PSI Pros and Cons

Prof. Matin Zuberi
Expert on Nuclear Arms Control Issues

The non-proliferation regime at present consists of the nuclear non-proliferation regime and the verification system established under the Chemical Weapons Convention. The attempt to set up a verification system under the Biological Weapons Convention recently ended in failure. The comprehensive nuclear non-proliferation regime has been in operation for a few decades.

The Nuclear Non-Proliferation Regime

The nuclear non-proliferation regime is an inter-locking network of international treaties, domestic legislations, bilateral regional and multilateral verification systems called nuclear safeguards, positive and negative security assurances to non nuclear weapons states, economic sanctions, technology controls, nuclear weapon free zones and informal groupings of states for specific purposes, and its main focus is the Nuclear Non- Proliferation Treaty (NPT).

The NPT was completed in 1968 and came into force in 1970. It was understood at that time that whatever was not prohibited was allowed. The American chief negotiator of the NPT, William Foster, listed activities that were not prohibited and he said "neither uranium enrichment nor stockpiling of fissile material for peaceful purposes under safeguards would violate Article 2 of the Treaty." He also said "clearly permitted would be the development, under safeguards, of plutonium fuelled power reactors including research on the properties of metallic plutonium, nor would Article 2 interfere with the development or use of fast breeder reactors and resume cars." It should be noted that all these are the most proliferation-prone activities and the regime has moved to ban these activities because of their dangerous potential.

Another interesting aspect is how important and major industrial countries subscribed to the regime. At the time of ratification of the NPT, certain countries entered their reservations and these became part of the legislative record of the Treaty itself. Let me mention two or three countries in this context. The West German government, while ratifying the Treaty, made public its reservations. It contented that no nuclear activity in the fields of research, development, manufacture or use for peaceful purposes was prohibited nor could transfer of information, material and equipment be denied to non- nuclear-weapon states merely on the basis of allegations. The Japanese government issued a long list of reservations at the time of accession. These were about the long duration of the treaty as well as the possible adverse impact of safeguards on Japan's energy economy. Japan kept in mind the possibility of withdrawal from the Treaty. A safeguards agreement with the IAEA was concluded six years after accession to it and the Japanese had very serious objections about IAEA's inspectors entering into their nuclear power plants at odd hours. The Japanese government asserted that the NPT did not explicitly prohibit weapons-oriented research and development short of production of nuclear weapons. Australia even maintained that no nuclear development should be prohibited except when such activities would have no purpose other than the manufacture of nuclear explosive devices.

These reservations ensured that the industrialized countries' capability to manufacture nuclear weapons would not be impeded by treaty stipulations. Then the process of informal groupings started. First there was the Zangger Committee which enlisted export items that could trigger safeguards. In the 1970's an informal grouping of states first met in London and was later called the Nuclear Suppliers Group. Its guidelines went far beyond the trigger list, which had gone beyond the NPT. Nuclear revisionism started and the United States Congress passed the Nuclear Non-Proliferation Act according to which for the first time full-scope safeguards became a precondition for the supply of nuclear technology to non-nuclear-weapon states. The industrialized allies of the United States were upset by the sudden change in U.S. nuclear policy. A Japanese diplomat told his American counterpart, "For twenty years we have followed US guidelines on nuclear policy. Now you are saying you made a complete mistake, but it is too late". Once a policy with long-term implications had been embarked upon it could not be shifted to another gear to suit American preferences.

In this process the definition of proliferation has been continuously changing, and consequently, the objectives of safeguards have also been changing. By the late 1970's the definition of proliferation changed from the manufacture or acquisition of nuclear weapons to 'developing nuclear explosive capability.' What is a nuclear explosive capability? If a country has mastered the complete nuclear fuel cycle, it has certainly developed a nuclear explosive capability. But according to William Foster as quoted earlier, a complete nuclear fuel cycle including breeder reactors was allowed by the NPT. According to an American architect of the NPT, the safeguards system was never intended to be a system for prevention of diversion. The safeguards were intended to detect diversion from military to peaceful purposes but not to prevent it. If an IAEA inspector saw someone walking out of plant with nuclear material, he would not have the slightest authority to stop it. The occurrence could only be reported to the IAEA that would then the have to report to the U.N. Security Council. The NPT divided member states into nuclear-weapon states and non-nuclear weapon states; but later a new layer of discrimination was added. Industrialized countries could have a complete nuclear fuel cycle, including reprocessing and enrichment, while other non-nuclear-weapon states were denied these technologies.

