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