09 October 2008

Bush signing statement on 123 leaves flaws intact

President endorses fuel assurances, but U.S. interpretation of agreement is unchanged... India needs to be candid about its own reservations from here on...


10 October 2008
The Hindu


Bush signing statement on 123 leaves flaws intact
President endorses fuel assurances, but U.S. interpretation of agreement is unchanged

Siddharth Varadarajan

In a well-attended ceremony that underlined the strategic importance of the Indian nuclear deal to the United States, President George W. Bush on Wednesday signed into law the ‘U.S.-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act’. The Act, known as H.R. 7081, was passed by Congress on October 1 and represents the American legislature’s formal approval of the U.S.-India bilateral nuclear cooperation agreement – the ‘123 Agreement’ – concluded in July 2007.

Flanked by Vice-President Dick Cheney, Secretary of State Condoleezza Rice, Energy Secretary Samuel Bodman and a bipartisan sprinkling of top legislators from Congress, Mr. Bush made a brief statement on the occasion of the signing in which he sought to allay Indian concerns about the United States derogating from its obligations under the 123 Agreement. These concerns arose because of the statement the President himself made in a letter to Congress last month that the fuel supply assurances contained within the 123 represented a “political” rather than a legally binding commitment.

By incorporating an explicit reference to Mr. Bush’s letter – as well as other “authoritative representations” on the subject by the administration – Congress gave these interpretations a definite legislative status which will live well beyond the life of the current presidency. Congress also sought to put an end to the Government of India’s spin that the 123 Agreement – once it became law – would trump the provisions of the Hyde Act as far as American obligations were concerned. This it did by explicitly inserting rules of construction stating that nothing in the Agreement should be construed to supersede the legal requirements of the Hyde Act.

By itself, none of this amounted to a change in the text of the 123, which has been frozen for over a year and which, in any case, cannot unilaterally be amended by one side. Thus, President Bush’s assurance in his October 8 signing statement that HR 7081 “does not change the terms of the 123 Agreement as I submitted it to the Congress” is redundant. There is no reason for India to feel comforted by this statement of the obvious. What Congress did, however, was to enter legal reservations or qualifications, thereby serving advance notice to India about how exactly the United States intends to implement the text. And on these, Mr. Bush remained completely silent, presumably because his office originated these reservations in the first place.

As Prof. Michael J. Glennon explained in a 1983 essay on ‘The Senate Role in Treaty Ratification’ in the American Journal of International Law, the U.S. Senate conditions its consent to treaties – which is what the 123 Agreement is -- in one of two ways. “It may amend its resolution of ratification by adding material (normally called a reservation, understanding, interpretation, declaration, or statement), or it may amend the resolution of ratification by inserting a condition that the text of the treaty be amended… Each form of alteration is equally binding on the President… International law, similarly, regards a reservation to a bilateral treaty as tantamount to a proposed amendment. The principal reason that the Senate sometimes prefers the "reservation" mode to the "amendment" mode is diplomatic: domestic political considerations in the nonreserving state may make it easier for its government to accept a treaty alteration that is cosmetically less glaring”.

HR 7081, as it emerged finally from the Senate, subjected the 123 Agreement to precisely this kind of “cosmetically less glaring” alteration by embedding riders about the fuel supply assurances being mere political commitments.

President Bush’s signing statement sought to address Indian objections to these riders by the cosmetic use of words and phrases that reiterated Washington’s commitment to its obligations in the abstract while leaving undisturbed the concrete, legislatively-embedded interpretations that India believes run counter to the letter and spirit of the 123 Agreement. Thus, Mr. Bush could observe that “the legislation does not change the fuel assurance commitments that the U.S. Government has made to the Government of India, as recorded in the 123 Agreement”, without in any way contradicting his earlier statement, as reflected in HR 7081, that these fuel assurance commitments were not legally binding. He wisely avoided using the words ‘Hyde Act’. And he spoke positively of reprocessing consent, ignoring the fact that the law he was signing had created a tough new, India-specific provision for Congressional approval of this consent.

What gives a diplomatic document its legally binding nature is the intent of its drafters to conclude an agreement in written form governed by international law. It is also a settled position in U.S. law that documents intended to have mere moral or political weight, but not to be legally binding, are not international agreements. Since the 123 Agreement is manifestly an international agreement, it follows that all of its provisions are equally binding in a legal sense. India is thus on strong legal grounds to insist on the text of the 123 Agreement, as signed by the two Parties, being the sole reference point for elaborating the rights and obligations of both sides. But it needs to break its silence on the U.S. reservations that have already been entered rather than declaring, as Ambassador Ronen Sen did on Wednesday, that India was “completely satisfied” by the statements President Bush made.

