Shivakantjha.org - The Hyde Act: The Provisions
The Hyde Act: A critical exposition in the context
of the 123 Agreement
By Shiva Kant Jha
The Hyde Act: The Provisions: A Brief Overview
(An Aspect of the 123 Agreement)
Part X(b)
I
An examination of the structure of the Hyde Act of the USA
is greatly relevant for its proper comprehension. The ‘‘Henry J. Hyde United
States-India Peaceful Atomic Energy Cooperation Act of 2006 was enacted by the
Senate and House of Representatives of the United States of America in Congress
assembled in order to exempt a proposed nuclear agreement for cooperation with
India from certain requirements of the Atomic Energy Act of 1954.
The Sections which deserve to be read critically are Sections
102, 103, and 104 of the Hyde Act. Section 102 sets forth ‘Sense of Congress’;
and Section 103 is the ‘Statement of Policy’ under two specific segments (a)
General policy, (b) Policy with respect to South Asia which includes specific
instructions pertaining to India on a host of points of vital importance. Sec.104
prescribes the ‘Waiver authority and congressional approval’. First, Sections
102 and 103 deserve to be noticed as much confusion lingers in most minds about
the efficacy and effect of such provisions. It is always better to read the
Sections as they are:
SEC. 102. SENSE OF CONGRESS.
It is the sense of Congress that—
(1) preventing the proliferation of nuclear weapons, other
weapons of mass destruction, the means to produce them, and the means to deliver
them are critical objectives for United States foreign policy;
(2) sustaining the Nuclear Non-Proliferation Treaty (NPT) and
strengthening its implementation, particularly its verification and compliance,
is the keystone of United States Nonproliferation policy;
(3) the NPT has been a significant success in preventing the
acquisition of nuclear weapons capabilities and maintaining a stable international
security situation;
(4) countries that have never become a party to the NPT and
remain outside that treaty’s legal regime pose a potential challenge to the
achievement of the overall goals of global nonproliferation, because those countries
have not undertaken the NPT obligation to prohibit the spread of nuclear weapons
capabilities-+;
(5) it is in the interest of the United States to the fullest
extent possible to ensure that those countries that are not States Party to
the NPT are responsible in the disposition of any nuclear technology they develop;
(6) it is in the interest of the United States to enter into
an agreement for nuclear cooperation arranged pursuant to section 123 of the
Atomic Energy Act of 1954 (42 U.S.C. 2153) with a country that has never been
a State Party to the NPT
if—
(A) the country has demonstrated responsible behavior with
respect to the nonproliferation of technology related to nuclear weapons and
the means to deliver them;
(B) the country has a functioning and uninterrupted democratic
system of government, has a foreign policy that is congruent to that of the
United States, and is working with the United States on key foreign policy initiatives
related to nonproliferation;
(C) such cooperation induces the country to promulgate and
implement substantially improved protections against the proliferation of technology
related to nuclear weapons and the means to deliver them, and to refrain from
actions that would further the development of its nuclear weapons program; and
(D) such cooperation will induce the country to give greater
political and material support to the achievement of United States global and
regional nonproliferation objectives, especially with respect to dissuading,
isolating, and, if necessary, sanctioning and containing states that sponsor
terrorism and terrorist groups that are seeking to acquire a nuclear weapons
capability or other weapons of mass
destruction capability and the means to deliver such weapons;
(7) the United States should continue its policy of engagement,
collaboration, and exchanges with and between India and Pakistan;
(8) strong bilateral relations with India are in the national
interest of the United States;
(9) the United States and India share common democratic values
and the potential for increasing and sustained economic engagement;
(10) commerce in civil nuclear energy with India by the United
States and other countries has the potential to benefit the people of all countries;
(11) such commerce also represents a significant change in
United States policy regarding commerce with countries that are not States Party
to the NPT, which remains the foundation of the international nonproliferation
regime;
(12) any commerce in civil nuclear energy with India by the
United States and other countries must be achieved in a manner that minimizes
the risk of nuclear proliferation or regional arms races and maximizes India’s
adherence to international nonproliferation regimes, including, in particular,
the guidelines of the Nuclear Suppliers Group (NSG); and
(13) the United States should not seek to facilitate or encourage
the continuation of nuclear exports to India by any other party if such exports
are terminated under United States law.
