How NSG States Can Help Avert a Nonproliferation Disaster

Daryl G. Kimball, Executive Director, Arms Control Association

Presentation to the HBF-ACA Seminar on

Forty years ago, the world’s states joined together to create the nuclear Nonproliferation Treaty (NPT). The NPT and subsequent review conferences have established a set of standards and norms that the vast majority of states have agreed to follow in order to reduce the spread and the dangers posed by nuclear weapons. The nuclear weapon states agreed to pursue nuclear disarmament, while the non-nuclear weapon states agreed to foreswear nuclear weapons so long as they retain access to peaceful uses of nuclear energy under strict and verifiable control.

These and other nonproliferation mechanisms have worked remarkably well when properly executed and when the international community has responded with unity to cases of noncompliance. For instance, in response to India’s 1974 nuclear test explosion, which used plutonium derived from Canadian and U.S. supplied equipment and material in violation of India’s peace nuclear use agreements, nuclear supplier states joined together to reinforce the NPT by forming the Nuclear Suppliers Group (NSG). Through national laws and the NSG, leading states severely constrained India’s access to the nuclear fuel and technology market and successfully helped constrain the growth of India’s nuclear arsenal.

In 1992, the NSG formally agreed to restrict nuclear trade with states, such as India, that are not members of the NPT and do not allow comprehensive, full-scope International Atomic Energy Agency (IAEA) safeguards. In 1995, the NPT Review Conference endorsed the principle of full-scope safeguards as a condition of nuclear supply.

But now, the global system for controlling and eliminating nuclear weapons is under increasing stress. The troubles facing the NPT and the NSG derive in large part from:

• The failure of a few states to fulfill their nonproliferation, safeguards, and disarmament obligations;
• The failure of a handful of states to join the treaty; and
• The failure of leading states, including the United States and others to consistently enforce their own nonproliferation and disarmament standards and laws. In the case of India and Pakistan, nonproliferation has too often lost out to competing economic and security considerations with negative results.

The latest example is the July 2005 U.S.-Indian proposal to exempt India from U.S. national laws barring nuclear trade with states that have tested nuclear weapons and do not allow comprehensive safeguards and to carve-out a country-specific loophole in NSG rules to allow a handful of nuclear supplier states to engage in nuclear cooperation with NPT hold-out India.

For its part India pledged to put an additional 8 of its electricity producing nuclear reactors under facility-specific IAEA safeguards by 2014. Six reactors are already under such safeguards. However, it did not commit to any binding restrictions on its ability to increase its nuclear arsenal or test nuclear weapons.

In 2006, the U.S. Congress adopted legislation, known as the Henry Hyde Act, that provides the U.S. president limited and conditional authority to exempt India from the law that bars trade with states that don’t allow full-scope safeguards. In 2007, the United States and India concluded negotiations on a bilateral nuclear cooperation agreement, also referred to as a “123” agreement after the section of the U.S. Atomic Energy Act governing bilateral nuclear cooperation.

To implement the deal, further steps must be undertaken. The 35-member International Atomic Energy Agency (IAEA) Board has to approve a new and unprecedented safeguards agreement that would cover a limited number of additional Indian “civilian” reactors. Then, the 45-nation Nuclear Suppliers Group (NSG) would have to agree by consensus to exempt India from longstanding NSG guidelines that require full-scope IAEA safeguards as a condition of supply. If those steps are taken, the U.S. Congress could then consider whether to approve, reject, or add conditions on the proposed U.S.-Indian “123” agreement. Given the numerous discrepancies between the Hyde Act and the “123” agreement, [1] many members of Congress will want to closely examine and possibly place conditions on the resolution of approval.  If the NSG exempts India from the full-scope safeguards requirement, other states including France and Russia could also go forward with their own bilateral nuclear trade deals.

But now, two and a half years after President Bush and Prime Minister Singh proposed the nuclear deal, the arrangement is being buffeted by crosswinds of criticism at home and abroad. Since the Indian government and the IAEA concluded their talks on the new safeguards agreement in March of this year, several leftist parties – which help provide the United Progressive Alliance government of Prime Minister Manmohan Singh its governing majority – have threatened to withdraw from the government and force an early election if the ruling Congress party takes the safeguards agreement to the IAEA Board of Governors.

