Presented at Two-Days Workshop on “India, the 123 Agreement, and

LEGAL RELATIONSHIP BETWEEN THE 123 AGREEMENT AND THE U.S. LAWS:A POSSIBILITY OF A TRADE-OFF BETWEEN INDIA’S RIGHT TO A NUCLEAR TEST AND NUCLEAR COOPERATION

Presented at Two-Days Workshop on “India, the 123 Agreement, and Nuclear Energy: Issues of International Law”,the ISIL, New Delhi (INDIA), April 3, 2011.

Hiroaki NAKANISHI,Ph.D. Candidate, Graduate School of Asian and African Area Studies, Kyoto University, [email protected]

I. INTRODUCTIONa) Major Debates on the Nuclear Non-Proliferation Regime at Present1) Is the NPT in a process of evolution or merely failing (collapsing)? [Kuppuswamy 2006] ・ Jack I. Garvey [Garvey 2008] “New Architecture” of the Nuclear Non-proliferation Regime. → Nuclear Proliferation is ‘threat to peace’ under the Chapter VII. ・ Peter Hulsroj, Legal Advisor, preparatory Commission for the CTBTO “[T]he law-making by the Security Council has a quasi jus

cogens quality”. [Hulsroj 2006]

→ How about the UNSC Resolution 1887 (2008)? The Nuclear-Weapon-Free-World (NWFW) should be accomplished “in accordance with the NPT”.

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2) Is the NPT a desirable way toward the Nuclear-Weapon-Free-World (NWFW) or just a hegemony by the nuclear-haves (nuclear apartheid)? ex) Dr. Mohamed Elbaradei, Former Director General of the IAEA “[U]nder the NPT, there is no such thing as a ‘legitimate’ or ‘illegitimate’ nuclear weapon state. The fact that five states are recognized in the treaty as holders of nuclear weapons were regarded as a matter of transition: the treaty does not in any sense confer permanent status on those states as weapon holders. Moreover, the U.S.-India deal is neutral on this point – it does not add to or detract from India’s nuclear weapon program, nor does it confer any ‘status,’ legal or otherwise, on India as a possessor of nuclear weapons.” [Elbaradei 2006] 3

3) How about the 123 Agreement to the NPT?・To Universalization Process of the NPT An Ominous Precedent (Bad) or An Pragmatic Way (Good)? ・ If good, returning India into the non-proliferation mainstream, although not yet acceded to the NPT (a realistic solution) [Heinzelman 2008] ・ If bad (only good for India), ① legitimatisation of India’s possession of nuclear weapons (from de fact to de jure status or special status in the NPT?) ex) T. P. Sreenviasan, Former Ambassador of India Governor of IAEA “India virtually won the nuclear weapon state status with the same rights and obligations as the other nuclear weapon states”. [Sreenivasan 2007: 91] → At least, India was recognized as “a responsible states with advanced nuclear technology”. ②Full civilian nuclear cooperation with no harm to India’s strategic nuclear programmes (no nuclear test ban by India) → The non-proliferation regime would be unbalances and collapsed. The U.S. has compromised its constant and strict policy against India. [Talbot 2006, Kurosawa 2008, Perkovich 2010, Kimball and McGoldrick 2007]

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(B) PURPOSE OF THIS PRESENTATION To analyze mainly three questions as follows: 1) What is the legal relationship between the 123 Agreement and the U.S. laws? ・ The different understanding of the 123 Agreement between the U.S. and India ・ The legal structure of the 123 Agreement under the U.S. laws 2) How have the U.S. and India achieved to the 2005 Joint Statement between 1998 and 2004? 3) Some Implications to India’s nuclear policy and the NPT 5

II. THE LEGAL STRUCTURE OF THE 123 AGREEMENT UNDER THE U.S. LAWSa) The different understanding of the 123 Agreement between the U.S. and India ①India’s understanding ex) Prime Minister Office 2007: “India’s Nuclear Energy Programme and the 123 Agreement with the United States” ・ No explicit provision on nuclear test ban in the 123 Agreement. ・ No mention about the Hyde Act in the 123 Agreement. The Hyde Act is just a US law. Therefore, it does not bind India. ・ The U.S. could not take cessation and termination by invoking the Hyde Act. (Article 27 of the 1969 VCLT) [Jha 2008, Ramachandran 2007] 6

