Expansion Of NSG: A Case For A Criteria Based Approach – Analysis

19 May

By Saima Aman Sial

The Nuclear Suppliers Group1 (NSG) is a voluntary association of states with a stated aim to ensure that nuclear trade for peaceful purposes does not contribute to the proliferation of nuclear weapons.
The group mainly has two set of guidelines:
1. Guidelines for nuclear exports
2. Nuclear-related exports
The group operates through the principle of consensus and its guidelines are implemented by each participant in accordance with its national laws2.
The guidelines regulate the transfer of dual-use equipment, material, and technology that could contribute to potential nuclear weapon (nuclear fuel cycle and nuclear explosive) related activities.
Membership criteria include
• the ability to supply items specified in the guidelines,
• adherence to the guidelines,
• and enforcement of a domestic export control regime.
• full compliance with the Nuclear Non-Proliferation Treaty (NPT), full scope IAEA safeguards, or another international nonproliferation agreement Like the NWFZ agreements), adequate physical protection measures and export restraint to regions of conflict and instability3.
Establishment of NSG – the not so famous anecdote!
The group first met in November 1975 in response to India’s first nuclear test, a so-called peaceful nuclear explosion, which used fuel illegally diverted from a nuclear reactor that was supplied to India for peaceful uses by Canada.
Initially, seven states, the suppliers of advanced nuclear technology, i.e. United States, United Kingdom, Canada, France, Japan, West Germany and Soviet Union; got together to form a cartel to control diversion of nuclear technology for peaceful uses to be used for weapons purposes.
India-Specific Approach and NSG Debate
India got the NSG waiver for nuclear cooperation because of its changed strategic relations with US. In July 18, 2005, according to Indo-US Joint Statement, an exception was made for India as US President Bush declared it as a “responsible state with advanced nuclear technology,” that “should acquire the same benefits and advantages as other such states.”4 He further assured a complete U.S. commitment to “seek an agreement from the Congress to adjust US laws and policies, and that the United States will work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India.”5
Among the many special steps taken by US, in materializing the civil nuclear cooperation with India, were changing the US domestic laws, facilitation in the IAEA safeguards agreement and additional protocol, and the waiver from NSG.
Indian NSG Waiver
The implementation of the India-US nuclear deal required a waiver from the NSG, to supply India with nuclear technology and fuel. On September 6, 2008, the NSG granted a special waiver to India which ended the India’s nuclear isolationism and granted India access to enter into nuclear commerce with nuclear supplier states6.
Ironically, the gatekeepers of the nonproliferation club opened the gates for nuclear commerce with the same state against which the cartel was originally established. India, that is neither a party to NonProliferation Treaty (NPT) nor part of any other substantial nonproliferation commitments/obligations; was enabled the privilege of nuclear trade.
The US lobbied strongly with the nuclear suppliers to get the waiver, and later also committed to make India a member of the four multilateral export control regimes. In the US President Obama’s visit to India in November 2010, the joint statement that came out endorsed India’s candidature for the four multilateral export controls regimes.
According to the joint statement, US expressed support for “India’s full membership in the four multilateral export control regimes (Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group, and Wassenaar Arrangement) in a phased manner, and to consult with regime members to encourage the evolution of regime membership criteria, consistent with maintaining the core principles of these regimes, as the Government of India takes steps towards the full adoption of the regimes’ export control requirements to reflect its prospective membership…”7
Defining Responsible Nuclear Behavior
If the argument of India’s good nonproliferation record is revisited, lessons reveal that subjective criteria have been provided as evidence for India’s strong non-proliferation record.
With regard to the nonproliferation commitments in adherence to NPT and signing up to CTBT and working towards early conclusion of FMCT, the track record doesn’t portray a clean nonproliferation slate. India is a non-party to NPT and hasn’t been a faithful nonproliferation adherent state. Evidence reveals that India has been the fourth Customer of the AQ Khan’s network8, has been involved in proliferation (supply of heavy water to South Korea and nuclear reactor technology to Iran.9 It has thus far not been able to commit to signing of the CTBT.
As regards the prospective FMCT, the United States made India agree to work toward the early negotiation of a Fissile Material Cut-off Treaty (FMCT), in a bid to make India commit to stronger nonproliferation norms. However, on the contrary India continues to produce fissile material for its strategic programme, is now enriching uranium under the pretense of producing nuclear fuel for a reactor in Rattehali for India’s nuclear submarine program. There are no safeguards on its enrichment program that verify that the material it produces for these reactors is not diverted for the production of strategic weapons.10 As of recently, the United States agreed to India’s demand that India no longer be obligated to allow tracking of nuclear supplies.11 This case is another example of how geopolitical aims of great powers can undermine the nonproliferation regime through the selective application of rules.
