India, Pakistan and the NSG

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(This paper was originally published by Project Alpha, King’s College London)

 Abstract

This paper examines the question of Nuclear Suppliers Group membership in the context of applications from two non-NPT states with nuclear weapons. This includes examining the history of NSG with regard to membership, the recent approaches being taken by the NSG to consider the applications, and the broader implications of the membership applications for both non-proliferation and peaceful uses of atomic energy. The paper concludes that, when objectively judged, India and Pakistan are similarly-placed candidates for NSG membership, but geo-politics and history has complicated the issue. However, it is also argued that the question of membership is a distraction from the more significant issues facing the international community, including the need to maintain sanctity of the existing non-proliferation regime in an uncertain future

Introduction

The applications of both India and Pakistan for membership of the Nuclear Suppliers Group (NSG) has resulted in much debate within the regime and the non-proliferation community more generally. The questions being discussed range from under what circumstances non-NPT states with nuclear weapons should be accepted into the regime to questions about the merits of individual states to concerns about how entry of such states might affect the broader non-proliferation regime. Coming after the controversial NSG waiver for India to the requirement for full-scope safeguards and the more recent Treaty on the Prohibition of Nuclear Weapons (TPNW), there is a real concern in some quarters that membership of non-NPT states could contribute to an unravelling of the NPT. Additionally, there is also the question of geopolitical interest that some believe is the core issue complicating current NSG membership debate.

Weighing these factors and reaching a conclusion within a consensus-driven regime such as the NSG is far from straightforward. The membership issue has created a clear divide between the US and China. However, the picture is more complex, with a third axis of non-nuclear weapons states opposing the membership applications of both India and Pakistan perhaps out of fear that NSG membership could act to legitimise their nuclear weapons programmes.

At the same time progress on nuclear power is important both for the potential members and for the world. Nuclear power is one of the few clean energy sources that can meet some portion of the rising energy gap in India and Pakistan and can thus play an important part in stemming global warming.

The NSG debate is thus a complex one. This paper seeks to contribute to the debate by presenting an analysis of each of the above-mentioned factors from perspectives of the authors which might, at the outset, have been assumed to be quite different.[i] The paper first begins by providing some historical context to the current NSG membership debate then examines arguments for and against membership in relation to each of the above-mentioned issues. Next, the paper explores the values and implications of membership of non-NPT states before turning to consider different approaches that are being discussed to evaluate such membership applications. Finally, broader implications are drawn out.

The purpose of this paper is not to advocate for a specific approach or criteria. However, it is clear from this examination that the issues being examined are difficult – and perhaps intractable. As such, the overall finding and argument of this paper is that the membership question is a distraction from the more important issues facing the international community, including the importance of nuclear power for economic development.

The Long History of the Membership Issue 

While it is only in the last few years that the prospect of NSG membership for India and Pakistan has come to the fore, the question of NSG membership has existed for decades and continues to affect the debate to this day. As such, it is useful to briefly examine aspects of the NSG membership discussion in order to highlight a number of points, including that India and Pakistan membership in the NSG was considered as early as the mid 1970s and that, since its creation in 1975, the NSG has had several members that were not at the time of joining parties to the NPT.

Discussion of the NSG in the 1970s often focused on the fact that the NSG was established in response to India’s nuclear test – the so-called ‘Peaceful Nuclear Explosion’ in 1974. This is certainly true. However, at the same time an examination of the archive documents associated with the NSG’s creation highlights that the purpose of the NSG in this early phase was as much geared towards Pakistan, as it was toward India, since Pakistan had made it clear that it would build nuclear weapons if India does. [ii] This was expressly set out when the United States invited Canada, West Germany, France, Japan, the Soviet Union and the United Kingdom to meet in 1975 to discuss the issue of nuclear transfers. Once agreement had been reached on several issues of nuclear export policy, the original group began to consider which other states should be included. It was in this context that a number of additional countries were invited to join the NSG, with Belgium, Czechoslovakia, East Germany, Italy, the Netherlands, Poland, Sweden, and Switzerland joining in 1977.

