The NSG was set up in 1975, primarily to implement sanctions on nuclear commerce with India, as a reaction to India’s Peaceful Nuclear Explosion in 1974. It needs to be remembered that PNEs were an accepted concept at that time and are exempted, even today, in the text of the NPT. The NPT came into force in 1970, and Pokharan I was seen as the defiance by a weak country of the will of the powerful. China and France continued nuclear testing for weapons purposes, when they were not members of the NPT. In 1992, the NSG included in their guidelines dual-use technologies — any item or technology which might contribute to a sanctioned country’s nuclear programme — even if the import was for non-nuclear sectors. This was further reinforced by the “catch-all” lists which could include any items, even those not specifically mentioned in the guidelines.

Later, NSG guidelines, which are meant exclusively for non-nuclear weapon states, demanded that these states accept safeguards on all facilities since the non-nuclear weapon states had voluntarily given up their right to manufacture nuclear weapons. There is a strange irony in the fact that the organisation which was set up in reaction to India’s first nuclear test should today be faced with a proposal to issue a waiver of its guidelines exceptionalising India.

Quite naturally, the issue of India conducting more nuclear tests will be one of the focal points of discussion in the NSG at its next meeting. This was reflected in the debate in the IAEA Board of Governors on August 1— a number of countries, even among those that supported the India-specific safeguards agreement, called for India to adhere to the CTBT; others expressed concern at the inherent linkage between the duration of the safeguards agreement and the supply of fuel. This, in their view, would undercut the ability of the NSG to react to any future testing by India. Of the five NPT nuclear weapon states, three — Russia, the United Kingdom and France — have signed and ratified the CTBT. The US and China have not — India has not even signed the treaty and Pakistan’s position would invariably reflect India’s. Even though there is no overt reference to testing in the 123 Agreement, US laws requiring a “right of return” of equipment and material in the event of a nuclear test remain intact, unamended by the Hyde Act. Other countries in the NSG may wish to include some reference to testing in the decision to grant an exemption to India from its restrictive guidelines. The chairman of the Atomic Energy Commission, Anil Kakodkar, has made it clear that the NSG guidelines are meant for non-nuclear weapon states; India has nuclear weapons and is not in violation of any laws or obligations as it is not a member of the NPT. He was clear that India retained the option to “walk out” of the entire exercise, if unwelcome conditions were attached to the NSG decision. Some might believe that India is in so deep, particularly after the domestic drama of the last few weeks, that it may not be in a position to walk out; this would be a misreading of the situation. It has been India’s reaction to unwelcome international legally binding constraints to walk out of a situation rather than accept a situation and then hope for the best.

... contd.