Two days before the Vienna Meeting of the NSG got under way, something strange happened.

Tom Lantos, a Senator of the US Congress had more than a year ago sent to President George Bush a series of questions about the 123 Agreement that the President had signed with Prime Minister Manmohan Singh of India. The letter had remained unreplied. Then Tom Lantos died. Another Senator took his place in the US Senate. Finally, someone dug up the correspondence in the Presidential Office and sent a point-by-point 26-page reply to Tom Lantos’s successor. This was in January this year.

The letter remained in the new Senator’s files till one of a number of non-proliferation lobbies made the great discovery and passed it on to the Washington Post. The idea was to scuttle the agreement in favour of India that was being hammered out in Vienna by the Nuclear Suppliers’ Group resulting from a resolution placed before the NSG by the US that the embargo on nuclear trade with India be dropped.

The Washington Post needs to periodically pump up its circulation just as much as Times Now the English news channel needs to pump up, what it calls eye-balls, in India. Both lapped it up. The Washington Post went ahead and published excerpts of that reply – and for good measure gave it to Times Now. The reply was innocuous but certain portions could be sensationalised especially among the ignorant. We don’t know how ignorant the Washington Post is, but Arnab Goswami of Times Now had two things going for him: First, ignorance, and, second, the ignorance of that ignorance.

Times Now went to town beginning 5 pm that evening, perfectly positioning the so-called scoop for prime time. It wrongly insisted that the reply had been written by President Bush himself. Then it highlighted the fact that the letter mentions that in the event India conducts a nuclear test in future the US will withdraw all cooperation under the Hyde Act. While the Hyde Act does mention such a thing it is an internal legislation of the US Congress applicable to American law about what the US will do. It is not applicable to India. It cannot ban India from conducting tests if it wants to.

Moreover, the 123 Agreement (which is what is applicable since it is an international treaty), which flows from the Hyde Act, says that in such an event the US will ‘consult with India’ and over a period of a month thereafter to determine if such withdrawal of cooperation is called for. This second part of the explanation was, of course, conveniently missing.

The Bush aide had added the US will try to persuade India to avoid conducting such tests. This was taken to mean that the US government would put unbearable pressure to prevent India’s testing. The possibility that the US would offer the technology to do virtual testing with the help of super-computers was not even considered. Virtual testing by super-computer provides the results of an actual test without an actual test being conducted. In fact if it were not for virtual testing the Comprehensive Test Ban Treaty would have been violated long ago, by the US itself! The US has given this technology to Israel. That is why Israel has never tested. The technology has also been made available to South Africa. It will now be probably offered to India. This seems to be what former President Abdul Kalam’s was gently hinting at after the NSG waiver came through when he said that India could build bombs without testing.

The news item that ran throughout the next day raised the expected storm in ignorant political circles. Yashwant Sinha and Arun Shourie made the stupid mistake of demanding the resignation of the UPA government and the PM. The Left also expectedly said that the PM had sold the country down the river to American imperialistic interests.

That the senior-most politicians of the largest opposition party in this country could have been so stupid is appalling however, because these are the very people who could conceivably be leading this country after the next general elections. There could well be another Morarji Desai among them. And this time lady luck may not be there to back the country up.

A late afternoon clarification by Foreign Minister Pranab Mukherjee that our government does not comment on the correspondence exchanged between government officials and legislators of a foreign country was not understood for its import, thanks to all round ignorance both in political circles and the media at Goswami’s level.

Arnab Goswami then made the second mistake he will eternally regret. He called on the 9.30 pm interview three people whom he thought he could browbeat into admitting that India and Manmohan Singh had sold out our sovereignty to the US. They were his own two editors, Gautam Adhikari, the Editorial director of the Times Group, no less, Chidanand Rajagatta, the TOI’s correspondent in the US, and Abhishek Manu Singhvi, the spokesman for the Congress Party.

Singhvi might be difficult but the other two were his own stable-mates. He started with Singhvi, who, as expected, was contemptuously dismissive. He called the news item a “non-existent storm in an imaginary teacup.” Of course, the Congress Party would defend its Prime Minister.

