- Why Hold us to Ransom for long?

Why Hold us to Ransom for long?

(An aspect of the 123 Agreement)
Part IV

by Shiva Kant Jha

THE article aims to pose and answer a great constitutional question in the context of the 123 Agreement: whether the Executive government of the day can subject successive governments to a bondage to obligations having wide domestic impact by its acts at international plane? This question is of great contemporary relevance when we see that ,whilst promoting neo-liberal agenda, the emerging senate of the MNCs and their ilk are promoting a strategic programme the profile of which is thus stated by Noam Chomsky [Chomsky, Hegemony or Survival p.138].

‘Governments now face a “dual constituency conundrum', which pits the interests of the voters against foreign currency traders and hedge-funds managers ‘who conduct a moment-to-moment referendum ‘on the economic and financial policies of developing and developed nations alike”, and the competition is highly unequal.”


But first examine the language of Art 10, Sections 2 and 3 of the 123 Agreement as this scrutiny would provide you a deeper insight into the sinister game in which we are going to become a pawn, than the ‘words. words, and words' of experts: to quote --

“ 2 . . .India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement . . . shall be subject to safeguards in perpetuity …”

3 . . .Nuclear material and equipment transferred to the United States of America pursuant to this Agreement . . . shall be subject to the Agreement between the United States of America and the IAEA. . . .”

Before I proceed to examine the 123 Agreement, let us note two more provisions: Art 16(2):

“This Agreement shall remain in force for 40 years. It shall continue in force thereafter for additional periods of 10 years each………….” and also Art 14(1):
“Either party shall have right to terminate this Agreement prior to its expiration on one year's written notice to the other Party. A Party giving notice of termination shall provide the reasons for seeking such termination…….”

In effect, these say:

(i) The obligations ensuing from the India-specific Safeguards Agreement between India and the IAEA, which is yet to be negotiated, would be perpetual, and the net of fetters, interventions, and commands, emanating from the obligations under the Agreement, would be ‘designed to last for ever' (SOD). The Agreement is to be enriched and processed further through the subsidiary and ancillary Alliances to be crafted in the ongoing process of interface with the IAEA and others whose even silhouettes are not clear. This author would examine the brief which IAEA holds under its statute, and the role it plays in global politics in a next article as this topic requires a focused attention.

(ii) The Agreement has an initial life-span of four decades. It is true that ‘either party shall have right to terminate this Agreement prior to its expiration on one year's written notice to the other Party', but this sort of course will not be feasible when we have a sponsored government, over-active compradors, the rule of the corporations, and a hegemone calling the shots everywhere. While terminating the Agreement, reasons are to be provided to the other involved party or parties for appreciation under the broad-spectrum dominance of the USA. Is it prudent to go by the anachronistic theories of public international law for which the USA has no regards? But this is so far so good. But yet we remain caught in the obligations under Articles 5.6©, 6, 7, 8, 9, and 10 of the Agreement ‘so long as any nuclear material, non-nuclear material, by-product material, equipment or components subject to these articles remains in the territory of the Party concerned or under its jurisdiction or control anywhere, or until such time as the Parties agree that such nuclear material is no longer usable for any nuclear activity relevant from the point of view of safeguards.”[Art 16(3)]. The safeguards are to be spelt out in an

India-specific safeguards agreement to be negotiated with the IAEA but only within the parameters of “understandings with the United States”.

(iii) The Agreement provides for withdrawal on fulfilling specified conditions after certain durations. But much of the quagmire may emerge to swamp us through the India-specific Agreement with IAEA. Keeping in view the way our government has conducted itself from the days of the Uruguay Round Final Act in 1994, we may not know them till they are foisted on us under the same rubbish and noxious pleas advanced in chorus through a massive media build-up, and crypto psychic pressures put by a host of hired national and international lobbyists and pressurisers.

