NSG Consensus – or Not?

The U.S.-India Nuclear Cooperation Promotion Act [.pdf], just overwhelmingly passed by the House, perversely begins by declaring that "it is the sense of Congress" that "sustaining" the Treaty on Nonproliferation of Nuclear Weapons (NPT) and "strengthening its implementation, particularly its verification and compliance" is the "keystone of United States nonproliferation policy."

Furthermore,"the NPT has been a significant success in preventing the acquisition of nuclear weapons capabilities."

Of course, the NPT is not in the business of preventing the acquisition of nuclear weapons capabilities.

If you don't actually have tens of kilograms of weapons-grade fissile material, you can't make nukes, no matter what your "capabilities" are.

So the key to preventing the international proliferation of nuclear weapons is the safeguarding of source or special nuclear materials.

And it is not the NPT itself that has prevented the proliferation of nuclear weapons.

A principal function of the International Atomic Energy Agency (IAEA) is

"To establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose…"

Whenever IAEA inspectors detect noncompliance with a country's Safeguards Agreement, the IAEA Board of Directors then determines whether or not the noncompliance furthers "any military purpose" and is to be reported to the UN Security Council for possible action.

The NPT took advantage of the already existing IAEA verification and reporting mechanism, requiring each no-nuke NPT signatory to enter into a bilateral safeguards agreement with the IAEA "with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons."

So the IAEA verifies nonproliferation by importers of special nuclear materials, services, equipment, facilities, and information.

What about exporters?

Enter the Nuclear Suppliers Group.

Established in 1974, the 40-plus member NSG was created because the 1974 test by India – not then, or now, an NPT signatory – of a nuclear device demonstrated that "especially designed or prepared" nuclear technology as identified by the NPT, transferred for peaceful purposes to non-NPT signatories, could be misused.

NSG "Guidelines for Nuclear Transfer" have long required the acceptance by the recipient state – NPT signatory or not – of IAEA Safeguards on certain imported items.

But, since 1992, NSG guidelines have required a state seeking to acquire "special fissionable and other materials, services, equipment, and facilities" – such as nuclear power plants or fuel – to subject all nuclear programs to a full-scope intrusive IAEA Safeguards Agreement.

Hence, the "enforcement mechanism" for preventing nuke proliferation by "importers" is provided by the IAEA statute and the enforcement mechanism for preventing nuke proliferation by "exporters" is provided by the coordinated export controls of NSG members themselves.

Of course, as an NPT signatory, Iran has all its nuclear programs subject to full-scope safeguards, and the IAEA has never seen any indication that Iranian "special nuclear materials, services, equipment, facilities, and information" has been used in furtherance of a military purpose.

India, on the other hand, has never been an NPT signatory. India tested nuclear weapons again in 1998, and has – understandably – refused to subject all its nuclear programs to the IAEA-NPT-NSG safeguards regime.

Last year, Bush startled NPT-signatories by announcing that "as a responsible state with advanced nuclear technology, India should acquire the same benefits and advantages as other such states."

Since current law specifically prohibited that, Bush said he would ask Congress to "adjust" those laws, repealing among other things the Nuclear Nonproliferation Act of 1994 and certain provisions of the Atomic Energy Act of 1954.

Why would Congress "adjust" laws heretofore sustaining the NPT?

Well, to induce India to "give greater political and material support" to our nonproliferation objectives, "especially with respect to dissuading, isolating and, if necessary, sanctioning and containing states that sponsor terrorism and terrorist groups."

In other words, to cancel the Iran-Pakistan-India peace pipeline.

The waivers of existing law provided by the Nuclear Cooperation Promotion Act are conditional on Bush making, annually, a gaggle of determinations to Congress about India's nuclear programs, both civil (subject to IAEA Safeguards) and military.

Of course, a president who could "determine" on March 19, 2003, that Saddam's nonexistent nuclear programs posed an immediate threat to our national security is capable of telling Congress anything they want to hear.

But Bush also promised to work to get the NSG to exempt India from its guidelines.

That will be hard work, indeed. The Act requires Bush to certify that the NSG has decided to exempt India "by consensus."