Nuclear soothsayers146; group

Before turning to likely 8220;conditions8221; that may become the focus of debate in the NSG, it may be necessary to revisit the origins of the NSG to understand why the discussions there may be different from the ones in the IAEA.

The NSG was set up in 1975, primarily to implement sanctions on nuclear commerce with India, as a reaction to India8217;s Peaceful Nuclear Explosion in 1974. It needs to be remembered that PNEs were an accepted concept at that time and are exempted, even today, in the text of the NPT. The NPT came into force in 1970, and Pokharan I was seen as the defiance by a weak country of the will of the powerful. China and France continued nuclear testing for weapons purposes, when they were not members of the NPT. In 1992, the NSG included in their guidelines dual-use technologies 8212; any item or technology which might contribute to a sanctioned country8217;s nuclear programme 8212; even if the import was for non-nuclear sectors. This was further reinforced by the 8220;catch-all8221; lists which could include any items, even those not specifically mentioned in the guidelines.

Later, NSG guidelines, which are meant exclusively for non-nuclear weapon states, demanded that these states accept safeguards on all facilities since the non-nuclear weapon states had voluntarily given up their right to manufacture nuclear weapons. There is a strange irony in the fact that the organisation which was set up in reaction to India8217;s first nuclear test should today be faced with a proposal to issue a waiver of its guidelines exceptionalising India.

Quite naturally, the issue of India conducting more nuclear tests will be one of the focal points of discussion in the NSG at its next meeting. This was reflected in the debate in the IAEA Board of Governors on August 18212; a number of countries, even among those that supported the India-specific safeguards agreement, called for India to adhere to the CTBT; others expressed concern at the inherent linkage between the duration of the safeguards agreement and the supply of fuel. This, in their view, would undercut the ability of the NSG to react to any future testing by India. Of the five NPT nuclear weapon states, three 8212; Russia, the United Kingdom and France 8212; have signed and ratified the CTBT. The US and China have not 8212; India has not even signed the treaty and Pakistan8217;s position would invariably reflect India8217;s. Even though there is no overt reference to testing in the 123 Agreement, US laws requiring a 8220;right of return8221; of equipment and material in the event of a nuclear test remain intact, unamended by the Hyde Act. Other countries in the NSG may wish to include some reference to testing in the decision to grant an exemption to India from its restrictive guidelines. The chairman of the Atomic Energy Commission, Anil Kakodkar, has made it clear that the NSG guidelines are meant for non-nuclear weapon states; India has nuclear weapons and is not in violation of any laws or obligations as it is not a member of the NPT. He was clear that India retained the option to 8220;walk out8221; of the entire exercise, if unwelcome conditions were attached to the NSG decision. Some might believe that India is in so deep, particularly after the domestic drama of the last few weeks, that it may not be in a position to walk out; this would be a misreading of the situation. It has been India8217;s reaction to unwelcome international legally binding constraints to walk out of a situation rather than accept a situation and then hope for the best.

Another focal point of debate is likely to be the exceptionalising of India: however, since there has been a consensus already on such exceptionalisation in the IAEA, it is not likely to be a major stumbling block. Other issues such as a moratorium on the production of fissile material for weapons purposes are also likely to be raised, though India8217;s positive participation in the CD on the FMCT will be a point in its favour.

It needs to be noted that the NSG only issues guidelines: each participating state will decide, on the basis of its own export control laws, how it should implement the guidelines. To that extent, even if there is a clean waiver, India will have to negotiate with supplier countries on an individual basis, before commercial contracts can be signed for the import of reactors, technology or fuel.

The choice before the NSG should be clear; if the waiver is not acceptable to India, it would be free to go its own way. This would surely not be in the interest of the global non-proliferation regime. On the other hand, a clean waiver would make India a powerful partner in the struggle against proliferation and the efforts towards nuclear disarmament.

The writer is former ambassador of India to the United Nations in Geneva

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