Consequently, it is highly unlikely that the NSG meeting that begins May 19 here in Berlin will do anything more than discuss the proposal to exempt India from the full-scope safeguards condition of nuclear supply. In fact, I believe it is unlikely that the NSG will take a formal decision before the end of 2008.

India’s Unreasonable Demands

If the initiative doesn’t crumble as a result of domestic Indian opposition in the next few months, I believe it will become indefinitely stalled or significantly modified because a growing number of NSG states are unwilling to compromise longstanding nonproliferation and disarmament policies.

Why? While many NSG member states support India’s legitimate nuclear energy goals, the terms proposed by India and the United States go far beyond what many of them are willing—or should be asked--to accept.

The Singh government is seeking unprecedented “India-specific” safeguards that it has asserted shall apply only so long as foreign supplies continue.  Although P.M. Singh reiterated India’s support for a nuclear test moratorium, the U.S.-Indian “123” agreement and draft NSG proposal both fail to explicitly state that renewed Indian testing would lead to a termination of nuclear trade. To improve its fuel production and spent fuel reprocessing capabilities, the Singh government has fought tooth and nail to secure access to enrichment and reprocessing technologies from the United States and other nuclear suppliers for its long-planned fast-breeder reactor program, but which could also be used to improve its military nuclear program.

For those in India who believe it is essential to protect the option to increase the size of India’s arsenal, perfect new warhead designs through renewed nuclear testing, and to obtain more advanced plutonium reprocessing and uranium enrichment technology, such terms may seem logical, if not vital.

It is for India to decide what is best for India, but other states are under no obligation to agree to India’s terms. In fact, the 188 states that are party to the nuclear Nonproliferation Treaty have taken on solemn legal and political responsibilities that bar any form of assistance to another state that might support a military nuclear program and to support nuclear disarmament initiatives—responsibilities that make it difficult for them to agree to India’s preferred terms of nuclear trade.

Under Articles II and III of the NPT, member states are legally bound to support effective and permanent safeguards against the diversion of technology that might also help in the making of nuclear bombs or bomb material. Under Article VI, they are all legally bound to support measures that would help end the arms race and lead to disarmament. These include the Comprehensive Test Ban Treaty, which 177 states, including the original five nuclear weapon states, have signed. India refuses to sign. Under Article VI, NPT states are bound to pursue a halt to the production of fissile material for weapons purposes.

While Prime Minister Singh restatement India's support for the negotiation of a global fissile material cutoff treaty (FMCT) is a positive statement, it is not a new or meaningful pledge. India has for several years stated its support for the negotiation of a global, verifiable FMCT. Yet negotiations toward such a treaty have been deadlocked at the Conference on Disarmament since the late 1990s due to differences over negotiating priorities.

NPT member states must also consider the very real possibility that the supply of nuclear fuel to India could free-up its existing (and limited) stockpile and capacity to produce highly enriched uranium and plutonium for weapons. This could allow for the rapid expansion of India's nuclear arsenal from the current rate of some 6-10 bombs annually to several dozen annually. As a result, the United States and other nuclear fuel suppliers could be indirectly assisting India’s nuclear bomb program in violation of their obligation under Article I of the NPT not to assist in any way other states’ nuclear weapons programs.

Furthermore, India’s failure to agree to halt its production of fissile material for weapons (as four of the five original nuclear-weapon states claim to have done and as China is believed to have done) strikes many states as inconsistent with it policy of maintaining a “minimal credible deterrent.” There is no strategic rationale for India amass more than 100 bombs worth of nuclear weapon material when other potential strategic rivals do not possess significantly larger weapons arsenals.

These are real and legitimate concerns that should not be dismissed as unreasonable demands issued by states that would deny what many nuclear nationalists in India believe is a “right” join the few nuclear weapons “haves.” Rather, these are concerns based on the concept that all states should comply with a common set of nuclear weapons restraint measures and that no single state, or group of states, should have a “most favored” nuclear weapons status.

