Nullifying the effect of the Nuclear Suppliers Group's ban on enrichment and reprocessing exports will require diplomatic finesse and commercial hardball.

After the diplomatic successes of 2008, when the Nuclear Suppliers Group (NSG) exempted India from the cartel's ban on atomic sales to countries that have not signed the Non-Proliferation Treaty (NPT) or placed all their nuclear facilities under international safeguards, 2011 has not been a very good year at all.

Negotiations with the Japanese on a nuclear agreement have run aground, India's liability law is being unfairly attacked by its potential partners and, of course, the 46-nation NSG adopted new guidelines for the export of sensitive nuclear technology this June — Including enrichment and reprocessing (ENR) equipment and technology — that made the sale of these items conditional on the recipient state fulfilling a number of “objective” and “subjective” conditions. The first of these conditions, namely NPT membership and full-scope safeguards, were specifically designed to dilute the 2008 waiver India received and were not needed to ban ENR sales to any of the other three countries outside the NPT (Pakistan, Israel and North Korea) since the NSG's original guidelines — with their catch-all NPT conditionality for the export of any kind of nuclear equipment — continue to apply to them.

Though Washington denies targeting New Delhi and says it has been working to restrict the sale of ENR equipment and technology for many years now, the new guidelines' redundant reference to the NPT was introduced in order to fulfil an assurance that Condoleezza Rice, who was U.S. Secretary of State at the time, gave Capitol Hill in 2008. Some Congressmen feared other nuclear suppliers would steal a march on the United States by offering India technologies the U.S. wouldn't. To allay their concerns, the U.S. administration said it would ensure an NSG-level ban on sensitive nuclear technology exports to India. A draft was circulated in November that year and finally approved in June 2011.

The Hindu's report

The fact that India failed to prevent the adoption of the new guidelines despite knowing they were in the pipeline for more than two years suggests a certain complacency on the Manmohan Singh government's part. We know from WikiLeaks cables that the issue was dutifully raised by Indian diplomats in many of their meetings with U.S. officials. But never was the proposed ENR ban projected by the government as an attempt by Washington to unilaterally rewrite the terms of the nuclear bargain it had struck with India.

When The Hindu broke the story about the G-8 deciding to implement such a ban in 2009 pending its adoption by the full NSG, senior Indian ministers took the view that this did not matter. It was only when the Nuclear Suppliers Group finally adopted the new guidelines this June that South Block decided to put on its punching gloves.

The fact is that the NSG's 2008 decision to lift its embargo on India was not some kind of unilateral concession. It was part of a complex bargain involving reciprocal commitments by both sides. If the supplier nations agreed to drop their insistence on the NPT and full-scope safeguards and open the door to full civil nuclear cooperation with India, India committed itself to fulfilling several onerous steps, including the difficult and costly separation of its civilian and military nuclear programmes, the placing of its civilian facilities under International Atomic Energy Agency (IAEA) safeguards, the signing of an Additional Protocol, as well as extending support to a number of nonproliferation and disarmament-related initiatives at the global level. At a fundamental level, the logic of this bargain hinged on two components. First, the NSG was making a judgment about India's status as a responsible country with advanced nuclear capabilities. Second, the NSG and India were acting on the basis of reciprocity.

India's expectations

Though Indian officials made their anger known almost immediately in off the record briefings, External Affairs Minister S.M. Krishna finally provided the government's formal response to the new NSG guidelines in a suo moto statement to Parliament in August. Noting the concerns that had been raised by MPs, he made the following “clarifications”: (1) The basis of India's international civil nuclear cooperation remains the special exemption from the NSG guidelines given on September 6, 2008 “which contain reciprocal commitments and actions by both sides.” (2) That exemption accorded “a special status to India” and “was granted knowing full well that India is not a signatory to the Nuclear Non-Proliferation Treaty.” Pursuant to the “clean” exemption, “NSG members had agreed to transfer all technologies which are consistent with their national law” including technologies connected with the nuclear fuel cycle.

Mr. Krishna said the only outstanding issue is the “full implementation” of the September 2008 understanding. “This is what we expect and our major partners are committed to.” This understanding contained commitments on both sides. “We expect all NSG members to honour their commitments as reflected in the 2008 NSG Statement and our bilateral cooperation agreements.”

The Minister then noted the statements made by the U.S., France and Russia following the NSG's June 2011 meeting in which each country tried to assure India that the new guidelines would not “detract” from or “affect” the original waiver granted in September 2008. Stating that not every NSG member has the ability to transfer ENR items to other countries, Mr. Krishna added: “We expect that those that do and have committed to do so in bilateral agreements with India, will live up to their legal commitments.” He also held out a carrot — the huge expansion planned for India's civil nuclear industry — and repeated once again in that context that “we expect that our international partners will fully honour their commitments in this regard.”

French example

While the three big nuclear suppliers have all said the new guidelines do not “detract” from the grand bargain of 2008, South Block should not set much store by these assurances. The fact is that there has been a setback and a diplomatic effort is needed to recover lost ground and ensure that India is excluded from the purview of the new ENR restrictions imposed by the NSG.

The one supplier that has been the most forthcoming so far is France. Indian officials will have taken heart from French Foreign Minister Alain Juppe's public articulation in an interview in Delhi last month that France did not consider itself bound by the new guidelines when it came to nuclear commerce with India. The Minister confirmed that notwithstanding the NSG rules, Paris remained free to sell ENR items and technology in a manner consistent with its national law and its bilateral agreement. French diplomatic sources also told this writer that the French delegation at the NSG meeting in June had entered a verbal reservation to the new ENR guidelines questioning their applicability to India. The French intervention was not challenged and was duly recorded in the minutes, the sources said.

Of course, the challenge for India will be to hold the French to their word, as and when the requirement for cooperation in the ENR field is required. Though India has its own capabilities in these fields, there is no reason why it should not seek access to the best international components and equipment for the new reprocessing plant it has committed to build. With both France and Russia, India must make it clear that the multibillion dollar contracts which are on the anvil for the purchase of new reactors will also depend on Paris and Moscow's willingness to follow through on their promises and commitments on full civil nuclear cooperation. The U.S. has not so far committed itself to sell ENR equipment to India. New Delhi can live with that. But not with American efforts to block others from cooperating with it.