India’s Entry into NSG: What it Means for India and Nuclear Non-Proliferation Regime

by Muzaffar Ahmad Ganaie and Sajad Hussain Wani

Introduction

The Nuclear Suppliers Group (NSG), formerly known as the London Club, is a group of 48 countries formed in 1975 in response to India’s nuclear test of 1974 to control the export of nuclear material and technology that could be used for the development of nuclear weapons. The main objective of the group is to contribute to the goal of nuclear non-proliferation through export controls of nuclear and nuclear-related material, equipment, technology and towards the fulfilment of this objective the group has developed two sets of guidelines.

The Part I guidelines were adopted in 1978 and were published as INFCIRC/254. These guidelines cover those items and material that could be directly used to produce nuclear weapons. These are called ‘trigger list’ items. These include nuclear material, nuclear reactors and equip-ment, non-nuclear material for reactors and sensitive technology. The trigger list items can be transferred only when the supplier state receives a formal assurance from a recipient state that such items would not be used in any explosive device (Article 2) and such items should be placed under effective physical protection to prevent their theft and illegal transfer [Article 3 (a)]. In the case of non-nuclear weapon states, such items should only be transferred when a recipient state has a full scope safeguards agreement in force.

The Part II guidelines were adopted in 1992 in response to Iraq’s clandestine nuclear weapons pro-gramme that used the items that were not covered by the Part I guidelines. These guidelines were published as INFCIRC 254/ Rev.1/ part II. These guidelines pertain to dual-use items, that is, those items that have both nuclear and non-nuclear applications. The supplier state is under obligation not to transfer these items if they are for use in a non-nuclear weapon state for a nuclear explosive activity or in an unsafe-guarded nuclear fuel cycle activity or if there is an unacceptable risk of diversion to such an activity.

 The admission of new members into the group is governed by five ‘factors’ as laid down in Procedural Arrangement. The five factors which a prospective applicant has to meet before joining the group include:

1. “be able to supply items covered by the Annexes to Parts 1 and 2 of the Guidelines;

2. adhere to and act in accordance with the Guidelines;

3. have in force a legally-based domestic export control system which gives effect to the commitment to act in accordance with the Guidelines;

4. be a party to the NPT, the Treaties of Pelindaba, Rarotonga, Tlatelolco or Bangkok or an equivalent international nuclear non-proliferation agreement, and in full compliance with the obligations of such agreement(s), and, as appropriate, have in force a full-scope safeguards agreement with the IAEA;

5. be supportive of international efforts towards non-proliferation of weapons of mass destruction and of their delivery vehicles.”1

The NSG takes all its decisions by consensus. So, any decision, whether related to the amendment of guidelines or admission of new members, must be agreed by all the members.

Membership Gains

India’s quest for the NSG membership began in 2010, when US President Barack Obama pledged to support India’s entry into the NSG but it was only in 2016 that India formally applied for membership followed by Pakistan. While India already got a waiver from the NSG in 2008 which allowed it to receive nuclear material, equipment and technology from the NSG countries, membership of the group is considered as an ‘assertion of right’2 and being a Participative Government (PG) of the group can help India to meet its long and short-term strategic objectives:

1. The waiver which India won in 2008 has provided it access to nuclear material and technology but many latest technologies are still out of its reach. To get access to the ‘state-of-art technology’ which the NSG countries possess, the membership becomes necessary.

2. India has its own indigenously developed nuclear power programme; with the NSG membership it can get access to advanced nuclear technology which can help it to commercialise the production of nuclear power equipment and sell it to neighbouring countries. This, in turn, will not only rejuvenate the Indian nuclear industry,3 but will change the status of India in the global market from a ‘buyer’ to a ‘seller’.

3. The 2008 waiver has unlocked a whole new world for the Indian nuclear industry with far greater access to nuclear material and technology and since 2008, India has signed civil nuclear cooperation agreements with a number of countries; but some countries have shown reservations to move forward with their civilian nuclear agreements. Namibia, the fourth largest producer of uranium, is a case in point. In 2009 it agreed to sell uranium to India but later on showed its inability to move forward with the agreement because of the Pelindaba Treaty, a regional nonproliferation instrument which controls the supply of uranium from Africa to the rest of the world. If India becomes a member of the NSG, such reservations are likely to melt away.4

4. A majority of the NSG members have already acknowledged India as a responsible nuclear weapon state with an impeccable non- proliferation record. Since the NSG is an important component of the nuclear non-prolife-ration regime, India’s NSG membership could further bolster its non-proliferation credentials and win it the recognition of a ‘legitimate member of the nuclear non-proliferation mainstream’.5

5. India’s entry into the NSG will significantly help it to expand its nuclear power generation capacity which will not only fuel its economic growth but also reduce its reliance on fossil fuels. India is the third biggest emitter of green house gases; expansion of nuclear power production will help it to cut the emission of green house gases and meet the climate change goals.

