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Reviewing Guidelines of Nuclear Transfer: ‘Special Control on Sensitive Exports’

[vc_row][vc_column width="1/1"][vc_column_text]By ANANT MISHRA [Former Youth Representative to United Nations] New Delhi: The explosion of the first nuclear device by India in 1974(roughly two months before the memoranda of the Zangger Committee), along with ambitions of other nations to create a full nuclear cycle, concerned many on nuclear proliferation. The first steps issued by the global powers were to scrutinise their “nuclear” exports. Then came the formation of a new suppliers group which came to be known, although unofficially, as “the London Club” (as these nations met in London from 1975 to 1977) and later, more officially, the Nuclear Suppliers Group (NSG). The addition of France in the Nuclear Supplier Group was more than just a strategical move, as France was not a signatory to the NPT and also it was not a member of Zangger Committee. The inclusion of France in the NSG was a “carefully” discussed step, as France was a major supplier, and multi lateral discussions could now be possible with global nations. In 1976, the original member nations, the Soviet Union, the United Kingdom, France, the Federal Republic of Germany, Japan, and Canada agreed on the first version of “Guidelines on Nuclear Transfers”.  These versions of guidelines were then discussed by the eight new members (Belgium, Czechoslovakia, the Germany, Democratic Republic, Italy, the Netherlands, Poland, Sweden, and Switzerland) that had joined the group by 1976 while some entered in 1977. Finally in 1977, all the fifteen members of the group accepted the guidelines and submitted to the then IAEA Director to publish it in the IAEA's document INFCIRC/254. The NSG guidelines were a modified version of the Zangger Trigger List, with some changes with respect to heavy water production items. They also included the recipient’s assurance of non explosive use, IAEA safeguards, and some provisions on nuclear transfer. The major difference between the Zangger Committee memoranda and the new NSG guidelines was that the latter went beyond the context of the NPT (it concerned nuclear transfers to any non nuclear weapon State) and the conditions on nuclear export were added. The NSG conditions were to be applied on both Nuclear Material and technology (including component parts). These included processing, enrichment, and heavy water production plants. The NSG guidelines also included some special provisions on sensitive exports, denying the transfer of sensitive fecilities, technology, and weapon’s usable materials. The guidelines also had the provisions for physical protection against the materials and facilities to prevent from unauthorised access. Thus, new guidelines on Nuclear Transfers were formed, more exacting and more effective in terms of nuclear exports control. These guidelines served as a set of principles and rules. It was now up to all the member nations to abide the rules and guidelines of NSG and ensure proper implementation. Member nations knew that when implemented discrepancies would rise. Hence the Nuclear Supplier Group also contained certain guidelines that ensured proper “discussion” to address the issues during implementation. For better understanding between the suppliers – recipient, NSG was convened and matters related to violations of supplier – recipients were discussed. These consultations were convened through proper diplomatic challenges. The Guidelines on Nuclear Transfer provided for a consultation mechanism, a necessary feature of an international organization. For many years, the consultations were not used as it was limited only to some sensitive cases. As a matter of fact, after the establishment of NSG guidelines in 1977, the Nuclear Suppliers Group did not meet for more than thirteen years. Consequently, no change was made in either the guidelines or the NSG Trigger List, even though it is necessary to update and supplement the list. However, the Zangger Committee systematically updated its Trigger List. During these years, the list has been updated several times specially on the uranium enrichment by gas centrifuge methods and gaseous diffusion, and reprocessing. This modified Zangger Committee Trigger List was published by the IAEA in late 1990 as INFCIRC/209/Rev 1 and was more detailed than the NSG list. Goals of Nuclear Supplier Group NSG members pursue the aims of NSG by discussion, exchange of information by proper diplomatic means, notably on developments of nuclear proliferation concern. The first set of guidelines explains the nuclear use. These includes: (i) Explanation on the use of nuclear material; (ii) Nuclear reactors and some parameters with respect to their design; (iii) Non nuclear materials for reactors; (iv) Plant and reprocessing equipments, enrichment, and conversion of nuclear material for fuel fabrication and heavy water production (v) Technology associating for all the mentioned above. The second set of guidelines of NSG governs the export of nuclear related dual usage of technology and itinerary (items that have both nuclear and non-nuclear applications), which could contribute more to the unguarded fuel or nuclear explosive activity. Internationally, the NSG guidelines are consistent and a proved instrument for nuclear non-proliferation. These covers NPT, the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco), the South Pacific Nuclear Weapons Free Zone Treaty (Treaty of Rarotonga), the African Nuclear Weapons Free Zone Treaty (Treaty of Pelindaba) and the Treaty on the Southeast Asia Nuclear Weapons Free Zone (Treaty of Bangkok). The NSG Guidelines aim to ensure that nuclear trade for peaceful purposes does not contribute