The Nuclear Suppliers Group (NSG) will meet in Vienna in the coming weeks to discuss an exception for India from current guidelines for nuclear trade. The "clean exception" for India that has been proposed by the United States represents a major diversion from the nonproliferation mainstream rather than toward it. If NSG members adopt a clean exception, particularly in light of other discussions in the NSG on restricting enrichment and reprocessing, the nonproliferation mainstream may begin to look quite different.

Moving India into the nonproliferation mainstream has been the key nonproliferation benefit promoted by U.S. officials since U.S.-India nuclear cooperation began to take shape in 2005. With each successive step – declaring civilian nuclear facilities, negotiating the U.S.-India "123" agreement, and negotiating the IAEA safeguards agreement – the flow of India’s nonproliferation commitments appears to conform less and less with the mainstream. The draft NSG decision tabled by the U.S. this month would ratify this trend. The problem is that a clean exception taken by what is arguably the linchpin of the nuclear nonproliferation regime – the NSG – threatens to alter the mainstream itself.

The draft NSG decision does not mention a cutoff in supply if India tests another nuclear device. This is ironic because the NSG was created, at U.S. insistence, following India's 1974 nuclear test. That test demonstrated, according to the NSG, the inherent risk that peaceful nuclear trade could be misused for weapons purposes. Moreover, the NSG has implemented a policy in recent years of terminating cooperation temporarily to states that have been found in noncompliance with their Nuclear Non-Proliferation Treaty (NPT) obligations. A nuclear test by a non-nuclear weapon state signatory to the NPT would be an obvious case of noncompliance with NPT obligations. But India has no NPT obligations because it has not signed the NPT. Allowing continued supply of nuclear materials following a nuclear weapon test by India would contradict the norm that the world has been trying to establish since the signing of the Comprehensive Test Ban Treaty (CTBT) ten years ago. Failing to adopt a supply cutoff for testing for India would leave a gap that is easy to plug now. If India is serious about its commitment to a unilateral moratorium on nuclear testing, it should not object to such a condition.

The draft decision also does not link supply to India's adherence to the few nonproliferation commitments it has made. As an Arms Control Association analysis has noted, earlier drafts of the NSG decision explicitly linked supply to India’s good nonproliferation behavior.[1]

The draft decision also does not contain restrictions on transferring to India sensitive nuclear technologies like uranium enrichment or spent fuel reprocessing. Banning such transfers to India is vital to preserving current and future NSG principles. India will continue to operate enrichment and reprocessing facilities outside of safeguards for its weapons program. This means that technology and know-how, which are not covered by IAEA safeguards, could be transferred from safeguarded activities to India's military program. This would clearly contravene the entire purpose of the NSG and could pose dilemmas for nuclear weapon states' compliance with Article I of the NPT.

The NSG has been considering new criteria for sensitive facilities, equipment, technology and material transfers that would, in effect, bar cooperation with India, because the first one is NPT membership. Others cover a state's Additional Protocol status, safeguards compliance, UN Security Council Resolution 1540 implementation, perpetuity of safeguards, physical protection, nuclear safety, and more generally, stability, security, and coherence of the rationale for enrichment and reprocessing for a civilian power program. Also under consideration is a criterion that any transfers of technology would not allow for replication. The statement of the latest G8 summit made reference to this, noting that, "Additionally, we agree that transfers of enrichment equipment, facilities and technology to any additional state in the next year will be subject to conditions that, at a minimum, do not permit or enable replication of the facilities; and where technically feasible reprocessing transfers to any additional state will be subject to those same conditions."[2] The statement failed to mention that its own moratorium on transfers, in place since 2004, now appears to be dead.

Had NSG members been able to agree upon the criteria in the plenary last May, such sensitive transfers would not be an issue with respect to India because of the NPT criterion. Yet negotiations on these new restrictions are at a stalemate. Four years of talks amidst a widespread perception that nuclear power may experience a comeback have made some countries skittish about closing off their options. Countries with new or renewed interest in enrichment include Canada, Ukraine, and South Africa. If NSG members are unable to restrict enrichment and reprocessing transfers now to India, a state that has not signed the NPT, how will they be able to restrict such transfers to other countries?

In addition, the draft NSG decision on India calls for India (and other non-member adherents) to review proposed amendments to NSG guidelines.[3] It is hard to see how India would support the adoption of new criteria on enrichment and reprocessing that required NPT membership, safeguards in perpetuity, or non-replication.

The NSG decision on India is more important than U.S. congressional approval of the 123 agreement because it will open up nuclear trade for India with the world regardless of what happens with the U.S. The NSG can help bring India into the nonproliferation mainstream and thereby avert significant damage to the nonproliferation regime by imposing four conditions. First, it must condition supply on the continuation of India's not testing nuclear weapons. Second, it must ban transfers of enrichment and reprocessing technology. Third, it should link supply to India’s continued adherence to its nonproliferation commitments outlined in July 2005, as the earlier NSG draft decision did. Fourth, it should require India to declare it has stopped fissile material production for weapons.

The first three conditions are a bare minimum, while the fourth would bring India in line with the five nuclear weapon states that have stopped fissile material production for weapons, pending entry into force of a fissile material production cutoff treaty that India says it supports. The biggest challenge for NSG members in the coming weeks will be to maintain their traditional consensus approach to decision making in the face of intense political pressure by the U.S. and other states that stand to gain from trade with India. Deferring a decision would be a wiser course than risking significant erosion of that consensus, upon which the future of the NSG and the nonproliferation regime depends.

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Sharon Squassoni is senior associate in the Nonproliferation Program at the Carnegie Endowment for International Peace.

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Notes

1. Daryl G. Kimball, "U.S. Proposal for India-Specific Exemption from Nuclear Suppliers Group Guidelines Circulated August 2008," Arms Control Association, August 13, 2008.

2. See Political Issues, paragraph 66, "G8 Hokkaido Toyako Summit Leaders Declaration," Ministry of Foreign Affairs of Japan, July 8, 2008.

3. In paragraph 4, "Text of U.S. NSG Proposal on India," Carnegie Endowment for International Peace, August 13, 2008.