Admitting Non-NPT Members: Questions for the NSG

The Nuclear Suppliers Group in coming weeks may consider an application for membership from India, and perhaps also from Pakistan. Both states possess nuclear weapons and are outside the Nuclear Nonproliferation Treaty (NPT). Hence, they are states whose nuclear weapon activities the NSG has actively sought to inhibit.

In its scope and activities, the NSG is the world’s most important arrangement for governing nuclear trade. Participation in the group by nuclear-armed states not party to the nearly-universal NPT would create obvious friction within the NSG, between its participating governments (PGs) and the larger membership of the NPT, and also between the goals of inclusiveness and strengthening nonproliferation norms and practices. These tensions were apparent in 2008, when the NSG exempted India from the group’s ban against nuclear trade with non-NPT states. Many actors then underscored the essential difference between lifting a trade embargo against a state, and allowing that state to participate in making the rules.

The United States led the 2008 move to lift the NSG’s trade ban. Two years later, the U.S. announced it would likewise support India’s membership in the group. A number of NSG members responded by urging the U.S. not to rush, in the interest of forming a true consensus among the NSG’s 48 PGs. In fact the group has until now taken that approach in an internal “structured dialogue” concerning future membership. But more recently, officials in some governments, including the U.S., have become impatient with that process.

Before the NSG takes a decision on the matter, PGs would be well-advised to consider how admitting nuclear-armed non-NPT states could affect the group’s internal procedures and operations, as well as the nuclear nonproliferation regime. Numerous questions arise in both areas. The NSG should have widely shared answers to these questions.

Some of the background to what follows is discussed in a policy paper I wrote for the NSG.  Readers might also want to look at this paper written by John Carlson.

NSG Guidelines and Practices

Non-NPT states do not have IAEA safeguards covering all nuclear materials. That fact prompts important questions for the NSG in moving forward with non-NPT parties: If such states were admitted as PGs, would the established PGs, all of them parties to the NPT, still seek to deny transfers to non-NPT PGs in order to inhibit their nuclear weapons programs? How would PGs ensure that safeguards were applied to verify the non-diversion of transfers? What does this imply for the principle of full-scope safeguards, stated by the NSG to be the “uniform standard of supply” in paragraph 34 of its official policy document INFCIRC/539? What does it imply for the NSG Basic Principle regarding dual-use transfers and the risks of diversion, noted in paragraph 2 of the NSG’s dual-use export control guidelines (INFCIRC/254/part 2)?

INFCIRC/734, the NSG’s record of decision in 2008, exempts India from the full-scope safeguards requirement, but requires that transfers be limited to IAEA safeguarded facilities. The fine print of this document raises a number of questions about how the rules would apply should India or Pakistan be allowed to participate in the NSG.

• What do PGs understand about Indian assertions that it is a “nuclear-weapon state,” and what does this imply for how India would be treated under the guidelines?
• In 2006, India agreed to separate its strategic nuclear activities from civil activities. The Indian separation plan leaves much of its nuclear energy and most of its nuclear research program outside of safeguards – how will PGs ensure that dual-use transfers only go to safeguarded facilities?
• Paragraphs 8 and 9 of the NSG guidelines establish controls on the transfer and retransfer of materials supplied or derived from transferred items, e.g., the plutonium from reprocessed nuclear fuel. India does not track or establish “flags” on such material. How will NSG PGs know whether such transferred or derived materials are not being used for weapons purposes? How will they know whether material supplied by India to a third party was not originally supplied by another PG? Would India itself, as a potential future supplier, not also require the tracking of such materials, per the guidelines?
• If transfers, particularly of dual-use goods, are made to non-safeguarded facilities or activities, how can PGs have confidence that transfers will be consistent with the NSG nonproliferation principle contained in INFCIRC/254/part 1/para 10?
• INFCIRC/734 also requires the NSG to include as an agenda item for Plenary and Consultative Group meetings reporting on transfers to India – would this practice continue, and how confident could PGs be in sharing such information, with India in the room? Would notification of transfers to India still be provided, and if so, by India or the transferring state?

Would there be a requirement for a formal change to part 1 guidelines on exceptions to the full-scope safeguards requirement for non-NPT PGs? How would such a decision be communicated publicly?

How would the nonproliferation principle in INFCIRC/254/part 1/para 10 apply to non-NPT PGs? How would catch-all controls apply?

The NSG has standing procedures to exchange and discuss notifications issued as a result of national decisions not to authorize transfers to states. If denials would still be made to non-NPT PGs, would they be discussed with the relevant PGs in the room? If so, how would such discussions proceed? What effect would this new situation have on the effectiveness of denial notifications as a core NSG procedure?

Would the same assurances for nuclear transfers be required of non-NPT PGs as for other PGs and non-PGs?

Under Paragraphs 6 and 7 of the guidelines, NPT membership is required for transfers of sensitive fuel-cycle technology and equipment. Would this requirement preclude non-NPT PGs from cooperation on sensitive fuel-cycle activities, or would further changes in the guidelines be pursued to permit such cooperation with non-NPT PGs?

NPT membership or equivalent treaty commitments are listed as a factor for participation in the group. If non-NPT states are invited to join, should this factor be removed from the list for consideration of all future members?

If a single, exclusive invitation to one non-NPT state is to be made, would that state be listed by name in relevant changes to the guidelines? Or would changes to the guidelines be made in a manner that would not preclude the participation of other non-NPT states in the future?

Inviting non-NPT states to participate in the NSG introduces a qualitatively different type of membership. Would consensus decision-making continue to apply under all circumstances, including on whether and when to offer membership to other non-NPT PGs? What would take place if a non-NPT PG were found to have diverted transfers to its unsafeguarded program?

Would admitting a non-NPT state without conditions discourage future PG candidates from agreeing to any state-specific conditions of the kind that other new members have previously had to make?

The Nonproliferation Regime

What would be the effect of inviting one non-NPT state to join the NSG in establishing incentives or disincentives for other non-NPT states? If India is admitted on the basis of country-specific factors, rather than universal criteria, what would this imply for potential future membership for Pakistan and Israel?

How might China respond to a decision made under pressure to admit India? Including on the basis of what has transpired since 2008, would such a decision make it more or less likely that China would restrain its nuclear commerce with Pakistan? Or will the group reward China’s acceptance of Indian membership by dropping the full-scope safeguards rule in the guidelines? How would PGs articulate NSG decision-making and policy so that NPT non-nuclear-weapon states would not draw such a conclusion?

How would non-nuclear weapon states in the NPT (NNWS) respond to a decision awarding a non-NPT state membership in the NSG without that state’s having made legal commitments analogous either to those made by NNWS on nonproliferation or to those made by NPT nuclear weapon states on disarmament?

How would NPT NNWS perceive changes in NSG guidelines regarding full-scope safeguards as the uniform standard of supply? What would such changes imply for efforts to strengthen that standard to include the IAEA Additional Protocol?

What effect might membership by a non-NPT PG have on the willingness of NNWS to support future multilateral nonproliferation measures?

The Bottom Line for 48 Governments

The NSG’s participating governments have had considerable time since 2010 to work to sort through the questions related to membership of non-NPT states. It is reasonable to expect that the issues raised above will have been resolved to the satisfaction of NSG members before they offer membership to a non-NPT state. If NSG PGs have the answers to these questions, the current membership can take decisions about future membership with knowledge of the consequences. Because decisions in the group are taken by consensus, the NSG would be poorly advised to defer its fact-finding on these matters until after it has acquired new members, since the interests of those new members may not converge with those of the current membership. And it is the current membership that until now has defined the NSG’s export-control mission.