SEC. 103. STATEMENTS OF POLICY.
(a) IN GENERAL.—The following shall be the policies of
the United States:
(1) Oppose the development of a capability to produce nuclear
weapons by any non-nuclear weapon state, within or outside of the NPT.
(2) Encourage States Party to the NPT to interpret the right
to ‘‘develop research, production and use of nuclear energy for peaceful purposes’’,
as set forth in Article IV of the NPT, as being a right that applies only to
the extent that it is consistent with the object and purpose of the NPT to prevent
the spread of nuclear weapons and nuclear weapons capabilities, including by
refraining from all nuclear cooperation with any State Party that the International
Atomic Energy Agency (IAEA) determines is not in full compliance with its NPT
obligations, including its safeguards obligations.
(3) Act in a manner fully consistent with the Guidelines for
Nuclear Transfers and the Guidelines for Transfers of Nuclear-Related Dual-Use
Equipment, Materials, Software and Related Technology developed by the NSG,
and decisions related to the those guidelines, and the rules and practices regarding
NSG decision-making.
(4) Strengthen the NSG guidelines and decisions concerning
consultation by members regarding violations of supplier and recipient understandings
by instituting the practice of a timely and coordinated response by NSG members
to all such violations, including termination of nuclear transfers to an involved
recipient, that discourages individual NSG members from continuing cooperation
with such recipient until such time as a consensus regarding a coordinated response
has been achieved.
(5) Given the special sensitivity of equipment and technologies
related to the enrichment of uranium, the reprocessing of spent nuclear fuel,
and the production of heavy water, work with members of the NSG, individually
and collectively, to further restrict the transfers of such equipment and technologies,
including to India.
(6) Seek to prevent the transfer to a country of nuclear equipment,
materials, or technology from other participating governments in the NSG or
from any other source if nuclear
transfers to that country are suspended or terminated pursuant
to this title, the Atomic Energy Act of 1954 (or any other United States law.
(b) WITH RESPECT TO SOUTH ASIA.—The following shall be
the policies of the United States with respect to South Asia:
(1) Achieve, at the earliest possible date, a moratorium on
the production of fissile material for nuclear explosive purposes by India,
Pakistan, and the People’s Republic of China.
(2) Achieve, at the earliest possible date, the conclusion
and implementation of a treaty banning the production of fissile material for
nuclear weapons to which both the United States and India become parties.
(3) Secure India’s—
(A) full participation in the Proliferation Security Initiative;
(B) formal commitment to the Statement of Interdiction Principles
of such Initiative;
(C) public announcement of its decision to conform its export
control laws, regulations, and policies with the Australia Group and with the
Guidelines, Procedures, Criteria, and Control Lists of the Wassenaar Arrangement;
(D) demonstration of satisfactory progress toward implementing
the decision described in subparagraph (C);
and
(E) ratification of or accession to the Convention on Supplementary
Compensation for Nuclear Damage, done at Vienna on September 12, 1997.
(4) Secure India’s full and active participation in United
States efforts to dissuade, isolate, and, if necessary, sanction and contain
Iran for its efforts to acquire weapons of mass destruction, including a nuclear
weapons capability and the capability to enrich uranium or reprocess nuclear
fuel, and the means to deliver weapons of mass destruction.
(5) Seek to halt the increase of nuclear weapon arsenals in
South Asia and to promote their reduction and eventual elimination.
(6) Ensure that spent fuel generated in India’s civilian nuclear
power reactors is not transferred to the United States except pursuant to the
Congressional review procedures required under section 131 f. of the Atomic
Energy Act of 1954 (
(7) Pending implementation of the multilateral moratorium described
in paragraph (1) or the treaty described in paragraph
(2), encourage India not to increase its production of fissile
material at unsafeguarded nuclear facilities.
(8) Ensure that any safeguards agreement or Additional Protocol
to which India is a party with the IAEA can reliably safeguard any export or
re-export to India of any nuclear materials and equipment.
