NSG all set to up-end India's clean waiver

on Friday, June 17, 2011

NOT MUCH TO SMILE ABOUT NOW: Shivshankar Menon (left), with U.S. Under Secretary Nicholas Burns and U.S. Ambassador David C. Mulford (right) during a break in their negotiations in 2007. India feels the U.S. is now about to “derogate” from the landmark nuclear agreement. —

NSG all set to up-end India's clean waiver

NEW DELHI: Barring last minute objections, the Nuclear Suppliers Group (NSG) is set to approve new guidelines for the transfer of “sensitive” nuclear material that will do undo the hard fought “clean” waiver India obtained in 2008 from the cartel's restrictive export rules.

At stake is India's ability to buy enrichment and reprocessing technology and equipment (ENR) from NSG members. Under the terms of a landmark September 2008 agreement, the NSG waived its catch-all requirement of full-scope safeguards as a condition for supply in exchange for a concrete set of non-proliferation commitments by the Indian side. This agreement means NSG members are allowed to sell any nuclear equipment and material they want, including ENR, to India despite the fact that it does not allow international supervision over all its nuclear activities and is not a party to the Nuclear Non-Proliferation Treaty.

Two months after that waiver — a product of the July 2005 Indo-U.S. agreement in which Washington committed itself to “work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India” — the Bush administration threw its weight behind a bad-faith effort to remove ENR equipment and technology from the purview of the NSG-India bargain.

It did so at least partly in order to keep a promise Condoleezza Rice made to the influential Congressman Howard Berman during the passage of the Hyde Act — that if Congress were to approve the proposal for nuclear commerce with India, the administration would get the NSG to ban the sale of ENR equipment to countries that had not signed the NPT.

Thus, under the proposed new guidelines as framed by the NSG in November 2008, ENR transfers will be allowed only if the recipient state fulfils a number of objective and subjective criteria. Top of the list is the requirement of NPT membership and full-scope safeguards. Since India is the only country outside of the NPT that NSG members are allowed to sell nuclear material to in the first place, it is obvious that these two criteria are aimed exclusively at India.

The revised NSG guidelines, known as the “clean text,” have not been adopted yet largely because a number of the 46-nation cartel's members have been objecting to some of the other proposed restrictions such as the requirement that recipient states adhere to an Additional Protocol. To push the process along, the U.S. got its G-8 partners to declare at L'Aquila in 2009 that they would abide by the “clean text” in the interim. The G-8 has sent the same message every year, most recently in Deauville. On a parallel track, U.S. diplomats have worked behind the scenes to bring each of the NSG dissenters on board. Language has been found to address the concerns of Canada, Argentina, Brazil, South Korea and the Netherlands. The only holdouts until a couple of months ago were Turkey and South Africa but even they are now believed to be ready to vote for the new ENR guidelines when the NSG holds its plenary in The Hague next week.

India has objected to this unilateral redrawing of the nuclear bargain with both the U.S. and the NSG, but mostly in private and mostly without any impact on the process.

On February 3, 2009, for example, Shivshankar Menon, who was Foreign Secretary at the time, wrote to Under Secretary William Burns in the U.S. State Department that the American initiative on an ENR ban at the NSG constituted a “derogation” of the bilateral India-U.S. agreement on civil nuclear cooperation, or “123 agreement.” “Menon's February 3 letter … made a legal claim that an ENR ban would be inconsistent with Article 5.2 of the 123 Agreement itself, which provides for the possibility of amendments to the Agreement to permit ENR transfers, claiming that a ban in the NSG would eliminate the possibility of making such changes,” Ambassador David C. Mulford told Washington in a cable accessed by The Hindu through WikiLeaks dated February 12, 2009 ( 191725: confidential).


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