6. The 2008 waiver is conditional upon India’s non-proliferation commitments and non-com-pliance on the Indian part could trigger suspension of nuclear cooperation; besides this, India has also agreed to abide by the NSG guidelines and any change made in these guidelines in future. Being a member of the group means that India will be part of the decision-making process and can block any amendment to the rules inimical to its interests.6

7. For a long time India was kept outside the global non-proliferation regime and treated as a pariah because of its nuclear weapons programme. Being inside the group means treating India as an ‘equal’ and not an ‘outlier’ and its membership would seal its status as a ‘de-facto nuclear weapon state’.7

8. Over and above, if India gets the membership, it can block Pakistan’s entry into the group as the NSG works on the ‘consensus principle’ which means that every participating govern-ment enjoys a veto power.

 India’s NSG Bid: Where India Stands?

India formally applied for the NSG membership in May 2016, one month before the scheduled NSG plenary and the Indian application was followed by the one by Pakistan. However, the group could not take any decision on the membership because the group did not have any rules in place to deal specifically with the membership of the countries that are not signatories to the Nuclear Non-Proliferation Treaty (NPT) though the issue has been under consideration for more than a decade. All the members of the group are parties to the NPT and an important condition, as laid down in Procedural Arrangement to join the cartel, is that the applicant country inter alia should be a signatory to the NPT or any other regional nuclear non-proliferation instrument, a condition which India does not fulfil. At the Seoul plenary held in June 2016, the group could not evolve consensus on the issue; though the Indian membership was supported by the US and other Western countries, a number of non-proliferation hardliners including Austria, New Zealand, Ireland, Turkey and South Africa expressed strong reservations over the NPT issue. However, the Indian Government blamed only China for stonewalling her membership bid by citing the NPT membership as a necessary condition for the NSG membership. During the plenary “legal, political and technical” aspects of the membership of the non-NPT countries were discussed and it was also decided to continue the discussion on the issue.8 At the end of the plenary, the outgoing NSG chair, Rafael Mariano Grossi, was appointed as a facilitator for leading negotiations on the issue and to outline a proposal dealing with the membership of the NPT outsiders.

The group again held an extraordinary plenary in Vienna on November 11, 2016 but no forward movement could be made. During the meeting most of the members supported a ‘two-step process’ which was also backed by China: first to have an agreement on objective and non-discriminatory criteria and then to consider the admission of the NPT outsiders.9 China maintained that any criteria which the group evolves must be non-discriminatory and applicable to all countries that are not signatories to the NPT and “should not hurt ‘core values’ of the NSG which has ‘NPT as the cornerstone’”.10

 In order to decide the membership issue of the non-NPT members, two documents were circulated to the NSG members. The first document was India-specific circulated by the US in 2011 as a “Food for Thought” paper. The US document enlisted two factors to be considered for new membership:

1. The country must be “supportive of international efforts towards the non-proliferation of weapons of mass destruction and of their delivery vehicles” and

2. “Have in force a legally-based domestic export control system which gives effect to the commitment to act in accordance with the Guideline”.11

The document further noted that it is not mandatory for a country to meet all the five conditions as laid down in the Procedural Arrangement and the Participating Govern-ments should consider the Indian case on the basis of its responsible non-proliferation behaviour and the efforts India has taken to strengthen the global non-proliferation regime.12

The second document was circulated by Amino Grossi in December 2016, entitled “Revised Version of a Draft ‘Exchange of Notes’ for Non-NPT Applicants” as a part of his mandate to evolve a consensus on the membership of non- NPT countries. Grossi’s formula outlined nine conditions which the non-NPT countries have to meet to join the exclusive club:

1. To have in place a separation plan making a “clear and strict separation of current and future civilian nuclear facilities from non-civilian nuclear facilities”.

2. Making a declaration to the International Atomic Energy Agency identifying “all current and future civilian nuclear facilities”.

3. To have in force an IAEA safeguards agree-ment “covering all declared civilian nuclear facilities and all future civilian nuclear facilities”.

