[Marxism] Indo-US Nuclear Deal: Noorani Analyses Hyde Act

Sukla Sen suklasenp at yahoo.co.uk
Thu Aug 23 12:01:18 MDT 2007

[A G Noorani has pretty aptly pointed out that while
the US would be bound by the Hyde Act, India won't
have any such obligations.
What he, however, doesn't explicitly bring out is that
before getting operationalised the deal would become a
multilateral affair, and not remain a strictly
bilateral affair.
The other 44 members of the NSG would also have
nothing to do with the Hyde Act. The 123 Agreement
would act as the basic template for them. So the
furore about the Hyde Act is an essentially false
The rejection of the deal has therefore to be based on
the fundamental rejection of the Bomb, nuclear power
and strategic proximity with, not necessarily
subordination to, the US.]


Dr Heckle and Mr Hyde
By HT 
Thursday August 23, 02:07 AM 

The Hyde Act was enacted by the US Congress in
December explicitly to promote 'nuclear cooperation'
between India and the US and enable them to sign an
agreement under Section 123 of the Atomic Energy Act,
1954. It is highly significant that the Agreement does
not mention the Hyde Act at all.
This is all the more so because it mentions other
documents such as the Indo-US Joint Statement of July
18, 2005, repeatedly; the IAEA's statute, its document
on 'The Physical Protection of Nuclear Material and
Nuclear Facilities' and the convention on the
'Physical protection of Nuclear Material'. These are
international instruments accepted by both sides.
References to them constitute, in legal parlance,
incorporation into the agreement by reference. In
contrast, India is not bound by the Hyde Act, which is
why the agreement does not refer to it even once. The
omission is deliberate and of legal consequence.
Prakash Karat, whom I respect, is wrong in holding
that "to say that the Hyde Act is not binding to (sic)
India is irrelevant. The point is that it is binding
on the US." The real point is that it is binding on
the US alone. "The text states that 'national laws'
will prevail." This is a serious factual error. It
states no such thing anywhere. 'National laws' are
mentioned thrice. Article 2.1 says, "Each party shall
implement this Agreement in accordance with its
respective applicable treaties, national laws,
regulations, and licence requirement concerning the
use of nuclear energy for peaceful purposes."
The words are used ejusdem generis (of the same kind).
Generically grouped, each category acquires colour
from the rest and from the context. They relate to
implementation of precise undertakings recorded in the
accord. Article 2.1 cannot be used to nullify them,
bringing Mr Hyde by the back door. Indeed, under
Article 5.6 (a) the US "is committed to seeking
agreement from the US Congress to amend its domestic
laws" in order to ensure for India "assured and full
access to fuel for its reactors".
The omission of any reference to the Hyde Act is
striking because in one particular respect, the accord
explicitly invokes 'national laws' as a bar to "the
transfer of any information regarding matters outside
the scope of this Agreement", which their own laws bar
them from transferring. Article 16.4 clinches the
matter. "This Agreement shall be implemented in good
faith and in accordance with the principles of
international law".
Article 27 of the Vienna Convention on the Law of
Treaties only restates a settled principle of the law.
"A party may not invoke the provisions of its internal
law as justification for its failure to perform a
treaty." More, Article 14.3 says that no breach of the
accord would be considered "material" unless it meets
the test of the Vienna Convention. Article 2.4 affirms
that agreement will not "affect the unsafeguarded
nuclear activities of either party" or interfere with
"military nuclear facilities" built "independent of
this Agreement for their own purposes".
The US Congress Acts read like political manifestoes -
the Cuban Democracy Act, 1992, the Iran and Libya
Sanctions Act, 1996, and the Iraq Liberation Act,
The Hyde Act, true to form, sets out in Section 102
'the sense of Congress' in 13 propositions. Section
103 has 16 "Statements of Policy". The Almighty was
content with ten. Iran figures in them. So do China
and Pakistan along with India for securing "a
moratorium on the production of fissile material for
explosive purpose". This has not caused any panic in
Beijing. If we are to get hysterical over such
non-legislative inanities, we might as well stop
dealings with the US.
Presidential excesses - passing off treaties as
executive agreements to avoid ratification by the
Senate - led to congressional overreach. In 1967,
Congress asserted that "the executive and legislative
benches of the United States government have joint
responsibility and authority to formulate the foreign
policy of the United States." In 1830, Andrew Jackson
made the first statement while signing his assent to a
Bill to indicate how he would implement it. The first
42 Presidents used it fewer than 600 times.
George W. Bush made more than 800 signing statements
in the first
six years of his Presidency. The Supreme Court's
reliance on them has been "sporadic and
unpredictable". A Bill in Congress on "Presidential
Signing Statements" (2006) bars courts from relying on
them, yet asserts its right to inform them of its
intentions underlying the Act.
Must we get involved in this crazy situation?
President Bush's signing statement on the Hyde Act, on
December 18, 2006, is beyond reproach. It is
pro-India. He said he was not bound by the 'statements
of policy' in Section 103, nor by a provision that
barred transfer to India of an item contrary to a
guideline of the Nuclear Suppliers Group; and he would
construe sections which require him to furnish
information about India in a manner consistent with
his "authority to control and protect information that
could impair foreign relations, national security",
etc. This constitutes the President's commitment to
India as well.
Understandably, while we assert that we are not
concerned with the Hyde Act, US spokesmen affirm a
duty to abide by it. Both are right. Besides the Act,
the agreement is silent on testing. We have agreed to
differ. Consider the realities. Even if there was no
agreement or the Act, nuclear tests would have
entailed consequences - as in 1974 and 1998. The BJP
regime came close to signing
the Comprehensive Test Ban Treaty (CTBT) then. We do
not intend presently to conduct tests. Nor have we
given up the right to do so.
The US knows that and is prepared to go along while it
can. When we conduct the tests, we will also have the
clout to terminate the Agreement under Article 14.
Even then the parties "agree to take into account
whether the circumstances that may lead to termination
cessation resulted from a party's serious concern
about a changed security environment or as a response
to similar actions by other States which could impact
national security". This applies to both sides, if
India conducts any tests.
The US Under-Secretary of State, Nicholas Burns, said
on July 27, "the fact is also that we hope and trust
that it won't be necessary for India to test in the
future". The US's right to return of supplied material
"is preserved for the worst case hypothetical event in
the future".On the same day, National Security Advisor
M.K. Narayanan said that both sides understood "the
limits of flexibility and how far we can go" while
Foreign Secretary Shiv Shankar Menon said, "It is for
them to understand whether this agreement meets their
laws or not. It is not for us to interpret their law,"
and vice versa.
The concerns concerning the creeping Indo-US military
relationship are legitimate. Neither ground justifies
withdrawal of the Left's support to the UPA, which,
however, should allay the disquiet on both grounds. A
mechanism comprising leaders on both sides, with the
aid of professionals, should be set up, so that as
Prakash Karat puts it, "the doubts are clarified and
the implications of the Hyde Act evaluated". At the
end, a White Paper should follow. The IAEA and NSG
talks can proceed. The net result will speak for
itself. Maar se pehle tauba is wasteful.

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