123 Agreement vs. Hyde Act

There have been claims and counter-claims by many regard­ing whether the 123 Agree­ment will super­sede the Hyde Act, or vice ver­sa, in case there are dif­fer­ences of opin­ion over the deal. Here are three inde­pen­dent clar­i­fi­ca­tions on this issue.

The Week

K. Sub­rah­manyam writes in The Week: 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.

The Hindu

Sid­dharth Varadara­jan clar­i­fies in The Hin­du:

Some com­men­ta­tors have not­ed that the Indi­an 123 agree­ment does not con­tain a sen­tence found in Arti­cle 2.1 of China’s 123 agree­ment with the U.S., name­ly that “the par­ties rec­og­nize, with respect to the obser­vance of this agree­ment, the prin­ci­ple of inter­na­tion­al law that pro­vides that a par­ty may not invoke the pro­vi­sions of its inter­nal law as jus­ti­fi­ca­tion for its fail­ure to per­form a treaty.” Thus, it is felt the U.S. admin­is­tra­tion can always claim the Hyde Act’s restric­tions trump the 123 agreement’s more gen­er­ous com­mit­ments.

Though the Indi­an nego­tia­tors had an iden­ti­cal line in all their drafts and tried till the end to incor­po­rate it in the final agreed text, the U.S. remained unyield­ing, claim­ing that Con­gress would shoot it down. But the Indi­an side did man­age to push through anoth­er arti­cle, 16.4, that the agree­ment “shall be imple­ment­ed in good faith and in accor­dance with the prin­ci­ples of inter­na­tion­al law.” The phrase “prin­ci­ples of inter­na­tion­al law” is a clear ref­er­ence to the Vien­na Con­ven­tion on the Law of Treaties. Arti­cle 27 of the Con­ven­tion, which, as a part of cus­tom­ary inter­na­tion­al law, does not have to be cit­ed to be applic­a­ble, states: “A par­ty may not invoke the pro­vi­sions of its inter­nal law as jus­ti­fi­ca­tion for its fail­ure to per­form a treaty.”

India Today

An arti­cle, “Tac­ti­cal Hold”, in India Today (2nd Sept) states: ” On the argu­ment of which statute takes prece­dence — the Hyde Act or the 123 Agree­ment — Gov­ern­ment expects to come out the win­ner. Much of the Government’s con­fi­dence stems from the fact that there is weighty legal opin­ion in the US to back its asser­tion that the 123 Agree­ment, not the Hyde Act, will be the final bind­ing agree­ment between the two coun­tries.

Sean Mur­phy, pro­fes­sor of Law, George Wash­ing­ton Uni­ver­si­ty Law School, explains, “An inter­na­tion­al agree­ment like the 123 if approved by the Con­gress does take prece­dence over any ear­li­er statute. So to the extent if there were any changes that the 123 Agree­ment brings about those would super­sede the ear­li­er Act”. Fred­er­ic L. Kir­gis, Emer­i­tus Pro­fes­sor of Law, Wash­ing­ton and Lee Uni­ver­si­ty School of Law and a con­sti­tu­tion­al diplo­ma­cy expert, con­curs when he says, “What­ev­er the autho­rized rep­re­sen­ta­tives of the two coun­tries have agreed upon would super­sede any oth­er pre­vi­ous agree­ment or any inter­nal law of either coun­try as a mat­ter of inter­na­tion­al law”.

Summary

It is clear that even in terms of fine prints and legal­i­ties, we’re still safe with respect to our sov­er­eign­ty, our choice not to sign the NPT, and are not bound by the restric­tive claus­es of the Hyde Act. More impor­tant­ly, as I’ve not­ed before, in times of inter­na­tion­al dis­putes, it is not these laws that real­ly mat­ter, it is the diplo­mat­ic rela­tion­ship.

Those who oppose a strate­gic rela­tion­ship with the US will nev­er like clos­er coop­er­a­tion between the two coun­tries — whether eco­nom­ic, strate­gic, civil­ian, or mil­i­tary. They will only end up iso­lat­ing us, keep­ing us bogged down fight­ing a proxy war with Chi­na through Pak­istan, and curb­ing our phe­nom­e­nal growth.

Those who are in favor of clos­er Indo-US ties, and have been con­cerned that India should not com­pro­mise its sov­er­eign­ty and free­dom by suc­cumb­ing to the US — be rest assured. Our nego­tia­tors have done a good job so far. They need our sup­port, not politi­cized, mind­less, rhetoric.

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  • Both India and the US are known to change their diplo­mat­ic stance to suit their needs. I think the cur­rent agree­ment is an arrange­ment of con­ve­nience and is an excel­lent agree­ment for the short term.

  • Yes Priyank! Giv­en the polit­i­cal and diplo­mat­ic con­straints and com­pul­sions of the two coun­tries, this ‘arrange­ment of con­ve­nience’ was the only way to move for­ward. There’s still a long way to go for­ward how­ev­er…

  • kavin­dra shar­ma

    please tell me the basic dif­fer­ence between the hyde act and 123 agree­ment

  • shob­hit prakash

    At this point of time,when the a roar of devel­op­ment and resource and ener­gy needs are at their peak the treaty looks to be a good idea of ful­fill­ing our needs but not at the cost of your free­dom to con­duct and cre­at­ed nuclear tests and weapons. to abide by our not sign­ing the NPT we have to show that we are just not blind fol­low­ers of our needs and suc­cum to them, we have stand on the face of the world in every field, so shall a day soon arive when we will be capa­ble to devel­op our own nuclear fuel, but cer­tain­ly not at the cost of am unfair treaty.

  • Sharad

    I’m no law expert, but the analy­sis from The Week and The Hin­du scare me of the implic­it naivete of their argu­ments. Specif­i­cal­ly
    1. “as inter­pret­ed by the US Supreme Court” and
    2. “a clear ref­er­ence to the Vien­na Con­ven­tion on the Law of Treaties”

    both of which are exam­ples of the sort of lan­guage that has got­ten India in trou­ble in past, because they are based on the hope­ful rather than the con­crete.

    But I do like the author’s argu­ment that in times of trou­ble it is diplo­mat­ic rela­tions that mat­ter more than treaties.

    Hope­ful­ly more of our politi­cians can think and act in the spir­it of lan­guage like Rahul Gandhi’s when he asked the rep­re­sen­ta­tives to think of India’s future and not of Con­gress or BJP or the Com­mu­nists.

    The author, in my opin­ion, also cor­rect­ly stat­ed that our nego­tia­tors need our sup­port in try­ing to fol­low this ray of light. I would like to add so do young politi­cians like Rahul Gand­hi.

    Hon­est­ly Im tired of politi­cians who steal (too numer­ous to men­tion) and lit­er­al­ly sleep on the job (a la Deve Gow­da at the UN). We need to make sure our politi­cians deliv­er.