India agrees to link N-testing to termination of deal with Japan

The move marks a significant departure in India’s nuclear diplomacy and there is apprehension that it may open the floodgates for renegotiation with other countries, with whom Delhi has signed nuclear pacts in the past.

Written by Shubhajit Roy | Kobe | Published:November 13, 2016 4:17 am
Kobe: Prime Minister Narendra Modi with his Japanese counterpart Shinzo Abe at the signing of MoUs between government of Gujarat and prefecture of Hyogo in Kobe on Saturday. PTI Photo/PIB(PTI11_12_2016_000053B) Kobe: Prime Minister Narendra Modi with his Japanese counterpart Shinzo Abe at the signing of MoUs between government of Gujarat and prefecture of Hyogo in Kobe on Saturday. PTI Photo

India has agreed to link nuclear testing with termination of the civilian nuclear agreement that it signed with Japan on Friday. This has been done through a separate two-page “note on views and understanding” so that Japan could make an exception for India – the deal was the first Japan had signed with a non-NPT signatory.

The move marks a significant departure in India’s nuclear diplomacy and there is apprehension that it may open the floodgates for renegotiation with other countries, with whom Delhi has signed nuclear pacts in the past.

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While the civil nuclear agreement was publicly signed on Friday — in the presence of Prime Minister Narendra Modi and Japanese PM Shinzo Abe — between Foreign Secretary S Jaishankar and Japan’s Ambassador to India, Kenji Hiramatsu, the two-page note, between India’s top nuclear negotiator Amandeep Singh Gill and his Japanese counterpart, was not announced. The Sunday Express has, however, seen both the Japanese and the English versions.

The note also has a clause that says that if Japan scraps the deal in the event of India conducting nuclear tests, India cannot claim compensation for disruption of electricity from a nuclear power plant and the consequent economic losses.

This substantive shift in India’s nuclear diplomacy comes eight years after India signed the 123 agreement with the US, a template it has stuck to ever since.

The two-page note has five clauses and begins by recalling then External Affairs Minister Pranab Mukherjee’s statement to the Nuclear Suppliers’ Group in September 2008 and describes it as an “essential basis” for the deal. “The representative of the Japanese delegation stated that the Statement delivered by Pranab Mukherjee, then External Affairs Minister of India, on September 5, 2008 (hereinafter referred to as ‘the September 5 statement’), constitutes an essential basis for cooperation between the two States under the Agreement.”

Mukherjee’s statement, which has not been recorded in the two-page statement, had said, “We remain committed to a voluntary, unilateral moratorium on nuclear testing… We affirm our policy of no-first-use of nuclear weapons.”

Interestingly, this note and the agreement was signed a day after Defence Minister Manohar Parrikar’s controversial comments on the no-first-use policy, which he claimed was his “personal opinion”.

The second clause in the note says that in implementing the provisions of Article 14 of the deal, which deals with the termination and cessation of the agreement, Japan may exercise its rights and initiate the procedures “where there is any change in this basis”. The note goes on to say that 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” – which is a clear reference to nuclear testing and no-first use. “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 said.

Article 14 in the main text of the India-Japan deal makes no reference to the nuclear tests. Article 14(9) of the deal says any decision to seek ‘suspension’ will be taken after consultations between the two countries that will be aimed at reaching “mutually acceptable resolution of outstanding issues”. The suspension, it says, will be for three months.

“In case the suspension extends beyond a period of six months, both countries shall 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,” it says.

However, in the additional note, the Japanese interlocutor has put in a caveat. “The representative of the Japanese delegation… 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,” the fourth clause in the note said.

What this means is that India cannot ask for any compensation owing to power disruption and loss of business.

While the Indian interlocutor, Amandeep Singh Gill, had reiterated Delhi’s commitment to Mukherjee’s statement of September 5, 2008, the deviation from the previous agreements, including the US and the French ones, is expected to raise eyebrows in Delhi.

“India went an extra mile for the Japanese government, since they have a very strong anti-nuclear lobby in the Diet. This is expected to facilitate the passage of the nuclear agreement in the Japanese parliament,” a government source said.

On Friday, Foreign Secretary Jaishankar had said that the agreement with Japan was “broadly in line with the agreements that India had done with other countries”.

When asked about the termination clause, Jaishankar had said that the pact with Japan had 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 had said.

Commenting on the termination clause, Takako Hirose, professor at Senshu University and an expert on nuclear issues and South Asia, told The Indian Express, “I am not sure how important the termination clause is, because in practice, what can you do? Can you take back the reactor you have supplied? How? Can you refuse to provide maintenance service knowing it might lead to a disaster? But the Japanese government has to show its nuclear-allergic nation has sent an important message to India.”