The Nuclear Suppliers Group and the imbalance of the NPT regime

by Fabian Stricker

Overview

Introduction

The NSG today and the Khan network

Lessons learned?

The asymmetry of the NPT and the U.S.-India Civil Nuclear Deal

Expanding membership

Conclusion

Introduction

Exactly what is the Nuclear Suppliers Group (NSG) and what role does it play in our modern landscape of nuclear politics? While the International Atomic Energy Agency (IAEA) is increasingly mentioned in the media due to the nuclear crises regarding the nuclear programmes of Iran and North Korea, arguably little is generally known about the NSG.

The origins of the NSG date back to the Indian nuclear weapons test of 1974 (cf. Nina Tannenwald 2013: 310) and subsequent concern that nuclear trade for peaceful purposes would be illicitly diverted for means of nuclear weapons proliferation or the production of nuclear explosive devices. Consequently, a number of states – the NSG – met in London in 1975. The group eventually agreed on so-called “Guidelines for Nuclear Transfers” in 1978, governing the export of items which are especially designed or prepared for nuclear use. Following the discovery of the well-advanced nuclear weapons programme of Iraq in the early 1990s, the NSG adopted another set of guidelines in 1992, namely the “Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Material and Related Technology”. (cf. Arms Control Association 2006). Today, these two sets of guidelines constitute the backbone of the NSG and aim to serve the provisions of the Non-Proliferation Treaty (NPT) of 1968, in particular Art. 3, par. 2 of the NPT:

“Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.” (IAEA 1970: 3)

The NSG today and the Khan network

Why bother about this group today? The answer is simple and remains the same as 40 years ago: the danger of proliferation of nuclear weapons and/or nuclear explosive devices. Exports in products or materials either of direct or indirect nuclear application are fundamental to realize such an undertaking. When asked about the impact of sanctions targeting Iran and its nuclear programme in December 2013, Iranian foreign minister, Mohammad Javad Zarif, answered:

“I believe sanctions have failed. They failed, because when sanctions started, Iran had less than 200 centrifuges. Now it has 19,000. So a simple calculation will show that sanctions have not produced the results that they were designed to produce.” (CBS Evening News 2013)

PM Zarif talking about the impact of sanctions on the Iranian nuclear programme

Source: https://www.youtube.com/watch?v=fzXHNYr53Kg; CBS Evening News (2013)

Could it be that Iran’s most recent nuclear successes are due to (international) nuclear smuggling networks such as the illicit procurement network headed by Abdul Qadeer Khan (the Khan network), eluding intelligence agencies, the global safeguards regime and effectively circumventing the guidelines of the NSG? (cf. Albright/Hinderstein 2005: 112ff.) With one of the toughest sanctions regimes in place, to a large extent still in effect today, how could Iran advance its nuclear programme at such a pace? Following the arrest of Khan in 2004, alarming information about the scope of assistance and (allegedly) offered assistance by the Khan network to countries like Iran, Iraq, North Korea, Egypt, Syria, Saudi Arabia, Libya and possibly even organizations like Al Qaeda was secured. The sophistication of the network including the number of workshops it maintained around the world, particularly in Africa, Asia and the Middle East is uniquely worrisome.

How is this related to the NSG? Following the exposure of the Khan network, it was revealed that Turkey and South Africa, both NSG members had played a central part in the success of the network as their export control systems were ineffective. It could even be argued that it was due to their status as NSG members that companies could receive crucial items of nuclear application without checks on their destined end use. (cf. Albright/Hinderstein 2005: 120)

Lessons learned?

Nowadays, it can be assumed that nuclear smugglers would still choose countries whose authorities are unlikely to enact their export control requirements carefully and raise questions about potential end use of items. What kind of regulations and mechanisms can adequately abet sound export control environments and which steps have actually been taken?

The discovery of the true extent of the Khan network did not pass unnoticed by the NSG as it implemented a “catch-all” mechanism, authorizing members to block suspicious exports. In nature, this is reminiscent of the “Non-Proliferation Principle” to transfer nuclear items only when satisfied that the transfer would not contribute to the proliferation of nuclear weapons, which was adopted in 1994 following the discoveries of the malicious Iraqi nuclear programme.

The list of materials and technologies for nuclear as well as dual-use are regularly updated in conjunction with technological developments. One would assume that the NSG’s conceptual scope, based on the two sets of guidelines, is sufficient. What about the enforcement mechanisms and universality of NSG membership?

Membership has been expanded, but with 48 member countries in 2014, it still represents somewhat of an exclusive club with important nuclear actors such as Iran, India and Pakistan remaining outsiders. Would it be wise to expand membership in principle?

Looking at the record of NSG states like South Africa and Turkey, sharing a reasonable amount of responsibility for the achievements of the Khan network (cf. Albright/Hinderstein 2005: 123), this may prove counter-productive. It is not clear whether the provisions of the United Nations Security Council Resolution 1540, requiring all states to criminalize nuclear proliferation and establish effective export control systems, has changed the underlying problem of insufficiently safeguarded export control systems.

Following 2004, a universal treaty-based system was proposed which would control nuclear exports in a fundamentally different way to the current NSG-system which is voluntary, non-binding and excludes means to verify compliance. (cf. Albright/Hinderstein 2005: 126) Regardless whether this system were maintained by a newly established organization or the IAEA, governments – especially those which consider themselves in unfavorable, disadvantageous positions within the NPT regime – would not be appreciative of pooling additional sovereignty.

