The New York Times Trips Up on India and the NSG

India must be held accountable for the commitments it made in 2005, when the nuclear deal with the United States was first struck, and not for the sins of others.

The New York Times is free to take whatever position it likes on any issue and if it believes India should not be admitted into the Nuclear Suppliers Group, it has every right to write an editorial advocating ‘No Exceptions for a Nuclear India’.

What it ought not to do is build its argument on faulty analysis, misrepresentation and factual inaccuracies. What follows is a paragraph-by-paragraph explanation of how the newspaper – that I have read and liked for years – has gone wrong, horribly wrong in this editorial.

Para 1

America’s relationship with India has blossomed under President Obama, who will meet with Prime Minister Narendra Modi this week. Ideally, Mr. Obama could take advantage of the ties he has built and press for India to adhere to the standards on nuclear proliferation to which other nuclear weapons states adhere.

Here, the NYT makes a huge assumption: that there are “standards on nuclear proliferation to which other nuclear weapons states adhere” and to which India doesn’t. The ‘other nuclear weapons states’ are the United States, Russia, China, France and Britain (the N-5). The main standard to which the N-5 are meant to adhere is the prescription set out in Article 1 of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)  to not provide nuclear weapons or knowhow or assistance to non-nuclear weapon states. Article 6 also applies to them but is non-binding: to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

The Chinese assisted Pakistan’s nuclear weapons programme before Beijing acceded to the NPT in 1992 but there are suspicions the relationship continued beyond that date., thus violating Article 1. The New York Times itself reported about this in 1996:

China secretly sold nuclear-weapons technology to Pakistan last year and could face the loss of billions of dollars in business deals under United States law, Administration officials said today. But, they said, President Clinton may waive the penalties to ease tensions with Beijing.

“China sold Pakistan magnets used to refine bomb-grade uranium, the Central Intelligence Agency told the Administration late last year. State Department officials said today they had concluded that the evidence regarding the magnets was strong enough to trigger the penalties. We regard it as very serious,” said a senior State Department official, who spoke on the condition of anonymity.

As for Article VI, the suggestion that the N-5 have adhered to the disarmament obligations prescribed by the NPT is, quite frankly, laughable. Even if the US and Russia have cut the size of their arsenals – retaining enough to destroy each other and the world – China, France and Britain have shown no inclination to pursue negotiations on disarmament.

India, despite being outside the NPT, can hardly be accused of not adhering to the same standard as Article 1 of the treaty. As for Article VI, it is the only nuclear weapon state to actively demand, each year at the UN, a series of arms control and disarmament measures, including a convention banning the use of nuclear weapons.

Para 2

The problem, however, is that the relationship with India rests on a dangerous bargain. For years, the United States has sought to bend the rules for India’s nuclear program to maintain India’s cooperation on trade and to counter China’s growing influence. In 2008, President George W. Bush signed a civilian nuclear deal with India that allowed it to trade in nuclear materials. This has encouraged Pakistan to keep expanding a nuclear weapons program that is already the fastest growing in the world.

Pakistan’s nuclear weapons programme is expanding, but it has nothing to do with the civilian nuclear deal India signed. A crucial part of that deal was a separation plan that India implemented in which it agreed to place several of its indigenous power reactors under international safeguards – thus surrendering the ability to use those reactors to produce fissile material for weapons. Six years after doing so, and after winning the right to import new (safeguarded) reactors, no new reactor has been built or operationalised following the 2008 deal, except for the Russian reactor at Kudankulam which predates the 2008 agreement. One could argue that a greater quantity of indigenous Indian uranium can now be used in its unsafeguarded pressurised heavy water reactors to produce fissile material, but these reactors are connected to the electricity grid and the publicly observable higher electricity output makes it clear they are not being run in ‘low burn up mode’.

