With the US shoehorning India’s aspiration for membership of the Nuclear Suppliers Group (NSG), Pakistan’s stance has to, besides being diplomatically crafted, situate itself into the corpus of rules that has the feature of being styled as the international nuclear law. These rules may be found in the criteria, if any, for the membership of the Nuclear Suppliers Group read with the Non-Proliferation Treaty (NPT) and the allied set of treaties dealing with non-nuclear weapons zones and the safeguards system designed by the International Atomic Energy Agency (IAEA). This write-up will briefly examine some important legal questions of the international law applicable to the issue of membership to the NSG.
Framework for Identifying Applicable International Law to the NSG
There are two approaches to identify the applicable international law on the issue: one, to apply the natural law paradigm and to question the very morality and the philosophy of the applicable international law, which tends to question the very foundations of the NSG; two, to take a positivist approach and apply the law as it is without asking the tough moral questions about the NSG and the NPT. From an academic’s viewpoint, first approach may be exciting, but a practitioner has to live with the positivist approach to offer a more pragmatic view. This article is pegged into positivist framework for examining the legal issues.
Specific Issues of International Law Applicable to the NSG
Dime a dozen legal issues might relate to participation to the NSG by any non-nuclear weapons state; below is, however, a thematic presentation of some of the moot points:
1. Legal basis of the NSG
According to Information Circular of the IAEA (INFCIRC/539/Rev.6 dated 22nd January 2015), which officially describes origins of the Nuclear Suppliers Group, the NSG is not a product of any international treaty. Para 11 of the Circular records that two mechanisms evolved in post NPT scenario: the first was the Zangger Committee — established in 1974 — which focused on preparation of list of nuclear or nuclear-related material, export of which was to be regulated vis-à-vis Non-Nuclear Weapons States (NNWS); the second mechanism was London Club, which was a product of meetings amongst the US, the UK, West Germany, Russia, Japan, France and Canada between 1975 and 1978 (in response to India’s nuclear tests in 1974) and was, later on, called the NSG. The NSG remained dormant from 1978 to 1991. Thereafter, in consequence of the 1991 NPT Review Conference (NPTRC), in order to fulfil the legal obligations of Article III of the NPT, the NSG was reactivated to encourage the NNWS to enter into safeguard agreements with the IAEA.
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So, what is the legal basis of the NSG?
As per the official record of the IAEA, it is not any independent treaty rather it is the implementation of Article III of the NPT the mandate of which expanded later on to include other provisions of the NPT. For Pakistan, the legal basis of the NSG membership can become the principle on which the criteria for participation to NSG can be established. India has yet to comply with the safeguard agreements as required by Article III, and this aspect can be used to structure a principle-based entry into the NSG.
2. Is NSG an international organization?
The NSG is merely a group of 48 participants (as of 2016). It is not a product of any international treaty. This is the reason it has not introduced any binding requirements.
This also means that it has no independent legal personality.
3. Is it open to membership or participation?
The run-of-the-mill explanation of entry into the NSG is to call it a ‘membership’; this may be factually correct, but legally, it is inaccurate. The official website of the NSG and the documents available at the IAEA website show that it is open to participation and not to membership. This aspect is a legal consequence of the fact that it is not an international organization, and therefore, it does not offer any ‘membership’.
4. Legal framework of the NSG
As noted above, unlike international organizations, the NSG is not a product of any international treaty, therefore, it does not offer legally binding requirements. Its legal framework is, quintessentially, administrative in nature. It has two sets of Guidelines, which are:
A. GUIDELINES PART 1: Guidelines for Nuclear Transfers
B. GUIDELINES PART 2: Guidelines for Transfers of Nuclear Related Dual Use Equipment, Materials, Software, and Related Technology
5. Criteria for participation
Based on the practice of the NSG, the following criteria are applied to its participation as per Para 23 of the official Information Circular mentioned above:
- The ability to supply items mentioned in annexure to the two Guidelines issued by the NSG;
- Adherence to the Guidelines of the NSG;
- Enforcement of a domestic export control system that gives effect to implementation of the Guidelines;
- Adherence to one or more treaties related to international non-proliferation agreement and full compliance to its obligations (like being member of the NPT, or being member to any nuclear free zones treaty);
- Support to international efforts to non-proliferation of nuclear weapons.
