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Tactical Hold
(India Today Via Thomson Dialog NewsEdge) Henry J. Hyde, whose name now precedes the Act that facilitates the Indo-US nuclear deal, is no more a member of the US Congress. Hyde didnt stand for re-election when it came up in late 2006, and among his last Congressional acts was to pilot the controversial nuclear bill through both Houses of the Congress. While he retired to the comforts of a tony suburb in Chicago, the Hyde Act, as it is known, has become a Katrina that threatens to swamp the UPA Government.
After weeks of stand-off the Government yielded to the Lefts demand to put on hold the operationalisation of the deal till a high-powered committee goes into its objections. The key question remains: Is this a tactical pause or a prolonged hold that could lead to the death of the deal? A go slow spanning a couple of weeks will not damage the deals chances and may even strengthen the Governments hand as it crosses the major hurdles (see box) left to make it operational. But if the hold goes beyond a month it could result in a spiral of delays that could unravel the entire deal.
Where the Left struck hard was with its demand that negotiations over India-specific safeguards with the International Atomic Energy Agency (IAEA) be halted till the issue is sorted out. In the absence of such negotiations, the Government cannot proceed with the other steps to get the deal operationalised. This includes getting the concurrence of the 45-member Nuclear Suppliers Group (NSG) to lift the ban on nuclear trade against India similar to that of the US legislation. Only after both the IAEA safeguards and the NSG exemptions will the 123 Agreement be submitted to the US Congress for an up and down vote.
The timing of the operationalisation of the deal is linked with the ending of the Bush presidency in December 2008. This coincides with the elections for the entire House of Representatives and one-third of the Senate. Played backwards it would mean that by March 2008, much of the Congress would be in election mode and the Bush administration may find getting a consensus an uphill task. Given the resistance to the deal in the US Congress, the Government needs a determined president like George W. Bush to push it through. The next president may not be as helpful.
If there is only a short hold, M.R. Srinivasan, former chairman of the Atomic Energy Commission, estimates that the IAEA safeguards agreement should be in place by end October. After India works out a suitable IAEA safeguards regime, the US will approach the NSG members to give India similar exemptions in atomic trade as it has done. Shyam Saran, the prime ministers special envoy, has already visited Russia, Germany, Norway, Sweden, Ireland, Japan, Korea, Australia, New Zealand, Brazil and Argentina to enlist their support. He has reported that the mood was positive for lifting of the nuclear ban against India. The Government is also working to persuade countries like China, which may veto the deal, to go along with the emerging consensus. After the US calls for an extraordinary meeting, it would take around two to three months for the NSG to give its approval.
So the best case scenario is for the two governments to push for a vote by the US Congress on the 123 in the first quarter of 2008. The Congress will take at least 90 days to deliberate on the Agreement before taking the up and down vote on it. This means it would either ratify it in its entirety or reject it. After that, India would still have to align its domestic Atomic Energy Act to permit private sector participation in nuclear generation and also address the issue of liability in case of nuclear accidents. If the IAEA process gets delayed beyond a month, the odds of the deal not going through increase. So far, the gameplan of the Left and BJP seems to be just that. The Government hopes that better sense would prevail and they could push ahead with the deal.
That both the Left and BJP did not cry murder over the nuclear deal when the Hyde Act was signed into law by President Bush on December 18, 2006, may end up being their strategic folly. It could well turn the tide of the debate in the Governments favour at both the committee meetings and also when Parliament members debate the deal in the current session.
The Hyde Act waived the sections in the US Atomic Energy Act of 1954 that prohibited trade in nuclear items with countries like India that hadnt signed the Nuclear Non-proliferation Treaty and had detonated a nuclear device. Since it was going to make an extraordinary exception for India, the US Congress believed it should bring in stringent safeguards to prevent misuse and also put in provisions to get India to align its foreign policy closer to that of Americas. While most of the sections offensive to India in the Hyde Act had been defanged before it was passed, certain portions still remained that could have torpedoed the deal.
Yet neither the Left nor BJP thought it an opportune moment to strike then. Instead, they allowed the Government to negotiate the 123 Agreement with the US which provides the legal framework on which nuclear trade is permitted. Experts reckon that the Agreement was favourable to India and wiped out any of the ill-effects of the Hyde Act. But after the Agreement was finalised in July the Left and BJP insisted that the Hyde Act was still the guiding law and raised the war cry.
The Government believes this is all smoke and mirrors. On the argument of which statute takes precedencethe Hyde Act or the 123 Agreementit expects to come out the winner. It is also confident that the way the 123 negotiations were conducted, all the commitments that the prime minister had made in Parliament about the scope of the deal had been fulfilled. This is one reason why Kapil Sibal, minister for science and technology, the Governments key defendant in Parliament, smiles broadly when he says, We will satisfy all their concerns about this historic deal.
Much of the Governments confidence stems from the fact that there is weighty legal opinion in the US to back its assertion that the 123 Agreementnot the Hyde Actwill 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 authorised 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.
Sensing that the ground had begun to slip, both the Left and BJP changed the goalposts. The Left got the Government to agree that the committee will also examine the implications of the nuclear agreement on foreign policy and security co-operation. But if the joint committee is able to come up with constructive suggestions, it may actually help build the much needed national consensus for the deal.
BOX
TIME TABLE
INTERNATIONAL ATOMIC ENERGY AGENCY
ACTION: India has to negotiate a specific agreement with the agency that would bring its civilian nuclear plants under safeguards in a phased manner.
DIFFICULTY: The Left doesnt want India to go to IAEA yet. Since India already has other safeguard pacts with the agency, it could have moved fast.
DEADLINE: Safeguards pact by October 2007
NUCLEAR SUPPLIERS GROUP
ACTION: After IAEA safeguards are agreed upon, the 45-member NSG has to have a consensus vote on lifting the ban on nuclear trade as America has done.
DIFFICULTY: Some countries like China are opposed to the deal and have to be worked on. Getting the NSG to ratify it quickly will be an issue.
DEADLINE: Clearance by November 2007
THE US CONGRESS
ACTION: After the IAEA safeguards and the NSG consent, the US Congress has to meet to discuss the 123 Agreement and ratify it with an up and down vote.
DIFFICULTY: Congress will go into election mode by March 2008. The ratification will have to be pushed through before that, otherwise the odds for it will dwindle.
DEADLINE: Ratification by March 2008
OPERATIONALISING THE DEAL
ACTION: India would have to amend its Atomic Energy Act to permit private corporations to run nuclear power plants and also legislate an indemnity clause.
DIFFICULTY: The Government needs a consensus for any amendment to the Act but if the divisions continue it may not be able to operationalise the deal.
DEADLINE: Amendments by August 2008
Copyright 2007 Syndications Today, Source: The Financial Times Limited
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