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The Hyde Act and the 123 Treaty

June 18, 2008

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.

8 Comments leave one →
  1. June 20, 2008 9:33 PM

    Dear Shuddha,

    Thanks for bringing your trademark clarity to the nuclear deal!

    Two things, however.

    One: I think you are being a little unfair to the Left by clubbing them with the BJP and saying that both are seeking the right for India to continue testing nuclear weapons and making bombs. While the BJP’s opposition towards the deal is indeed coming from that position, the Left is more concerned about India’s sovereignty, by which they mean that they don’t want India to come closer to the US, especially militarily. They fear that the nuclear deal is a giant leap in that direction. As evidence they cite US pressure not to go ahead with the Indo-Iran gas pipeline deal as a quid pro quo for the nuclear deal.

    Secondly, I’d be interested in knowing your response to the standard explanation for India having and continuing to make more nuclear weapons: China and Pakistan have them too and India needs them in self-defence, which is why India, unlike China and Pakistan, has a unilaterally declared “no first use” policy.

  2. Shuddhabrata Sengupta permalink
    June 21, 2008 5:57 AM

    Dear Shivam,

    I hold no candle for that ghost of the treaty of Westphalia, namely the idea of sovereignty. And I do not like to enter into analyses that isolate nation states as entities. However, for the sake of the argument, let us assume that the actors we have to deal with in this discussion are states, like India and the US, and that the relationships between them have a bearing on the so called ‘sovereignty’ of either or both parties.

    Second caveat. I am not at all decided as to where I stand on the civilian use of Nuclear power. I am willing to be convinced of its rationale, but my instincts make me suspicious of the extent of concentration of energy related decisions that even a civilian nuclear programme would take. A nuclear state is a state that must keep secrets, and that makes me less than comfortable.

    Having said all this, we can return to the questions you have raised.

    Granted that India and the US are sovereign states, even then, the so called Left argument about Sovereignty vis-a-vis the Indo-US Nuke deal seems specious to me.

    Sovereignty here seems to be little other than an excuse to not sign the NPT and the CTBT. Refusing to sign the NPT and the CTBT means – you want to test, and to pursue a weaponization programme actively. Which is what creates the obstacle in so far as the Hyde Act as it pertains to the 123 treaty is concerned in the first place.

    The Indian (so-called) Left’s cozying up to the quasi-Fascist Ahmedinijad (which holds a curent kind of world record in killing and imprisoning leftists) regime in Iran is only an extension of the same argument. Our ‘left’ patriots seem to think that the sole certificate of their patriotism comes from their partisan championing of the right of countries like India and Iran to pursue a nuclear weapons programme. (merely because, currently, this can be performed as an ‘anti-US’ position, if there were to be a ‘regime change’ in Iran, and a pro-US government were to pursue a nuclear option, the US would not have a problem, the Iranian nuclear programme, which was begun under the late and unlamented Shah Mohammed Reza Pehlevi, was begun with US blessings)

    But to come back to our discussion –
    If, as I have said before, the so called Indian left’s arguments about sovereignty were sincere, they would be supported by a consistent and clear stand against weaponization per-se. No nuclear weapons means that you are free not to enter into any, and I underscore the ‘any’ deals with any big powers.

    Then you are just another country, just another sovereign country, like Morocco, like Ukraine, like South Africa – all of which obtain supplies from the Nuclear Suppliers Group (which include entities other than the US) for their civilian nuclear programmes. So, if India were like any of these countries, then, it could deal with any other Nuclear Supplying Nation (excluding the US, if that was the desire). If the so called left were sincere about not tying India’s options down, it would push for this course.

    The paradox here is, if India signs the NPT and the CTBT, then it gets a leverage that frees it from dependence on the US. Even though signing the NPT and the CTBT would automatically life India out of the restrictive clauses of the Hyde Act as it stands. So, if you go by the letter of the Hyde Act, you can also hide from the state that deploys the Hyde Act (namely, the US) and seek some other partners.

