Magazine| Oct 22, 2007

nuclear deal

This Law Is Your Law

What if Hyde Act and 123 came into conflict? Opinions in the US are as split as in India.

ASHISH KUMAR SEN

As the Congress and Left in India slug it out over the Indo-US civil nuclear agreement, each insistent upon its own interpretation of the deal, Outlook spoke to constitutional and strategic experts in the United States to ascertain who among them they think is right. The experts cut through a veritable minefield of legislative procedures and confusing legalese to finally arrive at contrasting positions. The verdict, offering a parallel to Indian political opinion, is split: both the communists and the UPA government are right. Partially so.

Any assessment of the conflicting positions prevailing in India hinges on three vital questions. First, does the 123 Agreement supersede the Hyde Act in all circumstances? Can inconsistencies between the 123 Agreement and the Hyde Act tie India in knots in the future? Is President George W. Bush's "signing statement", saying he isn't bound by certain clauses of the Hyde Act, binding on future American presidents?

Most analysts agree that the 123 Agreement will become the "law of the land", and supersede the Hyde Act, once it is approved by Congress. Says Fred McGoldrick, who helped draft many of the past 123 agreements the US entered into: "If Congress approves the proposed 123 Agreement, it would override any inconsistencies it might have with the Hyde Act." Even Arms Control Association's Daryl Kimball, a diehard critic of the Indo-US nuclear deal, agrees. "The Indian government," he says, "is generally correct when it says the 123 Agreement, rather than the Hyde Act, will be the document that establishes the terms of trade between the states."

But Sharon Squassoni of the Carnegie Endowment for International Peace, who was earlier with the Congressional Research Service, dismisses as a "silly idea" reports in the Indian press suggesting that the Hyde Act can be ignored. The Hyde Act, she says, sets out the prerequisites for waiving some sections of the US Atomic Energy Act, lays out general parameters for conducting nuclear cooperation, and spells out conditions for terminating it. The 123 Agreement, by contrast, describes the rights and responsibilities of the parties engaged in nuclear cooperation.

Therefore, Squassoni says, certain provisions of the Hyde Act will continue to be US law even if these are not mentioned in the 123 Agreement. For example, just because nuclear testing is not mentioned in 123 as a reason for "ceasing cooperation doesn't mean that that particular provision of the Hyde Act is inoperable". The only thing that will change the Hyde Act is another act of Congress, Squassoni explains. Thus, aspects of the Hyde Act on which the 123 Agreement is silent will continue to bind the US government—and could impact on India.

She even questions senior Left leader Sitaram Yechury's recent claims that the 123 Agreement overrides the Hyde Act only until the point it is terminated. Yechury cited "11 reasons" in the Hyde Act why this agreement could be terminated. Squassoni explains, "Saying the 123 Agreement overrides the Hyde Act is like saying a 123 Agreement generally overrides the US Atomic Energy Act—it just doesn't make sense." Moreover, the 123 Agreement's vagueness allows for any number of reasons for termination. "Eleven is a small number compared to infinity."

But what about those issues on which the 123 Agreement is not consistent with the Hyde Act? Will the 123 Agreement prevail then? Theoretically, a 123 Agreement shouldn't be inconsistent with its authorising legislation—in this case the Hyde Act. Says Allen Weiner, co-director of the Stanford Program in International Law: "The administration's lawyers were smart enough not to conclude a 123 Agreement which on its face violated the text of the authorising legislation because they knew that that would be dead on arrival." But the "studied ambiguity" in the 123 Agreement text, he says, has created a potential for inconsistencies with the Hyde Act.

Others, however, feel ambiguity does not necessarily mean inconsistency. A congressional staffer says, "It depends on how it is interpreted. The 123 Agreement is clearly meant to be as vague as possible to presumably address the political necessities of the Indian side." The staffer blames the Indians, including Prime Minister Manmohan Singh, for creating the impression that the 123 Agreement conflicts with and supersedes the Hyde Act. "Until we get explanations from the administration on the record, that is still an open question," maintains the staffer.

