07 August 2008

India, the IAEA and the art of ‘reservation’

Given the contested nature of any legal text, India took care to reserve its position on certain aspects of its safeguards agreement.

7 August 2008
The Hindu

India, the IAEA and the art of ‘reservation’

Siddharth Varadarajan

Despite protestations to the contrary by India and the International Atomic Energy Agency secretariat, members of the Board of Governors who last week were called upon to approve the Indian safeguards agreement knew they had never seen a draft like it before. That is why, as they grappled with its meaning and content, they seemed somewhat akin to blindfolded men feeling their way round an elephant, trying to construct a complete image of the beast merely by acquainting themselves with its parts.

Under pressure from both Washington and New Delhi, all 35 members of the agency’s apex body agreed finally to approve the draft by consensus. But many sought to place on record their own partial understanding of the agreement, making interpretative statements in an effort to dilute or negate the meaning of provisions they were not entirely happy with.

It was, therefore, not just politeness or the expression of gratitude alone that led India to read out a statement immediately after the nuclear watchdog’s top decision-making body approved the draft. More than anything, India was taking care to reserve its position on the meaning it attaches to the text of the safeguards agreement. And to clarify, ever so politely, that an elephant cannot become a hippopotamus with a long nose just because some members of the Board of Governors are more comfortable with the latter kind of animal.

Taking the floor immediately after the board’s decision was adopted, Anil Kakodkar — India’s alternate governor and chairman of the Atomic Energy Commission — read out a three-page statement outlining India’s national position. The statement did not directly contest or rebut the many reservations countries freely entered during the board meeting. To do so would have been churlish and unnecessarily defensive. Instead, buried innocuously between expressions of appreciation for the IAEA and boilerplate paragraphs on the importance of nuclear energy, were key words and sentences that quietly distanced India from the restrictive and prescriptive interpretations made during the discussion.

Broadly speaking, these interpretations fell into three categories, each of which drew a separate response from India. The aim was to make a point, but in a manner that did not give legitimacy to extraneous issues or openly contradict the country’s supporters.

The first category of reservations was prescriptive: while expressing their willingness to back the safeguards agreement, many Board members said they wanted India to become a party to the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and the Comprehensive Test Ban Treaty (CTBT). Linked to this was the reservation entered by Russia that the agreement “does not contain clauses, which could be interpreted as recognition of India as a nuclear weapon state in the sense of the NPT.” The Russian statement was gratuitous since the agreement took note of India possessing a nuclear weapons programme but did not seek to confer any status on the country. Thus, India’s response to these reservations was to reiterate its long-standing opposition to the NPT and to the applicability or non-applicability of NPT definitions on the country: “We have our principled and consistent position on nuclear non-proliferation and disarmament issues,” Dr. Kakodkar told the Board. “We remain firm in our commitment to realise the vision of the Rajiv Gandhi Action Plan for universal, non-discriminatory nuclear disarmament leading to the complete elimination of nuclear weapons.”

The second category of reservations that India wished to clarify its own position on was the notion that the Indian agreement was merely a copy of Infcirc/66, the standard facility-specific safeguards text for non-parties to the NPT, especially in terms of the provisions on the duration and termination of safeguards. Many board members made this point in order to stress their opposition to the “corrective measures” built in to the preamble and to the provision incorporated in paragraph 29 allowing India to press for withdrawal of an indigenous facility from safeguards in the event of fuel supply disruptions.

Dr. Kakodkar reserved India’s position by stating that the agreement was “negotiated by India and the agency also using the guidance documents adopted by the Board for the purposes of concluding and implementing Infcirc/66 type agreements” (emphasis added), thereby reiterating that the provisions and rights envisaged by it go beyond what 66-type agreements ordinarily provide for. The safeguards agreement, he added, “speaks for itself and we see no difficulty in implementing this agreement on the basis of what is stated therein. India will implement this agreement in strict accordance with its provisions.”

Linked to this was the third and most important reservation — relating to the role of the preamble in the safeguards agreement. Since corrective measures and certain other novel features of the agreement figure only in the preamble, some countries sought to emphasise the “non-operational” nature of the preambular section as far as implementation of safeguards is concerned. India’s statement, therefore, emphasised the integrated nature of the safeguards text and cited Dr. el-Baradei’s words to drive home the point: “We look forward to cooperating with the Agency to facilitate the implementation of this agreement in accordance with the provisions of this agreement, which, as the Director-General has pointed out, should be read as an integral whole.”

By emphasising the integrity of the complete text and its commitment to be guided by what is actually written in the agreement (rather than by interpretations member states or even IAEA officials may choose to make in the future), India clarified that its sovereign right to take corrective measures in the event of fuel supply disruption is legally protected. What makes these clarifications especially important is that India and the IAEA are entering hitherto uncharted legal waters. This is the first time that any country is voluntarily bringing its indigenous reactors for safeguards. This is the first time that GOV/1621, the IAEA document on the duration of Type-66 safeguards, has been “woken up” and explicitly incorporated in a safeguards agreement. In a worst-case scenario, disputes could still arise, especially under the political circumstances that India might feel compelled to take corrective steps in. But the potential for dispute and the provision of rights are likely to serve as a deterrent to both India and its partners. Smooth implementation of the safeguards agreement is, therefore, in the interest of all sides. And that is what makes the agreement that the IAEA approved on August 1 a sound one.

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