The asymmetry of the NPT and the U.S.-India Civil Nuclear Deal

In conjunction with this, there is an alleged imbalance and injustice of the NPT regime towards Non-Nuclear Weapons States (NNWS) regarding their commitments not to acquire nuclear weapons under Art. 2 of the NPT in exchange for Nuclear Weapons States (NWS) to disarm in good faith under Art. 6 of the NPT. This asymmetry and the abundantly clear violation of the international state system’s concept regarding like rights of like states, i.e. sovereign states, to equally secure, self-defend and help themselves, are predominantly accepted without great contestation due to the destructive powers of nuclear weapons and their intrinsic danger for human survival.

For NNWS, conversely to NWS, the NPT regime is particularly burdensome as they have to subject all their nuclear facilities to international safeguards. (cf. Tannenwald 2013: 304) Furthermore, referencing the three pillars of the regime, non-proliferation, disarmament and the right to peaceful uses of technology, there is widespread belief that the first pillar is exponentially outweighing the latter two.

At the epicenter of the crisis of the NPT regime are paradoxically its outsiders. While the NPT prescribes harsh principles for its signatory NNWS, NNWS outside the NPT regime like Israel, India, Pakistan and North Korea possess nuclear weapons and some maintain flourishing nuclear trade relations. This phenomenon is what scholars like Nina Tannenwald call “nuclear exceptionalism”.

Huge controversy was sparked by the “U.S.-India Civil Nuclear Deal” of 2008, a bilateral agreement for nuclear trade, which foresaw Indian civilian nuclear facilities subjected to IAEA safeguards in exchange for nuclear items exports by the U.S. What does one make of this from an NSG point of view? While this is contrary to NSG guidelines, India was granted a waiver to require comprehensive international safeguards as a condition of nuclear trade by NSG member states by consensus.

President Bush jun. and PM Singh concluding the U.S.-India Civil Nuclear Deal

bush-singh-nuclearSource: http://muftah.org/wp-content/uploads/2013/12/bush-singh-nuclear.jpg

Would this have mattered though? In practice, the waiver would not have been necessary as the NSG regime is a voluntary, non-binding and lacks enforcement mechanisms. The record of nuclear trade deals between India and Pakistan on the side and Russia and China on the other side preceding the 2008 deal highlights obvious boundaries of the NSG. (cf. Nuclear Threat Initiative 2014a)

Expanding membership

Is pledging support to bring India to aboard the NSG, as practiced by the U.S., France or the United Kingdom, the right message to convey? What about normativity concerns? Whilst peaceful cooperation for nuclear uses between India and the U.S. exists, India’s nuclear weapons programme remains untouched. (cf. Tannenwald 2013: 310)

President Obama and PM Singh at the White House

President_Barack_Obama_walking_with_Prime_Minister_Manmohan_Singh_2009-11-24

Source: http://upload.wikimedia.org/wikipedia/commons/c/cc/President_Barack_Obama_walking_with_Prime_Minister_Manmohan_Singh_2009-11-24.jpg

Moreover, admitting Pakistan ought to be weighed and considered carefully as there are multiple reasons for concern: First, it remains uncertain whether the Pakistani leadership was entirely in the dark with regard to the Khan network. It seems unlikely that the network could have operated without a multitude of contacts inside the Pakistani leadership. Second, more recent reports of a Saudi-Pakistani deal for nuclear weapons delivery by the latter, should Iran acquire nuclear weapons, is unsettling. (BBC 2013)

For normative reasons, it is also a question which message the international community, spearheaded by the NPT signatories, wants to send. The U.S.-India Civil Nuclear Deal has evoked outcry not only by Pakistan but positivist advocates of international law to abide by the requirements of the NPT and the NSG guidelines. What lessons might economically emerging countries draw from this behaviour?

Moreover, it comes with great concern that the NSG has accepted the quadripartite agreement between the IAEA, ABACC, Argentina and Brazil of 1991 (enforced in 1994) as a legitimate substitute for the IAEA’s additional protocol in 2011. (cf. Nuclear Threat Initiative 2014b) What consequences does such an agreement imply?

Taking historic reasons of preceding, non-existent NPT memberships by Argentina and Brazil until 1995 and 1998 respectively into account, bilateral agreements between the two countries represent positive assurances of using nuclear materials solely for peaceful purposes. After acceding to the NPT however, one may wonder why further institutional integration, such as enforcing the additional protocol, was not considered and deemed as an appropriate step to strengthen the international safeguards regime.

Could this policy of “opting-out” or applying different standards to different countries, ridicule the whole purpose of the additional protocol? The protocol is voluntary, but crucially important for transparent safeguarding. This undertaking by the NSG might create negative precedent for countries in emerging markets and countries which have not (yet) enforced the additional protocol.

Conclusion

The IAEA needs to be kept up to date and receive all relevant information regarding states’ exports and imports of sensitive dual-use items, in order to better detect undeclared nuclear materials or activities. Provisions on state reporting on exports of nuclear items are crucial for nuclear security.

Member states must let the NSG live up to its full potential and adequately supply the IAEA as the primary investigator of illicit procurement activities with information not only on a case-by-case basis, but with a view to hinder nuclear proliferation sustainably.

Bibliography:

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