India can cite, in defence of its position, the U.S.’s own legal understanding on the matter. In a 1991 ‘Article-by-Article Analysis of START Documents’ submitted to Congress, the State Department wrote: “An undertaking or commitment that is understood to be legally binding carries with it both the obligation of each Party to comply with the undertaking and the right of each Party to enforce the obligation under international law. A “political” undertaking is not governed by international law and there are no applicable rules pertaining to compliance, modification or withdrawal. Until and unless a Party extricates itself from its “political” undertaking, which it may do without legal penalty, it has given a promise to honor that commitment, and the other Party has every reason to be concerned about compliance with such undertakings. (Cited in John H. McNeill, ‘International Agreements: Recent U.S.-UK Practice Concerning the Memorandum of Understanding’, American Journal of International Law, October 1994). (Emphasis added)

But if the 123 Agreement has the status of a legally binding treaty in international law, how does the U.S. propose to derogate from some of its obligations on the specious plea that they are not legally binding? By entering reservations, which it has effectively done. India, therefore, needs to contest these. If the diplomatic note the U.S. hands over as part of the process of making the 123 Agreement enter into force contains references to HR7081 and its reservations, quietly accepting this instrument of ratification without a similar strong statement from the Indian side would be tantamount to accepting that the 123 Agreement does not give India legal rights to fuel for any U.S. reactor it imports.

There is no reason for the Indian side to by shy or coy about this. Candour is better than discretion and stating one’s position upfront offers the best protection against accusations of bad faith later. India “choked” when it decided to drop – from its September 10 Letter of Intent on the purchase of 10,000 MW worth of American reactors – an explicit reference conditioning any future purchase on the establishment of permanent reprocessing consent. And India choked again when External Affairs Minister Pranab Mukherjee stood next to Condoleezza Rice in Delhi on October 4 and failed to state the country’s position forcefully when the U.S. Secretary of State reiterated her government’s intention of pressing for a ban on enrichment and reprocessing (ENR) equipment and technology sales to India when the Nuclear Suppliers Group meets again in November.

Dr. Rice cleverly described the proposal to ban ENR sales to countries that are not signatories to the Nuclear Non-Proliferation Treaty as a “criteria-based approach” that was not singling out India. Instead of responding in generalities, Mr. Mukherjee should have said that India would consider any such move by the U.S. at the NSG to be an unfriendly act, one unbecoming of a ‘strategic partner’. He should have said any such move would represent a dilution of the July 2005 Indo-U.S. agreement in which India accepted a number of obligations in exchange for full civil nuclear cooperation. And he should have said such a move by the U.S. would violate Article 18 of the Vienna Convention on the Law of Treaties which obliges Parties to an agreement to refrain from acts which would defeat the object and purpose of an agreement – in this case, full civil nuclear cooperation with India. By remaining silent, however, India allowed the impression to gain ground that it is prepared to drop this issue without a fight.

On Friday, the U.S. and India will sign the 123 Agreement at a ceremony in Washington. Whatever the Agreement’s original merits, the executive and legislative branches of U.S. government have stripped it of any concrete meaning. President Bush’s signing statement does little to fix the situation. India needs to clarify its position on all of these questions. And send a signal to the world that it cannot be taken for granted.

6 comments:

Anonymous said...

good piece, wow!

Lata

PS.. What does it mean to say "India choked" towards the end??

Anonymous said...

There is some merit in the arguments here but only if the crux of what is being said is that 123 Agreement is the only operative document for the purposes of international law.

Diplomatic Note bringing into force the agreement should be a clean one without any references to legislation. I agree that if there is such a reference, India should re-state its position in writing.

Also reference to reservations and amendments in approvals by US Congress mentioned in the piece have no meaning in international if these are not explicitly accepted by the other side. However, in case these amendements/reservations are mentioned in a diplomatic note of ratification, the other Party must openly disapprove of it to ensure that they do not have any effect in international law.

However, I do not agree that India has "choked". This is to belittle the effect of the overall change that this agreement would bring. Siddarth himself has spent more effort and time reading about this and writing on this. There must be an acknowledgement of the real stature of this agreement. We need to atleast congratulate ourselves sometimes. Ambassador Sen is right to the extent he says that we should get over "seeking reassurances" syndrome. A rising power does not behave like a weakling especially when dealing with a nation that has reached its peak and all signs tell us that it may be on a downward curve. This is not to say that we are ahead of them. Only that with US having peaked, it would need to lean on a rising power predicted to be well endowed to reach the summit in coming years. Children are dependent on parents but in the final analysis, they in their old age are the dependents.

Sid said...

@ Lata - choke -- sort of a sporting metaphor for not going for the kill at the last minute

@ Anonymous - Thanks for very well reasoned and informed post, including the last one, which actually piqued my curiosity enough to send me to the library!