So Goswami appealed to the others for help. Rajagatta came next. Rajagatta said that political parties like the BJP and the Left were all “ignorant hyper-ventilating quick-gun Murugans”. So as a final appeal he turned to Adhikari. Adhikari ponderously said that he “tended to agree with Chidanand”. That put the lid on Arnab Goswami. He now has nothing more to say about the deal.

That journalists are uneducated about international law goes without saying. Few journalists, except some right at the top of the profession, Gautam Adhikari among them, know what they are talking about. The level of the rest can be gauged by a mere visit to any press club in the country. What is worse, Arnab Goswami belongs to that new breed that subscribes to sensationalism rather than plain unvarnished fact.

This story needed to be told in some detail because apparently neither politics nor journalism calls for the reading and understanding of the basic principles in international law.

Let us see what they are:

  1. The world consists of sovereign independent states each a law unto itself. No state can make a law for another unless it has conquered it in some sense. The US has not conquered India.
  2. Internal legislation: When a state makes a law it is applicable to itself – not to other states. The Hyde Act is one such. It is applicable to the US and determines what the US will do in a particular eventuality. It is not applicable to India.
  3. Bilateral International treaty: When two states come to an agreement. This is applicable to either or both states based on the actual wording of the agreement.
  4. Multilateral treaty: A treaty between many states is binding on all states in the same manner. It is not binding on a state not part of the multilateral arrangement, unless the state voluntarily agrees to the deal made by the multilateral group of states.

In the present case the Nuclear Suppliers’ Group (NSG), a multilateral cartel of 46 nation states that supplies uranium and enrichment technology, had, in 1974 (post Pokhran I) reached an agreement that it would deny India access to both. The US submitted a resolution to the NSG asking for the embargo to be lifted. This resolution had to be submitted by the US and by no other country, because it was the US that had insisted on the embargo at the London Suppliers’ Group back in 1974 in the first place. The NSG has now finally agreed to lift the embargo subject to the conditions mentioned in the bilateral 123 agreement made with the US by India. There is no mention of testing in the 123 Agreement.

Among the conditions: India need not sign the Non-proliferation treaty or the Comprehensive Test Ban Treaty since it will continue to adhere to its voluntary moratorium on testing and it will not be involved in proliferation activities. Both these conditions have been adhered to by India now for decades before this agreement was signed.

The agreement brings to an end the 34 year long isolation of India by the international community leaving it free to trade in nuclear fuel and bring in enrichment technology. It gives to India a place as the sixth nation among the other five, the US, China, Russia, France and Britain and a corresponding say in world affairs. Lastly, it offers the way to India to strategically contain China.

The biggest error made by the UPA Government was in describing the nuclear deal as a treaty between India and the US. It isn’t. The essential high point of the deal is what is agreed to between the contracting nations of the Nuclear Suppliers Group. Since India is not a member of the NSG it was left to the US to draft a resolution to the effect that the sanctions imposed against India be dropped – subject to certain conditions. This is what the NSG has agreed to. Based on the NSG waiver of the ban on trade with India, the 123 Agreement with the USA will now go to their Congress for ratification according to American law.

Let us suppose the US Congress does not ratify the 123 Agreement with India. Such an eventuality is remote. India can still trade with the other countries in nuclear fuel and fuel enrichment technology since the NSG has lifted the ban. That is why the NSG waiver is so important. And it is a deal made with 46 countries, not the US alone.

Suppose the US decides to request the NSG to re-impose the ban on trade with India? Back in 1974 the ban was imposed by an agreement between five countries. Today there are 46. Second there were no commercial interests involved. Today the French, the Russians and others want to sell nuclear power plants to India. The deals are worth hundreds of millions of dollars. The French, the Russians and even the British know precisely on which side their bread is buttered. Since the NSG’s decision must be unanimous, it will almost certainly be faced with at least ten vetoes to the attempt by the US to re-impose any such ban.

The rest, including, the 123 Agreement is merely a footnote.

http://sbailur.sulekha.com/blog/post/2008/09/international-law-in-the-context-of-the-nuclear-deal.htm