In other words, far from fearing that the US deal will increase the speed at which India can produce fissile material, Pakistan knows the deal is likely to either have a neutral or even dampening effect on India’s nuclear arsenal. However, Islamabad finds it convenient to cite the deal as an alibi for ramping up its nuclear weapons programme. If Pakistan really believed India was now in a position to ramp up production of weapons-grade material, it would not be blocking the negotiation of the Fissile Material Cut-Off Treaty (FMCT) at the Conference on Disarmament in Geneva. Way back in 2005, India committed to working with the US for the conclusion of the FMCT and the best way to limit the size of an arsenal that you fear will get bigger over time is surely to accelerate negotiations. Yet, Pakistan is doing the opposite.

Para 3

Now, India has Mr. Obama’s strong support in its bid to join the Nuclear Suppliers Group, a 48-nation body that governs trade in nuclear-related exports and aims to ensure that civilian trade in nuclear materials is not diverted for military uses. Membership would enhance India’s standing as a nuclear weapons state, but it is not merited until the country meets the group’s standards.

The NSG’s standards consist of export guidelines that India formally committed to adhere to in 2008 as part of the group’s decision to allow nuclear commerce between its members and India. Not only has India aligned its export regulations with those of the NSG, it has also committed itself to implementing any new guidelines the group may adopt – even if this means hurting India’s commercial interests – without having a formal vote on the framing of those changes. The only safeguard for New Delhi is that the 2008 agreement says the NSG chair is “requested to consult”  with India on any future changes and that “Consultations with India regarding proposed amendments will facilitate their effective implementation by India.”

The irony is that the NSG today has members, notably China, that do not meet the group’s standards, as this op-ed by Mark Hibbs in the NYT argued.

Para 4

All group members have signed the Nuclear Nonproliferation Treaty, either as nuclear weapons states (the United States, Britain, France, Russia, China) or as non-nuclear weapons states (everybody else). India has refused, which means it has not accepted legally binding commitments to pursue disarmament negotiations, halt the production of fissile material for nuclear weapons and not test nuclear weapons.

The Times editorial board has (1) mixed up the NPT, the Comprehensive Test Ban Treaty  and the FMCT, and (2) presented this treaty mash-up as “legally binding commitments to pursue disarmament negotiations, halt the production of fissile material for nuclear weapons and not test nuclear weapons.”

So let us disentangle this mess for a second and set the record straight. The N-5 are part of the NPT but the pursuit of disarmament negotiations is not a legally binding commitment. The treaty does not say so and the closest we have to such an idea is the 1996 advisory opinion of the International Court of Justice that “there exists an obligation” for states to pursue and bring to a conclusion disarmament talks. As to what value these words have is another matter since the US, France and Britain opposed the ICJ exercising jurisdiction on the question.

A legally binding commitment not to test nuclear weapons is contained in the CTBT and not the NPT but that treaty has yet to enter into force; that , in turn, will only happen if the remaining holdouts accede to the treaty, and in the following order: the US, China, India and Pakistan,  as well as Israel, Iran and Egypt, and North Korea. Until then, the best that one can insist on is that countries abide by a unilateral moratorium on testing. The US and China have done so, but so has India.

As for the FMCT, the treaty doesn’t even exist yet. The US, Russia, Britain and France formally announced a moratorium on the further production of weapon-grade fissile material. China, however, has not done so, but sent signals that it too has suspended production. None of these pledges are verifiable, which is why India and other countries have been demanding a verifiable and non-discriminatory FMCT. India in 2008 reiterated its commitment to work towards the conclusion of such a legally binding treaty but thanks to Pakistani (and Chinese) opposition, negotiations on the FMCT have yet to start.

Para 5

President Bush squandered an opportunity to demand more of India when he signed the 2008 deal, which opened the door to American trade in nuclear technology for civilian energy, something India had insisted was a prerequisite to more cooperation and lucrative business deals. As part of the 2008 deal, the Indians promised they would be “ready to assume the same responsibilities and practices” as other nations with advanced nuclear technology. But they have fallen far short by continuing to produce fissile material and to expand their nuclear arsenal.

Manmohan Singh with George W Bush at the White House, Washington on July 18, 2005. Credit: Photo Division/GOI

Manmohan Singh with George W Bush at the White House, Washington on July 18, 2005. Credit: Photo Division/GOI

Bush, in fact demanded, and received a lot more from India than it had originally been prepared to give. and those demands are continuing. Apart from the separation plan and numerous foreign policy compromises that the erstwhile Manmohan Singh government made (on India’s relations with Iran, for example), the US has insisted – and the Narendra Modi government has tamely accepted – that the Indian liability law must not apply to US nuclear suppliers even if defective equipment supplied by the latter is the cause of a major accident.