4. Have in place an Additional Protocol covering all the declared civilian facilities.

5. A non-NPT state has to commit “not to use any item transferred either directly or indirectly from a NSG Participating Government for military purposes”.

6. A “commitment not to conduct any nuclear explosive test”.

7. “A clear description of plans and policies in support of Comprehensive Test Ban Treaty upon becoming an NSG member”.

8. “A commitment to strengthen the multilateral nuclear non-proliferation and disarmament regime by working towards the total elimination of all nuclear weapons and enhancing the peaceful uses of nuclear energy”.

9. A non-NPT state “would join a consensus of all other Participating Governments on the merits of any additional non-NPT Party application”.13

‘Grossi’s formula’ suited more to the Indian bid than Pakistan’s since India meets most of the conditions as outlined in the proposal. During the course of its negotiations with the US on the civil nuclear cooperation agreement and thereafter, India committed itself to most of the conditions as laid down in the document. More importantly, the proposal did not contain a provision regarding the NPT. However, the provisions 6 and 7 in Grossi’s draft could be a matter of concern for the Indian strategic establishment, that is, the “commitment not to conduct a nuclear test” and “a clear description of plans and policies in support of CTBT” notwithstanding the fact that India has declared a voluntary moratorium on nuclear testing. For Pakistan the proposal proved a non-starter as Pakistan did meet most of the qualifications. In a statement the Pakistan Foreign Office termed it ‘discrimi-natory’ and “unhelpful for advancing global non-proliferation objectives”.14 Dr Adil Sultan of the Strategic Plans Division termed the proposal as ‘problematic’ because of its ‘Pakistan-specific’ nature.15

The Grossi formula also could not bring much cheer among the non-proliferation experts because it proposed a ‘lower standard’ for new members that could undermine the goal of the nuclear non-proliferation regime.16 Dr Daryl Kimball of the Arms Control Association claimed that it “sets an extremely low bar on NSG membership and its wording is vague and open to wide interpretation”. He further said that the draft proposal did not set the signature to the CTBT as a mandatory condition for membership and “if NSG fails to establish that signature of CTBT is one of the key criteria for membership, its participating governments have squandered an opportunity to incentivise Indian and Pakistani signature of the treaty”.17

Concerns for Non-Proliferation Regime

India’s entry into the NSG is a very sensitive issue for the group and has become more complicated with the application of Pakistan whose non-proliferation record is questionable and before deciding the issue, the NSG has to address a number of questions:

• What will happen to the ‘NPT membership requirement’ as a condition laid down in the Procedural Arrangement for joining the group? Will this condition be revised?

• Will the NSG reconsider the definition of “Nuclear Weapon State” as technically India is not a Nuclear Weapon State under the NSG guidelines.

• Will access to sensitive nuclear equipment and technology be denied to the non-NPT states?. As per the NSG rules these technologies can be transferred only to states that are parties to the NPT.

• Both India and Pakistan have not signed a Comprehensive Safeguards Agreement with the IAEA and in the absence of such an agreement how would the NSG ensure that no diversion of dual use items will take place in the non-NPT states?18

All this means that the NSG has to proceed with utmost care and prudence in deciding the membership issue. Also, there is a growing concern among non-proliferation experts that not demanding tangible non-proliferation commitments from the non-NPT countries for joining the group could severely undermine the global non-proliferation regime. In a letter written by a group of experts to the NSG Chair, Rafael Marino Grossi, deep concern was expressed regarding the entry of the non-NPT states into the group. They warned that granting membership on the basis of ‘exceptional political preferences’ and “without compensating steps to strengthen non-proliferation and disarmament would increase nuclear dangers in south Asia, and weaken the NSG and the broader nuclear non-proliferation regime”.19 The experts have also warned against any ‘country-specific exemption’, as such a move favours India, and could force Pakistan to further expand its nuclear weapons programme and would “worsen China’s own NSG-non-compliant nuclear trade with Pakistan and make it more difficult to gain other states’ adherence to NSG trade control guidelines”.20 It will also “reinforce the perception among NPT member-states that the rules [of the group] just do not apply to nuclear armed states”.21 Further, a number of non-proliferation experts do not perceive India as a “like-minded” country as it “does not share mainstream views regarding core non-proliferation goals”: it has not legalised its moratorium on nuclear testing by signing the CTBT, it continues to produce fissile material for the development of nuclear weapons, its separation plan is substandard,22 its Additional Protocol does not meet international standards, and its civil nuclear liability law is not in conformity with the provisions of the Convention on Supplementary Compensation for Nuclear Damage.23

What Next?

