02 October 2008

Senate approves 123 Agreement

The Senate has overwhelmingly approved the U.S.-India 123 Agreement by 86 to 13. The Bingaman-Dorgan amendment was defeated by voice vote prior to the main Bill being taken up for voting around 8:30 pm on October 1, or around 6 a.m. on October 2, IST, after Senator Chris Dodd strongly urged that it be "respectfully rejected".

When the Bill itself was moved, Senators Richard Lugar and Dodd urged its immediate adoption.

The Senate Bill is not exactly identical to the House version -- the latter has minor variations aimed at strengthening Congress's right to be consulted and informed by the executive. The two versions have to be reconciled in conference but this is likely to be a minor matter.

Next step to watch out for: President Bush signing the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, and perhaps issuing a statement repudiating some provision of the Act.

But it is my belief that the underlying problem with the Act -- namely the adoption of riders which derogate from the substantive legal commitments made by the US in the 123 Agreement -- remains.

Condoleezza Rice travels to Delhi on October 4 and will press for the 123 to be signed. India needs to carefully review the legal implications of signing the Agreement when the other side has given advance notice of its reservations about key provisions.


Anonymous said...

It seems to me that you accept that US Congress has the write to re-write international agreements. In the past when it has chosen to do so as part of ratificiation process of bilateral agreements, the changes have to be incorporated in the agreement and agreed to by the other Party.

Since this will not be done in the 123 Agreement, none of the conditions will have any effect in international law. If signing is in fact the last process of endorsement by both sides, then US would be doing so with the knowledge of the language of approval legislation, the Hyde Act, and AEA. Since it cannot sign an agreement that is not in conformity with its laws, it would have put a stamp on 123 being in conformity.

Important thing to note is that where the problem lies. It is with nuclear testing scenario. The 123 Agreement does not repudiate US right to take actions such as termination, sanctions, and exercising right to return. Where 123 Agreement still holds is the process of implementation of these actions. This is not specified in US law and to that extent the provisions of 123 will prevail.

Anonymous said...

India's Jekyll Act should be passed before this 123 is signed. Why is Condi in such a hurry?