In supplementary agreement, India accepts binding nature of nonproliferation commitments.
[UPDATE: The article has been updated on November 13 after receiving additional comments from Indian and Japanese officials on the interpretation of the side Note]
New Delhi: Even as Japan agreed to sign a nuclear deal with a country that is not a signatory to the Non Proliferation Treaty (NPT), India has for the first time accepted that nuclear cooperation can be terminated if it conducts a nuclear test In the future – a legally binding assurance that it had so far refused to give to the US and Nuclear Suppliers Group (NSG).
On Friday, India and Japan signed the Agreement for Cooperation in the Peaceful Uses of Nuclear Energy in the presence of their prime ministers, Narendra Modi and Shinzo Abe, at the Kantei in Tokyo.
— Vikas Swarup (@MEAIndia) November 11, 2016
But, in a deviation from practice, a separate text was also inked, titled ‘Note on Views and Understanding‘, in which India reaffirmed its commitment to a unilateral, voluntary moratorium on nuclear testing. This has been signed by the Ministry of External Affair’s joint secretary (disarmament and international security affairs) Amandeep Singh Gill.
Both these texts were released by Japan’s foreign ministry, but have yet to be made available on the India’s external affairs ministry website. Indeed, the Indian side did not even immediately disclose that a supplementary text was signed as part of the process.
Japanese government spokesman Yasuhisa Kawamura told The Wire the ‘Note on Views and Understanding’ was drafted and signed with the aim of supplementing and ensuring the smooth implementation of the main treaty, and is “legally binding”.
Curiously, however, despite the fact that a senior Japanese official has gone on the record to stress the side Note represents legal commitments, no MEA or PMO official is willing to go on the record to clarify the matter.
All that Indian “sources” are prepared to say is that “The Note is a record by the negotiators of respective views on certain issues. It states, on the one hand, what could be Japan’s views in advance on what is a hypothetical situation; that is their national prerogative. At the same time it also records India’s position on the same issue, which is a reiteration of the September 2008 commitments. No change is envisaged from those commitments and no, repeat no, additional commitments have been made by India.”
Notwithstanding this off the record assertion, the fact remains that the Indian side has accepted in advance that any cancellation of the agreement by Japan in response to a violation by India of its 2008 commitments (which were presented at the time as being of a political and not legal nature) would not only be consistent with the NCA but would free Tokyo of its obligations to compensate India. This marks a major departure from the hard-fought template of the 123 agreement signed with the US, with negotiators going over several drafts to avoid a similar formulation.
According to the supplementary text, Japan described the statement delivered by then external affairs minister Pranab Mukherjee on September 5, 2008, as the “essential basis for cooperation between the two States under the Agreement”.
“The representative of the Japanese delegation stated that an Indian action in violation of the September 5 statement could be viewed as a serious departure from the prevailing situation. In that situation, reprocessing of nuclear material subject to the Agreement will be suspended in accordance with paragraph 9 of Article 14 of the Agreement,” it asserted.
Article 14 (9) states that the suspension of the reprocessing of nuclear material at any facility could follow after consultations for a “mutually acceptable resolution of outstanding issues” and will be for no longer than three months. It can be extended beyond three months, if permission is granted in writing after taking into account “the effect of such suspension on uninterrupted operation of nuclear reactors that provide nuclear energy for peaceful purposes, potential loss to Indian economy and impact on energy security”.
If the suspension is longer than six months, the main agreement declares that the two countries will enter into consultations “on compensation for the adverse impact on the Indian economy due to disruption in electricity generation and loss on account of disruption of contractual obligations”.
However, the supplementary text has an additional point with Japan reserving the right to contest claim of compensation by India.
“The representative of the Japanese delegation further stated that in such a situation Japan reserves the right to contest India’s claim of compensation for the adverse impact on the Indian economy due to disruption in electricity generation and loss on account of disruption of contractual obligations through the consultations provided for in paragraph 9 of Article 14 of the Agreement”.
Mukherjee’s 2008 statement was issued with the aim of obtaining an exception from NSG to approve full civil nuclear cooperation at its plenary meeting in Vienna.
Mukherjee had noted then that India continued to remain “committed to a voluntary, unilateral moratorium on nuclear testing.” He also affirmed India’s no-first use policy for nuclear weapons.
On Friday, India reaffirmed the 2008 declaration. “The representative of the Indian delegation stated that the Government of the Republic of India reiterates the September 5 statement,” noted the supplementary text.
