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Dr Heckle & Mr Hyde

A mechanism comprising leaders of both the Left and the Govt, with the aid of professionals, should be set up to clarify doubts on the N-deal, writes AG Noorani.

india Updated: Aug 30, 2007 16:02 IST
AG Noorani

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, 1998.

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 nuclear 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 MK 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.