John Carlson, of the Nuclear Threat Initiative, referred to this exceptional and preferential treatment of India while stating, that, “I must say, sorry to be a party spoiler but when India is described as having an unblemished non-proliferation record, of course, it was a proliferator in quite a spectacular way… the history is there and it is ironic that India is now being asked to join or is seeking to join, and has been promised help in joining the organization that was actually established in response to its past behavior. ”12
Interestingly enough, Bob Einhorn, went a step further in proposing how the proliferation wrong could be prospectively corrected while criticizing US approach, he stated that US “made it seem as if we were favoring our new best friend rather than acting on non-proliferation principle.” It should have been that, “any nuclear arm state not party to the NPT [would be] eligible for nuclear cooperation with the United States, provided they met certain criteria.13”
Country-Specific Approach: Implications for Non-Proliferation Regime
In case only India is accommodated as an exceptional case, this would seriously damage the credibility of the NSG as a proponent of strong nonproliferation credentials. If made commitment-free the inclusion would serve as a bad precedent for the NPR and damage its credibility seriously. The other outliers like Pakistan and Israel would remain out leading to a permanently fractured NPR, adversely influencing the universalization of the regime. The NSG operates by consensus, and with Indian inclusion Pakistan’s prospects for future membership would be completely nullified.
Zahir Kazmi writes in this regard that, “Islamabad’s main concern is that continued discrimination within the non-proliferation regime and the distortion of NSG criteria will prevent it from working with the group. Although there should be a level playing field for all aspirant partners of the NSG, the fact that export-control arrangements operate on the basis of consensus means that India would be able to block Pakistan’s participation if it became a full member of the organisation.” 14
Leaving out Pakistan, from mainstreaming it in the nonproliferation regime would set a dangerous precedent and work against the principles of regional restraint and for arms control prospects.
Dr. Lodhi, explains these implications while she states that; “by opening the door to India to gain access to technology and membership of export control regimes denied to other non-NPT countries, in contravention of nuclear non-proliferation rules, a dangerous new precedent will be set for the global arms control regime at a time when it is facing other new, imposing challenges.”15
Country-Specific Approach: Implications for South Asian Strategic Stability
The global confidence bestowed to India by the world community through subjective notions of a “good non-proliferation record”, would lead India to seek to resolve disputes in accordance with its own inclinations. The India specific approach would therefore destabilize strategic stability in the region and force Pakistan to keep course with further production of fissile material under heightened regional threat scenario.
National Command Authority, Pakistan’s top nuclear decision making body noted in a statement in this regard that “the India-specific exemption made by the Nuclear Suppliers Group (NSG) and subsequent nuclear fuel supply agreements with several countries, would enable India to produce substantial quantities of fissile material for nuclear weapons by freeing up its domestic resources.16” While emphasizing that the “promotion of nuclear non-proliferation and disarmament objectives in South Asia are linked with regional security dynamics and the need to address existing asymmetries and resolution of outstanding disputes.”17
Criteria based approach
In order for the nuclear nonproliferation regime to be credible, it must aim to universalize norms and enforce them equally. To achieve this, the NSG should build criteria for states that possess nuclear weapons and are not members of the NPT. Such a new criteria should seek to establish guidelines for domestic export control laws, and grant membership to countries if their domestic export regimes meet established guidelines, regardless of NPT membership. Incorporating these outlier countries would ensure uniform application of the criteria, which would strengthen the efficacy of the regime.
Robert Einhorn, of the Brookings institution while supporting a criteria-based approach said that; “… membership in these international regimes should be criteria-based. We should establish sensible criteria, primarily dependent on how effective the export control systems, how well enforced, cooperation on interdiction, all kinds of issues on that; that have nothing to do with their own nuclear weapons programs, but are they going to be effective participants in the regime.18”
Pakistan – A case for Criteria
When talking of criteria for outliers, Pakistan’s case is oft-cited with examples of a past baggage of proliferation and continued fissile material production. However, a recapitulation of Pakistan’s track-record after the in-famous AQ Khan Proliferation episode, reveals that the country has been effectively contributing to global non-proliferation efforts through multilateral instruments relating to export control, physical protection, and various other initiatives, as illustrated in the table below.