(9) Ensure that the text and implementation of any agreement
for cooperation with India arranged pursuant to section 123 of the Atomic Energy
Act of 1954 meet the requirements set forth in subsections a.(1) and a.(3) through
a.(9) of such section.
(10) Any nuclear power reactor fuel reserve provided to the
Government of India for use in safeguarded civilian nuclear facilities should
be commensurate with reasonable reactor operating requirements.
II
The effect of Sections 102 and 103 of the Hyde Act
Section 102 states the ‘Sense of Congress’. The word ‘sense’
in this specific context would mean, to draw on the Shorter Oxford Dictionary:
“Wisdom, and logic, or reason in a discourse, course of action, etc.” Under
the US Constitutional practice, the ‘Sense of Congress’ conveys a strong message,
through a resolution or an enactment, to the other wings of the government which
are under duty to implement laws. "Sense of Congress is not technically
enforceable law, yet it must be kept in view otherwise in certain situations
a crisis may result in constitutional operations. But it is unwise to consider
this Sense of Congress or the Statement of Policy wholly analogous to the the
Directive Principles of State Policy under our Constitution Art 37 of our Constitution,
which says: “The provisions contained in this part shall not be enforceable
by any court, but the principles therein laid down are nevertheless fundamental
in the governance of the country and shall be the duty of the State to apply
these principles in making laws.” The difference between these two situations
would become clear if the structure of the polity of these two countries is
kept in view. The US Constitution is founded on a clear division of powers inter
se the organs of the State, whereas under our Parliamentary structure there
is no such strict separation. It is well to remember what our Supreme Court
had said in Ramajaawaya Kapur v. Punjab AIR 1955 SC 549:
“In Indian Constitution, …we have the same system of parliamentary
executive as in England and the Council of Ministers consisting, as it does,
of the members of the legislature is, like the British cabinet, ‘a hyphen
which joins a buckle which fastens the legislative part of the State to the
executive part.’”
This assessment represents the view of the political scientists,
not of the lawyers. Both President Bush and our Government are unmindful of
the critical role that the US Congress can play. C. H. Pritchett says in his
The American Constitution ( p. 260):
“Congress possesses specific constitutional authority to
define and punish offenses against the law of nations as well as to regulate
foreign commerce. Congress may use its general lawmaking power to frustrate
or limit executive foreign policy. In 1924 Congress adopted the Japanese Exclusion
Act over the protests of President Coolidge and Secretary of State Hughes,
with damaging effects on American foreign relations. The authority to negotiate
reciprocal trade agreements, a basic instrument of foreign policy after 1934,
had to be won anew from Congress every two or three years. More recently a
favourite legislative device has been to impose statutory bans on trade with,
or aid to, countries in congressional disfavour.”
If the US Executive goes counter to the Sense of Congress or
the Policy Statement, it may invite an embarrassment for itself as it had experienced
in the past. If the US Congress is seriously unhappy with India, the US Congress
can saddle the Executive with a mandatory duty to act in consonance with its
wish.
President Bush has his reasons to forget all this (as discussed
by this author in an earlier article ‘The Hyde Act: Evaluation of certain assumptions
of the Faustian pact’), but it is strange that our politicians do not know what
is obvious. It would be prudent for us to understand the concealed references
in the statutory provisions, and to mark the possible lethal effects of the
impact of the Hyde Act on the 123 Agreement.
III
Sec. 4 WAIVER AUTHORITY AND CONGRESSIONAL APPROVAL.
SEC. 104. provides for ‘WAIVER AUTHORITY AND CONGRESSIONAL
APPROVAL’. It prescribes that consequent on the aforementioned determination
, the President may—
(1) exempt a proposed agreement for cooperation with India
arranged pursuant to section 123 of the Atomic Energy Act of 1954 from the
requirement of subsection a.(2) of such section;
(2) waive the application of section 128 of the Atomic Energy
Act of 1954 with respect to exports to India; and
(3) waive with respect to India the application of—
(A) section 129 a.(1)(D) of the Atomic Energy Act of 1954;
and
(B) section 129 of such Act regarding any actions that
occurred before July 18, 2005.