The practice-based criteria of the NSG should be utilized by Pakistan to convince the international community, especially to the participants of the NSG, to argue its case in view of the fact that India miserably fails to qualify any of the criteria. The US endorsement is not sufficient to be treated as a certificate of compliance to the above-stated criteria, and its record is obviously contradictory to that. Pakistan may bank on each condition to strengthen its case.
6. Integration of non-proliferation treaties into the NSG
The analysis of the above-stated criteria reveals that neither objective nor principle-based. These are, essentially, practice-based, and point ‘d’ provides an integration platform that provides an opportunity to Participating Governments (PGs) to motivate the aspirant PGs to enter into one or more of the non-proliferation treaties in exchange of getting benefits of the NSG. India has not adhered to any of the non-proliferation treaties, and mere moratorium cannot be a substitute to a binding international treaty. This year, in June, Pakistan used this line of argument to highlight, before the Article XIV Conference’s Preparatory Meeting of the Comprehensive Test Ban Treaty (CTBT), that the global community had missed a golden opportunity in 2008 to integrate the CTBT as a benchmark of the non-proliferation when it granted a country-specific (India-specific) waiver to the NSG Guidelines; Pakistan needs to further expand on this line of argument to make its case stronger.
7. UN and the NSG
The United Nations Security Council (UNSC) in its two Chapter VII Resolutions encouraged all the states to prevent export of equipment that could assist nuclear programmes of India and Pakistan. UNSC Resolution 1172 (1998), in its para 8, noted:
“8. Encourages all States to prevent the export of equipment, materials or technology that could in any way assist programmes in India or Pakistan for nuclear weapons or for ballistic missiles capable of delivering such weapons, and welcomes national policies adopted and declared in this respect …”
Likewise, the UNSC Resolution 1187 (2009) provided, in its paras 17, 18, 19 and 27, that the exports related to nuclear material shall be made conditional to, inter alia, the IAEA safeguards agreements. The two UNSC Resolutions, in the ultimate analysis, oblige the Participating Governments to control the supply of exports of nuclear material; this obligation shall be read into the criteria for participation in the NSG and any Participating Government in breach of this obligation shall be asked to fulfil its obligation.
8. Obama’s nuclear free world doctrine and the NSG
The Norwegian Nobel Committee, in its official statement, while counting laurels of the President Obama, and in order to confer the Nobel Peace Prize on him, noted:
“…The vision of a world free from nuclear arms has powerfully stimulated disarmament and arms control negotiations…”
The vision of a nuclear-free world was earlier taken up by media as Obama Nuclear Free World Doctrine; the speech that enunciated the so-called Doctrine was made in Prague, where President Obama said:
“In our determination to prevent the spread of these weapons, rules must be binding. Violations must be punished. Words must mean something. The world must stand together to prevent the spread of these weapons. And all nations must come together to build a stronger, global regime.”
The Point of Contact Note from the US to the NSG that endorsed Indian bid for participation into the NSG is in form of a paper titled as ‘Food for Thought’ and is authored by Mr Richard J. K. Stratford, Director, Nuclear Energy, Safety and Security Affairs. Contrary to the Obama’s insistence on binding rules in his speech that earned him Nobel Peace Prize, the paper heavily trusts on India without following the dictum of Ronald Reagan: ‘trust but verify’.
The above-stated legal position clearly and unequivocally spells out a very convincing case against India, if not in favour of Pakistan. The act of the US to reward the country that disregarded international law, whatever be its worth, is going to have serious repercussions not only for the region but also for the world at large.