These developments are also relevant to this paper. Following the election of President Carter in 1976, the non-proliferation priority shifted towards preventing the spread of reprocessing capabilities. The Carter administration wound up the work of the NSG after France agreed to cancel the reprocessing plant transfer to Pakistan and focused its efforts instead on the International Nuclear Fuel Cycle Evolution programme (INFCE). It would be another 15 years before the NSG formally met again.[iii] Of relevance to this paper, however, is the fact that the NSG concluded in the 1970s with 14 members, including France, which was not party to the NPT. The NSG also concluded without agreement on the condition of full-scope safeguards as a condition of supply for nuclear technology – a factor that allowed states on an individual basis to continue to supply India and Pakistan with nuclear assistance until the non-proliferation landscape changed with the discovery of Iraq’s clandestine programme in the 1990s.

The NSG resumed its discussion in 1990 in the context of the discovery of Iraq’s expansive clandestine nuclear programme, which had been built up over the course of the 1980s through the acquisition of dual-use items from the international community. Coming at the end of the Cold War with a more unified Security Council, the discovery of Iraq’s programme led to a renewed purpose for the NSG, which resumed meetings in 1991. By April 1992, the NSG had agreed to control a list of dual-use items, implement a requirement for full-scope safeguards as a condition of supply, and appoint a point of contact for the group (a role taken by the Japanese Mission in Vienna).[iv]

Over the course of the 1980s, more countries aligned their national export controls to the lists of the NSG. As such, by the time the ‘states adhering to the Nuclear Suppliers Guidelines’ met again in 1991, the NSG was considerably larger than it had been the last time it met in the 1970s.[v] This wording of the meetings in the early 1990s is also interesting, as it was carefully crafted to define the NSG as countries that were adhering to the lists of the NSG, rather than a pre-defined group in its own right.

Table 1: NSG and NPT Participation Dates[vi]

Indeed, from the above table, it can be seen that the NSG has grown at a relatively substantial rate since the 1970s. Given regime’s current size of 48 states and its creation in the mid-1970s, the NSG has grown at a rate of around one country per year. With this trajectory, it is clear that future membership growth can be expected unless there is a substantial change in approach of the current NSG members. The question is perhaps thus not so much whether the NSG will continue to grow, but which countries might be permitted to join.

Of equal note is the fact that the NSG has, on occasion, included non-NPT states in its membership. The most notable of these is France in the mid-1970s. However, Argentina also joined the NSG in April 1992 before depositing the instrument of ratification for the NPT in February 1995, while Brazil joined the NSG in April 1996 before depositing its instrument of ratification in Sept 1998. Nevertheless, the Argentinian and Brazil cases are different because of the existence of the Brazilian-Argentine Agency for Accounting and Control (ABACC), which is a quadripartite agreement signed between Argentina, Brazil, the IAEA and ABACC, and came into force in 1994. In theory, one could therefore argue that some of the states were accommodated in the NSG before they joined the NPT, but this was likely due to the existence of an alternate regional arrangement in the form of ABACC, and in the case of France, it was the issue of semantics since it supported the NPT even though it was not a formal member of the NPT. India, Pakistan or Israel, never signed the NPT and not likely to join the NPT unless they are formally recognized as nuclear weapon states.

India’s Approach towards the NSG

The genesis of the current debate on India’s NSG membership lies in the India-US Joint Statement of 18 July 2005, which argued that as a responsible nuclear power India should acquire same benefits and advantages as the other nuclear states. To achieve this objective, the United States committed to adjust its domestic laws and policies in addition to working with its friends and allies “to adjust international regimes to enable full civil nuclear energy cooperation and trade with India.”[x] In response, India committed that it would be ready “to assume same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States.”[xi]

The US approach seemed more utilitarian and argued that the civil nuclear cooperation would help meet India’s growing energy needs in addition to helping the US nuclear industry. In contrast, India’s motive was partly to gain recognition and parity with the other nuclear states, including the United States. This duality of interests became more obvious once India was granted exemption from the NSG’s export control guidelines in 2008, but it insisted on equal membership in all the four export control regimes, including the NSG.

