September 6, 2008
(Redirected from Hyde Act)
US President George W. Bush and India's Prime Minister
Dr. Manmohan Singh exchange handshakes in New Delhi
on March 2, 2006
Indo-US civilian nuclear agreement is the name commonly attributed to a bilateral agreement on nuclear cooperation between the United States of America and the Republic of India. The framework for this agreement was a Joint Statement by Indian Prime Minister Manmohan Singh and U.S. President George Bush, under which India agreed to separate its civil and military nuclear facilities and place civil facilities under IAEA safeguards and, in exchange, the United States agreed to work toward full civil nuclear cooperation with India.
The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, also known as the Hyde Act, is the U.S. domestic law that modifies the requirements of Section 123 of the U.S. Atomic Energy Act to permit nuclear cooperation with India and in particular to negotiate a 123 agreement to operationalise the 2005 Joint Statement. As a domestic U.S. law, the Hyde Act is binding on the United States. The Hyde Act cannot be binding on India's sovereign decisions although it can be construed as prescriptive for future U.S. reactions. As per the Vienna convention, an international treaty such as the 123 agreement cannot be superseded by an internal law such as the Hyde Act.
The 123 agreement defines the terms and conditions for bilateral civilian nuclear cooperation, and requires separate approvals by the U.S. Congress and by Indian cabinet ministers. According to the Nuclear Power Corporation of India, the agreement will help India meet its goal of adding 25,000 MW of nuclear power capacity through imports of nuclear reactors and fuel by 2020.
After the terms of the 123 agreement were concluded on July 27, 2007, it ran into trouble because of stiff opposition in India from the communist allies of the ruling United Progressive Alliance. The government survived a confidence vote in the parliament on July 22, 2008 by 275-256 votes in the backdrop of defections from both camps to the opposite camps. The deal also had faced opposition from non-proliferation activists, anti-nuclear organisations, and some states within the Nuclear Suppliers Group. A deal which is inconsistent with the Hyde Act and does not place restrictions on India has also faced opposition in the U.S. House and may not receive a vote until 2009. In February 2008 U.S. Secretary of State Condoleezza Rice said that any agreement would be "consistent with the obligations of the Hyde Act".
Parties to the Nuclear Non-Proliferation Treaty (NPT) have a recognized right of access to peaceful uses of nuclear energy and an obligation to cooperate on civilian nuclear technology. Separately, the Nuclear Suppliers Group has agreed on guidelines for nuclear exports, including reactors and fuel. Those guidelines condition such exports on comprehensive safeguards by the International Atomic Energy Agency, which are designed to verify that nuclear energy is not diverted from peaceful use to weapons programs. Though neither India, Israel, nor Pakistan have signed the NPT, India argues that instead of addressing the central objective of universal and comprehensive non-proliferation, the treaty creates a club of "nuclear haves" and a larger group of "nuclear have-nots" by restricting the legal possession of nuclear weapons to those states that tested them before 1967, who alone are free to possess and multiply their nuclear stockpiles.  India insists on a comprehensive action plan for a nuclear-free world within a specific time-frame and has also adopted a voluntary "no first use policy".
In response to a growing Chinese nuclear arsenal, India conducted a nuclear test in 1974 (called "peaceful nuclear explosion" and explicitly not for "offensive" first strike military purposes but which could be used as a "peaceful deterrence"). Led by the US, other states have set up an informal group, the Nuclear Suppliers Group (NSG), to control exports of nuclear materials, equipment and technology. As a result, India was left outside the international nuclear order. India conducted 5 more nuclear tests in May, 1998 at Pokhran.
The growing energy demands of the Indian and Chinese economies have raised questions on the impact of global availability to conventional energy..The Bush Administration has concluded that an Indian shift toward nuclear energy is in the best interest for America to secure its energy needs of coal, crude oil, and natural gas.
