123 AGREEMENT, HYDE ACT AND THE INDIAN PREDICAMENT

Nuclear technology has an intrinsic strategic connotation irrespective of the background context, and even its civilian usage envisaged in the Henry J Hyde India – US Civil Nuclear Cooperation Act signed into law by the US President George W Bush on 18 December 2006, is no exception. As such, the Act and the formal agreement to follow between the two countries, informally christened as the 123 Agreement (in reference to Section 123 of the American Atomic Energy Act 1954 under which it will be negotiated) is ultimately more about the overall strategic relationships India and the USA wish to build, rather than exclusively about access to sensitive technology. The core issue in this engagement with the United States is not so much about purely civilian use of nuclear energy, but overwhelming strategic objective of preservation and maintenance of the country’s indigenous nuclear weapons programme under all circumstances.

Under the American legislative system, the Hyde Act is an essential preliminary proceeding before attempting to induce any modifications in one of the most sensitive and inviolable precepts of American national security – nuclear non-proliferation. Successful conclusion of the 123 Agreement between India and the USA is a sine qua non for negotiations with the 45 nation Nuclear Suppliers Group (NSG), the international custodians of nuclear materials and technology, as well as the International Atomic Energy Agency (IAEA), the watchdogs over nuclear proliferation. The USA, along with Russia, China, England and France, is a founder member of the NSG and NPT, and also one of the permanent members of the United Nations Security Council. It remains a heavyweight in international negotiations, Iraq and the War on Terror notwithstanding. These negotiations would allow the NSG to allow country-specific exemptions for transfers of nuclear materials and technology to India as a non – signatory to the NPT and with the International Atomic Energy Agency (IAEA), regarding safeguards on Indian nuclear infrastructure declared civilian. Meanwhile, negotiating the 123 Agreement has become time sensitive to both India and the United States as the American presidential elections are due in Nov 2008, with a possible Democrat incumbency, who may not be as supportive of the Hyde Act as the current administration. The Indian Parliamentary elections are also scheduled for early 2009. In this context, the deadline given by US Senator Joe Biden recently, saying June, possibly July, was absolutely the last minute the deal could go to Congress, is relevant.

there are strong misgivings in India about the fine print of the Hyde Act which appear to indicate shapes of some of the things to come, as for example, the clear directive to the Government of the United States to adhere to the parameters of the Non Proliferation Treaty (NPT) in all transactions under the Act – in effect a nuanced reiteration of the basic Clintonian non – proliferation dictum “Cap, Roll back, Eliminate”.

The Hyde Act is a domestic US legislation, whose main function is to allow nuclear cooperation with India. It's an enabling legislation. It's the 123 agreement that is binding on the US and India. There is no contradiction between the two. The operative heart of the Hyde Act incorporates three permanent and unconditional waivers from relevant provisions of the US Atomic Energy Act of 1954. In layman terms, the Hyde Act allows the US Administration to engage in civil nuclear cooperation with India, waiving the following requirements:

(i) That the partner country should not have exploded a nuclear explosive device in the past; this waiver is necessary because India exploded a series of nuclear explosive devices in May 1998;

(ii) That the partner country must have all its nuclear facilities and activities under full-scope safeguards; this waiver is necessary because India has a strategic programme which would not be subject to international safeguards; nor would its indigenous R&D programme.

(iii) That the partner country is not currently engaged in the development and production of nuclear explosive devices; this waiver is required because there is no freeze or capping of India’s strategic weapons programme. It is an acknowledgement that we will continue to develop and produce additional strategic weapons.

These three permanent and unconditional waivers are significant because they acknowledge that we have an ongoing strategic programme. No restraint on this programme is envisaged as a condition for engaging us in civil nuclear energy cooperation. Just juxtapose this with the UNSC Resolution 1172 of June 6, 1998, which called upon us to stop, roll back and eliminate our strategic programme and join the NPT as a non-nuclear weapon state. There are several extraneous and prescriptive provisions in the Hyde Act which India does not agree with and in negotiating the 123 Agreement India has been careful to exclude these. If the US Congress considers the 123 Agreement as being in contravention with their own understanding of the Hyde Act, the agreement would be voted down. If the US Congress does approve the 123 Agreement, this would confirm that the provisions of the agreement are what would govern the commitments of the two sides.

A 'critical element' of the agreement to ensure that the US cannot be accused of violating its NPT obligations, is embedded in Article 14 of the agreement, which allowed either party to terminate the agreement on one-year written notice. Throughout the negotiations, India consistently defended its right to reprocess the nuclear fuel under the agreement. The administration ultimately accepted Indian demands, but distinguished between the right and an entitlement to the US assistance in pursuit of reprocessing activities. In fact, any action on reprocessing will depend on the conclusion of a subsequent agreement, as required by section 131 of the US Atomic Energy Act of 1954.

Commenting on the issue, K. Subrahmanyam says the opponents and supporters harp on the Hyde Act. Supporters say the agreement does not mention the Act at all, and that its provisions are binding not on India, but only on the US. The US legislation has binding and non-binding provisions, and the US administration implements only the binding portions. The US president, in his signing statement, has made it clear that he would ignore the non-binding provisions of the Act. According to Article VI of the US Constitution, as interpreted by the US Supreme Court, obligations of an international agreement supersede provisions of domestic law. That should allay any apprehensions in Indian minds about the applicability of binding provisions in the US law.

The Indian objective is not merely to seek the US as a partner but also to enable India to have a wide choice of partners in pursuing nuclear commerce. We cannot attain it without the US taking the lead. Yes, Russia and France are friendly countries and extremely keen to engage India in nuclear commerce, but even they would not go against an established NSG policy.

The Hyde Act is considered by some as a "nuclear triumph" for India, while some dub it as an infringement on her sovereign rights. It is strongly believed that the "growth constraint would by and large be removed for civilian nuclear power if the ultimate agreement emerges as wished for. Nevertheless, we must look at the Hyde Act with an eye on the future rather than being bogged down by the sour past of Indo-US relations. While not succumbing to "outside pressure," we should look at the Deal from the perspective of "paying something to get something in return." And its execution calls for "statesmanship" at every level of governance on both the sides.