February 28, 2008

Hiding behind Hyde

This article originally appeared in The Indian Express on February 28, 2008.

US Secretary of State Condoleezza Rice’s recent comments on the US-India nuclear agreement seem to have once again galvanised opposition to the deal in New Delhi. “We will support nothing with India in the NSG that is in contradiction to the Hyde Act. It will have to be completely consistent with the obligations of the Hyde Act,” Rice reportedly said in response to a question from Congressman Howard Berman at a hearing a few days ago. Her response to the committee was not entirely surprising given that Berman, now the acting chair of the House Committee on Foreign Affairs, has been one of the most outspoken critics of the deal in Congress.

Yet Rice’s statement — made in passing — has been taken by opponents of the deal in India as evidence that the Hyde Act overrides the bilateral 123 Agreement between the US and India. Other arguments made in 2006 against the Hyde Act have also resurfaced. Many of these, including the assertion that there are no non-binding sections of the legislation, are categorically false.

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 countries’ 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 India’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 — on the US or India. These include a statement that the US will only agree to nuclear cooperation with a non-NPT state if “such cooperation induces the country to... refrain from actions that would further the development of its nuclear weapons programme”; 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 “to which both the United States and India [will] become parties”); to secure India’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 “a multinational facility”. A careful reading of the Hyde Act indicates that India should not be too concerned regarding fuel supply assurances and ‘full’ 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 — a clause to ensure that appropriate safeguards will be put in place — can be dismissed as unnecessary, but not necessarily damaging. Another four sections detail presidential determinations to Congress on India’s nuclear activities, while two others detail presidential reporting to the appropriate Congressional committees. It is in these sections — 104(c) and 104(g) — that two mentions of securing India’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 Congress’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 104(d), which outlines restrictions on nuclear transfers to India. Section 104(d)1 states that civil nuclear cooperation between the US and a non-NPT weapons state cannot “in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices.” This should not be cause for offence as the separation of civilian and military facilities was an inherent aspect of the deal. Section 104(d)3 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 “the president determines that India has detonated an explosive device.” 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 — or, for that matter, the entire combination of less-than-perfect passages in the Hyde Act — enough of a reason to postpone or reject the nuclear deal?