The NSG exemption has enabled India to negotiate nuclear cooperation agreements with over dozen countries, including, the US, France, Russia, South Korea, Japan, Canada, Australia, and few others. While this may help India to meet its energy needs by importing nuclear material and power plants from the NSG countries, formal membership of the Group is not likely to add additional benefits other than recognition of India’s nuclear status. However, after India’s membership bid hit a roadblock at the 2016 Seoul Plenary Meeting, India’s narrative puts more emphasis on the importance of NSG membership in achieving its benchmark of 40% non-fossil fuel power generation by 2030, and also conditioned its support to the Paris Agreement on climate change with the NSG membership.[xii] Linking the NSG membership with India’s support to the Paris Agreement was primarily intended to push the previous US Administration to do more, since highlights the membership issue seems to be India’s ultima ratio for its quest for greater international political status.  In this context, India’s NSG application does appear to be linked to its broader aspirations, such as obtaining a seat to join the UN Security Council.[xiii]

Limitations of India’s Commitments

The United States and India Nuclear Cooperation Act passed on 18 Dec 2006 permitted nuclear trade with a non-NPT state like India. Among several other issues, it required the US President to keep the congressional committees fully and currently informed about the facts and implications of any significant nuclear activities in India, including: “safeguards agreement negotiated with the IAEA; construction of a nuclear facility in India after the date of the enactment of the Act; significant changes in the production by India of nuclear weapons or in the types or amounts of fissile material produced; and the changes in the purpose or operational status of any unsafeguarded nuclear fuel cycle activities in India.”[xiv] Purportedly, no one from the Congressional committees is raising these questions and neither the US Administration is providing periodic reports to the Congress.[xv]

According to some reports, India may have built an undeclared nuclear city that could potentially double its fissile material production capacity and provide India with an “extra stockpile of enriched uranium fuel that could be used in hydrogen bombs, or the thermonuclear weapons.”[xvi] These developments have not attracted significant international attention, but if true, it could bring into question US commitment as part of the Hyde Act, and also towards the NPT, since NPT nuclear weapon states have a legally binding obligation not to assist directly or indirectly any other state in nuclear weapons development.  India’s safeguards arrangement, negotiated with the IAEA, might also not be in line with the reporting requirement under Section 104 (g) (1) of the Hyde Act that requires the US President to report if there is any change in the purpose or operational status of any unsafeguarded nuclear fuel cycle activities in India.

According to  a 2018 report published by scholars at Harvard’s Belfer Center, India is maintaining three different streams of safeguards arrangements – the civilian-safeguarded facilities, civilian unsafeguarded facilities, and the military facilities.[xvii] This arrangement may allow India to move its civilian unsafeguarded facilities under ‘temporary’ safeguards arrangements once foreign supplied fuel is used and subsequently remove it from the safeguards, and is in contrast to the assurances provided by the US Administration  to its Congress that “once a reactor is under IAEA oversight, safeguards will be in place permanently and without any conditions.”[xviii]

The Push for NSG Membership

In November 2010, during his visit to India, President Obama announced that the US would support India’s full membership in the four export control regimes, including: the NSG, the Missile Technology Control Regime (MTCR), the Australia Group, and the Waassenaar Arrangement.[xix] This declaration was met with considerable scepticism by the NSG members and India’s immediate neighbours, who viewed it as the joint India-US attempt to bring the former in the mainstream non-proliferation regime, while permanently excluding Pakistan from the multilateral export control regimes, including the NSG and the MTCR. This was seen as an attempt to raise India’s stature as a responsible nuclear power, while simultaneously working to de-hyphenate the India-Pakistan security equation.

Advocating India’s case for the membership, the US circulated a draft paper in 2011, which argued that India may be accorded membership in the NSG based on its strong non-proliferation credentials.[xx] This proposal was strongly rebutted by several countries, who were of the view that exemption for India from the export control guidelines was different than granting membership to a country that was part of the raison d’être of NSG’s own existence. The US subsequently challenged the factors that are to be ‘taken into account’ and argued that since these factors are not legally binding, the NSG may allow India to become a member of the Group.[xxi] The US approach triggered a debate on the relationship between the NSG and the NPT and the consequences of admitting non-NPT states in the Group.

Faced with resistance from some NSG members, the US and India launched a diplomatic campaign by reaching out to various capitals. The issue of NSG membership became a key talking point for the Indian leadership during various international engagements.[xxii] While the political leadership used India’s growing salience in international politics as a leverage to get support for its NSG membership, but at the technical level, India is engaged in a self-contradictory narrative by pleading India’s case on the basis of its ‘strong’ non-proliferation credentials while conveniently sidestepping the fact that some leading scholars think that the “NSG was established in response to India’s 1974 test of so-called ‘peaceful nuclear explosion.”[xxiii]

In response to India’s drive membership, Pakistan argued that if NSG agrees to admit non-NPT states into its folds, it should be on the basis of an objective and non-discriminatory criterion applicable for all new members and not tailored for a particular country.[xxiv]

India-Pakistan Credentials for the Membership

The NSG members seem to be divided on the issue of non-NPT states’ membership into the group, mainly on political grounds, however, a brief review of India and Pakistan’s non-proliferation credentials reveals that it would be difficult for the NSG countries to make distinction between the applications of the two non-NPT states with compatible credentials.

