09 October 2008

Bush statement before signing 123 Agreement law

Some preliminary thoughts, minutes after seeing President Bush sign the 123 enabling At into law...

His spoken remarks were cleverly crafted to go as far as he can in accommodating Indian concerns without withdrawing his own earlier statements to Congress. Thus -

* None of the administration's offensive interpretations have been repudiated even as the textual sanctity of the 123 Agreement as submitted to Congress is emphasised.
* No offensive reiteration of Hyde. Act isn't even explicitly mentioned, though Bush says "the Agreement is consistent with the Atomic Energy Act and other elements of U.S. law".
* Positive acknowledgment that USG has made "fuel assurance commitments" which remain unchanged despite the new legislation (which says these assurances are political and not legal)
* Positive statement about the new law enabling the President to "accept, on behalf of the U.S., the obligations contained in the agreement".
* Positive acknowledgment of advance reprocessing consent rights.

In my opinion, India should still formally reiterate its understanding of what the balance of rights and obligations within the 123 Agreement are because President Bush has not repudiated any of the reservations that have been entered by the U.S. about the meaning and scope of the Agreement via the new law as well as the administration's written communications to Congress.

This should be done via a statement in Parliament, as well as in a communication to the U.S. at the time when the 123 is to enter into force.

There is still some merit in the world being told the U.S. too is now competing for a slice of the Indian nuclear world. But GOI will still be foolish as hell to commit any money to American nuclear equipment and material...

8 October 2008
White House

The White House, President George W. Bush Click to print this document

For Immediate Release
Office of the Press Secretary
October 8, 2008

Statement by the President on the Occasion of Signing H.R. 7081

I am pleased today to sign into law the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, which approves the U.S.-India 123 Agreement. The passage of this legislation by the Congress marks another major milestone in achieving the vision that Prime Minister Singh and I set forth on July 18, 2005, to transform the relationship between our two countries and to establish a strategic partnership. This Act will strengthen the relationship between the United States and India and deliver valuable benefits to both nations. The legislation does not change the terms of the 123 Agreement as I submitted it to the Congress. That Agreement is consistent with the Atomic Energy Act and other elements of U.S. law. This legislation is important as it enables me to bring the 123 Agreement into force and to accept on behalf of the United States the obligations contained in the Agreement. The Agreement grants India advance consent to reprocessing which will be brought into effect upon conclusion of arrangements and procedures for a dedicated reprocessing facility under IAEA safeguards. In addition, 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. The passage of this legislation reflects the common view of my Administration and the Congress as to the value of nuclear cooperation and is in the interest of the United States and India.

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Sid said...

FR: Daryl Kimball, Arms Control Association
RE: Bush statement on 123 legislation

Not surprisingly, to help P.M. Singh try to satisfy right-leaning domestic critics of the deal, President Bush's comments (see text below) on the resolution of approval for the U.S.-Indian 123 agreement (H.R. 7081) leave open the question how the language in the 123 on fuel supply assurances and termination should be interpreted. He said, in part:

"... 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."

However, Bush's comments do not in any way negate U.S. law (including the Atomic Energy Act, the Hyde Act, or H.R. 7081) or his own administration's statements that make it absolutely clear that if India resumes testing, U.S. nuclear trade and fuel supply assurances shall be terminated and the 123 agreement is, as Sen. Lugar put it, "over."

Whether India likes it or not, there will be practical limitations on nuclear trade between the United States and India, and there will be consequences if India makes the mistake of breaking her nonproliferation commitments.

- DK

Anonymous said...

I appreciate the view of DK. I have following points to make:

1. Fuel Supply assurances, and its most important piece the "corrective measures" are linked to safeguards in Art 5.6 and in Article 16.4, where safeguards in perpetuity are mentioned.

2.IAEA safeguards do bring in the context in which India is entering into safeguards agreement, including that important piece "corrective measures".

3. It is the right contained in these agreements that are important. The fuel supplies itself is more complicated especially "strategic reserve". It is questionable that it is viable. There are cost factors and availability of the quantum of supplies that it entails.

4. The position of the US law on international agreement is instructive. Title 26, Volume 11, Chapter 1, Part 181.2 of the CFR states the following:
“A party to an international agreement must be a state, a state agency, or an intergovernmental organization. The parties must intend their undertaking to be legally binding, and not merely of political or personal effect. Documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements.”

5. The US Senate adds on its website that all agreements - treaties for which there is a 2/3rd majority requirement and other international agreements - are considered equal in international law irrespective of the distinction made in US law. 123 Agreement refers that the agreement will be carried out in accordance with international law. Further, the Senate on its website says, "a treaty that is concluded compatibly with applicable constitutional requirements may have status as the "supreme law of the land," along with federal statutes and the Constitution itself." The 123 Agreement is therefore the supreme law of land.

6. Note verbales, Q&As submitted and congressional hearings are now nothing but a piece of paper. Any side giving its unilateral interpretation is not valid in international law. The other party would be within rights to ignore them and go for arbitration or even to invoke the related and linked sections of the agreement. India can invoke "corrective measures" and that is a safety valve against US acting unilaterally in future.

7. By the way, Sec. 122 (Policies Contained In International Arrangements), says the following: “In the performance of its functions under this Act, the Commission (US Nuclear Regulatory Commission) shall give maximum effect to the policies contained in any international arrangement made after the date of enactment of this Act.”

8. Also remember that in the worst case scenario Article 5.6 is regarded as political commitments after all Indian efforts. It is this article that talks about safeguards in perpetuity. So they too become political commitments and not legally binding on India in the same way.

I hope people here agree that 123 Agreement by itself is robust. We should be guided by 123 Agreement and that alone. Negate the value of others beyond their enabling nature. There is nothing binding in the Hyde Act, Approval Bill or the Q&As for India. What is binding has already been reflected in the 123 Agreement and will come into effect as international law, and for the US as "supreme law of the land". Also NRC that will give licenses will be guided by the "policies" in 123 Agreement.

Anonymous said...

> Note verbales, Q&As submitted >and congressional hearings are >now nothing but a piece of paper. >Any side giving its unilateral >interpretation is not valid in >international law.

I understand the system of Indian parlimentary system is different from the US govt. So why doesn't the Indian parliament pass a resolution or law on how should this international agreement be viewed and interpreted as and when when business is conducted between DAE and foreign companies ? Or will it become the prerogative of any future Indian GOI to interpret its commitments in its own way based on the situation ?

Anonymous said...

India needs to devlop its Thorium cycle reactors , that should be the priority. Not depend on some paper agreement based imported fuel.