The statute itself describes what are the points to be determined
in the Prsidential determination. The President should show that the following
actions have occurred:
“(1) India has provided the United States and the IAEA with
a credible plan to separate civil and military nuclear facilities, materials,
and programs, and has filed a declaration regarding its civil facilities and
materials with the IAEA.
(2) India and the IAEA have concluded all legal steps required
prior to signature by the parties of an agreement requiring the application
of IAEA safeguards in perpetuity in accordance with IAEA standards, principles,
and practices (including IAEA Board of Governors Document GOV/1621 (1973)) to
India’s civil nuclear facilities, materials, and programs as declared in the
plan described in paragraph (1), including materials used in or produced through
the use of India’s civil nuclear facilities.
(3) India and the IAEA are making substantial progress toward
concluding an Additional Protocol consistent with IAEA principles, practices,
and policies that would apply to India’s civil nuclear program.
(4) India is working actively with the United States for the
early conclusion of a multilateral treaty on the cessation of the production
of fissile materials for use in nuclear weapons or other nuclear explosive devices.
(5) India is working with and supporting United States and
international efforts to prevent the spread of enrichment and reprocessing technology
to any state that does not already possess full-scale, functioning enrichment
or reprocessing plants.
(6) India is taking the necessary steps to secure nuclear and
other sensitive materials and technology, including through—
(A) the enactment and effective enforcement of comprehensive
export control legislation and regulations;
(B) harmonization of its export control laws, regulations,
policies, and practices with the guidelines and practices of the Missile Technology
Control Regime (MTCR) and the NSG; and
(C) adherence to the MTCR and the NSG in accordance with the
procedures of those regimes for unilateral adherence.
(7) The NSG has decided by consensus to permit supply to India
of nuclear items covered by the guidelines of the NSG.
The statute puts the US President under a mandatory duty to
submit to the congressional committees the determination he makes, together
with a report detailing the basis for the determination.
The statute gives a detailed instruction on what the report
‘shall include’. It says that ‘to the fullest extent available to the United
States’, the report shall include the following information:
(A) A summary of the plan provided by India to the United States
and the IAEA to separate India’s civil and military nuclear facilities, materials,
and programs, and the declaration made by India to the IAEA identifying India’s
civil facilities to be placed under IAEA safeguards, including an analysis of
the credibility of such plan and declaration, together with copies of the plan
and declaration.
(B) A summary of the agreement that has been entered into between
India and the IAEA requiring the application of safeguards in accordance with
IAEA practices to India’s civil nuclear facilities as declared in the plan described
in subparagraph (A), together with a copy of the agreement, and a description
of the progress toward its full implementation.
(C) A summary of the progress made toward conclusion and implementation
of an Additional Protocol between India and the IAEA, including a description
of the scope of such Additional Protocol.
(D) A description of the steps that India is taking to work
with the United States for the conclusion of a
multilateral treaty banning the production of fissile material
for nuclear weapons, including a description of the steps that the United States
has taken and will take to encourage India to identify and declare a date by
which India would be willing to stop production of fissile material for nuclear
weapons unilaterally or pursuant to a multilateral moratorium or treaty.
(E) A description of the steps India is taking to prevent the
spread of nuclear-related technology, including enrichment and reprocessing
technology or materials that can be used to acquire a nuclear weapons capability,
as well as the support that India is providing to the United States to further
United States objectives to restrict the spread of such technology.
(F) A description of the steps that India is taking to secure
materials and technology applicable for the development, acquisition, or manufacture
of weapons of mass destruction and the means to deliver such weapons through
the application of comprehensive export control legislation and regulations,
and through harmonization with and adherence to MTCR, NSG, Australia Group,
and Wassenaar Arrangement guidelines, compliance with United Nations Security
Council Resolution 1540, and participation in the Proliferation Security Initiative.
(G) A description and assessment of the specific measures that
India has taken to fully and actively participate in United States and international
efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for
its efforts to acquire weapons of mass destruction, including a nuclear weapons
capability and the capability to enrich uranium or reprocess nuclear fuel and
the means to deliver weapons of mass destruction.
