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ROUND THE WORLD
Hyde Act Controversy
IS IT REALLY PERTINENT?
By Dr. Chintamani Mahapatra
(School of International Studies, JNU)
New Delhi, March 10, 2008
The controversy over the Hyde Act has yet again come to haunt
the fate of the Indo-US nuclear deal. The Indian Opposition
leaders have often spoken about this Act, which is perceived
as containing a language that would force India to compromise
its sovereignty and independent decision-making on foreign
policy.
The visiting US Assistant Secretary of State Richard Boucher
told Indian journalists on Wednesday last that the "Hyde Act
is a domestic legislation (and) the 123 Agreement is an
international agreement. I think we can move forward with both
in a consistent manner,"
This statement was made soon after he discussed the nuclear
deal issue with Foreign Secretary Shivshankar Menon and a day
after the Foreign Minister Pranab Mukherjee made a suo moto
statement in Parliament. The statement read: "the Hyde Act is
an enabling provision that is between the Executive and the
Legislative organs of the US Government," and that "India's
rights and obligations regarding civil nuclear cooperation
with the US arise only from the bilateral 123 Agreement that
we have agreed upon with the US."
By saying so, Mukherjee circuitously countered the US
Secretary of State Condoleezza Rice's statement last month
before the Foreign Affairs Panel of the House of
Representatives that the Bush Administration 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". She also said that the Bush
Administration would "have to be consistent with the Hyde Act
or I don't believe we can count on the Congress to make the
next step."
The UPA Government made no immediate comment on Rice's remark.
The Foreign Office spokesman reportedly said: "I don't want to
hazard guesswork on this. I have seen the statement in the
newspapers. If we have a response or a statement, we will put
it out. I don't have it today." It was probably thought proper
to let the Foreign Minister respond to it, which he did in
Parliament on Tuesday last.
Boucher's statement a day after Mukherjee's statement on the
Hyde Act makes it apparent that the US and the Indian
Governments are already interpreting the relevance, importance
and meaning of the Hyde Act even before the 123 Agreement is
allowed to complete its formal process. Is the ‘apparent’
real? Are there differences between the Indian Government and
the Bush Administration over the actual meaning and the
purpose of the Hyde Act?
Significantly, both the Indian as well as the American
officials have not even once stated that they differ on the
interpretation of the Hyde Act and its implications. A careful
observation and analysis of the statements and remarks by both
Indian and American leaders and officials clearly indicate
that while the Indian Government is largely communicating to
the Indian people and political leaders, the US Government is
likewise doing it with the Congressional leaders.
According to Article VI of the US Constitution, there are
three laws which are supreme --- the Constitution itself, laws
made by the Federal Government under the Constitution and
Treaties. Under this provision, the Hyde Act and the 123
Agreement between India and the US are supreme laws, which no
Administration could violate. Secondly, the 123 Agreement
would not even have been negotiated with India, if the Hyde
Act would not have been passed by the Congress and signed by
the President George Bush.
If the Secretary of State Condoleezza Rice's statement is
analyzed in the backdrop of these legal facts, she did not say
anything that is not already known. She could not have said
that she would bypass the Hyde Act while taking a position at
the NSG on the issue of giving clearance to the Government of
India for undertaking nuclear trade with the member countries.
Likewise, the Foreign Minister Mukherjee's statement that
India is bound by what it is committed to by signing the 123
Agreement; and not some US domestic law, is without blemish.
No country is allowed to impose its domestic law on any
foreign country under international law. No country can
prevent any other country's legislature from passing laws
outlining the country's foreign policy goals and requirements.
And thus, India is not bound by the Hyde Act.
No US Administration can follow a foreign policy course by
violating its domestic law. Had it been so, the Bush
Administration need not have to lobby hard for the passage of
the Hyde Act before signing the 123 Agreement.
Does it mean that the Hyde Act has no implications at all? It
does have. If India conducts a nuclear test in future, the US
Administration of the time would have to act on the basis of
the provision of the Hyde Act and may proceed to cancel the
civilian nuclear cooperation. But the Administration, with
Congressional concurrence, may also take a decision to go
ahead with the civilian nuclear cooperation on the ground of
national security interests. Laws are written, unwritten and
amended on the basis of national interests!
The Hyde Act, of course, has provided for an annual
certification from the White House regarding India's role in
promoting non-proliferation and in dissuading Iran from making
nuclear weapons. It does not ask India to submit an annual
progress report on these two issues. It does not spell out
what India should do or not do to dissuade Iran from
undertaking a nuclear weapon programme.
The US law makers very well realize that America is unable to
pressurize Iran enough to dissuade it from going ahead with
its uranium enrichment activities. What could India possibly
do? The law is silent on this. All these indicate that these
"extraneous" provisions only reflect the sense of the Congress
and do not bind India to do or not do certain things.
Sovereignty and political independence are not violated,
protected or exercised by enacting legislations. India is a
sovereign country and will remain so. The rest is a matter of
cost-benefit analysis.--INFA
(Copyright India News & Feature Alliance)
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