Hyde and seek Act
In the recent past no agreement or a treaty of cooperation or even a socio-political ordinance/law bill was discussed to such an extent as the Indo-US civil nuclear cooperation agreement, which has reached an important milestone last month. A few days ago, amidst in its usual high-decibel chaos, Prime Minister Manmohan Singh read out a written statement in the Parliament to re-affirm his earlier 'commitment statement' that he had given a year earlier in the same parliament about the Indo-US deal.
Aftermath Pokhran II where India gained more confidence on its weapon and deterrence capability, India announced voluntary 'no first use' policy. So it thus falls under a responsible non-declared still a nuclear state outside the NPT purview. Also India's stand and determination in non-proliferation is well known and acknowledged. Thus by reaffirming its principled stand and show of strength, India was giving a very clear signal to the 'haves' and others that India should be considered as a candidate for the abolition of nuclear apartheid against it and should be seriously considered for deals. It is because, due to the ban on India for the equipment and technology India indeed is way behind the 'haves'. This status cannot be allowed to prolong because the world, especially the 'haves' and particularly India's adversary China, would be able to judge the primitive nature of Indian weapon capability and hence putting India into risk. So India is reaching a stage where it has to get rid of the nuclear power ban. These were clearly signalling to show cause the prerequisite for such an understanding/agreement/treaty with 'haves' in general and US in particular.
United States has US Atomic energy act 1954 which has chapters and clauses to have 'cooperation with other nations'. Under this act a cooperating nation specific act may be passed especially if the cooperating nation is a non-NPT signatory and then thereon an agreement can be arrived at with the cooperating nation in conjunction with the section 123 of the Atomic act.
With this pre-cursor, the US, which has been negotiating with the Indian government since 2000 has attained a breakthrough, during May 2005 with the current PM Manmohan singh's government. Accordingly a joint declaration was made. Initial indications of India specific agreement was very stringent especially there were no reprocessing allowance to India. Various institutions right from the scientific to political were vociferous against it. Infact the PM used scientists covertly to extract mileage from the US. After that people returned to their desks and then comes this "refined" agreement. The initially vociferous atomic scientist Anil Kakodkar was happy with this new agreement which has "to some extent" set loose the strictly-no-reprocessing earlier stand of the US. The government maintains that it is the best deal India can ever get and here starts the big issue. Is it really a good deal as the government claims? Or is it a bad deal as the opposition party claims?
The govt. of India claims that the Indo-US nuclear cooperation agreement has no references regarding nuclear testing. However this claim glaringly omits to simply cite the very first part of the agreement, paragraph 1 of article 2 -- Scope of cooperation. In that it is clearly stated that "each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes". It then means that this agreement cannot violate the directives and prescriptive provisions of the hyde act. More than that this agreement cannot in any way violate the basic tenants of the US Atomic energy act 1954 whose basic tenant TITLE 42 > CHAPTER 23 > Division A > SUBCHAPTER X > § 2158 "Conduct resulting in termination of nuclear exports" clearly states that "No nuclear materials and equipment or sensitive nuclear technology shall be exported to—
(1) any non-nuclear-weapon state that is found by the President to have, at any time after March 10, 1978,
(A) detonated a nuclear explosive device;
The Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006 does not exempt this section for India. So it means India, which is still considered as a "non-nuclear-weapon state" by IAEA will violate § 2158 and automatically this agreement will cease to exist. Even though paragraph 4 article 2 of the agreement explicity states not to affect the "unsafeguarded nuclear activities of either party". This "unsafeguarded nuclear activity" cannot be interpreted to nuclear bomb testing. Yes, nuclear bomb testing will happen from the unsafeguarded facility but not vice versa. Also, even though the agreement states that the technology, material, components, equipment that are transferred as the part of this agreement and safeguarded facility cannot be used for military purposes (i.e. bomb) still this cannot be interpreted as that the agreement has given a clean chit to use those technology, equipment, components which are not acquired through this Indo-US agreement (say an indegeniously attained way, for instance), because of the Hyde Act and Atomic act's relevant sections. So the Indo-US agreement in no way gives a clean chit for India to conduct nuclear test.
