the 'system'. There is still a long, long way to go, but, sorry for the lecture, for the moment at least, I must admit its a good feeling!

Anonymous said...

Thanks for your reporting on this. It was really nice and valuable. I have a question though: Given the NSG's waiver, does it matter for Indian nuclear commerce with other nations, whether the US congress passes a similar amendment to their laws, or with conditions? I.e if Congress explicitly links nuclear trade with India to non proliferation conditions, can India ignore said law, and continue commerce with other nations without constraint?

Anonymous said...

Sorry, the anonymous above was me


Siddharth Varadarajan said...

@ anonymous

We are not bound by US law but don't be surprised if the US Congress tries to build a rider into the 123's passage threatening sanctions on any other supplier country for offering terms to India that are more liberal than the Hyde Act. The U.S. has a history of pushing extra-territorialty of legislation in trade-related matters (think Helms-Burton on Cuba, ILSA on Iran and Libya).

Anonymous said...

Why is everyone huffing and puffing about the US-India deal? Does anyone really believe that India's 1998 tests were a success? They were not.India has consistently lied about its nuclear prowess.The fusion bomb that it claimed it detonated wasn't a fusion bomb at all,it was a boosted fission bomb.And the US-India deal has nothing to do with the US wanting to stop India using up so much oil and polluting the earth. The deal has everything to do with American companies like Westinghouse getting into India in a big way and making $$$$. India's technology is fourth rate is no one needs to fear India's nukes,cause they don't work.