On November 10, 2010, President Obama announced US support for admitting India into the Nuclear Suppliers Group (NSG). And in May 2011, prior to the June 2011 NSG Consultative Group (CG) and Plenary meetings at Noordwijk, the US circulated a “Food for Thought” paper on the question of India’s NSG membership for consideration and feedback by the participating governments. Although five Plenaries have been held since then and the group’s Public Statements after these plenaries routinely state that the plenary “discussed the NSG relationship with India”, there does not seem to have been any substantive movement during these five years on the question of the NSG accommodating India as a Participating Government (PG).

The 2001 Aspen Plenary formally adopted the Procedure for NSG membership after an Implementation Working Group (IMP) set up by the 2000 Paris Plenary presented a draft paper on how a restructured NSG might operate. One of the decisions adopted by the Aspen plenary was with respect to participation in the NSG. It defined a set of factors that should be considered by the current Participating Governments when dealing with the possible acceptance of a new Participating Government. It also decided that a new Government may either be invited to join the NSG as a PG through a consensus decision or approving its application for PG status again through a consensus decision.

The factors to be considered by the current PGs when dealing with the possible acceptance of a government as a new Participating Government were, among other things, whether the applicant would be

1.  be able to supply items 3 covered by the Annexes to Parts 1 and 2 of the NSG Guidelines;
2. adhere to, and act in accordance with, the Guidelines;
3. have in force a legally-based domestic export control system which gives effect to the commitment to act in accordance with the Guidelines;
4. be a party to the NPT, the Treaties of Pelindaba, Rarotonga, Tlatelolco or Bangkok or an equivalent international nuclear non-proliferation agreement, and be in full compliance with the obligations of such agreement(s), and, as appropriate, have in force a full-scope safeguards agreement with the IAEA;
5. be supportive of international efforts towards non-proliferation of weapons of mass destruction and of their delivery vehicles.

The participation procedure adopted by the Aspen Plenary required that the government concerned

1. should have adhered to the Guidelines,
2. is interested in becoming a Participating Government of the NSG, and
3. has indicated its desire to do so to the current NSG Chair directly or through the Point of Contact.

The Aspen Plenary also defined what it meant by adherence thus:

“To be eligible to become a new NSG Participating Government, a government must have adhered to the Guidelines for the Export of Nuclear Material, Equipment and Technology, and the Guidelines for Transfers of Nuclear Related Dual-Use Equipment, Materials, Software and Related Technology. Such adherence is accomplished by sending an official communication to the Director-General of the IAEA stating that the government will act in accordance with the Guidelines. This communication is to be intended for publication in the INFCIRC series.”

India does not fulfil two of the factors “to be considered” by current participating governments. It is neither a NSG adherent nor a NPT signatory. It was for this reason that the US, in its “Food for Thought” note to the NSG PGs, interpreted the Procedural Arrangement as not requiring that “a candidate meet all of the stated criteria” and, for that reason, NSG PGs could simply take a decision by consensus to admit India based on India’s support for the nuclear non-proliferation regime and its non-proliferation behaviour.

In the above context, this commentary examines (a) whether the US interpretation of the “Factors to be Considered” is valid, and (b) if yes, what other options are available to India to apply for membership.

Factors to be considered

Two factors support the US view about the nature of the factors to be considered:

1. The IMP had considered whether a reference to ratification of an Additional Protocol with the IAEA should be added as a factor to be taken into account when considering future requests for participation in the NSG which had the support of a significant number of NSG PGs who saw no difficulty in it, given that it would be just one factor among many for consideration and that non-ratification would not necessarily preclude a government from achieving participation status.
2. The second factor is even more compelling. After the Participation procedure and the “Factors to be considered” were endorsed, the NSG had not only considered an application from a Government that did not fulfil all the factors but approved its participation in NSG as a PG even though it was not a NSG Adherent. In 2004, NSG admitted China as a NSG PG. At the time of its application for membership, China was not only not a NSG adherent, it had made clear that its adherence to NSG Guidelines was conditional on its acceptance as a NSG by the NSG PGs. In its letter to the IAEA Director General (DG), China had stated

“The Chinese Government has submitted its application for the membership of the Nuclear Suppliers Group (NSG). China will, once admitted into NSG, act in accordance with the NSG Guidelines (as contained in INFCIRC/254/Part I and Part 2, including Annexes, as amended) and duly exercise export control over nuclear and nuclear dual-use items.”

India’s options

It is clear that the IMP in their report to the Plenary had in mind only that the requirements enumerated were only to be taken into consideration for membership in NSG and were not mandatory requirements. This factor seemed to have been taken note of by the NSG PGs when they admitted China as a PG, even though not only had China not fulfilled the requirements but also affirmed that its NSG adherence will be conditional on NSG membership. Does this precedence offer a fresh avenue for India to approach the issue of its admission to NSG membership?

India is, of course, not a NPT signatory. But it is also not a NSG recognized NSG adherent even though it had made a unilateral declaration to the IAEA DG that it follows NSG Guidelines, and the US Administration had certified to the US Congress in pursuance of its obligations under the Hyde Act that India does follow NSG Guidelines. The non-recognition by NSG of this adherence declaration arises from the fact that the Indian letter to the DG was not published as an IAEA INFCIRC. Why India chose not to have its adherence to NSG Guidelines published as an INFCIRC, even though it was meant to be circulated to all IAEA members, is not clear. The only upshot of this inexplicable action on the part of the Indian Government was that even though India adheres to NSG Guidelines, and has explicitly informed the NSG PGs and IAEA of this policy, it is yet not officially recognized as a NSG adherent by the NSG! Notwithstanding this, India can still retrieve its position by requesting the IAEA to publish its September 2008 letter to the IAEA DG containing its policy of adherence to NSG Guidelines. If it does so, then India will not be fulfilling only one of the factors to be considered, namely, non-membership of NPT. And the omission of NSG adherence in China’s application for NSG admission is a far more serious deficiency than non-membership of NPT in India’s case. The NSG guidelines in respect of transfer, and use of such transferred item, of nuclear and nuclear related dual use items and technology are a far more restrictive and supportive move in “international efforts towards non-proliferation of weapons of mass destruction” than NPT. Hence, the absence of one of the factors to be considered for membership was far more serious in the case of China than would be in the case of India.

Hence, an Indian application for NSG membership should, objectively speaking, face much less resistance than what china had faced. Such an option is certainly worth an attempt instead of waiting indefinitely for the NSG PGs to arrive at a consensus on inviting India while attempting at the same time to find a via media by which India and Pakistan can both be accommodated in the NSG.

Author : G. Balachandran | Dr. G. Balachandran is Consulting Fellow at the Institute for Defence Studies and Analyses, New Delhi.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India

Published on IDSA Website : 20th July 2015