②The U.S. Understanding of the 123 Agreement ex) Questions by Tom Lantos, Chairman of the House Committee to the Assistant Secretary Bergner, October 5, 2007 ・ Question 16 “Would any of these commitments continue to apply if India detonated a nuclear explosive device? If so, under what circumstances?” ・ Answer “As outlined in Article 14 of the 123 Agreement, should India detonate a nuclear explosive device, the United States has the right to cease all nuclear cooperation with India Immediately, including the supply of fuel, as well as to request the return of any items transferred from the United States, including fresh fuel. In addition, the United States has the right to terminate the agreement on one year’s written notice (Notice of termination has to precede cessation of cooperation pursuant to Article 14). In case of termination, the commitments in Article 5.6 would no longer apply.” 7

b) Some problematic provisions in the123 Agreement:Article 2 (1) “Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws... concerning the use of energy for peaceful purposes.”Article 14 (2) “The Parties agree to consider carefully the circumstances that my led to termination or cessation of cooperation.” “They further agree to take into account whether the circumstances that may lead to termination, including a party’s concerns about a change in the security environment or a response to similar actions by other states that could be impact on national security.” → Is it about the Hyde Act? Also, no mention about an action to be taken by the U.S. after taking account India’s security concern in case of a nuclear test.Article 15 ・ Keep Consultations until mutual acceptance resolution has not been possible. ・No an Arbitral Tribunal → How can India ensure the 123 Agreement in line with its

understanding?

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C) LEGAL HIERARCHY CONCERNING CIVILIAN NUCLEAR COOPERATION IN THE U.S.The 1954 Atomic Energy Act (AEA) ↓The 1968 Nuclear Non-proliferation Treaty (NPT) ↓ ①The 1978 Non-Proliferation Act (NPA): To implement obligations of the NPT②The amended AEA (amended by the NPA): To impose the IAEA Full-Scope Safeguards Agreement and nuclear test ban on the Non-Nuclear Weapon States ↓The 2005 Joint Statement (Nuclear Deal)・ Modification of the U.S. law to cooperate with India.9

　　　　　　　　↓　　　　 　　　　　　The 2006 Hyde Act:

　 ・ To exempt (waiver) from some requirements of the amended AEA (Section 104)

　・ But, Section 106 (inoperability clause) stipulates as follows:

“A determination and any waiver under Section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device after the enactment of this title.”

→ In other words, it will lead no basement for the 123 Agreement. Because, the Hyde Act is a special act to the amended AEA.

　 *Amended AEA, NPA was not scrapped due to the NPT. ↓

Then, drafting of the 123 Agreement (2007) could be possible. 10

ex) ・ B.S. Raghavan, a retired IAS officer who was a member of the Joint Intelligence Committee, Director of Political and Security Policy Planning in the Home Ministry and the Chief Secretary of State of India About Section 106 of the Hyde Act: “There should be absolutely no doubt in any quarters that once India conducts a test at any time in the future, the Hyde Act will simply put a stop to all further implementation of the Agreement, and if the US Administration ignores the categorical injunction, it will fall foul of the Congress and the law. In short, in the event of a test, the Agreement will stand automatically terminated with no need for notice or consultations.” [Raghavan 2008] ・ Maria Sultan and Mian Behazad Adil, the SASSI “India has a sovereign right to test but that, under the U.S. law, the president would have ‘the right to end the agreement’”. [Sultan and Adil 2008: 3] 11

↓The Approval Act (October 8, 2008) The 123 Agreement “shall be subject to the provisions of” the AEA and the Hyde Act (Section 101 (b)). ↓Signed the 123 Agreement with India (October 10, 2008) ↓Presidential Memorandum (October 20, 2008) President will “implement of the Agreement … is consistent with the obligation of the United States under the Treaty on the [NPT] not in any way to assist, encourage, or induce India to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices” (Section 102 (c) of the Approval Act).→ The U.S. President may implement the 123 Agreement in line with the NPT.

