Intrusive provisions cannot be easily negated

Our country's need for nuclear materials is unquestionably genuine and urgent. But does that justify signing of the proposed 123 agreement? The supporters of the agreement assert that the Hyde Act should not bother India - it applies only to the US. Another seemingly profound proposition making the rounds is that under the USA's legal system, once the 123 agreement passes through the Congress, all earlier laws including the Hyde Act will be superceded.

If these two assumptions are legally tenable, the proposed 123 agreement need not wait. Unfortunately in the present context, both are substantially fallacious. What if the Hyde Act survives the treaty - i.e, the 123, which will become a treaty once it is approved by the US Congress? What possible harm may it cause to our interest? If, on careful scrutiny, none is anticipated, sign the 123 now; but not before this aspect is examined.

Soon after the Indo-US joint statement of July 18, 2005, the US House of the Representatives passed an Act called 'Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006'. This enactment is India specific as the heading itself denotes. It is in force since July 27, 2006.

The relevant part of Article VI of the US Constitution reads: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land".

The Act and the treaty when approved by the Houses will both be the 'supreme laws' of the USA. In case of conflict between the two, the latter will prevail to that extent. The Hyde Act has two broad parts - the first deals with the US Executive's role until the agreement becomes effective - the "sunset" clause in the Act puts an end to that part from the moment the agreement becomes effective. No one need be concerned with that part.

The second part obliges their President to continuously, periodically or year after year take certain steps during the whole of the long life of the treaty. India should be concerned about this part. For removal of all doubts, one may look at Article 2 of the 123 agreement, which specifically states, "Each party shall implement this agreement in accordance with its respective applicable treaties, national laws and regulations…concerning the use of nuclear energy for peaceful purposes."

Compare this with the 123 agreement between China and the US: there was no China specific Act like the Hyde Act.

The Hyde Act undoubtedly is one of the applicable US national laws on the subject and with the signing of the agreement India would agree that the US would implement their part of the agreement in accordance with - among others - the Hyde Act.

Consequently, India will be obliged to cooperate with the US President by providing him with information or assistance to enable him to perform the post treaty duties imposed by the Hyde Act. Will that be possible without compromising our sovereignty? Therefore the argument that the Hyde Act need not bother India is not just specious - it is an exercise in self deception.

Ostensibly, the Hyde Act was enacted, "To exempt from certain requirements of the Atomic Energy Act of 1954 a proposed nuclear agreement for cooperation with India". But it covers a much larger area.

The Act authorises the US President to exempt India from the requirement of S.123 a (2) of the Atomic Energy Act of 1954 that imposes a condition that the United States will not export nuclear material to non-nuclear weapon States, unless IAEA safeguards are maintained with respect to all peaceful nuclear activities.

It further authorises the President to waive the application of S128 that sets out additional export criterion. The waiver however "shall cease" if the President determines that India detonated a nuclear explosive device - among other activities specified.

The Act prescribes restrictions on nuclear transfer to India in the future. It further provides that no item under the agreement be transferred to India if that would violate the transfer guidelines of the NSG. The Act also provides for the termination of nuclear transfer under the treaty.

There is another significant provision which states that if nuclear transfer to India is restricted pursuant to the Hyde Act and other named Acts the President should seek to prevent the transfer to India of nuclear equipment material or technology from other participating Governments in the NSG or from any other source. Obviously these provisions start operating only after the agreement comes in to effect.

There are other significant provisions affirming the continued post treaty operation of the Hyde Act. It commands the President not later than "January 31 of each year" to submit to the Committee of the House a progress report on achieving each of the many policy objective in section 3(b). One such policy objective reads:

"Secure India's full and active participation in United States efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for is efforts to acquire weapons of mass destruction...and the means to deliver weapons of mass destruction."

The President shall also report to the House on issues like the amount of Uranium mined, how much was used for weapons, and details of production of all fissile material for nuclear explosive devices. India will be bound to allow the US to gather such information, if necessary by posting their inspectors on our soil and at our facilities. Can we afford to suffer these consequences for securing uranium?

There is also the question of soundness of the proposition that, as a rule in the US, a treaty supercedes an earlier law. According to Justice Homes in Missouri v. Holland (1920) "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether authority of the United States means more than the formal acts prescribed to make the convention."

Opinion of an executive like Richard Boucher or that of even the US President would neither shrink nor expand the scope of an enactment like the Hyde Act. Serious issues with a potential to affect our country's freedom should rest on a firmer foundation. The writer is a Supreme Court lawyer

Courtesy: www.tribuneindia.com, May 12, 2008