Now that India is not under any obligation to not conduct any nuclear tests. But after operationalising this agreement India brings itself into a contractual obligation and aftermath if it conducts any test then India will not have any credibility. It will then be in the league of Iran which violates its signature in NPT.
Above all when the United states could have enough background 'national laws', acts to safeguard its interest, ironically India, which is in tight spot has not bothered to think of enacting new laws to safeguard its interest. Even though Article 253 of Indian constitution empowers parliament to make any law for implementing any international treaty/agreement, if it wishes.
It is funny to read the affirmation statement of the agreement which reads as "AFFIRMING that cooperation under this Agreement is between two states possessing advanced nuclear technology, both parties having the same benefits and advantages, both committed to preventing WMD proliferation".
So it turns out to be a classic example of a thamizh fools-fable which roughly translated would mean as follows. Two friends wanted to have some snacks one guy tells the other "let you bring handful of the rice flakes and I a handful of husk then lets mix them and blow the husk out of the mix and then share and eat the flake". India here turns out to be the idiot who is going to bring the rice flake and the US the shrewd husk fellow. It seems the govt. of India is in no seek mood of the hi(y)de act while its ambassador to US wrongly places the credibility factor if it asks the US to amend the Hyde act. So it is Hyde and sick act that is being enacted now.
PS: There are opinions that the agreement between China and the US also has similar binding clause to "national laws" and India has got a consent for reprocessing whereas China has not, also China has to consistently prove its non-proliferation record whereas India is not asked for, hence Indian deal is good. The point here is, there is a sea of difference between what China and India's status is in terms of nuclear deal. US is not here to distribute benevolence in the case of China or India. So such a clause would necessarily be there, however what makes difference is the recognised status of the nation and the escape routes that the other party (China or India) has. China is a recognised nuclear weapon state whereas India is not. So the national law of US in this regard (US Atomic law) will apply differently when the president of US "finds" either China or India has violated the aggreement. Moreover the India specific applicable national law, Henry Hyde Act, is a stringent one but one needs to see how stringent is the China specific act. Also India simply does not have any cover or escape route whatsoever when it finds it being "victimised". Where is the "applicable national law" in India side to tackle any eventual fallout? Above all it is a lie to say that any future nuclear testing of India will not impact this "peaceful usage" agreement; the parent US Atomic act and the India specific Hyde act, in no ambiguous words, have putforth this point, and above all time and again, high ranking government officers of "India's best friend president" have taken offical stand to clarify that there are umpteen provisions in the agreement/national-laws of US for the US president to consider the back-off (legally and without losing credibility) from the agreement. India, for whatever reason in future, cannot back-off from this agreement without losing its credibility, as it simply cannot point out concrete ruling in its side for it.
One need to cite another similar treaty/agreement to get the advantages of that agreement for you, and not to get disadvantaged from it. India still needs to go long miles before it gets confidence in its nuclear warfield capabiility. The voluntary moratorium announced soon after 1998 test is to gain confidence of international communities, to show its value/principled stand and above all it is a pragmatic decision given that in such a hostile situation (no cooperation from any other nation) it might need another decade or so for India to go for any subsequent test to see its capability. This announcement does not nullify the possibility of any future tests. What makes one to question is not the steps taken by the present Indian government to have such an agreement (indeed it is really a good step forward), rather it makes one to question the prudence and motive of the government when no signs of ample legal precautions were taken in the way of enacting new laws during this 1 year period (not even a step toward that). Above all, silly lie-webs spun officially by the government makes one to vehmently oppose the agreement. This agreement leaves much in the hands of negotiation capabilities with the foot starting at disadvantageous position, when contentions arise. The behaviour and activities of Indian government officials, right from the PM, shows no sign of clear head thinking and hence does not give an iota of confidence to the people in them for getting better things out of any future negotiations in the contentious situations.