India’s NSG bid continues to be in limbo as the issue has been discussed in a number of plenaries but the group has failed to evolve a consensus. Keeping in view the reservations expressed by a number of countries and stiff opposition posed by China, it seems that membership for India is unlikely in the near future nor is it going to come as a package. Against this backdrop an important question comes to the fore: how should India approach the issue? In this regard two approaches have been advocated that India can follow.

First, as advocated by Shyam Saran, the former Foreign Secretary, and also supported by a number of experts, is to “preserve the substantive gains already obtained through the waiver than to push hard for membership”.24 Two former chairmen of India’s Atomic Energy Commission also support the same approach that: “Heavens are not going to fall if India does not get NSG membership. India has access to technology thanks to the waiver.”25 This view is largely influenced by the continuing Chinese opposition to the Indian membership and that India is already doing business with the NSG countries and member-ship is not going have a major impact on India’s civil nuclear programme. Its short-term needs can easily be satisfied through the 2008 waiver and it has hammered out civil nuclear agree-ments with a number of countries; also its long-term needs can be satisfied through thorium-fuelled fast breeder reactors which are indepen-dent of NSG membership.26

The second approach is to remain optimistic and keep on pushing the case. With membership in the Missile Technology Control Regime (MTCR), Wassenaar Arrangement and Australia Group, the NSG does not seem a distant dream. Further, the NSG has not closed the doors for India yet. The issue is still on the agenda of the group and in the June 2017 Plenary, the group agreed to continue the discussion on the membership of the NPT outsiders. And as rightly said by Rafael Marino Grossi, “Nothing is impossible, in 2008 people would have said that the exemption for trade [with India] was impossible. But then it was done.” However, it needs to acknowledged that India won the 2008 waiver because of the American diplomatic push. To repeat 2008, India needs same kind of ‘heavy lifting’ from the US. Secondly, as advocated by Shyam Saran, because of “expansion of nuclear energy market and associated non-proliferation risks” the NSG might revise its guidelines27 in the near future which could push India inside the club.

Conclusion

With applications for membership from non-NPT states on the table, the NSG is faced with an unprecedented challenge to resolve the issue. Reservations expressed by the non-proliferation community vis-a-vis India’s membership because of its status as an NPT outlier has eluded the consensus on the issue so far and forced the group not to take any decision which could undermine the credibility of the nuclear-nonproliferation regime. However, those pushing for stringent non-proliferation commitments from India should also weigh the benefits of having India inside the tent. India, with an advanced civil nuclear programme and an emerging supplier of nuclear equipment and technology, could greatly help to increase the effectiveness of the group and strengthen the non-proliferation regime. Sticking to the NPT membership as a necessary qualification for membership is not a way out. The ‘NPT member-ship’ is only one of the five factors stated in the Procedural Arrangement and it is not necessary for an applicant to meet all the five factors stated in the Procedural Arrangement. It will also be erroneous to ask India to take such responsibilities not assumed by other members of the group or which India perceives inimical to its national security. On its part, India should understand that membership is not going to come without tangible non-proliferation commitments. So, the NSG has to evolve a balanced criteria, acceptable to India on the one hand and not hurting the core objectives of the NSG on the other hand to accommodate India. In this regard the following factors can be considered:

• Making legally binding commitments towards the advancement of the objectives of the NPT without signing the NPT and for this purpose adherence to Articles I, III.2 and VI is important.28

• Declaring a voluntary moratorium on fissile material production till the impasse over the Fissile Material Cut-Off Treaty (FMCT) ends.

• A commitment not to conduct nuclear tests upon joining the group; violation of this would lead to automatic termination of membership.

• A commitment to address deficiencies in the Additional Protocol and Civil Nuclear Liability Act and bring them at par with international standards.

• Committing that nuclear imports to India and exports from it will not result in any sort of diversion.

References

1. Balachandran, G. (2013): “India and NSG: Approaches to Indian Membership,” IDSA Issue Brief, May 23, p.2.

2. Ramesh M. (2016): “Why India’s NSG Entry is No Big Deal, “The Hindu Business Line, June 16.

3. Roche, Elizabeth (2016): “Why an NSG Membership is Important to India”, Livemint, June 8, http://www.livemint.com/Politics/GgIv7xn2DuFpDbsmGTcGpK/Why-a-NSG-membership-is-important-to-India.html(10-12- 2017)

4. Neelakantan Shailaja (2016): “How Exactly India will Benefit From Being A Member Of Nuclear Suppliers Group: 6 Examples”, Times of India, June 11.