The aftermath of the Gulf War revealed that Iraq had a covert nuclear weapons programme; but the interesting point is that, at that time the IAEA safeguards applied only to those installations and fissile material that were declared in an agreement with the IAEA. While the IAEA inspectors were regularly monitoring Iraq's peaceful nuclear programmes, it had a parallel weapons effort that did not intersect with the programme being monitored. Iraq had not diverted fissile material from the peaceful to the military programmes; hence it had not violated the provisions of its safeguards agreement with the IAEA.

The objective of safeguards again changed in 1992 to prevention of the transfer of capabilities for use in a non-nuclear-weapon state in a nuclear explosive activity or an un-safeguarded nuclear fuel cycle activity. A Modal Protocol has now prescribed a more intrusive verification system. States accepting the Protocol are obliged to provide information about their current and planned nuclear power plants, IAEA inspectors would have access not only to nuclear sites but also to their locations that would contribute to a nuclear programme such as research in manufacturing capabilities. In September 2003 when United States and the IAEA were insisting that Iran should sign this Additional Protocol, only 37 NPT States had actually signed it; even the United States had not signed it. Iran has now agreed to subscribe to it.

More and more informal groups have been organized on the lines of the Zangger Committee and the Nuclear Suppliers Group, such as the Missile Technology Control Regime (MTCR), the Australia Group, and the Wassenaar Agreement. The Nuclear Suppliers Group in its meeting at Warsaw in 1992 adopted 40 documents bringing in a large number of dual-use technologies within its prohibitory list. Nowadays all cutting edge technologies have military as well as civilian uses; any restrictions on them would not only control proliferation of nuclear competence but would also encroach upon the developmental process. For instance, simply because fertilizers can be used for weapons purposes a ban on their import or use would definitely have an adverse affect on agriculture. This is how increasingly intrusive and increasingly longer lists of technologies are being brought within the purview of the nuclear and chemical weapons non-proliferation regimes.

The regime provided negative security guarantees to non-nuclear-weapons states; in return for their renunciation of nuclear weapons, they were assured of immunity from threats or use of nuclear weapons against them. The Nuclear Posture Review of the United States, which referred specifically to seven states against which in certain contingencies the United States could use nuclear weapons, eroded this assurance. The seven states include two nuclear-weapons states, Russia and China, and five non-nuclear-weapon states--Iran, Iraq, Libya, North Korea and Syria. For the first time, non-nuclear-weapon states party to the NPT have been mentioned as possible targets of nuclear attacks.

The Proliferation Security Initiative

The distinguished Consul General has lucidly explained the concept of Proliferation Security Initiative (PSI). I will simply ask a few questions about it.

Eliminating the transport of materials and components for ABC Weapons; i.e. atomic, biological and chemical weapons, and their delivery systems to additional states would be a positive development. India would certainly welcome it. The curbing of nuclear and missile proliferation among China, Pakistan and North Korea and sharing intelligence on their covert operations would obviously meet India's national interests.

The manner in which the working of a covert global nuclear market operating from Pakistan has been managed, however, does not inspire confidence. The distinguished Consul General rightly pointed out that the issue concerned the security of the United States as well as of the entire international security. The acceptance by Washington of the Pakistani claim that the entire operation was the work of some 'rogue' scientists without the knowledge of successive Pakistani governments amounts to selective application of non-proliferation. Secretary of State Colin Powell has described it as an internal matter for Pakistan. How can this be justified? The Pakistani nuclear proliferation was proceeding for more than two decades and the American intelligence agencies had been tracking this process. CIA Director George Tenet has said that his organization was tracking I.Q. Khan's activities for a long time. Khan and his colleagues were publishing articles on centrifuge technology in scientific journals and American experts were monitoring them. Brochures were being distributed with Khan's photograph in the circle of a mushroom cloud; exhibitions were being held in Pakistan where these wares were being advertised for sale. Yet the United States did not take any preventive action; it did not even inform the IAEA about the subversion of the NPT regime. Moreover, can we realistically absolve successive civilian and military rulers of Pakistan by dismissing it as just a private enterprise of 'rogue' scientist? It was the most audacious challenge to the entire non-proliferation regime. In a strongly inverted editorial, Washington Post had accused Pakistan of having committed some of the worst crimes of nuclear weapons proliferation ever committed. It added that were Pakistan not a professed ally of United States, its behavior would have met the criteria for preventive military intervention outlined in President Bush's national security strategy.