India Would Still Be Outside the Nonproliferation Mainstream

Advocates of the deal in the United States and the other states that might profit from nuclear reactor and fuel sales to India claim that the deal is, on balance, worthwhile because it would bring India into the nuclear nonproliferation mainstream.  Even IAEA Director-General Mohammed El Baradei, who oversees an agency that is mandated to help promote nuclear energy everywhere, has made vague but unsubstantiated claims in support of the deal.

But a sober and careful analysis make it abundantly clear that El Baradei and others who claim  the nuclear deal will strengthen the nonproliferation regime are dead wrong. The nuclear deal fails to bring India into conformity with the nonproliferation behavior expected of responsible nuclear states.

As I and a group of other nonproliferation experts wrote the Director-General in July 2006, the nuclear deal would provide India nuclear trade benefits reserved for countries that have forsworn nuclear weapons or those legally bound to give them up; neither of which is true of India.  The U.S.-Indian deal is not an effective way to restructure the NPT system and would lead to the further unraveling of the basic security bargain established between the nuclear haves and have-nots.

Making any exemption to the nonproliferation rules might only be justified if the nonproliferation and disarmament commitments outlined in the Bush-Singh statement of July 2005 significantly strengthened the global nonproliferation and disarmament system. As of now, they do not.

What Should Be Done?

Nevertheless, unless key members of the 45-member Nuclear Suppliers Group are prepared to exert the necessary leadership, decisions that may taken within weeks or months at the IAEA Board of Governors and the Nuclear Suppliers Group on the India nuclear deal could further undermine the NPT.

Thankfully, most NSG states appear reluctant to make far-reaching exceptions to existing international nuclear nonproliferation practices and many rightly believe that India should in the very least abide by the same nuclear restraint measures that are expected of other major nuclear states.

First of all, NSG members should not be in any rush to exempt India from NSG rules or commit to support such an exemption, especially given the uncertain degree of support for the arrangement inside India.

If the proposal is advanced later this year or next, at an absolute minimum, the NSG should reject India’s demand for a “clean” exemption from NSG guidelines and insist upon the minimal but still vital requirements established by the U.S. Congress in the Henry Hyde Act of 2006.

Among other things, the Hyde Act requires:   

• The immediate termination of all nuclear trade with India if New Delhi resumes nuclear testing or violates its safeguard commitments. India, which has not signed the 1996 Comprehensive Test Ban Treaty, is seeking terms would allow continued nuclear trade even if it resumes testing.  

• An IAEA-India safeguards agreement that applies in perpetuity to all nuclear materials, equipment, and technology and all civilian nuclear facilities in India. New Delhi is seeking an unprecedented “Indian-specific” safeguards agreement that would allow it to remove certain reactors from safeguards if fuel supplies are interrupted, even if that is because it resumes testing.  

• A clear prohibition on the transfer of enrichment, reprocessing, and heavy water production technology for Indian national facilities. IAEA safeguards cannot prevent India from using knowledge gained from the importation of these sensitive technologies in its nuclear weapons program.

If the NSG fails to establish these restrictions and conditions, NSG guidelines would be less stringent than U.S. law and policy. As a result, other less constrained suppliers such as Russia and France would gain a commercial advantage and undermine longstanding U.S. nonproliferation objectives.

However, if NSG states take their nonproliferation obligations seriously, they should apply further conditions and restrictions than were adopted by the U.S. Congress and take responsible action in six key areas:

First, with respect to the new safeguards agreement with the IAEA, which are almost purely symbolic and hardly worth their ten million dollar or more annual costs, the IAEA Board could and should reject any Indian statement or interpretation that makes the safeguards contingent on the continuation of foreign fuel supplies, which runs counter to the principle of permanent safeguards.

IAEA member states must also consider the fact that partial safeguards in a state with a known nuclear weapons program are purely symbolic and hardly worth their cost, which will be ten million U.S, dollars or more a year. These costs will be paid by individual IAEA member states through the IAEA general fund.

Second, India pledged in July 2005 to conclude an Additional Protocol to its safeguards agreement. NSG states will likely insist that India and the IAEA conclude a meaningful Additional Protocol safeguards regime before any India-specific NSG exemption takes effect. So far, neither the Indian nor the U.S. governments have explained how the Additional Protocol will apply to Indian nuclear facilities or when.