(H) A description of the decision of the NSG relating to nuclear
cooperation with India, including whether
nuclear cooperation by the United States under an agreement
for cooperation arranged pursuant to section 123 of the Atomic Energy Act of
1954 is consistent with the decision, practices, and policies of the NSG.
(I) A description of the scope of peaceful cooperation envisioned
by the United States and India that will be
implemented under the agreement for nuclear cooperation, including
whether such cooperation will include the provision of enrichment and reprocessing
technology.
(J) A description of the steps taken to ensure that proposed
United States civil nuclear cooperation with India will not in any way assist
India’s nuclear weapons program.”
Section 104 of the Hyde Act prescribes comprehensive provisions
with overloaded conditionalities illustrating that filmy song: kahi par nigahe,
kahi par nisana. Even Mephistopheles, while striking the Devil’s Pact with
Dr Faustus, had not shown such a dexterous super-skill in concealing the snares.
In the end, Dr. Faustus, the great economist, became a mere helpless and fragile
beach ball, and after grueling sufferings, died under servitude to the Devil.
Section 104 subjects India to the IAEA and the NSG regime (of course, yet to
be erected). The norms of the Hyde Act seep with torrential efficacy through
the numerous interstices of the 123 Agreement. Anyone, even with the brain that
a cockroach has, would see that the negotiations at IAEA and NSG stand outsourced
to the lobbyists under the employment of the corporate oligarchy under the US
imperium. Terms are clearly spelt in the Hyde Act to terminate unilaterally
the benefit granted to India if India swerves off the prescribed lines. How
things should proceed are set forth in meticulous details in a tone of supercilious
superiority against which we cannot grumble. Such miseries are natural in this
unjust neo-liberal economic regime. I wonder how right Edmund Burke was when
he said: ‘….. That of sophisters, economists, and calculators, has succeeded;
and the glory of Europe is extinguished for ever.’
There is an evidence of well-crafted, but peeping, concealment
in the Hyde Act. It seems that the heart of the 123 Agreement is Art 4 which
deals with NUCLEAR TRADE. Its sub-Article prescribes that the “Parties shall
facilitate nuclear trade between themselves in the mutual interests of their
respective industry, utilities and consumers and also, where appropriate, trade
between third countries and either Party of items obligated to the other Party….”
And ART 12 of the 123 Agreement incorporates the crux of the neo-liberal economic
policy of free trade. It says, besides many other things, that the “ provisions
of this Agreement shall not be used to:
a) secure unfair commercial or industrial advantages or to
restrict trade to the disadvantage of persons and undertakings of either Party
or hamper their
commercial or industrial interests, whether international or
domestic;….” The Hyde Act does not say it clearly. Perhaps this was so as it
was to be incorporated in the 123 Agreement. But the concern for free trade
in nuclear materials (for which the corporate oligarchy and their lobbyists
left no stone unturned) is quite evident in the Hyde Act also. Section 104,
whilst dealing with the IMPLEMENTATION AND COMPLIANCE REPORT, says:
‘Not later than 180 days after the date on which an agreement
for cooperation with India arranged pursuant to section 123 of the Atomic Energy
Act of 1954 enters into force, and annually thereafter, the President shall
submit to the appropriate congressional committees a report including—
(A) ……
(C) a description of any significant nuclear commerce between
India and other countries, including any such trade that—
(i) is not consistent with applicable guidelines or decisions
of the NSG;or
(ii) would not meet the standards applied to exports or
reexports of such material, equipment, or technology of United States origin;…”
IV
The Atomic Energy Act of 1954
The Atomic Energy Act of 1954 is a United States federal law.
It is the supreme law in the USA till it is modified by a subsequent enactment,
or by the provisions of a treaty within the meaning of the term ‘treaty’ under
the US Constitution.The Nuclear Regulatory Commission,
has aptly said that this Act is "the fundamental U.S. law on both the civilian
and the military uses of nuclear materials", and it incorporates provisions
for the "development and the regulation of the uses of nuclear materials
and facilities in the United States." The Hyde Act empowers the Executive
to do certain things which it could not do otherwise.