5. Estrada, Kate Sullivan de and Nicola Leveringhaus (2016): “China’s Stance On NSG Membership Shows The Extent Of India’s Challenge In Global Nuclear Order“, The Wire, June 30, https://thewire.in/author/kate-sullivan-de-estrada-and-nicola-leveringhaus(20-11-20‘17)

6. Kazi, Reshmi (2016): “Nuclear Suppliers Group: What’s Next For India”, South Asian Voices, December 7, https://southasianvoices.org/nuclear-suppliers-group-whats-next-india (25-11-2017).

7. Kazi, Reshmi (2016): “Nuclear Suppliers Group: What’s Next For India”, South Asian Voices, December 7.

8. Haider, Suhasini (2016): “NSG Plenary Ends Without Movement In India’s Application”, TheHindu, June 24.

9. “NSG Membership For India Unlikely This Year” (2016): The Hindu, November 19.

10. “New Draft Proposal On NSG Membership Unlikely To Please India” (2016): The Wire, December 29, https://thewire.in/90403/nsg-membership-nuclear-testing(22-11-2017).

11. United States Communication, “Food for Thought” Paper on Indian NSG Membership” (2011): https://www.armscontrol.org/system/files/nsg1130.pdf

12. United States Communication, “Food for Thought” Paper on Indian NSG Membership” (2011).

13. Kimball, Daryl G. (2016): “NSG Membership Proposal Would Undermine Non-Proliferation,”Arms control Association, December 21, https://www.armscontrol.org/blog/ArmsControlNow/2016-12-21/NSG-Membership-Proposal-Would-Undermine-Nonproliferation (3-12-2017)

14. Syed, Baqir Sajjad (2016): “Pakistan Rejects New Formula for NSG Membership”, Dawn, December 30.

15. “Grossi Formula Designed To Knock-Out Pakistan’s NSG Bid” (2016): The Nation, December 31.

16. Krepon, Michael (2017): “A time Out for New NSG Membership”, Arms Control Wonk, January 24.

17. Kimball, Daryl G. (2016): “NSG Membership Proposal Would Undermine Non-Proliferation”, Arms Control Association, December 21.

18. Hibbs, Mark (206): “Admitting Non- NPT Members: Questions for NSG”, Arms Control Wonk, May 15.

19. “Don’t Bend NSG Rules without Steps to Strengthen Non-Proliferation”, letter written by a group of experts to NSG, https://www.armscontrol.org/print/7517 (2-12-2017)

20. Kimball, Daryl G. (2016): “Obama’s Indian Nuclear Blind Spot”, Arms Control Today, June 26.

21. Kimball, Daryl G. (2016): “Obama’s Indian Nuclear Blind Spot”, Arms Control Today, June 26.

22. Kimball, Daryl G. (2016): “Obama’s Indian Nuclear Blind Spot”, Arms Control Today, June 26.

23. Williams, Lauryn (2016): “A Path Forward On India’s NSG Membership”, The Diplomat, April 01.

24. Quoted in Kazi, Reshmi (2016): “Nuclear suppliers Group: What’s Next for India”, South Asian Voices, December 7.

25. Quoted in Ramesh, M. (2016): “Why India’s NSG entry is no Big Deal”, The Hindu Business Line, June 16.

26. Balachandran G. (2016): “India and NSG: Approaches to Indian Membership”, IDSA Issue Brief, May 23,
p. 4.

27. Kazi, Reshmi (2016): “Nuclear suppliers Group: What Next for India”, South Asian Voices, December 7.

28. These factors have been advocated by John Carlson and Mark Hibbs, for details see, Carlson, John (2015): “Nuclear Cooperation with India: Non-proliferation Success or Failure#, February 15, http://carnegieendowment.org/files/India_-_nuclear_cooperation_15_Feb_15_2.pdf and Jha, Lalit K. (201):”NPT: NOT A Requirement For NSG But Adherence Is A Factor: Expert”, India Today, July 23, http://indiatoday.intoday.in/story/npt-not-a-requirement-for-nsg-but-adherence-is-a- -factorexpert/1/713735.html.

Dr Muzaffar Ahmad Ganaie is teaching Political Science at the Government Degree College, Uttersoo, Anantnag and can be reached at maganaie1921[at]gmail.com and Dr Sajad Hussain Wani is working as a lecturer at the Government Degree College (Boys), Kupwara and can be reached at sajadjmi72[at]gmail.com