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c) Brief Introduction of legal relationship between the U.S. (federal) laws and the international law “① [I]n case of a conflict between a Treaty and an Act of Congress, the latter in time prevails.” “② When a court in the United States is called upon to interpret a treaty it sometimes has regard less to the text and more to the intention of the parties…. The ‘legislative history’ may be examined in depth.” [Aust 2007: 198] *Anthony Aust, Former Depty Legal Advisor, Foreign and Commonwealth, London, →What ever the 123 Agreement ambiguously stipulates or does not stipulates at all, the U.S. could cooperate with India within the Hyde Act and the NPT(or not?). 13

III. NEGOTIATIONS BETWEEN THE U.S. AND INDIA BETWEEN 1998 AND 2004 TOWARD THE 2005 BASIC CONSENSUSa) Normalization Process and Negotiations toward the Civilian Nuclear Cooperation since 1998・ Fact Sheet: India and Pakistan Sanctions, June 18, 1998(i) To “halt further nuclear testing” of India(ii) To ensure India to “sign the CTBT immediately and without conditions”(iii) To ensure India does “not deploy or test missiles or nuclear weapons”(iv) To ensure India’s “cut off fissile material production for nuclear weapons”(v) To ensure India to “cooperate in the FMCT negotiations in Geneva”(vi) To “maintain and formalize restraints on sharing sensitive goods and technologies with other countries”(vii) To “reduce bilateral tensions [between India and Pakistan], including Kashmir” 14

Is India a persistent objector to the CTBT?

ex) Prime Minister Atal Vajipayee’s address in the UN General Assembly on September 24,1998

“India announced a voluntary moratorium on further underground nuclear test explosions. We conveyed our willingness to move towards a de jure formulation of this obligation. India has already accepted the basic obligation of the CTBT. ...We are prepared to bring these discussions [including the CTBT] to a successful conclusion, so that the entry into force of the CTBT is not delayed beyond September 1999. We expect that other countries, as indicated in Article XIV of the CTBT, will adhere to this Treaty without conditions.” 15

・ An Idea of Strobe Talbot, Deputy Secretary of State, on the U.S.-India Relationship in the future Talbot believed at that time that India may be brought into the non-proliferation mainstream by giving civilian nuclear cooperation without acceding to NPT in exchange of signing CTBT. [Talbot 2008]

・ Delhi Declaration in March 21, 2000 “India and the United States share a commitment to reducing and ultimately eliminating nuclear weapons, but we have not always agreed on how to reach this common goal… The United States believes India should forgo nuclear weapons…. We reaffirm our respective voluntary commitments to forgo further nuclear explosive tests… In the future, it will focus as well on the development of clean energy,..” 16

B) INDIA’S STANCE ON THE U.S.’S NON-PROLIFERATION POLICY・ Prime Minister Vajpayee’s address in the U.S. Congress, 2000 “Security issues have cast a shadow on our relationship. I believe this is unnecessary. We have much in common and no clash of interests. We both share a commitment to ultimately eliminating nuclear weapons. We have both declared voluntary moratoriums on testing. India understands your concerns. We do not wish to unravel your nonproliferation efforts. We wish you to understand our security concerns”・Statement of the NSSP, January 2004 (Vajpayee and Bush) India agreed that civilian nuclear cooperation “will be undertaken in accordance with our respective national laws and international obligation”. → In accordance with the U.S. laws, too. ・ Joint Press Statement, September 2004 (Singh and Bush) India agreed that “modifications [of U.S. laws for civilian nuclear cooperation with India]… are fully consistent with U.S. Government nonproliferation laws, obligations”. → Had India accepted the Hyde Act in advance? 17

VI. IMPLICATIONS TO INDIA’S NUCLEAR POLICY AND THE NPT・ India’s maximum reluctance to nuclear development for military purpose, and why? ex) Annual Report of the Ministry of Defense of India 2009-2010 No longer mention about “credible minimum deterrence” and “voluntary and unilateral moratorium on nuclear testing”・ Has India been in effect incorporated in the Non-proliferation Regime? Maybe yes, if India has accepted to obey the U.S. laws instead of accession to the NPT, in order to get nuclear cooperation in reality. Because, at least India has indirectly to obey the basic obligation of the CTBT (and the NPT too?) through the Hyde Act. Could India take a position to challenge to the U.S. non-proliferation policy in reality? The U.S, is a major supplier. If India cannot take a strong position to the U.S. (or the NSG), does it mean that India had done a trade-offs between India’s right to a nuclear test and nuclear cooperation?

