In 2008, the 46 participating governments of the Nuclear Suppliers Group (NSG) agreed to exempt India from the comprehensive IAEA safeguards requirement of the NSG Guidelines. This “India exemption” permits suppliers to conduct civil nuclear trade with India, one of the three states that never joined the Nuclear Non-Proliferation Treaty (NPT).1 The nuclear policy community widely believes this exemption undermines the credibility of the global nuclear nonproliferation regime.
The desirability of providing access to the safest and most efficient nuclear power technology to produce electricity while protecting the environment, even to non-NPT states, is perfectly understandable, even though such supply is contrary to both the spirit of the NPT bargain (as it is presently understood) and the letter of the NSG Guidelines. In agreeing to export nuclear items and technologies to India, the NSG should have required India to accept formally at least the obligations of the five nuclear-weapon states recognized under the NPT. The NSG also should have entitled India to less cooperation from the supplier states than that made available to NPT non-nuclear-weapon states (NNWS).2
Instead, the NSG exemption failed to commit India to a responsible nonproliferation policy. Moreover, the U.S.-India Civil Nuclear Trade Agreement frees India to develop further its nuclear weapons program,3
grants India a generic consent to reprocess transferred nuclear material,4
and guarantees India fuel supply assurances that have never been offered to the NNWS, all of which agreed to disavow nuclear weapons programs in order to access civil nuclear technologies.
Now, the United States and India desire to take a further step by making India a formal member of the NSG and not just an adherent to its Guidelines. In considering Indian membership, NSG members should agree on criteria that would require India to conform to the contemporary understanding of the NPT bargain. The damage of the India exception is done, but some repair is possible in considering criteria applicable not only to India, but to all non-NPT States, thereby avoiding further discrimination among them.
To become a member of the NSG, any non-NPT state should be expected to meet objective nonproliferation criteria that ensure their behavior is consistent with the basic objectives of the Group. Such criteria would require non-NPT states to adopt undertakings similar to those already accepted by the five nuclear-weapon states. They would also oblige the non-NPT states to implement major export conditions before joining the Group, as well as to adhere to and implement international treaties, conventions and legally-binding UN Security Council resolutions dealing with disarmament, nuclear security and nuclear terrorism. Of course, the present members of the NSG may not yet have adopted all the relevant conditions mentioned below. But to require such conditions for non-NPT States to join the Group (while they are not meeting the requirement of full-scope safeguards) is a legitimate demand.
The next NSG Plenary meeting will take place in June under the chairmanship of the Netherlands. NSG participating governments should take the opportunity to discuss the merits and possible drawbacks of the fourteen membership conditions enumerated below, with the goal of elaborating objective membership criteria that would reinforce the global non-proliferation regime and avoid further discrimination among non-NPT States. By insisting on these fourteen conditions, the NSG can correct the inequality created by the India exception, shore up India’s nonproliferation commitments, and begin to rebuild the NSG’s credibility as one of the guarantors of the NPT bargain.
To become a full member of the NSG, a non-NPT state must:
- Undertake to comply (as have the five NPT nuclear-weapon states) with the requirements of Articles I, III.2 and VI of the NPT;
- Have in force a Voluntary Offer Agreement (VOA) with the IAEA whereby the non-NPT State undertakes to place all new nuclear facilities located outside existing military nuclear sites on the list of facilities eligible to be safeguarded by the IAEA under INFCIRC/66-type safeguards agreements (with duration and coverage provisions in conformity with IAEA document GOV/1621 of August 1973);5
- Have ratified an Additional Protocol to its safeguards agreement (as already done by the five NPT nuclear-weapon states);
- Not be in material breach of an IAEA safeguards agreement;
- Commit not to export or transfer items specified in INFCIRC/254/ Parts 1 and 2 to a NNWS unless such State has a Comprehensive Safeguards Agreement (CSA)6 and an Additional Protocol (AP)7 in force with the IAEA, and is in compliance with its international obligations in the field of non-proliferation. This export condition has been accepted by a very large majority of NSG members and should be agreed upon by any new member;
- Have in place legal measures to ensure the effective and uninterrupted implementation of the NSG Guidelines (both Part 1 and Part 2), including export licensing regulations, enforcement measures, and penalties for violations;
- Commit to share information on “catch all” denials with the IAEA and the members of the NSG;
- Have signed and ratified the Comprehensive Test Ban Treaty (CTBT),8 as specifically requested of India and Pakistan under UNSC Resolution 1172, with the understanding that its ratification will be automatically completed upon ratification of the CTBT by the U.S. and China. If another state in the region proceeds with a nuclear test, this could constitute an event as defined in Article IX.2 of the CTBT, thereby justifying withdrawal.
- Commit, pending the entry into force of the CTBT, to adhere to a unilateral moratorium on nuclear explosion tests, as required under Step 2 of the 2000 NPT Review Conference Final Document’s “13 Steps;”
- Fully implement all UN Security Council resolutions adopted under Chapter VII of the UN Charter that relate to nuclear proliferation or terrorism (in particular, Resolution 1540);
- Adhere to the Missile Technology Control Regime (MTCR) and have in place the corresponding export control legislation;
- Have ratified the Convention on the Physical Protection of Nuclear Material (CPPNM), as amended in 2005;
- Be party to the International Convention for the Suppression of Acts of Nuclear Terrorism, as adopted by the UN General Assembly in resolution A/RES/59/290 (April 2005);
- Pending completion of a formal treaty banning the production of fissile material for nuclear weapons, commit to implement in good faith Step 3 of the “13 Steps” and “agree on a program of work which includes the immediate commencement of negotiations on such a treaty with a view to their conclusion within five years.”
1. The other two being Israel and Pakistan.
2. E.g. access to the safest nuclear power reactor technology, but not to sensitive fuel cycle technology.
3. Article 4 of the Agreement for Cooperation between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy (123 Agreement) states “this Agreement shall be implemented in a manner so as not to hinder or otherwise interfere with […] military nuclear facilities.” The agreement can be found at: http://www.usindiafriendship.net/viewpoints1/nuclearagreement2007.htm
4. Article 6.iii of the Agreement provides that "The Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement."
5. This goes beyond what has been agreed by India thus far, but should not be seen as a non-starter. It would be a step in the direction of the comprehensive safeguards commitment by the NNWS, while not affecting the ability of non-NPT States to operate and expand nuclear facilities on existing military nuclear sites outside IAEA safeguards.
6. IAEA INFCIRC/153 (Corrected).
7. IAEA INFCIRC/540 (Corrected).
8. This condition is also required of the five NWS under Step1 of the "13 Steps" contained in the Final Document of the 2000 NPT Review and reaffirmed in the Final Document of the 2010 NPT Review Conference.