Table 2: Comparison of Pakistan and India’s Nuclear Credentials for NSG Membership

^{Data collected from various published sources}

India-Pakistan NSG Applications and Grossi’s Nine-Point Formula

In May 2016, both India and Pakistan formally applied for the NSG membership, which made it difficult for the NSG members to consider one of the non-NPT states while ignoring the other. To break the impasse that was created due to strong and divergent positions taken by several countries, the NSG Chair from South Korea appointed Ambassador Rafael Grossi of Argentina as a facilitator to help develop a consensus for non-NPT states membership. After consultations with the US and other proponents of India-specific approach, Ambassador Grossi came up with a nine-point formula[xxvi] that was based on the steps that India had already completed as part of its commitment under the India-US nuclear deal, and therefore seemed tailored to address India’s NSG application while keeping Pakistan on indefinite hold.

Ambassador Grossi’s Nine-Point Formula

First Point: The prospective member to implement and should have brought into force a clear and strict separation of current and future civilian nuclear facilities from non-civilian nuclear facilities in the country.

Analysis: Since India had already submitted its nuclear separation plan to the IAEA, it could have therefore claimed that it fulfils this pre-condition notwithstanding the fact that the separation plan contains several inconsistencies. This would have disqualified Pakistan until it completes the process and submits its own nuclear nuclear separation plan.

Second Point: New NSG aspirant to provide and maintain a declaration to the IAEA that identifies all current and future civilian nuclear facilities.

Analysis:  India has already provided such a declaration. Pakistan could do so likely as part of a larger umbrella safeguards agreement which allowed for future additions.

Third point: New NSG applicant should have in force a safeguards agreement with the IAEA covering all declared civilian facilities, and all future civilian facilities which the IAEA and the NSG applicant determine are eligible for safeguards.

Analysis: It could be argued that this language was tailored to accommodate India which has already negotiated such an arrangement with the IAEA. For Pakistan, it would have to negotiate first and then apply for the membership.

Fourth point: Have in force with the IAEA an Additional Protocol covering the identified civilian nuclear facilities, which together with a safeguards agreement, allows the IAEA to detect the diversion of safeguarded nuclear material and to ensure that safeguarded nuclear material is used exclusively for peaceful purposes.

Analysis:  This was also India-specific since it has already concluded a limited additional protocol with the IAEA.  Pakistan would have to negotiate an Additional Protocol with the IAEA and then apply for the NSG membership.

Fifth Point: A commitment not to use any item transferred either directly or indirectly from a NSG Participating Government or any item derived from transferred items in unsafeguarded facilities or activities.

Analysis: Both India and Pakistan have provided such a commitment, although some practitioners might be sceptical of such undertakings given procurement practices of both countries.[xxvii]

Sixth Point: A commitment not to conduct any nuclear explosive test.

Analysis. Both countries are observing a test moratorium but neither has signed the CTBT. Pakistan has also committed that ‘it would not be the first to resume testing’; and has offered a legally binding bilateral arrangement on nuclear testing. India remains reluctant to enter into bilateral arrangement with Pakistan.

Seventh Point: A clear description of NSG applicant’s intentions plans, and policies in support of the Comprehensive Test Ban Treaty (CTBT) upon becoming a Participating Government.

Analysis: Both countries could have been asked to offer such a commitment, pending progress on CTBT.

Eighth Point: A commitment to support and strengthen the multilateral non-proliferation and disarmament regime by working towards the total elimination of nuclear weapons and enhancing the peaceful uses of nuclear energy.

Analysis Both India and Pakistan can offer such a commitment, but both have opposed recently concluded Treaty on Prohibition of Nuclear Weapons (TPNWs).

Ninth Point: An understanding that due to the unique nature of the non-NPT Party applications, the applicant would join a consensus of all other Participating Governments on the merits of any non-NPT Party application

Analysis: This was intended to address Pakistan’s concerns that if India becomes the NSG member, it would permanently block Pakistan due to consensus based decision-making process in the NSG. Even if India provided such a commitment and does not oppose Pakistan’s membership openly, Pakistani officials fear that there might be several others willing to do so on behalf of India.