This is not just a reiteration by the Indian government of its adherence to the voluntary moratorium on testing, but also that of its no-first-use policy. Incidentally, on the eve of the Indo-Japanese summit, India’s defence minister Manohar Parrikar raised questions on whether the no-first-use policy required to be revisited, though he post-faced his comments as “personal” musings.
India has acceded to Japan on the termination clause, going beyond the original India-US 123 pact, on which New Delhi fought tooth-and-nail to remove any reference to the moratorium on testing.
In both the US and Japan pacts, there is a standard time period to terminate the agreement by giving a year’s notice.
At that time, India had asked for a modification in the standard 123 pact that US signed with other non-nuclear weapon states, by not mentioning that termination will be triggered by a nuclear test or violation of the peaceful uses clause of the agreement. New Delhi had not wanted the voluntary moratorium on testing to be converted into a obligation with legal consequences.
While the main India-Japan agreement on nuclear cooperation remains relatively boilerplate, the text of the additional understanding appended to the pact does dilute the provisions on compensation and draws a tight “legally binding” linkage to New Delhi’s further nuclear testing.
In parliament in August 2006, former prime minister Manmohan Singh had said that US had been told that any reference to nuclear detonation in the agreement as a condition for future cooperation “is not acceptable to us”.
One year later, after the 123 pact was finalised, Singh informed parliament on August 13, 2007 that the “agreement does not in any way affect India’s right to undertake future nuclear tests”.
“Let me hence reiterate once again that a decision to undertake a future nuclear test would be our sovereign decision, one that rests solely with the Government. There is nothing in the Agreement that would tie the hands of a future Government or legally constrain its options to protect India’s security and defence needs,” he said.
Speaking to reporters in Tokyo on Friday night, Indian foreign secretary S. Jaishankar said that the agreement with Japan was “broadly in line with the agreements that India had done in with other countries”.
“If I had to compare with US… It was an eight-year agreement in four stages. So what was contained in each of the four stages, the bilateral cooperation, the NSG exception, the reprocessing, administration arrangements is captured in a single stage [with Japan],” he said.
Asked about the termination clause, Jaishankar noted that the pact with Japan also has a clause for ending the agreement “which is quite similar to the US one”.
“I am not very clear about releasing the status of the agreement. But when it is released, you will find that there is a striking similarity,” he added.
The text of both documents was finally released by the Japanese foreign ministry.
Jaishankar also claimed that reiteration of the 2008 statement was not a “novel development”, as it was also at the heart of the case for India’s application for joining the NSG.
As per Indian official sources, the termination clause exists in all other nuclear civil cooperation agreements, but the circumstances for triggering the clause have not been defined and consideration was given for mitigating factors.
“Given Japan’s special sensitivities as the only nation to have suffered a nuclear attack, it was felt that their views should be recorded in a separate Note,” official sources added.
When asked by The Wire as to what were Japan’s views on India’s description of the Note as a “record”, a Japanese official asserted that it was legally binding, pointing out that it was signed by two government officials and referred to Section II of the supplementary agreement.
“The Note was signed by Amandeep Singh Gill and Japanese counterpart official, and is legally binding as the [Section] II on page 2 of the Note says ‘It is understood the above constitutes an accurate reflection of the views of the two sides’,” he said.
The Japanese official stated that it was “clear from Article 14 that Japan has the right to terminate its cooperation and other engagements stipulated under the Treaty”.
“It has also been clearly confirmed between the two governments that Japan could do this in case India conducts a nuclear test,” he underlined, adding that this “point is critically important in implementation of the Treaty”.
“Therefore, both countries agreed to establish the separate Note and signed the document together with the Nuclear Treaty itself,” he said.
He reiterated that the Note was directly related to implementing the main agreement. “It is commonly practiced among nations that they produce a separate document to record the understanding concerning their treaty implementation,” said the Japanese official.
India and Japan had reached an in-principle understanding on the clause of a nuclear test triggering the elimination clause in the civil nuclear cooperation agreement at the December 2015 annual summit in New Delhi. Abe had told Modi had all nuclear cooperation would cease if India conducted a nuclear test, which was confirmed by the Indian Prime Minister.
During their discussions in Tokyo on Friday, Abe reiterated the premise that nuclear cooperation will rest on India maintaining the unilateral, voluntary moratorium on nuclear test.
He also talked about continuing dialogue with India on other areas of Japanese concern – universalisation of the NPT, early entry of Comprehensive Nuclear Test Ban Treaty and the initiation of negotiation for Fissile Materials Control Treaty.
In his media statement, Modi acknowledged the “special significance that such an agreement has for Japan” due to its history as a victim of nuclear bombing which has led to it placing a strong emphasis on strengthening international non-proliferation regime.