to the proliferation of nuclear weapons or other nuclear explosive devices, while not hindering international trade and cooperation in the nuclear field. The NSG Guidelines facilitate the development of peaceful nuclear trade by providing the means whereby obligations to facilitate peaceful nuclear cooperation can be implemented in a manner consistent with international nuclear non-proliferation norms. NSG members commit themselves to conditions of supply, in the context of the further development of the applications of nuclear energy for peaceful purposes. Guidelines on Special Control on Sensitive Reports Here are some guidelines issued by the NSG on Special Control on Sensitive Reports – 1. Suppliers shall exercise a policy of “complete denial” in the transfer of sensitive facilities equipment, technology and material usable for nuclear weapons or other nuclear explosive devices, especially in cases when a State has on its territory entities that are the object of active NSG Guidelines Part 2 denial notifications from more than one NSG Participating Government. 2. In the context of this policy, suppliers should not authorize the transfer of enrichment and reprocessing facilities, and equipment and technology therefore if the recipient does not meet, at least, all of the following criteria: (i) Is a Party to the Treaty on the Non-Proliferation of Nuclear Weapons and is in full compliance with its obligations under the Treaty; (ii) Has not been identified in a report by the IAEA Secretariat which is under consideration by the IAEA Board of Governors, as being in breach of its obligations to comply with its safeguards agreement, nor continues to be the subject of Board of Governors decisions calling upon it to take additional steps to comply with its safeguards obligations or to build confidence in the peaceful nature of its nuclear programme, nor has been reported by the IAEA Secretariat as a state where the IAEA is currently unable to implement its safeguards agreement. This criterion would not apply in cases where the IAEA Board of Governors or the United Nations Security Council subsequently decides that adequate assurances exist as to the peaceful purposes of the recipient's nuclear programme and its compliance with its safeguards obligations. For the NSG Part 1 due purposes of this paragraph, refers only to serious reaches of proliferation concern; (iii) Is adhering to the NSG Guidelines and has reported to the Security Council of the United Nations that it is implementing effective export controls as identified by Security Council Resolution 1540; (iv) Has concluded an inter-governmental agreement with the supplier including assurances regarding non-explosive use, effective safeguards in perpetuity, and retransfer; (v) Has made a commitment to the supplier to apply mutually agreed standards of physical protection based on current international guidelines; and (vi) Has committed to IAEA safety standards and adheres to accepted international safety conventions. (b) In considering whether to authorize such transfers, suppliers, while taking into account paragraphs 4(e), 6(a), and 10, should consult with potential recipients to ensure that enrichment and reprocessing facilities, equipment and technology are intended for peaceful purposes only; also taking into account at their national discretion, any relevant factors as may be applicable.(c) Suppliers will make special efforts in support of effective implementation of IAEA  safeguards for enrichment or reprocessing facilities, equipment or technology and should, consistent with paragraphs 4 and 14 of the Guidelines, ensure their peaceful nature. In this regard suppliers should authorize transfers, pursuant to this paragraph, only when the recipient has brought into force a Comprehensive Safeguards  Agreement, and an Additional Protocol based on the Model Additional Protocol or,  pending this, is implementing appropriate safeguards agreements in cooperation with  the IAEA, including a regional accounting and control arrangement for nuclear materials, as approved by the IAEA Board of Governors. (d) In accordance with paragraph 17(b) of the Guidelines, prior to beginning transfers of enrichment or reprocessing facilities, equipment, or technology, suppliers should consult with Participating Governments regarding the non-proliferation related terms and conditions applicable to the transfer. (e) If enrichment or reprocessing facilities, equipment, or technology are to be transferred, suppliers should encourage recipients to accept, as an alternative to national plants, supplier involvement and/or other appropriate multinational participation in resulting facilities. Suppliers should also promote international (including IAEA) activities concerned with multinational regional fuel cycle centres. India – US Nuclear deal waiver In September 2008, NSG made an exception for India from the group’s general requirement with respect to the full scale safeguards, the provision where recipients have to open all their nuclear facilities for IAEA inspections. In accordance with the revised guidelines on enrichment and reprocessing, the question was whether India would be exempted from new set up restrictions as well. India is the only nation where nuclear weapons are not a denied under the Non Proliferation Treaty (NPT) but nuclear commerce can be carried out with any nation.
About the Author Anant Mishra is a former Youth Representative to United Nations. He has served in numerous committees including United Nations General Assembly (UNGA) and United Nations Security Council (UNSC).He is an Associate Member of Institute of Defence Studies and Analysis, New Delhi.[/vc_column_text][/vc_column][/vc_row]

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