But the inconsistency issue could become contentious. A resolution was introduced in the House of Representatives earlier this month seeking a clarification on the question of 'inconsistencies'. The Bush administration is expected to clarify lawmakers' concerns before the 123 Agreement is presented for their final approval. Congressional sources acknowledge these hearings will be tough. This is largely because the Hyde Act was sold to Congress on the understanding that if India conducts a nuclear test, then the US would discontinue nuclear cooperation. This termination clause, however, isn't specifically mentioned in the 123 Agreement.

Furthermore, says Kimball, the agreement gives "incredible fuel supply assurances that would appear on the face of it to contradict the whole concept of terminating fuel supplies if India tests". He adds, "Congress is not stupid. This is going to be a big issue for them." Agrees Lisa Curtis of the Heritage Foundation, "In the 123 Agreement both sides have sought to bridge the gap on the fuel assurances issue. This required language that has raised eyebrows on Capitol Hill." The 123 Agreement will be presented to Congress only after India clinches a safeguards agreement with the IAEA and secures the NSG's nod.

Ironically, these inconsistencies uphold the UPA government's claims that it has protected India's interests. But this situation could change. For, if the 'clarification hearings' don't satisfy lawmakers, they can place conditions on the joint resolution of approval, as it did in the case of the 123 Agreement with China in 1985. This would not amend the 123 Agreement, but place conditions on its entry into force. The China agreement did not come into force until the president certified certain conditions about China's non-proliferation record. It took well over a decade for that to happen. In other words, though the text of the 123 Agreement is frozen, Congress could still impose conditions or reject the agreement altogether.

Lori F. Damrosch, Columbia University law professor, notes the 123 Agreement was negotiated to be fully consistent with the Hyde Act. The Bush administration couldn't but have been aware of the consequences of straying beyond the parameters laid out in the Hyde Act. "Thus the question of differences should not arise. The US Congress will confirm that the requirements of the Hyde Act have been met when both houses vote to bring the agreement into force," she contends.

However, a Carnegie Endowment analysis that compares US law—the Atomic Energy Act and the Hyde Act—and the 123 Agreement finds inconsistencies or ambiguities in at least five areas (see infographic). Ditto a separate analysis by Kimball and McGoldrick. Says Kimball: "In certain areas where the 123 Agreement is ambiguous, if we sat Mr (Foreign Secretary Shivshankar) Menon and Mr (Undersecretary Nicholas) Burns in a room together, they would have different interpretations of what the 123 Agreement means. The ambiguous language of the agreement is one of its fundamental flaws—the two countries are characterising the meaning of the language differently".

Then there is the question of Bush's "signing statement". In December 2006, while signing the Hyde Act, Bush declared he intended to treat certain sections of the act—Section 102 (Sense of Congress) and Section 103 (Statements of Policy)—as advisory, much to the chagrin of many lawmakers. Section 103 of the Hyde Act seeks India's participation in Washington's efforts to contain and sanction Iran. "The president has the right built into all legislation with foreign policy impact that he can take divergent steps in the national interest, but he is virtually obligated to explain why it is in the national interest," says Walter Andersen of the Paul H. Nitze School of Advanced International Studies in Washington. Curtis predicts the signing statement will be a key concern raised by members of Congress during the hearings, and McGoldrick believes Iran could even "kill the deal".

Worryingly for India, Bush's signing statement is confined only to his presidency. Successive US administrations could choose to invoke Sections 102 and 103, which are non-binding. Squassoni explains, "A change in administration doesn't make non-binding language more binding. It may be that the next administration agrees with the sentiments and objectives in Sections 102 and 103, and may have different views about executive privilege. It may also be that the next administration will not seek to engage India in enrichment and reprocessing cooperation and thus will not seek to amend the agreement (as required by Article 5.2 of the 123) in order to include that."

These are certainly pitfalls of the future. But Manohar Thyagaraj, director of Strategic Business Initiatives for the US-India Business Alliance, says the US will not want to kill a relationship of this size and importance once it gets going. "The bottomline," he says, "is that it is unlikely that a new president would adopt an adversarial attitude toward India. The relationship has gone too far, and the diaspora has played a key role in making India visible in the policy realm here in the US." But this is a conclusion based on hope, a tricky issue indeed.