An attempt to be clear and simple

At the core of the Hyde Act are three critical waivers that exempt India from certain specific clauses of the US Atomic Energy Act, writes Karan Thapar.

india Updated: Dec 31, 2006 13:41 IST

The problem with journalists is that to prove your erudition you end up confusing your readership. Why does everything have to be so difficult to understand?” That was Pertie’s end of year opinion of Indian journalism, provoked by his utter mystification over the Indo-US nuclear deal. “For once will you do me a favour and explain?” he asked forlornly. “I’ve read there are problems but how serious are they?” Well, Pertie, here’s my attempt:

At the core of the Hyde Act are three critical waivers that exempt India from certain specific clauses of the United States Atomic Energy Act. Without these waivers, India, a country that has carried out nuclear tests, refuses to place all its facilities under safeguards and possesses nuclear weapons, cannot become a US trade partner in civilian nuclear energy. The waivers, therefore, permit the US government to do business with India.

These waivers come with certain conditions. This is where the controversy — and the confusion — arises. The simple question we need to ask is: are the conditions so severe they undermine the waivers? The answer hinges on where in the Hyde Act the conditions are placed.

The majority feature in two sections, 102 and 103, called ‘Sense of Congress’ and ‘Statements of Policy’. Despite their grand titles, these sections are non-binding. They are advice proffered by the US Congress to the US Executive. But under the US constitutional separation of powers the task of formulating foreign policy has been granted to the executive. Therefore such advice can be — and often is — rejected. Much of the confusion about the Hyde Act arises out of commentaries that mistake sections 102 and 103 as binding. They are not.

It is in these sections that you find clauses about stockpiling of nuclear fuel, claims that India’s foreign policy is congruent with the US, suggestions that other NSG countries stop trade if the US does and advice that India must cooperate in containing and sanctioning Iran. In a signed statement issued on the 18th, George Bush said: “The executive branch shall construe such policy statements as advisory.”

The only doubt is: will future Presidents take the same view? It’s possible some might not — particularly a non-proliferationist Democrat — but that would be tantamount to destroying relations with India. How far into the uncertain future do you need to feel secure before you are prepared to act? At some point you have to accept that the unknowable is unpredictable.

What remains are three specific areas of concern, although ambiguity might be a better description for two of them. The first is Section 106 of the Hyde Act which is binding. It says that if India carries out further nuclear tests the waivers would cease to be operative. We already know this. Other elements of US law, from which India has not been granted waivers, ensure this outcome. Section 106 is simply a reiteration. Also, it’s a condition the US Congress has imposed on its own President. It will only apply to India if it appears in the formal agreement (the 123 Agreement, as it’s called) between New Delhi and Washington. But that has still to be negotiated.

Now the two areas of ambiguity. First, are we being given the right to reprocess spent fuel of US origin? Nothing in the Hyde Act bars this. Legally, Bush can grant it to us. US policy has denied this to all countries except the EU, Switzerland and Japan (with the most severely intrusive inspection conditions). Will the same be offered to us? And will it be acceptable?

Nicholas Burns has suggested the answer to the first question is yes. But if the answer to the second is no, India will not be discriminated against. In fact, we will have been put on par with America’s closest allies.

The other ambiguity is about access to enrichment, re-processing and heavy-water technologies. Again, nothing in US law bars such sales. However, it’s US policy not to export such technologies to any country, including recognised nuclear powers. Now the Hyde Act specifically permits such sales to India under two conditions. Some analysts argue that, by implication, this implies a bar under all other conditions.

But is that interpretation correct? After all, a bar should be explicit not dependent on interpretation and contextual meaning. This is where clarification is needed.

In either event, India does not need US technology or US fuel. What we require is that restrictions be lifted so that, thereafter, other countries can offer the same. In the ultimate analysis, the Hyde Act manifestly does that.

But I wonder if any of this has helped Pertie? Does he feel better informed or has he fallen asleep? Anyway, if you’re still with me, Happy New Year!

First Published: Dec 31, 2006 01:06 IST