India’s NSG credentials: Power politics vs int’l law

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Syed Qamar Afzal Rizvi

DESPITE India’s hard-hitting push for admission into the Nuclear Suppliers Group (NSG), New Delhi remains outside the elite body that regulates nuclear trade worldwide. Fairly analyzing and objectively arguing, India’s credentials for NSG club are fundamentally flouted and skeptical in the eye of international law experts because the waive clause that India enjoys since 2008 is not based on merit vis-à-vis Pakistan .Veritably, US overriding favouritism towards India is against the established norms of nuclear non-proliferation regime. But this political nuclear segregation of the major powers to grant India any favour cannot deprive Pakistan from acquiring the NSG membership.
It is true that China has opposed India’s membership of the NSG and is in a position to block this since the NSG functions on the basis of consensus. China had also opposed the decision to give a waiver to India in 2008, China has taken a very academic stand in opposing India’s membership of the NSG and it appears that it is prepared to be the only country to do so, if such a situation were to arise”. “China appears to be taking this stand on behalf of Pakistan which has also applied to become a member of the NSG. The NSG has been of the view that the “participating governments reiterated their firm support for the full, complete and effective implementation of the NPT as the cornerstone of the international non-proliferation regime.” In other words, the entire outfit, including the US and the others, called for the “effective implementation of the NPT”, code for its universalization, which means that either India signs or stays out of the NSG. Yet the game of power politics is on its way.
The Nordic countries welcomed India’s application for membership of the Nuclear Suppliers’ Group in April 2018. Recently both Germany and Russia’s support for India’s bid saying that India’s inclusion into the NSG will boost the global export control system .But this synergy is tantamount to reflecting the case of power politics that endangers the future of non-proliferation regime. And yet NSG continues to consider all aspects of implementation of the 2008 Statement on Civil Nuclear Cooperation with India (or NSG waiver for India).
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. 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: “ Encourages all States to prevent the export of equipment, material 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 …”
The US has not publicly opposed Pakistan, the US State Department’s Spokesperson Mark Toner commented in May 2016: “They have made public their interest, and certainly any country can submit its application for membership. And we’ll consider [it] based on a consensus decision.” Subsequently, NSG initiated discussions on the ‘Technical, Legal, and Political aspects of participation of non-NPT states in the NSG’ in the Seoul Plenary in June 2017. China has also tied Indian bid to Pakistani bid, blocking the former’s entry repeatedly based on the argument that if India can be let in without signing NPT, Pakistan should be granted membership as well. As for Pakistan, the legal basis of the NSG membership can become the principle on which the criteria for participation to NSG can be established. In this backdrop, 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. The participation criteria clauses, 3,4 and 5 are not fulfilled by India: 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.
However, the analysis of the above-stated criteria reveals that neither it is objective nor principle-based. These are, essentially, practice-based, which provide 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. 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.
The hereinabove-stated legal position clearly reflects a very convincing case against India, if not in favour of Pakistan. India has not adhered to any of the non-proliferation treaties, and mere moratorium cannot be a substitute to a binding international treaty. The US’ chartered unilateral favouritism to India holds no merit. The political scientist, John Mearsheimer, is of the view that the world is inherently insecure and the great powers are locked in a tragic competition to be, and remain, number one. Given the fact that power politics must not win over international law, it may be pragmatically prognosticated that the upcoming NSG Latvia forum may not singularly endorse India’s flouted credentials for the NSG bid.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.

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