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Mandarin red tape

india Updated: Aug 27, 2007 23:49 IST

Critics of the Indo-US nuclear agreement have been frightening the government on the ground that Indians intensely resent it. This is just not true. The criticism by the Left, the BJP and some other parties must be exposed as false, frivolous and vexatious. The main criticism is based upon the ‘Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006’ of the US Congress. It is said that this legislation is binding on the US President and negates the provisions of the nuclear agreement. The US President has explained that most of its clauses are advisory and whatever binding effect they have is on the US administration and not on India. The latter is only bound by its obligations under the agreement.

<b1>The constitutional relationship between domestic legislation and a treaty entered into by the President has been wholly misrepresented out of ignorance or intentional suppression of truth. The position is well described in Treatise on Constitutional Law — Substance and Procedure (Third Edition) (6.7) Conflicts Between Treaties and Acts of Congress by Ronald D. Rotunda and John E. Nowak.

While treaties as well as federal statutes are the supreme law of the land, the Constitution provides no solution for the dilemma arising when provisions of a treaty conflict with congressional Acts. In Whitney vs Robertson, the Supreme Court addressed the issue of modifying a treaty by subsequent Congress acts. The case involved a dispute arising between the US and the Dominican Republic over the terms of a sugar trade treaty to which the two nations were parties.

The court stated that constitutionally treaties and legislative acts are equal. When the treaty and statute relate to the same subject, the courts will always endeavour to construe them to give effect to both, if that can be done without violating the language of either. But if the two are inconsistent, the one last in date will control the other… Acts of Congress passed after the date of the treaty, the Court held, control over the treaty terms. Similarly, a self-executing treaty is valid as domestic law and takes precedence over a federal law enacted earlier. The last expression of the sovereign’s will controls.

This puts an end to most of the arguments conjured up by the not too honest critics. The Act doubtless reiterates the Non-Proliferation policy of the US government. It is a bold attempt to make an exception for India. The reasons for making this singular and extraordinary exception are clearly spelt out by the Act and have been widely reported in the media. Indian democracy should feel flattered by the magnificent statement of reasons for this exceptional treatment.

It is true that India has agreed to dissuade and prevent Iran from acquiring weapons of mass destruction including nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel. It is certainly not in India’s interest that a government which openly declares its objective of destruction of a United Nations member, one that is fully recognised by India, should acquire the power to carry out its diabolical designs.

Vote-banks should not blind politicians to the reality that half the world’s organised terrorism, represented by the Hezbollah, is created and financed by Iran’s ruling clerics. India is a friend of Iran’s people but the current government is a horror. Iran is a signatory to the NPT and without a serious breach of international law, cannot renege on its obligations. This part of the bargain is our duty under Article 51 of our basic law. This is not subservience to the US.

P.K. Iyanger, former Chairman of Atomic Energy Commission (AEC), seizes on Article 2 of the nuclear agreement — “Each party shall implement this agreement in accordance with the respective applicable treaties, national laws regulations and licence requirements, concerning the use of nuclear energy for peaceful purposes.”

He concludes that we have bound ourselves by the Hyde Act. This is manifestly absurd. The Article only provides that each party shall implement the Agreement in accordance with the respective applicable treaties, national laws etc. Moreover the Hyde Act is not India’s national law. Even if the Hyde Act were to bind India, the Article speaks not of the entire Act but only its provisions concerning the use of nuclear energy for peaceful purposes. A. Kakodkar, AEC Chairman and r. Chidambaram, Principal Scientific Advisor to the Government, have made no such criticism and raised no such absurd inference from Article 2. India has no intention to violate any provision. It is time we clearly understand what we intend to achieve by this Agreement.

We are starved of nuclear fuel. We will be able to trade and acquire what we need from the US as well as the 45 countries that constitute the group of suppliers. This is being done on the assumption that India is not going to detonate a nuclear bomb in the foreseeable future. But India has not given up this right in perpetuity. If and when a changed international scenario compels this action, we can exercise our sovereignty.

The other party, in exercise of its own sovereignty, may well decide to terminate the relationship forged by the Agreement. At that moment we will be in the same situation in which we are today or perhaps in a better situation because we would have sufficient reserves to see us through the remaining life of our reactors or we might have already solved our energy deficit problem.

A situation where we are compelled to explode one or more nuclear devices is not likely to arise at all. We expect no nuclear attack from Pakistan nor indeed from China. The Left must take note of the joint declaration issued by the governments of India and China during President Hu Jintao’s visit in November 2006. It is a long document but two extremely important paragraphs No. 27 and 39 are referred to here.

“27. … For both India and China, expansion of civilian nuclear energy programme is an essential … component of their national energy plans … the two sides agree to promote cooperation in the field of nuclear energy, consistent with their respective international commitments. As two countries with advanced scientific capabilities, they stress the importance of further deepening cooperation … through multilateral projects such as ITER …

“39. Energy security constitutes a vital and strategic issue for producing and consuming countries alike. It is consistent with the common interest of the two sides to establish an international energy order, which is fair, equitable, secure and stable, and to the benefit of the entire international community. … Global energy systems should … meet the energy needs of both countries, as part and parcel of a stable, predictable, secure and clear energy future. In this context, international civilian nuclear cooperation should be advanced … while safeguarding the effectiveness of international non-proliferation principles."

This declaration evoked no criticism from the Left. Yet the declaration records that India is under an obligation not to breach or dilute the effectiveness of the international non-proliferation infrastructure that the nuclear powers including China have created for the rest of the world. The Chinese secured from us a written promise not to manufacture or to explode a nuclear bomb. If this involves surrender of sovereignty we were deprived of it by the Chinese in November 2006. It is immoral to attribute it to the US in July 2007. If India is faced with nuclear aggression, any bomb that we explode will be a legitimate act of defence which doubtless is a peaceful purpose as per the 51st Article of the UN Charter.

The world’s two great democracies are now partners. Both countries have significantly changed their foreign policy by harmonising it with the values of their Constitutions. As partners we have a right to offer sage advice to each other. Jointly, we might fulfill Gandhiji’s dream that India will be the conscience of humanity relying on its arsenal of spiritual force rather than weapons of mass destruction.

Ram Jethmalani is an eminent lawyer and Rajya Sabha member.