[One political and the other constitutional]

Recognizing the realpolitik of things in these days of one ruthless hegemone, are we prudent in thinking that we can get out of the traps built in, or to be built in the strategic treaty in consort with other treaties in the offing? When all is said, on close analysis of the Deal, one finds that it is cast in the protocol of a pactum de contrahendo (an undertaking to negotiate or conclude a set of agreements). It is going to be treaty of which many other unstated countries (‘the third countries') will be the beneficiaries in course of time, thereby strengthening the Alliance Diplomacy now in formation (the analogue to which we find in the alliance diplomacy in the years preceding the First and the Second World Wars). When our government cannot get even the abuse of tax treaties undone, how can it get out of the octopus-grip of this sinister strategic partnership? The US can unilaterally disrupt supply of strategic materials (Art 5). Not only this, it can even exercise a unilateral Right to Return (Art. 14) on or before the date of termination of this Agreement “from the territory or from the control of the other Party" of the equipments and materials which are the subject matter of the Agreement. Under the Statute of IAEA, which ‘seeks to promote the peaceful use of nuclear energy and to inhibit its use for military purposes ', the contested issues can go even to the Security Council of the UN, and even to International Court of Justice. But it is worthwhile to reflect on what Noam Chomsky ( Failed States p. 68) said about the US attitude to law and treaties:

‘“The basic problem with the World Court and the world, so we learn from UN ambassador John Bolton, is that they misinterpret international law. …. Bolton writes that “in the rest of the world, international law and its ‘binding' obligations are taken for granted”. But no such binding obligations can apply to the United States. ……Treaties are not “legal' obligations for the United States, but at most “political commitments”'

And yet the 123 Agreenent pretends to set up a ‘legal frame-work'; and we are bidden through adroit public relations exercise to belive them as they fall from the Olympus. But we have been told by Nehru ( in his Glimpses of World History at p. 677 ) who had moral courage and imagination to be true to himself and grateful to India's millions:

“ Men in authority --kings, statesmen, generals, and the like – are advertised and boomed up so much by the Press and otherwise that they often appear as giants of thought and action to common people…..A famous Austrian statesman once said that the world would be astounded if it knew with what little intelligence it is ruled.”

Now to the constitutional question posed at the outset in this article. The doctrine of parliamentary supremacy, under the aspects of our Constitution, can be expressed in the following two norms:

(i) Parliament is supreme within the sphere of sovereignty granted to by our Constitution; and

(ii) As every Parliament is soveregn, it cannot bind its successor by framing any irreversible law.

There is a great decision by the Queen's Bench Division in Thoburn v Sunderland City Council [2003] QB 151 where the Court observed: to quote from the head note---

“Parliament cannot abandon its sovereignty, and the conditions of its legislative supremacy in the United Kingdom necessarily remain in the United Kingdom's hands. Although the traditional doctrine of sovereignty has been modified, that modification has been effected by the common law, wholly consistently with constitutional principle.”

Laws L J speaking for the Court observed:

“Whatever may be the position elsewhere, the law of England disallows any such presumption. Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the 1972 Act [European CommunitiesAct1972].”

It is enough. Our Superior Courts will some day have to speak on it.

If Parliament cannot impose obligations for this ‘40 years', how can another creature of the Constitution, the Executive do it?


I would conclude this article with two propositions which should not have gone unnoticed, and which cannot be allowed to go unnoticed even now by our people, and their reflecting mirror, Parliament:

(1) The President of India, in whom the executive power of the Union is vested (Art. 53 of the Constitution), should have obtained the opinion of our Supreme Court [under Art 143 (1) of our Constitution) on a question: whether under our Parliamentary system it is possible to impose a vineculum juris (a bond of law) of obligations over successor governments in matters of the type contemplated under the 123 Agreement?

(2) Our Executive government should have negotiated to stipulate, instead of the rules of perpetual bondage, the following terms:

(a) Agreement would terminate on the expiry of 5 years unless the Executive government decides to novate it for a further period of 5 years, but with prior Parliamentary approval; and

(b) Withdrawal from the Agreement is the sovereign decision of the contracting States, though consultations, negotiations, and amicable inter-actions are always desirable in the comity of nations. - Links on Shivakantjha - Links on Shivakantjha

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