Ambassador Grossi’s formula completely out skirted the fundamental issue of NPT membership and was viewed by some as based on the actions that India had already taken as part of its obligations under India-US nuclear cooperation agreement. Consequently, this approach did not see consensus reached in the NSG’s Consultative Group and Plenary Meetings.

India’s NSG membership campaign appears to have faced another setback with the arrival of the Trump Administration. The US Administration took some time to articulate its policy on the NSG membership issue thus removing momentum from the process of considering the applications in the NSG. India therefore, embarked upon an alternative roadmap and pursued membership of the other three multilateral export control regimes: the MTCR, Waassenaar Arrangement and the Australia Group – approach that the new US administration would support. India doubtlessly hopes that the membership of these regimes would improve its credentials for the NSG membership. Since majority of the countries that are members of the NSG are also members of the other three regimes, these countries would be less inhibited in accommodating India into the NSG, but there is one major difference between the NSG and the membership requirement for the other three regimes. According to the NSG’s guidelines, the group “take relevant factors into account” including whether applicant should be party to NPT, a condition that the other regimes do not list.[xxviii] This language is generally interpreted as making NPT membership a precondition of NSG membership. However, it could be argued that, on a careful reading, the language leaves open the possibility for the NSG to accept applications from non-NPT states.

Beyond the factors in Ambassador Grossi’s 9-point plan, there are certain reservations about aspects of both India and Pakistan’s approach to export controls. These reservations, while perhaps not being intractable, also affect thinking on the membership question. In the case of India, some concerns relate to the fact that India has taken a different approach to structuring its export control list than that of nearly every other country. This makes the task of industry compliance more difficult. In the case of Pakistan, the reservations relate to the fact that Pakistan has purportedly not issued any export licences. This leads to a concern in the minds of some that Pakistan’s system has yet not experienced operational hurdles and may not be able to prevent future illicit transfers.

There are also other factors that lend support for the applications of both countries.  For example, both India and Pakistan are producers and holders of nuclear-related technology. In the case of India, it is also a commercial seller of such equipment. As such, both countries satisfy the original criteria of the NSG in the 1970s and meet all other factors that are considered for granting new membership, except the NPT.

Overall, therefore, while the criteria-based approach adds to the depth of the discussion in the applications of non-NPT into the NSG, it is clear from the above that examination of the question based on criterion alone does not lead to a clear answer as to whether either India or Pakistan should be admitted to the NSG. The judgement is, at the end of the day, political rather than technical.

The Broader Debate

Beyond the narrow debate on membership criteria, there are some broader points on the minds of some state officials. Three are worthy of exploration in turn: NPT benefits, non-proliferation records, and geopolitics.

NPT Benefits

A core argument of those who believe that NSG states should be party to the NPT is that the NPT should and does confer benefits to its members. The ‘benefits’ associated with the NPT are primarily the ‘inalienable right’ to acquire nuclear assistance from other states.  Indeed, it was for this reason that the NPT review conference endorsed the NSG’s decision in the 1990s to set a requirement for full-scope safeguards as a condition of supply, thus limiting benefits to the states within the NPT. The end point of this debate is that states such as India and Pakistan can enjoy the benefits of nuclear cooperation, but only when they agree to join the NPT as non-nuclear weapons states. While one could argue that it is important to keep this leverage to encourage disarmament, it seems fanciful that India and Pakistan will disarm in pursuit of civil nuclear cooperation. The NSG exemption for India may have already reduced the incentive for it to consider joining the NPT. Granting India NSG membership would permanently erode any remaining leverage that could encourage India to join nuclear disarmament efforts. At the same time, this means that Pakistan and India cannot fully realise their civil nuclear power aspirations, which will have a negative effect on their country’s energy future.

Non-proliferation Record

An additional factor that appears to influence thinking on Pakistan’s membership application in particular its past proliferation record. The actions of the so-called AQ Khan network have cast a long shadow over Pakistan’s commitment to non-proliferation. However, Pakistan’s policy towards non-proliferation have come a long way over the 15 years since the network was round up. The direct question to be addressed, therefore, is whether states working to reform should be perpetually excluded from a group whose founding purpose was to facilitate bringing all members up to a common standard on export controls.

