The Hyde Act and the 123 Treaty
I have for a long time wondered about the noise that constantly gets made on the possibility of an Indo-US nuclear deal. And recently, for quite unrelated purposes, had to do some thinking on this for a posting on the Sarai Reader List. I thought that the substance of what I had to say in that posting, might be of interest to Kafila readers. So apologies for cross posting of this material, which has appeared previously on the Reader List.
Now, what is the Hyde Act, what exactly is the 123 Treaty? These matters need a little clarification.
The Hyde Act, or, the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, to give the act its full title, is a piece of legislation, introduced by Congressman Henry Hyde, passed by the US Congress, which creates the legal basis for co-operation between the United States and India. See the Wikipedia articles on the Hyde Act and the 123 Agreement.
US law declares that the United States cannot enter into Nuclear collaboration with a country that is not governed by the Nuclear Non Proliferation Treaty and the Comprehensive Test Ban Treaty. India, Israel, and Pakistan are countries that have not joined the NPT and the CTBT. North Korea joined, but later withdrew. Iran, for instance, is a signatory. (which is why it has to allow for International Atomic Energy Agency inspections, which it does, dodgily)
US law permits the United States to enter into nuclear energy collaboration with declared non-nuclear weapons states who have signed the NPT and the CTBT under section 123 (titled – “Cooperation with Other Nations”) of the United States Atomic Energy Act of 1954. Hence, the United States enters into ’123 Agreements’ with other countries. At the present moment, 25 such agreements have been signed, including with countries such as Morocco, Ukraine, Romania etc.
The Hyde Act, which incidentally includes provisions inserted by Democratic representative for Illinois, Barack Obama to restrict fuel supplies to India at a scale commensurate only with “reasonable civilian reactor requirements” is a way, a one time exemption being made by US lawmakers to India. It may come as surprise to some, but the United States has refused, and continues to refuse to make the same exemption even for its close ally, Israel.
Some of the people (both CPI-M and BJP, for instance) who say that the Hyde Act and provisions of the 123 are discriminatory towards India, forget that the acts in themselves represent an exception that the United States is prepared to make for India, but not even for Israel. Israel has recently lobbied with the US government for an extension of the same treatment, effectively saying that the US government is unfairly favouring India over Israel.
Indeed, the Hyde Act puts limitations on the scope of the 123 Treaty. And we might ask, why not? A nuclear power is making a special case for relating to another nuclear power, and in doing so, it might wish to maintain some safeguards.
Those who oppose the Indo-US nuclear deal on the grounds that it discriminates against India are wrong. It makes a special case for India, and in a sense puts the Indo-US relationship on an even closer footing (in the specific instance of nuclear cooperation) than Indo-Israel ties.
Those who support the Indo-US nuclear deal on the grounds that it places no limitations on India are also wrong. Because, the Hyde Act clearly places limitations in the events of testing, or any trace of military use (which have to be verified by the IAEA).
Both see a perfectly ordinary piece of legislation through the lens of Indian exceptionalism. In one case, by refusing to see that India is not discriminated against (because provisions are made for India that are not in force for Israel) on the other hand by refusing to see that India is treated just like any other country that has signed the 123 agreement is treated. Why should India be treated any differently from Morocco. What makes India, so special?
My take on this is very simple, and I have said it before on this list. We do not need nuclear weapons. Hence, the Indian government should be pressuriezed to sign the NPT and the CTBT, and then, the debate on whether we need nuclear energy supplies can have a real meaning. This debate would be on the ecological and political implications of nuclear power as a source of energy per se.
Until that occurs, there is nothing to be gained by moving close to the United States, or Russia, or France, or any other nuclear power for obtaining nuclear supplies. Those opposed to the deal are barking up the wrong tree if they think that there can be better ‘deals’ on offer. The only ‘better deal’ on the terms that these people set, are the ones that place on limits or caveats on testing and further weaponization. In other words, those, such as the CPI(M) and the BJP that oppose the deal, do so, only because they want to keep building bombs. Those that support the deal, (the Congress) are somehow convinced that the deal wont stop them from testing and building bombs. Both parties want to keep building bombs and testing, and It would be a real public debate on this fact could occur, instead of the pro and anti US shadow boxing that generally takes place in its stead. If this list is a space where this could occur, it would be a welcome thing.