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V. CONCLUSION・ The 123 Agreement has certain inconsistency with the NPT standards (bargains), but “not in direct contravention of any

NPT provisions”. [Müller 2009] → On the other hand, in reality, the major NPT member states, even the non-nuclear weapon states accepted the 123 Agreement. This fact indicates that major NPT member states are seeing the 123 Agreement as a useful measure to deter India’s nuclear development for military purposes. In the NSG, there is a consensus about automatic immediate cessation and termination of nuclear cooperation with India where a nuclear test occurs. [Kimball 2008] → Therefore, the 123 Agreement is obviously good for the NPT and achievement of the NWFW.・ A legal hierarchy of the law and the treaty in the U.S. law system NPT (or Constitution of the U.S.) > Amended AEA > Hyde Act > 123 Agreement 19

・ NPT vs VCLT? …. Which is really important in this case?・ Why not the CTBT (and the NPT) as the customary international law? → Indeed, India has accepted basic obligation of the CTBT (and the NPT).・ Needless to say, the international community, particularly the Nuclear Weapon States must take stronger steps to further legitimacy of the NPT by taking responsible and reliable disarmament measures and establishing reasonable frameworks to achieve the NWFW during India’s exception. ex) Adoption of the Nuclear Weapons Convention and Completion of Collective Security System under the UN (Creation of the UN Force) [Rotblat et al. 1993]

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REFERENCES Elbaradei, Mohamed, 2006, “Rethinking Nuclear Safeguards,” the Washington Post, June 16, 2006. Garvey, Jack I., 2008, “A New Architecture for the Non-Proliferation of Nuclear Weapons”, Journal of conflict and Security Law, pp.339-357. Heinzelman, Kate, 2008, “Note: Towards Common Interests and Responsibilities: The U.S.-India Civil Nuclear Deal and the International Non-proliferation Regime”, The Yale Journal of International Law, pp.447-477. Hulsroj, Peter, 2006, “Jus Cogens and Disarmament,” Indian Journal of International Law, vol.46, pp.1-11. Jha, Anupam, 2008, “Indo-US Treaty on Peaceful Nuclear Co-operation, 2007: How Safe Is the New Born Baby of Indo-US Love Affairs?”, Indian Journal of International Law, Vol.48, pp.435-448. Rotblat, Joseph, Steinberger Jack, Udgaonkar, Bhalchandra (eds.), 1993, A Nuclear Weapon Free World: Desirable? Feasible?, Westview Press. Kimball, Daryl G., 2008, “Text, Analysis, and Response to NSG ‘Statement on Civil Nuclear Cooperation with India’”, [http://www.armscontrol.org/node/3345 (accessed on January 31, 2011)]. Kimball, Daryl G. and McGoldrick, Fred, 2007, “U.S.-Indian Nuclear Agreement: A Bad Deal Gets Worse”, [http://www.armscontrol.org/pressroom/2007/20070803_IndiaUS (accessed on January 31, 2011)].

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Kuppuswamy, Chamu, 2006, "Is the Nuclear Non-Proliferation Treaty Shaking at its Foundations? Stock Taking After the 2005 NPT Review Conference", Journal of Conflict and Security Law, Vol.11, No.1, pp.141-155. Kurosawa, Mitsuru, 2008, “Presentation: Mr. Mitsuru Kurosawa, Professor, Osaka Jogakuin College -2010 NPT Review Conference: Crafting a Consensus”, the 20th United Nations Conference on Disarmament Issues in Saitama, [http://www.unrcpd.org.np/uploads/conferences/file/Conferences%20Saitama%20presentation%20Kurusawa.PDF (accessed on January 31, 2010)]. Müller, Jörn, 2009, "The Signing of the U.S.-India Agreement Concerning Peaceful Uses of Nuclear Energy”, Göttingen Journal of International Law, pp. 179–198. Perkovich, George, 2010, “Global Implications of the U.S.-India deal”, Daedalus, Winter. Raghavan, B.S., 2008, "The Hyde Act — Misreading or misleading?", The Hindu Business Line Ramachandran, R., 2007 “123 Agreement and internal laws,” the Hindu Sultan, Maria and Adil, Mian Behzad, 2008, “The Henry J. Hyde Act and the 123 Agreement: An Assessment”, SASSI Policy Brief, No.11, London: South Asian Strategic Stability Institute. Sreenviasan, T.P.; Singh, Jasjit; Gopalakrishnan, A.G.; Prasad, A.N.; Balachandran, G.; Yechury, Sitaram; Bhaskar, C. Uday; Priya, Ritwick; Krishna, Chepui and Gupta, Anil, 2007, “Indo-US Nuclear Deal: A Debate,” VIKALPA, Vol.23, No.4, October-December, pp.87-111, [http://www.vikalpa.com/pdf/articles/2007/oct_dec_87_to_111.pdf (accessed on January 31, 2010)]. Talbot, Strobe, 2006, Engaging India Diplomacy Democracy And the Bomb: Diplomacy, Democracy, And the Bomb: Revised Edition, Brookings Institute Press.

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