Oct 10, 2008

Columnists - Siddharth Varadharajan;Bush signing statement on 123 leaves flaws intact reality check

President endorses fuel assurances, but U.S. interpretation of agreement is unchanged.

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 H.R. 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.

Reservations in law

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.”

H.R. 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.’ 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 honour 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 H.R. 7081 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.

Indian ‘chokers’

There is no reason for the Indian side to be 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 when the Nuclear Suppliers Group meets again in November. Ms 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 the 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.

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