Non-Proliferation Commitments Pakistan’s Credentials
Export Controls o Export Control Act on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons & their Delivery Systems (2004)
o It covers exports, re-exports, transshipment and transit of goods and technologies, material and equipment related to nuclear and biological weapons and missiles capable of delivering such weapons
o The Control Lists incorporates standard lists of the NSG, the Australia Group (AG), and MTCR
UNSCR 1540 o To thwart and preempt the threat of NSAs access to the WMD and related materials. Pakistan provides updates to the 1540 Committee as part of its national obligations.
o Regularly has been submitting reports to the Committee
Counter Proliferation Initiatives o Global Initiative to Combat Nuclear Terrorism (GICNT)
o Proliferation Security Initiative (PSI)
o Container Security Initiative (CSI)
Nuclear Security o Pakistan’s nuclear security regime1
o Pakistan’s Centre of Excellence on Nuclear Security
o National Institute of Safety & Security (NISAS)
o Implementing IAEA’s Nuclear Security Action Plan (NSAP)
o Pakistan is party to: CPPNM amended, CNS, Convention on Early Notification of a Nuclear Accident, and the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency
Nuclear Safety o Post Fukushima, PNRA conducted a comprehensive assessment of NPPs and revisited safety parameters, emergency preparedness and response
Nuclear Responsibility o With four-decades long experience in safe and secure operation of nuclear power plants, Pakistan has offered to provide nuclear fuel cycle services under IAEA safeguards.
o Pakistan has been participating in the Nuclear Security Summit process and contributing to gift baskets.
o Has established a centre of Excellence on Nuclear Security currently proving regional training successfully
This makes it a strong candidate for any prospective membership of the export control regimes as well as a responsible nuclear weapon power with advanced nuclear technology.
Mainstreaming Nuclear Pakistan: International Concerns
Analysis on concerns that international community have towards mainstreaming nuclear Pakistan, brings forth the fact that “the non-proliferation regime’s reluctance to view Pakistan as a normal nuclear country stems from the state’s declaratory policies … and the political considerations that Pakistan-watchers raise time and again.20”
These arguments presented by the so called nonproliferation ayatollahs mainly relate to two areas, i.e. counter-terrorism and the proliferation once committed by AQ Khan.
Mark Fitzpatrick in his work on overcoming nuclear dangers (sic) from Pakistan writes that Pakistan bears a “heavier burden of proof … because of the failure of nuclear stewardship regarding transfers by the [Abdul Qadeer Khan] network and because of the ongoing threats posed by other non-state actors in Pakistan.” 21
Although after the AQ Khan episode an explicit command and control structure was instituted and stringent export control laws were implemented, however the reward for these good nonproliferation efforts hasn’t been forthcoming. There is significant skepticism amongst Pakistani thinkers what benefits would additional measures bring; based on how noncommittal international community has been in rewarding Pakistan even for being the front line state in the war on terror and facing the scourge of terrorism till date, loosing precious lives as well as infrastructure. The country has successfully thwarted the surge of terrorism and maintained law and order thus far.
On AQ Khan, the nonproliferation experts acknowledge the dichotomy in US polices and the irony that Pakistan is being penalized again and again for the once committed proliferation. Bob Einhorn while talking of repeated references to proliferation history of Pakistan stated that “there’s a statute of limitations on that crime, and I think they can demonstrate that they’ve adopted a competent export control system.22”
For an effective nonproliferation regime that reflects the realities of the twenty-first century, the world has to accept the changed global realities where not just one but all outliers need to be brought in the NPR. Only such an inclusive and criteria based approach will to be able to work toward the goals of broader strategic stability as well as realize the goals of an effective NPR.
Pakistan watchers attach a lot of political conditionalities with any prospect for Pakistan being mainstreamed. In this regard, if one looks at the recently concluded US-Iran nuclear deal, the lesson drawn is that the nonproliferation and geopolitics can be dealt with separately. United States in its zeal to pursue a negotiated solution to the Iranian nuclear issue, has seriously risked its allies in the Middle East i.e. Israel, GCC states and Saudi Arabia. Though the geopolitical aim of both US and Iran are at cross purposes in the Middle Eastern region, the success of the deal lied in avoiding unnecessary burdening of the nonproliferation agenda with other political considerations.