In addressing this question, some might highlight the fact that the NSG can act as an information-sharing forum that can help prevent proliferation activities. The regime evidently could not discuss such matters while Pakistan or India were in the room.  However, the reality is that the utility of the NSG as an information-sharing forum has always been somewhat limited and that a further expansion of membership would result in only a gradual shift in this position. The reason for this is one of patronage: the suspicion that China might share information from the regime’s discussion with Pakistan or that the United States might share such information with India already provides an impetus not to share sensitive information in the regime despite the fact that it operates on a confidential basis.

Geopolitics

A final aspect of the current debate boils down to geopolitics and grand strategy. Some have argued that the US championed the NSG’s waiver for India in order to strengthen its strategic relations with India. It seems likely that Washington was also driven by other factors, such as the prospect of nuclear trade with Delhi. However, the waiver was certainly one of the measures that resulted in a reinvigoration of US relations with India as part of President Obama’s pivot to Asia. A similar argument could also be made concerning China’s relations with Pakistan and Beijing’s decision to broadly interpret the grandfathering provision associated with its supply or reactors to Islamabad so that new reactors could be constructed. Nevertheless, China’s nuclear cooperation with Pakistan predates recent developments and is not a direct response to the India-US nuclear cooperation agreement.

If anything, the geopolitical considerations might have intensified in recent years with the membership applications of India and Pakistan. The US has been actively supportive of India’s efforts. When China blocked consideration of India’s application, officials in Delhi might well have felt China was acting contrary to their strategic interests. A sceptic might argue that this was what the US sought in encouraging India to apply for the NSG membership in the first place, although there is scant evidence to support such an assertion.

Way Forward

The primary purpose of the NSG was to strengthen controls of nuclear and other dual-use technologies and prevent proliferation of sensitive nuclear technologies. This objective could be achieved by the participation of all potential supplier states that would lead to more information sharing, besides reducing the incentive for states outside the mainstream non-proliferation regime to indulge in illicit nuclear trade. Instead, the regime has evolved from being a technical to a more politicized arrangement, and its membership as a growing symbolism of status for countries aspiring to be reckoned as major powers.

These emerging trends would deepen the divide amongst the NPT community and between the NPT and the non-NPT states. Several NPT signatories would be justified in raising questions on the very purpose of the NSG, as several of them are denied or are graded differently before allowing access to peaceful uses of nuclear technology, while a non-NPT state that does not recognize the NPT is accorded full access to nuclear technology besides receiving support for the membership of the NSG. These discriminatory trends threaten the sanctity of the NPT-based global non-proliferation regime which is already reeling under stress for its failure to meet the expectations of the international community. The negotiation of a legally-binding nuclear ban treaty is one such indicator. To reverse this negative trajectory, the international community must consider options that could integrate the non-NPT states into the mainstream non-proliferation regime.

Criteria-Based Approach towards NSG Membership

Since the issue of NSG membership came to light, several approaches have been suggested by states as well as independent scholars. For instance, Israel, which is a non-NPT signatory like India and Pakistan, proposed in 2007 a criteria for collaboration with non-NPT states.[xxix] Subsequently, it did not pursue its case most likely on the US advice as it could have complicated India’s case for the NSG exemption.

The NSG also debated various options, including Ambassador Grossi’s nine-point formula that apparently was aimed to deal with all non-NPT states, but which some fear was tailored to facilitate India’s entry while leaving Pakistan’s case pending. The NSG countries now seem to be divided into three different groups. Some of the countries remain opposed to membership of the non-NPT states in the NSG; others want tangible non-proliferation commitments from the new aspirants in return for NSG membership; and the third group led by China and supported by several countries want to first deal with technical, political and legal aspects before moving to next step of developing a non-discriminatory criterion for non-NPT states. If the NSG countries are able to evolve a non-discriminatory and objective criterion it could help overcome the long-standing problem of lack of universalisation of the global non-proliferation norms.

An Export Controls Treaty

In 2004, the UN Security Council passed a Resolution 1540 which was under Chapter VII of the UN Charter. It requires all member states to strengthen their national export controls to help prevent non-state actors from gaining access to sensitive technologies that could otherwise be used for developing weapons of mass destruction.[xxx] The Resolution was viewed by some an interim measure eventually leading towards a legally binding treaty which nevertheless could not be negotiated due to concerns raised by several states on the mandate of the Security Council to enforce such treaties that impinge national sensitivities.

