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#2657, 20 August 2008
Unconditional Exemption by NSG: Is it Necessary?
Alok Kumar Gupta
Assistant Professor, National Law University, Jodhpur
e-mail: alok25_2002@yahoo.co.in

The 45-member Nuclear Suppliers Group (NSG) is scheduled to meet in Vienna on 21-22 August 2008 to consider the case of India's exemption from its existing guidelines for export of nuclear materials. India is demanding a "clean and unconditional" exemption. Both these demands have been spelled out in the print media. The US has already prepared a 'draft waiver' document in consultation with India to be placed before the NSG to facilitate India's unconditional access to fissile material for its civil nuclear program. The major issues that have been doing the rounds are: Whether the draft waiver would include the condition that in case India conducts a test, the waiver would stand terminated? Whether India would sign the IAEA's Additional Protocol? How to prevent transfer of enrichment and reprocessing (ENR) technology? What would be the situation should the IAEA safeguards agreement be terminated?

These issues are irrelevant both from India's and the NSG's point of view for the following reasons:

First, India announced a unilateral moratorium just after the tests in 1998, and has stood by it for more than ten years now. It has further affirmed its commitment to the moratorium in the near-term future. India has collected sufficient data to design a bomb through computer simulation. Thus, there is hardly any need for testing again in future.

Second, some of the NSG members have laws to deal with transgressors; therefore there is hardly any need for the NSG countries to be concerned about the same. India also has agreements with some of the NSG members that do not call for termination of the agreement in the event of a test. The issue of termination of supply in case India tests is thus uncalled for.

Third, a major concern is related to reprocessing rights by India. Some of the NSG members have indicated that spent fuel originating from the NSG countries can only be reprocessed in a facility that is subject to permanent and unconditional safeguards. India, however, does not require this technology from other states; its demand is that it should not be denied the right to buy equipment and components for use under safeguards.

Fourth, the NSG rules prohibit sale of nuclear material to Non-Nuclear Weapon States (NNWS) and its guidelines, therefore, have no relevance to India, as it is a de facto nuclear weapon state. India is not recognized under the Nuclear Non-Proliferation Treaty (NPT), but the "123 Agreement" recognizes it as a country with advanced nuclear technology. Proliferation has taken place despite the NSG guidelines which has severely undermined the sanctity of the NPT. This fact is further reinforced by the need to have the Proliferation Security Initiative (PSI) under the US leadership.

Fifth, India has been internationally recognized as a harbinger of peace and order in the world. It has been actively involved in this effort by contributing to UN peace-keeping forces. The restraint shown during the Kargil war and in 2001-2002 when India mobilized its strike forces on the border, speaks volume about its commitment. Obviously, India is a responsible state and would behave responsibly even under extreme provocation. The NSG members, therefore, should take into account India's track record, without comparing it with Pakistan.

India has a strong case against the objections being raised by some of the NSG members, particularly New Zealand, Austria and Ireland. Even South Australian Premier, Mike Rann has opposed the sale of uranium to India. Australia is said to have 40 per cent of the uranium reserves in the world. India, thus, deserves a fair and honorable treatment by the NSG members. Indian policy makers have realized the needs of energy over hollow arguments stressing strategic concerns. Nuclear deterrence has an ambiguous character. The world has not entered into any nuclear exchange after Hiroshima and Nagasaki, even though there are much more powerful bombs available now. Moreover, there have been several eyeball to eyeball confrontations during the Cold War. The security of the Indian people cannot be ensured with the possession of a few bombs, whereas maximization of energy production would undoubtedly lead to a better future and better life for Indian citizens. Due to uranium shortage, presently nuclear plants in the country are operating at 48 per cent of their capacity. With over 35,000 MWe of electricity at stake, no future government would ever dare to test.

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