Weighing the Impact of the Nuclear Suppliers Group’s New Guidelines
By Emma Lecavalier
On June 23-24, the 46 members of the Nuclear Suppliers Group (NSG), a multinational consortium of nuclear technology suppliers that aims to prevent the proliferation of nuclear weapons, decided to tighten its guidelines on the transfer of sensitive enrichment and reprocessing technologies.
For over thirty years, the guidelines for enrichment and reprocessing transfers simply required that suppliers "exercise restraint in the transfer of sensitive facilities, technology, and material usable for nuclear weapons or other explosive devices."
The new guidelines require that states seeking access to these technologies be signatories of the Nuclear Non-Proliferation Treaty (NPT), have in place a comprehensive International Atomic Energy Agency (IAEA) safeguards agreement, and adhere to the Additional Protocol – which grants the IAEA expanded access to additional information and sites to detect clandestine nuclear activities.
Many nonproliferation groups have touted the Group’s decision to adopt new guidelines as a long overdue victory for nonproliferation.
In making it clear that states which are not signatories of the NPT nor have in place full scope safeguards should not be eligible to receive sensitive enrichment and reprocessing technologies, the new guidelines strengthen the norm against the sale of these technologies. This is an important development, particularly if one believes that this technology could spread to additional states in the coming years and decades.
However, it’s important not to oversell the impact of the new guidelines.
First, the guidelines are not legally-binding on states (suppliers voluntarily adhere to them). Some also question whether the U.S. should have pursued a criteria-based approach in the first place. They argue instead that the Nuclear Suppliers Group should have pushed to approve transfers on a case by case basis, judging the merits of each proposed transfer individually rather than relying upon objective criteria.
Finally, while the new guidelines largely restate what is already common international practice, the decision still ruffled some diplomatic feathers, particularly among members of the Non-Aligned Movement and in New Dehli.
Origins
The recent push for stronger controls on the spread of enrichment and reprocessing technologies has its origins in (1) the unmasking in 2003 of the illicit black market network run by A.Q. Khan, which delivered advanced nuclear weapons-related technology to Iran, Libya, North Korea, and perhaps others, and (2) the growing interest in nuclear power around the world (sometimes referred to as the nuclear renaissance).
Former U.S. President George W. Bush initially urged the NSG to ban the spread of enrichment and reprocessing altogether to countries that do not yet have these capabilities. However, due to strong opposition to this proposal from non nuclear weapons states (they viewed it as an attack on their right to peaceful nuclear technology under Article IV on the NPT), the U.S. began pursuing an approach that would condition the transfer of enrichment and reprocessing on the achievement of certain criteria.
The consensus reached on June 24 comes seven years after the Nuclear Suppliers Group began discussions on amending the guidelines, and two and a half years after they formulated a “clean text” draft, which laid the foundation for the new rules. The decision, therefore, breaks a stalemate which has hindered the Group’s efforts for years.
The Guidelines
The new guidelines require that states meet the following criteria to be eligible to receive enrichment and reprocessing equipment and technology:
- Must be party to and in compliance with the Treaty on the Non-Proliferation of Nuclear Weapons
- Must not have been identified to the IAEA Secretariat as being in breach of its obligations to comply with its safeguards agreement
- Must be adhering to the NSG guidelines and must be implementing effective export controls as identified by Security Council Resolution 1540
- Must have brought into force: (1) Comprehensive Safeguards (agreements made with the IAEA by non-nuclear weapon States to enable the application of safeguards on all source and special fissionable material in all peaceful nuclear activities) and (2) an Additional Protocol, or pending this, is implementing appropriate safeguards agreements in cooperation with the IAEA Board of Governors.
Implications
The new guidelines express what has been unwritten U.S. policy for decades. A State Department press release following the announcement of the new guidelines stated: “Efforts in the NSG to strengthen controls on the transfers of ENR are consistent with long-standing U.S. policy that… (has) been reaffirmed on an annual basis by the [Group of Eight industrialized countries] for years.”
In fact, no NSG member has willingly transferred enrichment and reprocessing technologies to other countries that did not already possess these technologies since the NSG’s creation in 1978.
While the new guidelines appear to reinforce the existing policy of NSG members, they have still caused quite a stir, especially among Indian officials and states associated with Non-Aligned Movement (NAM).
India
The changes to the NSG guidelines have caused some concern in New Delhi since India is not a member of the NPT and hence, under the new NSG guidelines, not eligible for ENR transfers from the NSG members.
Responding to the new guidelines, the chairman of India’s Atomic Energy Commission called them “a betrayal.”
Indian officials claim that the new guidelines subvert the letter and spirit of the U.S.-India Nuclear Deal and the clean waiver granted to India by the NSG in 2008, which exempted India from NSG requirements for nuclear trade.
However, India’s concerns are largely overblown. The reality is that most nations were not willing to export these technologies to India even before the Group agreed upon the criteria.
The “Hyde Act” to the U.S. law passed by Congress in 2006 to allow for nuclear cooperation with India, contained restrictions in Section 104 (d)(4) on “exports, re-exports, transfers, and re-transfers to India related to enrichment, reprocessing, and heavy water production.”
Furthermore, the G-8 already enforces NPT membership as a criterion for transfer of enrichment technology, and countries, such as Russia, have already implemented the export criteria agreed upon at the G-8’s 2009 L’Aquila Summit into their national law.
India’s adverse reaction to the new guidelines is, as Daryl Kimball says, not about technical need- “It is about prestige.” The new guidelines constitute a blow to India’s desired image as a member of the nonproliferation mainstream.
Non-Aligned Movement
Many members of the Non-Aligned Movement (NAM) objected to the initial drafts of the guidelines, arguing that they violated Article IV of the Nuclear Non-Proliferation Treaty (NPT), which promises the “fullest possible exchange” of nuclear technology and information for civil energy purposes. In recent years, these countries have been largely sympathetic to claims from Iran that the NSG is a cartel rather than a consortium, which systematically denies technologies used to aid national development. Other governments were concerned that the new terms of trade would prevent them from being able to develop fuel capabilities at a later time.
The new guidelines do attempt to address some of the concerns of these countries.
The criterion relating to the Additional Protocol was negotiated to include “regional arrangements approved by the IAEA.” This is a tacit acceptance of the bilateral safeguards arrangement between Argentina and Brazil (Abacc), as well as the regional arrangement in Europe (Eurotam).
Some observers have critiqued the implication that the Additional Protocol and Abaac are somehow equivalent. The Carnegie Endowment’s Mark Hibbs has questioned the precedent this could set, arguing that “if the NSG gave Argentina and Brazil a blanket exemption from the Additional Protocol requirement, it would make it more difficult for the IAEA to obtain universal adherence to it.”
Inclusion of these regional safeguard arrangements was the price of consensus. Though the exception remains questionable, it is preferable to no agreement at all. Furthermore, the final text of the guidelines urges suppliers to take into account, at their national discretion, any relevant factors as may be applicable to potential recipient states. In the end, a nation’s eligibility to receive enrichment and reprocessing technologies will also be subject to the will of individual suppliers.
Conclusion
Though the states most likely to illegally transfer enrichment and reprocessing technologies remain outside of the NSG’s membership, the new guidelines are an attempt to build stronger rules of the road – much stronger than those required by the NPT – for the transfer of enrichment and reprocessing technologies. They represent an important compromise among the Group’s 46 member states and a necessary step forward in preventing the spread of nuclear weapons.