Aftermath Pokhran II where India gained more confidence on its weapon and deterrence capability, India announced voluntary 'no first use' policy. So it thus falls under a responsible non-declared still a nuclear state outside the NPT purview. Also India's stand and determination in non-proliferation is well known and acknowledged. Thus by reaffirming its principled stand and show of strength, India was giving a very clear signal to the 'haves' and others that India should be considered as a candidate for the abolition of nuclear apartheid against it and should be seriously considered for deals. It is because, due to the ban on India for the equipment and technology India indeed is way behind the 'haves'. This status cannot be allowed to prolong because the world, especially the 'haves' and particularly India's adversary China, would be able to judge the primitive nature of Indian weapon capability and hence putting India into risk. So India is reaching a stage where it has to get rid of the nuclear power ban. These were clearly signalling to show cause the prerequisite for such an understanding/agreement/treaty with 'haves' in general and US in particular.
United States has US Atomic energy act 1954 which has chapters and clauses to have 'cooperation with other nations'. Under this act a cooperating nation specific act may be passed especially if the cooperating nation is a non-NPT signatory and then thereon an agreement can be arrived at with the cooperating nation in conjunction with the section 123 of the Atomic act.
With this pre-cursor, the US, which has been negotiating with the Indian government since 2000 has attained a breakthrough, during May 2005 with the current PM Manmohan singh's government. Accordingly a joint declaration was made. Initial indications of India specific agreement was very stringent especially there were no reprocessing allowance to India. Various institutions right from the scientific to political were vociferous against it. Infact the PM used scientists covertly to extract mileage from the US. After that people returned to their desks and then comes this "refined" agreement. The initially vociferous atomic scientist Anil Kakodkar was happy with this new agreement which has "to some extent" set loose the strictly-no-reprocessing earlier stand of the US. The government maintains that it is the best deal India can ever get and here starts the big issue. Is it really a good deal as the government claims? Or is it a bad deal as the opposition party claims?
The govt. of India claims that the Indo-US nuclear cooperation agreement has no references regarding nuclear testing. However this claim glaringly omits to simply cite the very first part of the agreement, paragraph 1 of article 2 -- Scope of cooperation. In that it is clearly stated that "each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes". It then means that this agreement cannot violate the directives and prescriptive provisions of the hyde act. More than that this agreement cannot in any way violate the basic tenants of the US Atomic energy act 1954 whose basic tenant TITLE 42 > CHAPTER 23 > Division A > SUBCHAPTER X > § 2158 "Conduct resulting in termination of nuclear exports" clearly states that "No nuclear materials and equipment or sensitive nuclear technology shall be exported to—
(1) any non-nuclear-weapon state that is found by the President to have, at any time after March 10, 1978,
(A) detonated a nuclear explosive device;
The Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006 does not exempt this section for India. So it means India, which is still considered as a "non-nuclear-weapon state" by IAEA will violate § 2158 and automatically this agreement will cease to exist. Even though paragraph 4 article 2 of the agreement explicity states not to affect the "unsafeguarded nuclear activities of either party". This "unsafeguarded nuclear activity" cannot be interpreted to nuclear bomb testing. Yes, nuclear bomb testing will happen from the unsafeguarded facility but not vice versa. Also, even though the agreement states that the technology, material, components, equipment that are transferred as the part of this agreement and safeguarded facility cannot be used for military purposes (i.e. bomb) still this cannot be interpreted as that the agreement has given a clean chit to use those technology, equipment, components which are not acquired through this Indo-US agreement (say an indegeniously attained way, for instance), because of the Hyde Act and Atomic act's relevant sections. So the Indo-US agreement in no way gives a clean chit for India to conduct nuclear test.
