Hiding behind Hyde

For better or for worse, the Hyde Act is now US law, and US actions must be conducted within its parameters. At the same time, the US cannot legislate for India, for whom only the 123 Agreement remains binding. There are certain sections where the two documents contradict one another. In such cases, it would likely prove easier to amend US law to accommodate the two countries8217; intentions, than to renegotiate the entire 123 Agreement. Consequently, rejecting the deal on the basis of the Hyde Act alone makes little sense.

The final exemption made for India at the NSG remains to be seen. But the latest uproar begs the question of what exactly is so wrong with Hyde Act. There are, in fact, a total of 18 clauses in the legislation that are not absolutely ideal from India8217;s standpoint. Many of these are simply redundant while others contain seemingly demeaning but relatively innocuous language.

Of the objectionable passages, three fall under Section 102 or the Sense of Congress, and are therefore not legally binding 8212; on the US or India. These include a statement that the US will only agree to nuclear cooperation with a non-NPT state if 8220;such cooperation induces the country to8230; refrain from actions that would further the development of its nuclear weapons programme8221;; a passage that says the US will cooperate with countries if they have a congruent foreign policy, which includes working with the US on non-proliferation efforts; and a declaration that countries outside the NPT pose a non-proliferation challenge.

Another five clauses fall under Section 103, or Statements of Policy. These too are not strictly binding, but are merely broad indications of what Congress believes US policy should be. Many articles in Section 103 were included to satisfy members of Congress who may otherwise have opposed the Act. These include policies to achieve a reduction of fissile material for weapons including a ban 8220;to which both the United States and India will become parties8221;; to secure India8217;s participation in efforts to isolate and contain Iran for its efforts to acquire WMD; and generally to oppose the development of nuclear weapons by non-nuclear weapons states.

Most importantly, Section 103 also contains two clauses that have been focused upon by opponents of the deal in India: an article to restrict the transfer of equipment and technology related to enrichment, reprocessing and heavy water production, and a clause to prevent the transfer of nuclear equipment, materials or technology from other NSG countries should nuclear transfers to India be suspended. Furthermore, the first clause is largely offset by another which allows for the transfer of technology related to enrichment, reprocessing and heavy water in 8220;a multinational facility8221;. A careful reading of the Hyde Act indicates that India should not be too concerned regarding fuel supply assurances and 8216;full8217; nuclear cooperation as some analyses have suggested.

This leaves only 10 objectionable clauses that can legally constrain the executive branch of the US government. Of these, one 8212; a clause to ensure that appropriate safeguards will be put in place 8212; can be dismissed as unnecessary, but not necessarily damaging. Another four sections detail presidential determinations to Congress on India8217;s nuclear activities, while two others detail presidential reporting to the appropriate Congressional committees. It is in these sections 8212; 104c and 104g 8212; that two mentions of securing India8217;s cooperation in efforts to isolate and contain Iran are included. These six clauses are by no means desirable from an Indian vantage point, yet they place significant decision-making power in the hands of the presidency. Given Congress8217;s many reservations concerning the deal, this may not be so bad.

Three clauses remain which could provide serious legal constraints to the future of US-India nuclear cooperation, two of which fall under Section 104d, which outlines restrictions on nuclear transfers to India. Section 104d1 states that civil nuclear cooperation between the US and a non-NPT weapons state cannot 8220;in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices.8221; This should not be cause for offence as the separation of civilian and military facilities was an inherent aspect of the deal. Section 104d3 puts termination of the nuclear transfers in the hands of the president. This too should not be surprising as it is impossible to envision bilateral civilian nuclear commerce taking place under a president who is opposed to it.

That leaves Section 106, which will ensure that the nuclear exemption for India will cease to be effective if 8220;the president determines that India has detonated an explosive device.8221; India faced severe sanctions when it tested in 1998, and even in the absence of the deal, it will not likely go unpunished for testing, particularly if it did so unilaterally. But is this clause 8212; or, for that matter, the entire combination of less-than-perfect passages in the Hyde Act 8212; enough of a reason to postpone or reject the nuclear deal?

The writer researches US foreign policy towards South Asia in Washington DC dhruva.jaishankargmail.com

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