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Corrective measures are “unspecified sovereign actions,” says Kakodkar
13 July 2008
‘Perpetuity of safeguards only with perpetuity of fuel supply’
New Delhi: Atomic Energy Commission Chairman Anil Kakodkar said here on Saturday that the safeguards agreement India had negotiated with the International Atomic Energy Agency created a basis for opening up the Indian civilian nuclear sector for international cooperation and provided “layers” of protection for its reactors from the disruption of fuel supplies.
He was addressing a press conference alongside his colleague from the Department of Atomic Energy, R.B. Grover, National Security Adviser M.K. Narayanan and Foreign Secretary Shiv Shankar Menon.
Explaining how the fuel supply assurances India insists on would work, Dr. Grover — who, along with Dr. K. Ramakumar of the Bhabha Atomic Research Centre and Dr. D.B. Venkatesh Varma of the Ministry of External Affairs, negotiated the draft text with the IAEA — pointed out that the Agency itself did not supply fuel. “Through this particular safeguards agreement, you have to create those conditions which help us to proceed further in importing fuel and using it in our reactors. Fuel supply assurances have to be embedded when we go in for imported reactors at that stage, such as with Russia, where we are setting up two reactors with Kudankulam.” In addition, the agreement provided a strategic fuel reserve to be used for the lifetime operation of those reactors, he said.
Dr. Kakodkar added that any supply agreement “has to be between the supplier and us so we will have to build in, as we have been doing always, a strong commitment on the part of suppliers to continue, whether it is fuel or spares or whatever.” He said that with foreign supplies, “it has been our policy from day one that whatever comes from outside we have been putting under IAEA safeguards.” He noted that in the India-specific safeguards agreement, India has “very strongly connected such cooperation agreements with other countries and supply agreements with supplier countries with our going in for safeguards with IAEA. So there is this linking which says we are going in for IAEA safeguards because we are also talking about the supply agreements where continuity is built and then we can develop legally from that point onwards.”
Asked whether India could ever withdraw its reactors from safeguards, Dr. Grover expressed the hope that the whole process would move in a way that “there will not be any requirement where there is a fuel supply disruption” and that India did not have to go in for any such step. But if such a situation arose, Article 52c provided for India to first raise this as a material violation of the agreement and that this itself might act as a deterrent. “If still a danger of disruption arises, we have here [in the Agreement] the combination of [Articles] 29, 30f, 10, 4 and the preamble, this will help us with whatever steps we want to take further.”
Dr. Kakodkar said the agreement talked about sustained fuel supply, a fuel stockpile for the lifetime of a reactor, and then, in case of difficulties, corrective measures as well. “The point to notice is that the discontinuity of operation of reactors cannot happen suddenly because we have several layers, so we will have enough time to force correction on part of the suppliers themselves, because we will have stockpiles and we can carry on. There is no question of disruption of the reactors. We have always been saying we are talking about permanent safeguards on the basis of permanent supplies, and the question of corrective measures which have been built in essentially arises if this understanding is breached.”
Asked whether a safeguarded reactor could be withdrawn, he said the response to any situation had to be calibrated. “Corrective measures or actions that India would take would depend on what is the disturbance, what is the threat to continued operation of the reactor. It is a thing that India can decide at respective points of time. I describe corrective measures as unspecified sovereign actions.”
In response to a question about “corrective measures” being mentioned only in the preamble of the agreement, Mr. Menon said Article 31 of the Vienna Convention on the Law of Treaties made it clear that preambles and annexes were a part of the text. “So when you come to general principles and rules of interpretation of a treaty, these are actually part of the treaty. In this particular case, he added, this was made more clear since the preamble says, “Now therefore, taking into account the above, India and the Agency have agreed” to whatever follows after that.
Dr. Kakodkar said India was not looking for formal recognition as a nuclear weapon state but for opening up to civil nuclear cooperation. “We are a nuclear weapon state, we know that and the world knows that. The definitions of nuclear weapon states and non-nuclear weapon states are embedded in the NPT and we are not a party to [it]. Certainly, we don’t need to be so attracted to NPT definitions.” He added that the military part of India’s nuclear programme was completely out of the purview of the agreement with the IAEA.
excerpts from the interview:>>http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2008072055761100.htm&date=2008/07/20/&prd=th&>> “it has been our policy from day one that whatever comes from outside we have been putting under IAEA safeguards.” – is this true? what does day 1 means? if so, then what is this confusion all about?
Hi, great work on N-deal. Could you please post Hindu’s article, quoting IAEA saying that there is no bar in sharing the safeguards text with third parties. That link will be very useful to refer. Thanks.
Mr. Menon’s reliance on article 31 of the Vienna Convention is slightly misleading, if not mischievous.>>I doubt if it is anybody’s case that preamble to any international agreement or a constitution does not form a part of the text thereof. >>The point is that the functional utility of a preamble is not at par with the main body. Although a preamble may command paramount importance in articulating the context and purpose of a treaty and provides normative guidance in matters of interpretation, it does not create substantive rights or obligations on their own.>>Thus in future, the IAEA or the international community can argue with good authority that the reference to corrective measures in the preamble of the Safeguards agreement does not by itself, in absence of a supporting provision in the main body, vest any right in India.
I do agree with Shivanand Ji. The negotiating team is putting all it’s efforts to clear air about deal.
I think the grey areas that troubled many have been adequately addressed by the negotiating team once again. Kudos to them.