Now that India is not under any obligation to not conduct any nuclear tests. But after operationalising this agreement India brings itself into a contractual obligation and aftermath if it conducts any test then India will not have any credibility. It will then be in the league of Iran which violates its signature in NPT.
Above all when the United states could have enough background 'national laws', acts to safeguard its interest, ironically India, which is in tight spot has not bothered to think of enacting new laws to safeguard its interest. Even though Article 253 of Indian constitution empowers parliament to make any law for implementing any international treaty/agreement, if it wishes.
It is funny to read the affirmation statement of the agreement which reads as "AFFIRMING that cooperation under this Agreement is between two states possessing advanced nuclear technology, both parties having the same benefits and advantages, both committed to preventing WMD proliferation".
So it turns out to be a classic example of a thamizh fools-fable which roughly translated would mean as follows. Two friends wanted to have some snacks one guy tells the other "let you bring handful of the rice flakes and I a handful of husk then lets mix them and blow the husk out of the mix and then share and eat the flake". India here turns out to be the idiot who is going to bring the rice flake and the US the shrewd husk fellow. It seems the govt. of India is in no seek mood of the hi(y)de act while its ambassador to US wrongly places the credibility factor if it asks the US to amend the Hyde act. So it is Hyde and sick act that is being enacted now.
PS: There are opinions that the agreement between China and the US also has similar binding clause to "national laws" and India has got a consent for reprocessing whereas China has not, also China has to consistently prove its non-proliferation record whereas India is not asked for, hence Indian deal is good. The point here is, there is a sea of difference between what China and India's status is in terms of nuclear deal. US is not here to distribute benevolence in the case of China or India. So such a clause would necessarily be there, however what makes difference is the recognised status of the nation and the escape routes that the other party (China or India) has. China is a recognised nuclear weapon state whereas India is not. So the national law of US in this regard (US Atomic law) will apply differently when the president of US "finds" either China or India has violated the aggreement. Moreover the India specific applicable national law, Henry Hyde Act, is a stringent one but one needs to see how stringent is the China specific act. Also India simply does not have any cover or escape route whatsoever when it finds it being "victimised". Where is the "applicable national law" in India side to tackle any eventual fallout? Above all it is a lie to say that any future nuclear testing of India will not impact this "peaceful usage" agreement; the parent US Atomic act and the India specific Hyde act, in no ambiguous words, have putforth this point, and above all time and again, high ranking government officers of "India's best friend president" have taken offical stand to clarify that there are umpteen provisions in the agreement/national-laws of US for the US president to consider the back-off (legally and without losing credibility) from the agreement. India, for whatever reason in future, cannot back-off from this agreement without losing its credibility, as it simply cannot point out concrete ruling in its side for it.
One need to cite another similar treaty/agreement to get the advantages of that agreement for you, and not to get disadvantaged from it. India still needs to go long miles before it gets confidence in its nuclear warfield capabiility. The voluntary moratorium announced soon after 1998 test is to gain confidence of international communities, to show its value/principled stand and above all it is a pragmatic decision given that in such a hostile situation (no cooperation from any other nation) it might need another decade or so for India to go for any subsequent test to see its capability. This announcement does not nullify the possibility of any future tests. What makes one to question is not the steps taken by the present Indian government to have such an agreement (indeed it is really a good step forward), rather it makes one to question the prudence and motive of the government when no signs of ample legal precautions were taken in the way of enacting new laws during this 1 year period (not even a step toward that). Above all, silly lie-webs spun officially by the government makes one to vehmently oppose the agreement. This agreement leaves much in the hands of negotiation capabilities with the foot starting at disadvantageous position, when contentions arise. The behaviour and activities of Indian government officials, right from the PM, shows no sign of clear head thinking and hence does not give an iota of confidence to the people in them for getting better things out of any future negotiations in the contentious situations.
posted by Kupps at 2:34 PM
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