The work of the UNSCR 1540 Committee provide sufficient basis to start negotiations for a workable export control treaty that could cover fundamentals of all major export control regimes, including the NSG, MTCR, Waassenaar Arrangement and Australia Group. Like the NPT that allows states to maintain peaceful nuclear programs and other non-proscribed activities; the export control treaty could cover the principles and obligations without delving into technical issues so as not to hinder states’ legitimate trade of dual use and other sensitive goods and technologies.

The treaty on export controls is not a new idea. More recently Mark Hibb’s has also alluded to the possibility of a legally binding treaty related to nuclear exports, if the NSG is unable to resolve politicisation of its decision-making process.[xxxi] For instance, some countries are exploring the possibility of developing a universal export control regime on bio-technologies,[xxxii] which is opposed by leading western countries on the premise that export licensing is a national decision and therefore cannot be multilateral. These objections seem more intended to retain monopoly and likely to be a major hurdle for concluding an export control treaty. Notwithstanding these reservations, it may be in the interest of the international community to bring a universally enforceable treaty on export controls, instead of pursuing several parallel multilateral initiatives that are difficult to monitor and implement.

Conclusion

Notwithstanding the current stalemate on the NSG membership, the global non-proliferation regime is in a state of flux due to resurgence of a nuclear arms race between the major powers. The future of the nuclear agreement with Iran and the North Korean nuclear weapons program, besides the challenge posed by new disarmament treaty in the form of Treaty on Prohibition of Nuclear Weapons (TPNWs), are some of the additional challenges to the NPT based nuclear non-proliferation regime.

Owing to these evolving developments, the instinct of many NSG states might be one of caution with regards to the applications of India and Pakistan. In practice, the most cautious approach, which also happens to be the default approach, is to do nothing – that is, not to respond positively or negatively to the applications of India and Pakistan, at least until after the 2020 NPT review conference. Certain governments, including the Trump administration, might well push the NSG toward a particular course of action, such as taking an early decision on India’s membership application. It is not clear that the Trump administration has sufficient diplomatic capital to overcome the caution of other states.

These competing factors highlight that, in the grand scheme of affairs, it is not NSG membership that is the key factor, but the question of how nuclear weapons states, non-nuclear weapons states and NPT-non parties including India, Pakistan and Israel can collectively cooperate in order to prevent misuse of nuclear energy while also ensuring that nuclear energy can effectively contribute to other global goals such as preventing climate change

[1]

[1]

[i] Ian Stewart runs Project Alpha at King’s College London. He was previously involved in counter-proliferation activity with the UK Ministry of Defence. Dr Adil Sultan is a visiting fellow at King’s College London and has worked at the Strategic Plans Division in Pakistan, which has responsibilities for Pakistan’s nuclear weapons programme.

[ii] “Analytical Staff Meeting on Non-proliferation Strategy”, Memo from Winston Lord to the Secretary, 31 July, 1974, The Winston Lord Files, RG59, USNARA.

[iii] INFCIRC 539 Rev 6, 22 January 2015.

[iv] Press statement of Nuclear Suppliers Meeting of States Adhering to the Nuclear Suppliers Guidelines, 3 April 1992. Available online at: http://www.nuclearsuppliersgroup.org/images/Files/Documents-page/Public_Statements/1992-Press.pdf (Accessed 28 March 2018)

[v] ibid

[vi] Compiled from http://disarmament.un.org/treaties/t/npt and INFCIRC/539/Rev.6

[vii] There was a lag of around 3 months between first and last deposit.

[viii] ABACC was agreed before this date.

[ix] ABACC was agreed before this date.

[x] Joint Statement between President George W. Bush and Prime Minister Manmohan Singh. https://georgewbush-whitehouse.archives.gov/news/releases/2005/07/20050718-6.html.

[xi] Ibid.

[xii] “Spokesperson’s comments on NSG Plenary meeting in Seoul”, June 24, 2016. http:// mea.gov.in/press-releases.htm?dtl/26949/Spokespersons_comment_ on_ NSG_Plenary_meeting_in_Seoul.

[xiii] Mark Hibbs, “Eyes on the prize: India’s pursuit of membership in the Nuclear Suppliers Group”, The Nonproliferation Review, 2018.

[xiv] Text of United States and India Nuclear Cooperation law passed on 18 Dec 2006.  https://www.congress.gov/109/plaws/publ401/PLAW-109publ401.pdf.

[xv] Personal communication with experts mandated to prepare reports on the implementation of India-US nuclear agreement.