Sec. 123 of the Atomic Energy Act of the USA deals with ‘Cooperation
with Other Nations’. It is a comprehensive Section which has no analogue under
the Indian Atomic Energy Act 1962. Our Parliament should have deliberated to
frame law from the Indian perspective on the points so that harmony could be
struck between the laws of the two sovereign nations on the principles of parity..
Sec. 123 empowers the US President to waive or exempt
the Agreement between India and the USA from certain statutory pre-conditions
laid down in the US Atomic Energy Act, 1954. It exempts a proposed agreement
for cooperation with India arranged pursuant to section 123 of the Atomic Energy
Act of 1954 from the requirement of subsection a.(2) of such section which says
thus:
“(2) in the case of non-nuclear-weapon states, a requirement,
as a condition of continued United States nuclear supply under the agreement
for cooperation, that IAEA safeguards be maintained with respect to all nuclear
materials in all peaceful nuclear activities within the territory of such
state, under its jurisdiction, or carried out under its control anywhere;….”
The operation of the Section 123(a) (2) is waived so that India
may be given certain
benefits even as a non-Nuclear weapon State (within the meaning
of NPT) which
otherwise could not have been given.
Sec. 128 of the US Nuclear Energy Act, 1954 prescribes detailed
‘Additional Export Criterion And Procedures’ and sets forth in meticulous details
the norms governing materials, and sets up a vigilant agency, both executive
and legislative, to control the whole procedure prescribed in the section. Its
sub-Article (1) says:
“As a condition of continued United States export of source
material, special nuclear material, production or utilization facilities,
and any sensitive nuclear technology to non-nuclear-weapon states, no such
export shall be made unless IAEA safeguards are maintained with respect to
all peaceful nuclear activities in, under the jurisdiction of, or carried
out under the control of such state at the time of the export.”
The President is empowered to waive the application of section
128 of the Atomic
Energy Act of 1954 with respect to exports to India. Section
129, which can be waived, permits waiver with respect to India the application
of—
(A) section 129 a.(1)(D) of the Atomic Energy Act of 1954;
and
(B) section 129 of such Act regarding any actions that occurred
before July 18, 2005.
V
Other Provisions of critical importance
Then come Articles 105 and 106 which are of seminal importance
if we can stretch in our mind their implications in the context of the realpolitik.
‘SEC. 105. UNITED STATES COMPLIANCE WITH ITS NUCLEAR
NONPROLIFERATION TREATY OBLIGATIONS.
Nothing in this title constitutes authority for any action
in
violation of an obligation of the United States under the
NPT.
SEC. 106. INOPERABILITY OF DETERMINATION AND WAIVERS.
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 date of the enactment of this title.’
I feel that our country is being sucked under the NPT regime
without a nuclear-State status. We are given express warning, which only the
rabid imbeciles can miss to notice, that our moratorium on our defense nuclear
productions is now going to be perpetual. Then comes a commandment to
comply with this and that, including the terms of the ‘‘Additional Protocol’’
with the IAEA based on a Model Additional Protocol as set forth in IAEA information
circular (INFCIRC) 540. We must see through dense fog.
My dear reader, I am by now totally fed up reading the Hyde
Act, and its labyrinths have fatigued me. In my view, the Hyde Act and the 123
Agreement are not fair to our country. The author wishes that our fellow citizens
should go through these very carefully. The text of the Hyde Act can be accessed
at http://www.theorator.com/bills109/hr5682.html.
When all this is said, this author would tell a story which
he had read while at school. Acharya Vishnu Gupta’s Panchatantra contains
some of the profoundest observations on treaty-making procedure. For the present
a reference to a conversation between Hiranyaka and the Crow may be worthwhile.
Hiranyaka said: You are my natural enemy, how can there
be a partnership between us?
The Crow replied: You have not even seen me, yet you dub
me your natural enemy. Is it fair?
Hiranyaka said: Animosity is of two types: natural and artificial.
You are my natural enemy.
Then Hiranyaka explained its ideas thus:
Artificial animosity can be removed by removing its apparent
cause, but natural animosity can never be got rid of as it never demands anything
less than total destruction.