While India still harbours aspirations of being recognised as a nuclear power before considering signing the NPT as a nuclear weapons state (which would be possible if the current 1967 cutoff in the definition of a "nuclear weapon state" were pushed to 1975), other parties to the NPT are not likely to support such an amendment.  As a compromise, the proposed civil nuclear agreement implicitly recognises India's "de facto" status even without signing the NPT. The Bush administration justifies a nuclear pact with India because it is important in helping to advance the non-proliferation framework  by formally recognising India's strong non-proliferation record even though it has not signed the NPT. The former Under Secretary of State of Political Affairs, Nicholas Burns, one of the architects of the Indo-U.S. nuclear deal said “India’s trust, its credibility, the fact that it has promised to create a state-of-the-art facility, monitored by the IAEA, to begin a new export control regime in place, because it has not proliferated the nuclear technology, we can’t say that about Pakistan.” when asked whether the U.S. would offer a nuclear deal with Pakistan on the lines of the Indo-U.S. deal.    Mohammed ElBaradei, head of the International Atomic Energy Agency, which would be in charge of inspecting India's civilian reactors has praised the deal as "it would also bring India closer as an important partner in the nonproliferation regime". However, members of the IAEA safeguards staff have made it clear that Indian demands that New Delhi be allowed to determine when Indian reactors might be inspected could undermine the IAEA safeguards system.
Financially, the U.S. also expects that such a deal could spur India's economic growth and bring in $150 billion in the next decade for nuclear power plants, of which the US wants a share. It is India's stated objective to increase the production of nuclear power generation from its present capacity of 4,000 MWe to 20,000 MWe in the next decade. However, the developmental economic advising firm Dalberg, which advises the IMF and the World Bank, moreover, has done its own analysis of the economic value of investing in nuclear power development in India. Their conclusion is that for the next 20 years such investments are likely to be far less valuable economically or environmentally than a variety of other measures to increase electricity production in India. They have noted that U.S. nuclear vendors cannot sell any reactors to India unless and until India caps third party liabilities and or establishes a credible liability pool to protect U.S. firms from being sued in the case of an accident or a terrorist act of sabotage against nuclear plants.
Since the end of the Cold War, The Pentagon, along with certain U.S. ambassadors such as Robert Blackwill, have requested increased strategic ties with India and a de-hyphenization of Pakistan with India.
While India is self-sufficient in thorium, possessing 25% of the world's known and economically viable thorium, it possesses a meager 1% of the similarly calculated global uranium reserves. Indian support for cooperation with the U.S. centers around the issue of obtaining a steady supply of sufficient energy for the economy to grow. Indian opposition to the pact centers around the concessions that would need to be made, as well as the likely de-prioritization of research into a thorium fuel-cycle if uranium becomes highly available given the well understood utilization of uranium in a nuclear fuel cycle.
On March 2, 2006 in New Delhi, George W. Bush and Manmohan Singh signed a Civil Nuclear Cooperation Agreement, following an initiation during the July 2005 summit in Washington between the two leaders over civilian nuclear cooperation.
Heavily endorsed by the White House, the agreement is thought to be a major victory to George W. Bush's foreign policy initiative and was described by many lawmakers as a cornerstone of the new strategic partnership between the two countries. The agreement is widely considered to help India fulfill its soaring energy demands and enter the U.S. and India into a strategic partnership. The Pentagon speculates this will help ease global demand for crude oil and natural gas.
On August 3, 2007, both the countries released the full text of the 123 agreement. Nicholas Burns, the chief negotiator of the India-United States nuclear deal, said the U.S. has the right to terminate the deal if India tests a nuclear weapon and that no part of the agreement recognizes India as a nuclear weapons state.
On December 18th, President George W. Bush signed the Act into law. The Act was passed by an overwhelming 359-68 in the United States House of Representatives on July 26th and by 85-12 in the United States Senate on Nov 16th in a strong show of bipartisan support.
The House version (H.R. 5682) and Senate version (S. 3709) of the bill differed due to amendments each had added before approving, but the versions were reconciled with a House vote of 330-59 on Dec 8th and a Senate voice-vote on Dec 9th before being passed on to President G.W. Bush for final approval. The White House had urged Congress to expedite the reconciliation process during the current lame duck session, and recommended removing certain amendments which would be deemed deal-killers by India. Nonetheless, while softened, several clauses restricting India's strategic nuclear program and conditions on having India align with U.S. views over Iran were incorporated in the Hyde Act.
