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.
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.
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.”
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”.
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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