[xvi] Adrian Levy, “India is Building a Top-Secret Nuclear City to Produce Thermonuclear Weapons, Experts Say,” Foreign Policy, 16 December 2015.  http://foreignpolicy.com/2015/12/16/india_nuclear_city_top_secret_china_pakistan_barc/.

[xvii] Kalman A. Robertson and John Carlson, “The Three Overlapping Streams of India’s Nuclear Programs”, Belfer Center, April 2016. Available at:  https://www.belfercenter.org/sites/default/files/legacy/files/thethreesoverlappingtreamsofindiasnuclearpowerprograms.pdf. Also see John Carlson, “India’s Nuclear Safeguards: Not Fit for Purpose”, Belfer Center, January 2018. Available at: https://www.belfercenter.org/sites/default/files/files/publication/India’s%20Nuclear%20Safeguards%20-%20Not%20Fit%20for%20Purpose.pdf.

[xviii] Testimony by Secretary of State Condoleeza Rice on 5 April 2006. See “India-IAEA Agreement Worse than Useless”, Rediff India Abroad, 11 July 2008. Available: http://www.rediff.com/news/2008/jul/11ndeal2.htm.

[xix] “Joint Statement by President Obama and Prime Minister Singh of India”, 08 November 2010. https://obamawhitehouse.archives.gov/the-press-office/2010/11/08/joint-statement-president-obama-and-prime-minister-singh-india.

[xx] “US circulates ‘thought paper’ on Indian membership of NSG”, The Hindu, 25 June 2011. www.thehindu.com.

[xxi] The factors to be taken into account are listed as follows: The ability to supply items (including items in transit) covered by the Annexes to Parts 1 and 2 of the NSG Guidelines; Adherence to the Guidelines and action in accordance with them; Enforcement of a legally based domestic export control system which gives effect to the commitment to act in accordance with the Guidelines; Adherence to one or more of the NPT, the Treaties of Pelindaba, Rarotonga, Tlatelolco, Bangkok , Semipalatinsk or an equivalent international nuclear non-proliferation agreement, and full compliance with the obligations of such agreement(s); Support of international efforts towards non-proliferation of weapons of mass destruction and of their delivery vehicles. NSG website: http://www.nuclearsuppliersgroup.org/en/about-nsg/participants1 (accessed 17 April 2019)

[xxii] “Modi raises NSG issue with Xi at SCO meeting”, BusinessLine, 09 June 2017. https://www.thehindubusinessline.com.

[xxiii] Mark Hibbs, “Eyes on the prize: India’s pursuit of membership in the Nuclear Suppliers Group”, The Nonproliferation Review, 2018.

[xxiv] Record of the Press briefing by Spokesperson, 02 June 2016. Record of the Press briefing by Spokesperson, 02 June 2016. http://www.mofa.gov.pk.

[xxv] Kalman A. Robertson and John Carlson, “The Three Overlapping Streams of India’s Nuclear Programs”, Belfer Center, April 2016. Available at:  https://www.belfercenter.org/sites/default/files/legacy/files/thethreesoverlappingtreamsofindiasnuclearpowerprograms.pdf. Also see John Carlson, “India’s Nuclear Safeguards: Not Fit for Purpose”, Belfer Center, January 2018. Available at: https://www.belfercenter.org/sites/default/files/files/publication/India’s%20Nuclear%20Safeguards%20-%20Not%20Fit%20for%20Purpose.pdf.

[xxvi] “The NSG Membership Proposal Would Undermine Nonproliferation”, Arms Control Association, December 21, 2016 https://www.armscontrol.org/blog/ArmsControlNow/2016-12-21/NSG-Membership-Proposal-Would-Undermine-Nonproliferation

[xxvii] See for example, “Pakistan’s strategic nuclear and missile industries: A baseline study for non-proliferation efforts”. Project Alpha, King’s College London.

[xxviii]

INFCIRC/254/Rev.9/Part 2a. 13 November 2013. Available online at: https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc254r9p2.pdf (Accessed 26 April 2018

[xxx] UNSCR 1540, UN Security Council, New York. 2004.

[xxxi] Mark Hibb’s, “A More Geopoliticized Nuclear Suppliers Group”, Carnegie Endowment for International Peace, 14 December 2017.

[xxxii] Discussion with a senior Pakistani diplomat at Geneva involved in discussions.