Look, choking was perhaps not the best word to have used because I do not intend to imply the substantial nature of the transition we have effected. But we have to never lose focus, and alas, the Sudama complex of remaining silent and hoping Lord Krishna will give you want has plagued the negotiations at various points in the past 3 years.

This is not a question of a "seeking reassurances syndrome" but, as your last comment noted, clearly demarcating your rights and not allowing the other party to derogate. The 123 text is an excellent agreement and if you search in my archives from last July and August 2007, you'll see my analysis of it. But there is no arbitration, so that only leaves corrective measures, which is a bit of an extreme step and cannot lightly be waved around.

Anonymous said...

>Ambassador Ronen Sen did on >Wednesday, that India >was “completely satisfied” by the >statements President Bush made


Whatever positive or negative statement Bush makes has no meaning. It is the law that is signed and interpreted by US lawmakers that will survive in time. So just as the US Senate/House, the Indian parliament should make and demand a statement from GOI putting India's interpretation and concerns in perspective. Otherwise endlessly both sides will spinning their story and bickering in future

Sukla Sen said...

"The legislation makes no changes to the terms of the
123 agreement". "The legislation does not change the
fuel assurance commitments that the United States
government has made to the government of India, as
recorded in the 123 agreement." "The bill makes clear
that our agreement with India is consistent with the
Atomic Energy Act and other elements of U.S. law."
What do these three assertions taken together really
mean? Perhaps nothing in particular.

The legislation as passed by the US Senate/Congress on
October 1 clearly nullifies the concessions granted by
the 123 Agreement to dilute/override a few of the riders of
the Hyde Act.

Now the vital question remains is the US President
bound by the legislation passed by the US Congress?
Again, much would depend on who occupies the chair. A
willing President may perhaps even obtain
Congressional approval for Presidential transgressions
post facto.

Even more significant is the statement issued by the
US President on his signing of the Hyde Act:

Quote
Section 103 of the Act purports to establish U.S.
policy with respect to various international affairs
matters. My approval of the Act does not constitute my
adoption of the statements of policy as U.S. foreign
policy. Given the Constitution's commitment to the
presidency of the authority to conduct the Nation's
foreign affairs, the executive branch shall construe
such policy statements as advisory. Also, if section
104(d)(2) of the Act were construed to prohibit the
executive branch from transferring or approving the
transfer of an item to India contrary to Nuclear
Suppliers Group transfer guidelines that may be in
effect at the time of such future transfer, a serious
question would exist as to whether the provision
unconstitutionally delegated legislative power to an
international body. In order to avoid this
constitutional question, the executive branch shall
construe section 104(d)(2) as advisory. The executive
branch will give sections 103 and 104(d)(2) the due
weight that comity between the legislative and
executive branches should require, to the extent
consistent with U.S. foreign policy.

The executive branch shall construe provisions of the
Act that mandate, regulate, or prohibit submission of
information to the Congress, an international
organization, or the public, such as sections 104,
109, 261, 271, 272, 273, 274, and 275, in a manner
consistent with the President's constitutional
authority to protect and control information that
could impair foreign relations, national security, the
deliberative processes of the Executive, or the
performance of the Executive's constitutional duties.
Unquote
[Source:
whitehouse.gov/news/releases/2006/12/20061218-12.html.]

That was a frank challenge to and open defiance of the
authority of the US Congress, which still remains on
record.
But this time, he has been far more circumspect.

But with the change of the President, the commitments
made by Bush overriding Congressional directives would
lose much of the force.
So any actual trade with the US-based companies could
very well invite complications and international
arbitration over conflicting interpretations at the
very least.
In any case, entering into such relations
with the US would also call for India adhering to the
Convention on Supplementary Compensation for Nuclear
Damage.
This is not the case with France or Russia.

dhavaladhara said...

The Indian decision makers at the highest level – appear to be affected by the “Stockholm syndrome”. The NSG waiver, 123 treaty etc. don’t even set India totally free from the restrictions that were actually targeted against it. The current status of 123, and NSG is exactly where the American establishment wants it to be…a persistent node of pressure point to nudge Indian state’s decisions to tow American line. A cool-headed decision needs to be taken by the others not so afflicted with the syndrome to restate in the parliament -- India-centric interpretation of the reciprocal rights and obligations written into the treaty and pass a law as such…. and build processes to strengthen that independent line for the future.

It is true that all treaties/political/legal assurances amount to nothing if you are unable to enforce it ( a la tarapur ). A duet with the sole super power has its own set of advantages and risks. A confident nation must not shy away from such an engagement but nevertheless has to be eternally vigilant. Indian administrative and political heads must have a picture of Tarapur and the East India company along with those of the customary President and Prime Minister’s pictures in their offices….. as a reminder…. and meanwhile let us set our house in order, to strengthen the nation on all fronts, not just the military.