India IAEA Safeguards Agreement

The termination clause of India IAEA Safeguards Agreement is a bone of contention. As per Mr. Anil Kakodkar, the perpetuity of the safeguards is linked to the perpetuity of the fuel supplies only. This holds for the indigenous facilities as well. This is based on the interpretation of the India IAEA Safeguards Agreement. However, the interpretation based on paragraph 15 (c) of the separation plan dated 2nd March, 2006, bounds India in perpetuity to the agreement:

An India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.

As per para 105 of the plan, “India shall have right to request that any question arising out of the interpretation or application of the agreement be considered by the IAEA Board”. This means that IAEA Board will be the final word in case of a dispute arising under India IAEA safeguards agreement, and India will be bound to accept the authority of the IAEA over its own authority even dehors the fuel supplies.

The particular clause of the India IAEA safeguards agreement which can lead to the dispute, is as follows:

Nuclear material shall no longer be subject to safeguards under this Agreement after:

— The terms of this Agreement, pursuant to which it was subject to safeguards under this
Agreement, no longer apply, by expiration of this Agreement or otherwise.

The above speaks of “expiration of Agreement or otherwise”, which, as per the statement of Mr. Anil Kakodkar, should mean that the India IAEA safeguards agreement should either automatically expire or even otherwise the safeguards should cease to apply after the fuel supplies have ceased, but all this can also be a subject matter of dispute. There are many other provisions in India IAEA safeguards agreement which are not connected to fuel supplies but still bound India to safeguards.

Till the time there is a possibility of a dispute and the dispute has to be decided by the IAEA board, India remains bound to the IAEA at the cost of its sovereignty. This, in other words, is the loss of sovereignty.

The Indian Constitution

As per article 73 of the Indian Constitution, the executive power of the union extends“to the matters with respect to which Parliament has power to make laws”. As per article 246, “Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule” (i.e. the union list). The entry 13 of the union list provides for “participation in international conferences, associations and other bodies and implementing of decisions made thereat”. Entry 14 provides for “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. The executive derives its treaty making powers from the above mentioned provisions.

It is well settled that, under Indian constitution , the executive can enter into treaties without any parliamentary approval/ratification. However, the law making powers are subject to constitutional safeguards of fundamental rights and basic structure. As per the preamble to the Constitution, India is a sovereign state. In Indira Gandhi v. Raj Narayan, Justice Y. V. Chandrachud listed four non-amendable basic features of the constitution:

• Sovereign democratic republic status
• Equality of status and opportunity of an individual
• Secularism and freedom of conscience and religion
• “[G]overnment of laws and not of men”, i.e. the rule of law

So, isn’t the loss of sovereignty with respect to the indigenous facilities against the non-amendable basic features of the constitution?

Conclusion

No law or executive action can compromise the sovereignty of the country. Therefore, the IAEA Safeguard Agreement, being anti-sovereignty, is unconstitutional. It needs to be challenged in the Supreme Court of India.

Also checkout Norway Kids Dispute: Truth Is It’s Failure of Diplomacy

Note: Though the above blog post was published initially in 2008, but it has been edited subsequently to incorporate the new knowledge in view of the India IAEA safeguards agreement text, which was not availaible earlier.