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New NSG draft has small but significant changes

Vienna: The revised draft waiver finalised by the United States and India last Friday for consideration by the Nuclear Suppliers Group contains changes that are neither cosmetic nor dramatic. Though non-proliferationist critics in the U.S. have focused on the supposed inadequacy of the new paragraphs that have been incorporated in the new proposal seeking a waiver for India from the tough export rules of the NSG, they seem to have missed the substantive changes which have been introduced by the addition or subtraction of key words and sentences in different places throughout the text.

Taken together, these changes suggest a serious attempt has been made to grapple with the more than 50 amendments which were demanded the last time the NSG met, while remaining mindful of the red lines India had itself laid down.

The fact that several NSG members have dropped their vociferous criticism of the proposal suggests the changes are not being seen here as purely ornamental, though there are countries which continue to attack the draft for not reflecting their non-proliferation concerns strongly enough.

In paragraph 1(a), what was earlier a reiteration of the NSG’s desire to contribute to the widest possible implementation of the objectives of the Nuclear Non-proliferation Treaty (NPT) has now become “objectives and provisions” of the NPT. This is a concession by India, since the “provisions” are what spell out the distinction between nuclear and non-nuclear weapon states, with the latter expected to have full-scope safeguards.

Paras 1 and 2 also remove references to the NPT as the “traditional” non-proliferation regime and drop the idea of India being a “contributing partner” in the non-proliferation regime. These changes essentially are meant to allay the concerns of the NSG members that the NPT itself is in some way old or obsolete or that India is being accorded some special status within the regime despite its possession of nuclear weapons.

Also Para 1 (b) now speaks of the NSG seeking to “avert” the further spread of nuclear weapons, rather than to “limit” it.

Though several NSG states wanted a formal review mechanism – a red line for India which said this might jeopardise billions of dollars worth of investment – the new draft provides for the NSG members to notify each other of transfers to India and share details of their bilateral agreements with India. But consultation now shall be, inter alia, about matters connected with implementation of the “statement” rather than the “Guidelines” as it was in the earlier draft, thus more tightly highlighting the centrality of India’s non-proliferation commitments.

There are two other changes in the waiver which are significant. First, the link between India’s commitments and the NSG’s decision has been tightened.

Earlier, the link sentence to the decision to waive the requirement of full-scope safeguards was simply “In view of the above,” i.e., India’s commitments. Now, it says the NSG is deciding to waive the requirement “based on the commitments and actions mentioned above,” i.e., in the paragraph outlining India’s obligations. Though the connection is more direct, this wording falls short of the demand made by some to make the waiver decision explicitly conditional on India’s implementation of its commitments, something New Delhi has resisted.

Second, the paragraph requiring consultation with India by the NSG prior to the adoption of any changes to its guidelines has been diluted somewhat to the country’s detriment.

The issue is important because one of India’s commitments is “adherence to NSG guidelines” despite not being a member of the group. This commitment could expose India to being compelled to adhere to policies it did not play a role in formulating and which it might even oppose. The earlier draft had spelt out a mechanism for consultation with India and said “participation of India in the decisions regarding proposed amendments will facilitate their implementation by India.” The new draft drops the word “effective.” It also drops the earlier requirement that the NSG consult with India “on a non-discriminatory basis and solicit such comments on the amendments as [India] may wish to make.”

Though many countries wanted explicit language terminating cooperation with India in the event of the country ending its voluntary moratorium on nuclear testing, the new draft stops short of introducing such a provision. However, a new paragraph has been added providing for consultations “in accordance with Paragraph 16 of the NSG guidelines” if one or more members “consider that circumstances have arisen which require consultations.”

This paragraph of the original guidelines specifies a consultative procedure and provides for a range of measures, including termination of supplies. 16(c) of the guidelines say, inter alia, “In the event that one or more suppliers believe that there has been a violation of supplier/recipient understanding resulting from these Guidelines, particularly in the case of an explosion of a nuclear device, or illegal termination or violation of IAEA safeguards by a recipient, suppliers should consult promptly through diplomatic channels ... Upon the findings of such consultations, the suppliers ... should agree on an appropriate response and possible action, which could include the termination of nuclear transfers to that recipient.”

As the draft stands, however, termination of supplies to India following consultations based on Paragraph 16 would still have to be based on a decision taken by the whole NSG by consensus. There is no automaticity.

Any country, especially a major supplier like Russia, could effectively block such a decision, a fact pointed out by those NSG members critical of the new draft.

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