    Then, like any other country, it can approach any nuclear supplier. If the so called left wanted that leverage for India, it would insist on the government signing the NPT and the CTBT first, and then entering into talks on nuclear co-operation (with any power/powers)

    Instead, the so called Left plays a stupid blocking tackle, that neither pushes the government in the direction of signing these treaties, which help India buy time, (and permit a diversity of alliances) nor permits it to go forward with the US (which risks a collapse of the UPA government, and a sort of open invitation to the BJP)

    The question of external controls (as stipulated in the Hyde Act) which could, hypothetically, compromise what the Left means by Sovereignty, only comes about if India remains obdurate about not signing the NPT and the CTBT.

    The charitable explaination of this impasse is that the so called Left leadership is stupid. The un-charitable explaination is that it is doing some back-door deal with the BJP. And that there will be a solid tilt towards the corrupt authoritarian crony capitalism of Vladimir Putin’s Russia, which will be brokered by a secret CPI(M)-BJP alliance. This sounds unthinkable at the moment, but then, hey, so did the Molotove-Ribbentrop Pact at one time.

    As for your last question. I don’t see the logic of a ‘no first use’ policy if you have weapons. Are we to believe that retaliating with a nuclear weapon after Delhi has been devastated in an attack from China or Pakistan is a viable strategic option. And remember, the weapons race with Pakistan was initiated by India, not the other way round. if the indian nuclear option is meant to be a serious deterrent towards China, then, are we to believe that India has currently the strategic depth to pursue an active offensive nuclear war with China. If this is the case, and if our military minds are actually thinking this, then we have very dark days ahead.

    I hope this is not the case.



  3. Trevor Rebello permalink
    June 24, 2008 8:51 PM

    Dear Shudda,
    I wonder if anyone could have been any more clearer than you, both in thought & word.
    I feel frustrated at the lack of understanding of this issue at the common man’s level & for this I blame the vernacula media for not encouraging sufficient debate.
    If what you say could have been translated into to say hindi, you would reach a larger audience & cross-section of our population.

    Best Regards


  4. Mahesh permalink
    June 26, 2008 11:43 AM

    >if the indian nuclear option is meant to be a
    >serious deterrent towards China, then, are
    >we to believe that India has currently the
    >strategic depth to pursue an active
    >offensive nuclear war with China. If this is
    >the case, and if our military minds are
    >actually thinking this, then we have very
    >dark days ahead.

    So is this argument only as good as the assumption that India will never achieve the strategic depth (not sure what this is) to pursue a war with China ?

    A bit puzzled about the comment about dark days. Perhaps there are dark days ahead. So ?

  5. saravanan permalink
    July 10, 2008 6:57 PM

    dear subathra,

    iam realy wondered you comparing india to israel thats not make any sense,not a logical,see did you aware u.s not supplying uraneum to israel or otherwise israel doesn’t have nuke bombs,( israle is the third country having more nuke weapons next to u.s and russia).israel never join IAEA,thats what u.s also want.

    for your knowledge international court unanimously announced wall in Gaza is illegal,in that time which country backs Israel.

    i have a few questions to ask .

    1,why the u.s very keen to push this nuke agreement?

    2,what really u.s looking from india ?

    3,u.s can be a reliable partner to india?

    4, can you think u.s can treat india as a equal partner?

    5, why the indian media lobbying for this deal?

    6,why the indian corparate society desparately looking this deal?

    iam eagerly looking your response .

    thank you

    with regards

  6. raghu permalink
    July 20, 2008 6:23 PM

    Have you atleast fully understood what NPT is? It discriminates against countries who conducted nuclear tests after 1968 by forcing them to destroy nuclear weapons possessed by them whereas those prior to 1968 are even allowed to develop new nukes. So know fully before you write such blogs asking India to surrender its sovereignty.

  7. Guhan R permalink
    July 29, 2008 10:32 AM

    An Interesting Simple Question, which every educated Indian with Aptitude has in his mind over the last few months …

    The article had an apt mix on the political debates and really gave a simple straight-forward insight to readers without basic background on the 123 treaty …

    Now, Lets view on the two sides of “Civilian Coin” instead of the “Political Coin”.

    The differences of opinion revolve only between two aspects:
    1. Civil Energy Generation in the long-term
    2. Safeguarding our nuclear energy (Power !!!)

    The aspects are derivations based on interactions over a period of more than 6 months with many of my knowledgable and well-positioned acquaintances in different postures of life / multi-faceted personalities.

    Could you throw some light on the topic with these aspects in the background coupled with futuristic sensitivity analysis.

    Thanks for the opportunity.


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