Third, the current U.S. proposal to exempt India from NSG guidelines India would, in the case of a resumption of nuclear testing by India, make the suspension of nuclear trade optional for NSG members. This elastic approach to NSG guidelines should be rejected because it  would undercut the international norm against nuclear testing and make a mockery of NSG guidelines. Instead, NSG members should insist that an exemption from the full-scope safeguards requirement would be automatically revoked in the event of a nuclear test explosion.

Fourth, India is seeking an exemption from NSG guidelines that would open the way for other nuclear suppliers to transfer sensitive plutonium reprocessing, uranium enrichment, or heavy water production technology to India.

This should be a red flag to NSG states because IAEA safeguards cannot prevent such technology from being replicated and used in India’s weapons program. At the moment, the vast majority of NSG members support a proposal for a new NSG guideline that would bar transfers of these sensitive nuclear technologies to non-NPT members, states that have not concluded an Additional Protocol agreement with the IAEA, or states that are not in full compliance with their safeguards agreements. This would exclude India from NSG supplies of enrichment and reprocessing items.

This so-called criteria based proposal to tighten enrichment and reprocessing transfers will be the top items at this month’s NSG meeting in Berlin. Whether it is adopted or not, it is highly unlikely that NSG members will consent to nuclear transfers to India involving reprocessing, enrichment, or even heavy water production items.

Fifth, NSG states should flatly reject India’s attempts to secure nuclear fuel supply guarantees for the lifetime of their reactors to overcome the possibility that foreign suppliers might cut off nuclear trade if India decides to resume nuclear testing or violates its safeguards agreement. Instead, as the Hyde Act suggest, NSG states should stipulate that if NSG states provide nuclear fuel supplies to India, they should only be “commensurate with reasonable reactor requirements,” and not constitute a multi-year strategic fuel reserve.

Finally, NSG states must also take their NPT and UN Security Council commitments seriously. In keeping with the Article VI requirement on all NPT states to support measures that would help end the arms race and lead to disarmament, they should reiterate the call in UNSC 1172 of 1998 that calls upon India to reconsider and sign the CTBT and, along with Pakistan, halt fissile material production for weapons.

Conclusion

Now is the time for Germany (the incoming chair of the NSG) to work with responsible members of the NSG to insist upon guidelines for trade with India that, at the very least, incorporate the minimal requirements mandated by U.S. law, and ideally, go further to minimize the damage to the already beleaguered global nonproliferation system.

For several months, the Arms Control Association and dozens of other nonproliferation experts and nongovernmental organizations have been working to draw attention to the flaws in the nuclear deal and propose fixes. For instance, we organized a letter to NSG member states and several IAEA Board of Governors states in January of this year that was endorsed by more than 130 NGOs and experts from 23 countries.[2]

Based on my conversations with NSG diplomats in recent weeks, I am fairly confident that many of many of our recommendations have broad support within the NSG, and as a result, the proposal will have to be substantially modified and conditioned if it is to gain approval.

If India’s leaders cannot even abide by these minimal standards and decide to reject the deal, that is their choice. However, before they do, they should consider whether continued fissile material production, the option to test again, access to reprocessing and enrichment technology, and special safeguards are worth the cost of losing access to international fuel supplies and power reactors. A careful and sober examination of these questions suggest that the purported security benefits of expanding and modernizing India’s nuclear weapons arsenal and the economic benefits of reprocessing spent nuclear fuel are illusory and their cost are high.

Given India’s laudable past efforts and calls for a nuclear weapons free world, it is also unfortunate that the U.S.-Indian nuclear cooperation proposal has not prompted deeper thinking and discussion within India about the role of its nuclear weapons and why it needs any greater capability.

To this day, Indian politicians cite former P.M. Rajiv Gandhi’s visionary 1988 proposal for nuclear disarmament as a blueprint for action. Realizing its goals will take more than just talk on the part of India’s leaders. It requires leadership by example. While the U.S. and Russia have undertaken several of the “phase I” steps in the Gandhi plan, India now resists two key elements of the plan: the CTBT and a “cessation of the production of nuclear weapons by all nuclear weapon states.” If India were to offer its support for these initiatives, its reentry into the international civil nuclear energy market would be wholeheartedly welcomed and not so vigorously resisted.