Neither in the bilateral agreement with the US nor in the agreement with the NSG was the demand made that India must stop producing fissile material and cap its nuclear arsenal. The editorial is right to remind readers of the Indian promise to “assume the same responsibilities and practices” as other nations with advanced nuclear technology. But what it fails to mention is that the July 18, 2005 joint statement from which that phrase is lifted actually enumerated what those obligations were:

“These responsibilities and practices consist of identifying and separating civilian and military nuclear facilities and programs in a phased manner and filing a declaration regarding its civilians facilities with the International Atomic Energy Agency (IAEA), taking a decision to place voluntarily its civilian nuclear facilities under IAEA safeguards, signing and adhering to an Additional Protocol with respect to civilian nuclear facilities, continuing India’s unilateral moratorium on nuclear testing, working with the United States for the conclusion of a multilateral Fissile Material Cut Off Treaty, refraining from transfer of enrichment and reprocessing technologies to states that do not have them and supporting international efforts to limit their spread; and ensuring that the necessary steps have been taken to secure nuclear materials and technology through comprehensive export control legislation and through harmonization and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines.”

Each and every one of these “responsibilities and practices” has been strictly adhered to by India and there has not been a single allegation by the US or any member of the NSG to the contrary. In any event, doesn’t the Times know that all the five legacy states with “advanced nuclear technology” are busy refining their nuclear arsenals, designing and deploying new generations of nuclear weapons, missiles and delivery systems?

Para 6

The Nuclear Suppliers Group is to discuss India’s application later this month. Mr. Obama is lobbying for India to win membership through a special exception. If he succeeds, India would be in a position to keep Pakistan, which has also applied for membership, from gaining membership because group decisions must be unanimous. That could give Pakistan, which at one time provided nuclear technology to North Korea and Iran, new incentives to misbehave.

Before Pakistan aspires to membership of the NSG, shouldn’t it be encouraged to first sign on to the “responsibilities and practices” India did – and then some, given the legacy of A.Q. Khan – and get a waiver from the cartel’s guidelines? That would be the constructive way of dealing with what the NYT itself called ‘Pakistan’s nuclear nightmare’, especially since the Chinese seem hell-bent on giving Pakistan access to nuclear technology without demanding it adheres to any particular “responsibilities and practices”. In any event, Pakistani “misbehaviour” on the nuclear front in the past has had nothing to do with India. The A.Q. Khan network was driven not by concerns about an Indian arsenal but by avarice, lax safeguards and the irresponsible worldview of the Pakistani military. Does the New York Times seriously believe that denying India membership of the NSG will somehow give Pakistan “incentives to behave”?

Para 7

Opposition from China, which is close to Pakistan and views India as a rival, could doom India’s bid for now. But the issue will not go away. India is growing in importance and seeking greater integration into organizations that govern international affairs. If it wants recognition as a nuclear weapons state, it should be required to meet the nuclear group’s standards, including opening negotiations with Pakistan and China on curbing nuclear weapons and halting the production of nuclear fuel for bombs.

Unfortunately, the universe of nuclear threats does not just consist of Pakistan, India and China. If Pakistan sees India as a rival and India sees China as a challenge, then China also has to deal with the reality of the United States as a nuclear adversary. Just as it would be unreasonable for India to expect Pakistan to limit its nuclear arsenal unless India does too, India is unable to do so unless China is prepared to, while China will not be in a position to discuss disarmament with India unless the US is prepared to abandon and reverse its arms race. That is why the goal of nuclear disarmament has to be tackled by all 9 nuclear weapons states – the N-5, India, Pakistan, North Korea and Israel – and one way to do this is to back the Indian proposal for a Comprehensive Nuclear weapons Convention.

Note: This article has been edited to elaborate on the consultative mechanism between India and the NSG in the event of future changes to the NSG guidelines.