When the proponents of the PSI mention sharing information, this is one area India is directly interested in. The United States has not shared information about the black market with India. It is not sharing intelligence information according to New York Times and Washington Post even with Japan. What is the assurance that under the PSI it is not going to be a one-way traffic: Indian information would be available to Washington while the vast amount of information collected by the United States would not be shared with India.

Who determines a particular country as a state of concern? Would a small group of states continue to decide that a country is a state of concern, or a rogue state? How reliable would be intelligence regarding a particular shipment; would it be prudent to rely on intelligence agencies already compromised by the fiasco of Iraq?

According to John Bolton, US Under Secretary of State for Arms Control in International Security, the PSI is not an organization but an activity; and because it is not an organization, it doesn't have any rules and regulations although there are certain guidelines. In other words, it will be an informal gathering of like-minded states who will decide which country is a state of concern and who's ships or aircraft should be boarded and searched. What would be the mechanism to interdict vessels under flags of states not of concern but with shipments from states of concern? Would the PSI target only states and non-state actors on the preferences of core states? The members have not spelled out the types of shipments they are targeting. The reference to weapons of mass destruction and delivery systems and 'related materials' creates ambiguities about the meaning of related material. This has not been defined. Related material could cover anything including fertilizers.

The NPT, the Chemical Weapons Convention and the Biological Weapons Convention all expressively provide signatory states the right to possess and trade dual-use technologies There is need for clarity and international consensus to be developed on the types of transfers prohibited and the nature of interdiction permitted under international law. Naval interdiction by an informal coalition of states would raise major political and legal problems that cannot be wished away. Poland, for instance is a member of the core group; how can Poland play any role in naval interdiction because of its limited capabilities? Only United States maintains global naval presence. So it will be primarily an American operation. What would be the rules of engagement for such an activity that could contribute to global instability by flouting the UN Convention on the Law of the Sea? Russia and China have expressed concern that PSI is an attempt to substitute interdiction for established multilateral thinking and is tailored to isolate specific states, specifically North Korea.

Interdiction of aircraft would raise the prospect of accidents involving such dangerous material; how to interdict an aircraft on what sources of information? American spokesmen have stated that their country could consider, as a last resort, shooting down a suspected aircraft if it refuses to land; but this would be the most dangerous operation. Suppose American intelligence is correct and the aircraft is carrying nuclear fissile material and it is shot down, what would the consequence be?

The text of the Security Council Resolution 1540 has various ambiguities in it. The objective placed before the Security Council was to prevent only terrorist groups from acquiring ABC weapons. The draft resolution was revised thrice in order to satisfy the concerns of a country, Pakistan, that has been involved in the world's greatest proliferation activity, India's a permanent representative at the United Nations has expressed concern that the exercise of legislative function by the Security Council, combined with the recourse to Chapter 7 of the U.N. Charter, raised serious questions. The Charter does not confer on the Security Council the authority to enact global legislation demanding sovereign states to modify their domestic laws and policies. It can be done by multilateral negotiations between sovereign states. Moreover, the track record of the Security Council on disarmament issues is not a happy one. For example, before the Partial Test Ban Treaty, the United States and the Soviet Union conducted 116 nuclear tests in a single year, and many of them were atmospheric tests spreading radioactive fallout far and wide. The Security Council did not take note of it. But when India and Pakistan conducted a few nuclear tests in 1998, it immediately produced a condemnatory resolution.

Even at the latest NPT PrepCom meeting, US representative Wolf said that the United States policy is that India, Pakistan and Israel sign the NPT. India cannot be a party to a non-proliferation regime that refuses to recognize it as a nuclear-weapon power. India is not a member of the groupings like the Zangger Committee, the Nuclear Supplier Group, MTCR, the Australia Group and the Wassenaar Agreement and is, therefore, naturally cautious of joining another informal grouping like the Proliferation Security Initiative designed to enforce the nonproliferation regime. What is needed is a new international consensus on non-proliferation instead of reliance on more additional groupings of states that have over the years almost nullified the provisions of the NPT. The international community should develop new non-proliferation norms in a multilateral forum and this should be done within the framework of international law. Moreover, these norms should be implemented impartially and not whimsically to suit the national interests of a particular state.

Compiled by Tejal Chandan