123 Questions Won’t Go Away – A Rejoinder

The terms of civil nuclear cooperation with India have been unequivocally defined by the Hyde Act, a 41-page anthology of conditions. No other 123 agreement is governed by such a country-specific law.

Brahma Chellaney

The Hindu, September 19, 2007

Kapil Sibal jumbles up my15 sets of questions to reply selectively or make statements that are either specious (the 123 Agreement will “override” the Hyde Act) or imaginary, such as the advent of a global “nuclear renaissance” or the accord conferring “de jure nuclear-weapons-state” status. The government, instead of utilising Mr Sibal’s legal acumen when the text was being negotiated, has drafted him after the event to help beat back a rising political storm at home. His assertions thus are largely political.

First, Mr. Sibal does not deny the following:

(i)                           the operational consent to reprocess will have to await India’s construction of a new United States-approved reprocessing facility and the negotiation thereafter of a separate agreement that would need to pass congressional muster;

(ii)                          as in the ill-fated 1963 Indo-U.S. 123 Agreement, India has again settled for toothless “consultations”;

(iii)                        the U.S. is empowered to suspend all cooperation forthwith, without having to assign any reason or bring in an alternative supplier;

(iv)                        while American law seeks to regulate only spent fuel of U.S.-origin, New Delhi has agreed to route all “foreign nuclear material” through the new reprocessing facility;

(v)                         there is no enforceable link between perpetual international inspections and perpetual fuel supply; and

(vi)                        the ambiguities in the text relate to vital issues for India.

Second, India can miss no bus because a “nuclear renaissance” remains chimerical. Even the Prime Minister has referred merely to the “talk the world over of a nuclear renaissance.” In fact, ever since such talk began in the mid-1990s, the share of nuclear power in global electricity has stagnated at 16 per cent. Today, 429 power reactors worldwide generate 370 gW, with just another 24 under construction, but none in the U.S. Ironically, as Finance Minister, Dr. Manmohan Singh starved the indigenous nuclear-power programme of funds for expansion. The nation has a right to know whether his new-found interest in nuclear power is centred on imports.

Third, Mr. Sibal plays to the public gallery when he argues that the 123 Agreement, once ratified, will be “the last expression of the sovereign will and override all other laws including national laws.” When in 1978 the U.S. rewrote the terms of its then-existing 123 Agreement with India by enacting a new national law, New Delhi was left helpless. India took the stance that although the accord did not constitute an international treaty, it had the “force” of a treaty because of congressional ratification. Yet it did not approach the International Court of Justice (ICJ) because it realised it had no real case.

How can Mr. Sibal go one step further and present the new agreement as a treaty that will override U.S. law? America’s consistent position has been that a 123 agreement with any state is neither a treaty nor has force under the Vienna Convention on the Law of Treaties (which the U.S. hasn’t even ratified, although American officials admit that much of the Convention reflects binding customary international law). Far from the new 123 Agreement overriding American law, both sides have been at pains to emphasise that it complies with U.S. law! U.S. Undersecretary Nicholas Burns has said “we have the Hyde Act. And we kept reminding the Indian side, and they were good enough to negotiate on this basis, that anything we did had to fall within and respect the legal guidelines that Congress had set forth.” Indian National Security Adviser M.K. Narayanan, in an interview to this newspaper published on July 28, 2007, said: “As far as we are concerned, we haven’t breached the Hyde Act … We have seen to [it] that no law is broken.”

Fourth, before seeking to inventively set apart the operative portions from the “non-binding” parts of the Hyde Act, Mr. Sibal would do well to read the Tarapur debates in Congress, where India, after its 1974 nuclear test, was held not just to the letter of U.S. law but also to the intent behind such law. Today, unlike in the past, the terms of civil nuclear cooperation with India have been unequivocally defined by a unique law, the Hyde Act, a 41-page anthology of conditions. No other 123 agreement is governed by such a country-specific law. Even after the 123 Agreement with India takes effect, the Hyde Act’s post-implementation conditions will remain operative — from an annual presidential certification to ensuring India’s “full compliance” with a non-nuclear, U.S.-led cartel like the Missile Technology Control Regime.

Fifth, the agreement does not incorporate the international-law principle that neither party will invoke its internal law as justification for a failure to honour the accord, or provide for an arbitral tribunal in case of any dispute. Mr. Sibal’s contention that the omission of that principle in the text “does not result in its inapplicability” is hardly plausible, given that the principle applies only to a treaty but America does not accord treaty status to the agreement. Mr. Sibal is also silent on why the U.S. granted Japan and EURATOM the actual right to reprocess upfront but India is to negotiate a separate Section 131 deal in the years ahead.

Sixth, Mr. Sibal contends that in all 123 agreements either party can “in the interim, suspend cooperation without assigning reasons” but the accord with India is “unique” because it “provides for a one-year notice of termination along with reasons.” He is mistaken on both counts. In most 123 agreements, not just termination but also suspension is tied to precise triggers. For example, the Japan-U.S. Agreement permits either party to cease or terminate cooperation only when there is non-compliance with the accord’s provisions or the arbitral tribunal’s decisions or a material breach of safeguards. Yet India has armed the U.S. with an open-ended right to suspend supplies straight away while issuing a one-year termination notice by citing any reason it wishes. The India-U.S. Agreement is “unique” in that the recipient has willingly put its faith in the abiding goodwill of the supplier, which is to enforce the Hyde Act’s stipulations by hanging the Damocles’ sword of arbitrary cessation of cooperation.

Seventh, ignoring the U.S. agreements with Australia and Japan, Mr. Sibal says that America has a longstanding policy of not transferring reprocessing and enrichment equipment even under safeguards. The Hyde Act’s explanatory statement notes that such transfers are “not restricted” in U.S. law but that the administration assured Congress that there would be no such cooperation with India.

Eighth, Mr. Sibal is misinformed when he asserts that “this is the only Agreement which confers on any country to take corrective measures.” Corrective steps are permitted in some other 123 agreements in response to contingencies that extend to even a threatened suspension of cooperation or invocation of America’s “right of return.” The Indo-U.S. Agreement does not “confer” any right to take corrective measures, but merely records that India will negotiate an IAEA safeguards agreement with such a right. But with India blocked from ever lifting safeguards, such measures cannot be corrective but cosmetic.

Ninth, Mr. Sibal admits the deal permits U.S. end-use monitoring but contends such inspections “can neither impinge upon nor impact on India’s sovereignty.” What about the Prime Minister’s assurance to Parliament that “we will accept only IAEA safeguards” and that “there is no question of accepting other verification measures or … allowing American inspectors to roam around our nuclear facilities”? The China-U.S. 123 Agreement, which he cites, is so liberal that its Article 8(2) says “bilateral safeguards are not required.” To placate Congress over the absence of IAEA or U.S. inspections, the Clinton administration worked out a loose arrangement with Beijing for nominal on-site safeguards. In India’s case, U.S. end-use inspections won’t be nominal. Also, they won’t be a substitute to IAEA inspections but an addition.

Tenth, far from the agreement granting India “a de jure nuclear-weapons-state status,” it actually freezes its position in a third aberrant category – neither a formal nuclear power nor a non-nuclear nation but a NPT non-signatory with a nuclear military programme that the Hyde Act targets for “reduction and eventual elimination.”

Copyright: The Hindu, 2007