Surely, as has been witnessed in the Iran Nuclear Deal there is a strong precedent of dealing each issue in isolation and hence the unnecessary burdening of the prospective criteria for membership with political consideration (as has been suggested in various analyses) is something that should be discouraged.
Conclusion
India and Pakistan both are defacto nuclear weapon states outside NPT and hence for the evolution of the NSG and other cartels, criteria should entail principles that seek to strengthen the nonproliferation norms and not serve the country specific interests only. Any country specific approach to mainstreaming will seriously fracture the NPR and damage its credibility permanently and would also loose the leverage to futuristically govern and contain the exports of weapons related technology of nuclear items from states left outside the system conveniently for geopolitical exigencies. Pakistan has demonstrated its strong commitment to nonproliferation and responsible behavior post AQ Khan and hence the international nonproliferation community has to acknowledge that for Pakistan and make a criterion that is inclusive and serves the nonproliferation regime by binding outlier to strong nonproliferation commitments and making them a responsible stakeholder in the evolved global nuclear order.
About the author:
*Saima Aman Sial is a security analyst and a former Nonproliferation Fellow the Center for Nonproliferation Studies and Sandia National Laboratories.
Notes:
1. Nuclear Suppliers Group (official website), available at http://www.nuclearsuppliersgroup.org/en/
2. Guidelines, available at, http://www.nuclearsuppliersgroup.org/en/guidelines
3. Saima Aman Sial, “Nuclear Suppliers Group and its Selective Membership Criteria”, South Asian Voices, 30 June 2015, available at http://southasianvoices.org/nuclear-suppliers-group-and-its-selective-membership-criteria/.
4. “The US-India Nuclear Deal”, Council of Foreign Relations, available at http://www.cfr.org/india/us-india-nuclear-deal/p9663#p1.
5. Ibid.
6. Wade Boese, “NSG, Congress Approve Nuclear Trade with India”, Arms Control Today, 6 October 2008, available at https://www.armscontrol.org/act/2008_10/NSGapprove.
7. “Joint Statement by President Obama and Prime Minister Singh of India”, The White House, available at https://www.whitehouse.gov/the-press-office/2010/11/08/joint-statement-president-obama-and-prime-minister-singh-india
8. India Could be the “Fourth Customer” of A.Q. Khan Ring, Expert Says, NTI, 25 January 2012, available at http://www.nti.org/gsn/article/india-could-be-fourth-customer-q-khan-ring-expert-says/
9. India Moves From Smuggling to Exporting Heavy Water, The Risk Report
Volume 1 Number 2 (March 1995), p. 8, available at http://www.wisconsinproject.org/countries/india/heavywat.html. For details on India’s proliferation record see “India’s Proliferation Record: Nuclear and Missile Diversion”, available on the website of Wisconsin Project for Nuclear Arms Control, http://www.wisconsinproject.org/IndiaDiversion.html.
10. David Albright and Serena Kelleher-Vergantini, India’s New Uranium Enrichment Plant in Karnataka, 1 July 2014, available at http://isis-online.org/isis-reports/detail/indias-new-uranium-enrichment-plant-in-karnataka1/
11. https://www.rt.com/news/226099-us-india-nuclear-agreement/
12. “The India Deal: A 10 Year Assessment”, Transcript, Carnegie International Nuclear Policy
Conference 2015, 24 March 2015, p.14 ,available at http://carnegieendowment.org/files/14-240315carnegieIndiadeal-formatted.pdf
13. Ibid, p.11.
14. Ibid
15. Dr Maleeha Lodhi, “Nuclear Hypocrisy”, The News International, http://www.thenews.com.pk/Todays-News-9-120897-Nuclear-hypocrisy
16. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&date=2010/1/13
17. Ibid
18. “The India Deal: A 10 Year Assessment”, Transcript, p.12.
19. The five pillars include ; a well defined, robust command & control system, Nuclear security regime is anchored in the principle of multi-layered defense for the entire spectrum of any nuclear threat – insider, outsider, or cyber threat, a rigorous regulatory regime, a comprehensive export control regime and international cooperation.
20. Zahir Kazmi, “Pakistan and nuclear order: an exchange: Normalising the Non-proliferation Regime”, (Survival: Volume 57, Issue 1), 5 February 2015. (web edition)
21. Mark Fitzpatrick, “Overcoming Pakistan’s Nuclear Dangers”, Adelphi Papers, 26 March 2014.
22. The India Deal: A 10 Year Assessment”, Transcript, p.12.

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