I would not dwell on the relevance of this story. Its import
and relevance are obvious enough except to those who allow themselves to led
‘as an "ass" which can "tenderly be led by th' nose." [Shakespeare,
Othello Act 1, Scene 3, 390-393]
VI
Supremacy of the Hyde Act on the 123 Agreement
This author has analysed in several articles how the Hyde
Act would act as the most pervading and dominant force in the 123 Agreement,
and all other Agreements which may be begotten if our government is allowed
to tread ahead this way. Many journalists have said that once the 123 Agreement
is operational, the Hyde Act is irrelevant vis-à-vis India. I do not intend
to flog this point to show how dexterously sinister is this assertion. But I
would just underscore the provisions of Article 2.1 of the 123 Agreement; to
quote: "The US should not seek to facilitate or encourage the continuation
of nuclear exports to India by any other party if such exports are terminated
under the US law." What better clinching evidence you want of the hegemonial
dominance of the Hyde Act? It was well said in the Panchatantra centuries
back:
Put an earthen lamp on an earthen pot. But the light of
the lamp would not dispel the darkness inside the pot. Likewise, the fools
and knaves would never understand whatever efforts are made.
One thing must be noted here in passing. This 123 Agreement
is more likely to be interpreted in ‘ambulatory’ way, thus it will be subject
to the future US law. Klaus Vogel on Double Taxation Conventions [Kluwer
Law] says: “Where a treaty refers to the domestic law of the contracting States,
in particular to interpret terms which were taken from domestic law of the contracting
States, but in other contexts as well, and where the domestic law is changed,
the question arises, whether the reference in the treaty points to the law of
the contracting States at the time when the treaty was concluded (a ‘static’
interpretation) or to the law at the time when the treaty is applied
(an ‘ambulatory’ interpretation).” Canada, later on, had applied the
relevant law of the Contracting State’s law as it stood at the treaty’s signing
(The Queen v. Melford Development Inc.Court of Appeals, 35 DTC 5020 (1981);
Supreme Court, 36 DTC 6281 (1982). Vogel mentions how in Canada the problem
was settled through a statute adopting ‘ambulatory’ interpretation (Income Tax
Conventions Interpretation Act of 20 Dec. 1984. Vogel comments: “Thus, the traditional
view, that reference is to be made to domestic law as amended (ambulatory),
should be preferred.” We should have settled norms on the point. We cannot afford
to be in hurry. Why not see prudence in what John Wesley had once said: “Though
I am always in haste, I am never in hurry.”
VII
Relevance of the Hyde Act on the Interpretation of the 123
Agreement
The Hyde Act, and the speeches, clarifications, and statements
by the key leaders and negotiators may be treated relevant for interpretation
of the 123 Agreement. The provisions relevant to the ‘General rule of interpretation’
prescribed in the Vienna Convention of the Law of Treaties may be invoked. These
would constitute “context” within the meaning of Article 31(1) of the Convention.
Sub-Article (2) explains the concept of “context” to include:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties
in connection with the conclusion of the treaty and accepted by the other
parties as an instrument related to the treaty.
Article 32 of the Convention permits the use of preparatory
materials (travaux preperatoires) in wide terms: it permits
“Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
It is most unfortunate that our government is in such a hurry
as to saddle this country with obligations under the 123 Agreement without full
public deliberations. The nation must examine all the terms and consequences
without being shepherded by the instruments of Darkness.
And one thing more, before this author ends this article exploring
the unending consequences of this foreign enactment. The US can make an extra-territorial
Act, as we can under Article 245 (2) of our Constitution. This Hyde Act is,
on many points, an extra-territorial enactment. It surely requires informed
deliberations. Why should our government deprive us of moral and legal right
to deliberate and decide when the 123 Agreement poses problems with great domestic
impact? Let us work together to give a good evidence of democracy at work in
our country.
VIII
Conclusion of this segment
This author would end this article with two quotations inviting
readers to brood, reflect, and act, act, and act:
“Truth is on the march; nothing can stop it now.”
Emile Zola in the Article on the Dreyfus Case.
“No Question is ever settled
Until it is settled right.”
Ella Wheeler Wilcox, Settle the Question Right
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