In response to the language Congress used in the Act to define U.S. policy toward India, President Bush, stated "Given the Constitution's commitment to the authority of the presidency to conduct the nation's foreign affairs, the executive branch shall construe such policy statements as advisory," going on to cite sections 103 and 104 (d) (2) of the bill. To assure Congress that its work would not be totally discarded, Bush continued by saying that the executive would give "the due weight that comity between the legislative and executive branches should require, to the extent consistent with U.S. foreign policy."
Key political parties of India
Although many mainstream political parties including the Indian National Congress support the deal along with regional parties like Dravida Munnetra Kazhagam and Rashtriya Janata Dal its realisation has run into difficulties in the face of stiff political opposition in India. Also, in November 2007, former Indian Military chiefs, bureaucrats and scientists drafted a letter to Members of Parliament expressing their support for the deal. However, opposition and criticism continued at political levels. The Samajwadi Party (SP) which was with the Left Front in opposing the deal changed its stand after discussing with ex-president of India and scientist Dr A P J Abdul Kalam. Now the SP is in support of the government and the deal. The Indian Government survived a vote of confidence by 275-256 after the Left Front withdrew their support to the government over this dispute.
The main opposition party BJP which laid the groundwork for the deal criticized the deal saying that the deal in its present form was unacceptable to the BJP and wanted the deal renegotiated. The BJP had asked the government not to accept the deal without a vote in the parliament. However, the government remained steadfast on its commitment to the deal and has refused to back down on the agreement. Veteran BJP leader Lal Krishna Advani, in a statement to the Indian Express newspaper, seemed to indicate willingness to support the government provided some legislative measures. However his party refused to follow that line and stuck to its earlier stand.
The primary opposition to the Nuclear deal in India, however, comes from the Communist Party of India (Marxist) and its parliamentary allies (CPI, RSP, AIFB) November 17 the left parties had provisionally agreed to let the government initiate talks with the IAEA for India specific safeguards which indicated that they may support. The CPI(M), an external parliamentary supporter of government as it stipulates conditions that in some areas are more severe than the clauses in either the NPT or the CTBT. They alleged that the deal would undermine the sovereignty of India's foreign policy and also claimed that the Indian government was hiding certain clauses of the deal, which would harm India's indigenous nuclear program, from the media. On July 9, 2008, the Left Front withdrew support to the government reducing its strength to 276 in the Lok Sabha (the lower house of the parliament). The government survived a confidence vote in the parliament on July 22, 2008 by 275-256 votes in the backdrop of defections from both camps to the opposite camps.
The UNPA was divided over support of the nuclear deal. While the Samajwadi Party supported it after consultations with Abdul Kalam, the other members of the UNPA led by the TDP opposed it saying that the deal is against India's interest. The SP was eventually suspended from the UNPA.
The BSP also opposed the nuclear deal, saying that it was anti-Muslim. The party joined hands with the Left Front and the TDP in voting against the government in Parliament on the nuclear deal.
In 2006, some Indian ex-nuclear scientists had written an appeal to Indian Members of Parliament to ensure that "decisions taken today do not inhibit India's future ability to develop and pursue nuclear technologies for the benefit of the nation".
Various Indian political and scientific personalities have repeatedly expressed concerns that the United States may use the India-US civilian nuclear agreement as a diplomatic weapon if Indian foreign policy was not in conformity with geopolitical interests of the US. 
Main article: 2008 Lok Sabha Vote of Confidence
Following the passing of the Act, negotiations on implementing the cooperation through a 'Section 123 Agreement' were concluded on July 27, 2007. For this agreement to be sent to the U.S. Congress, India must have negotiated a safeguards agreement with the IAEA and the Nuclear Suppliers Group must have agreed to modify its export control standards to permit nuclear cooperation with India.
On June 19, 2008, news media reported that Indian Prime Minister Dr. Manmohan Singh threatened to resign his position if the Communists in India continue to oppose the nuclear deal, an opposition that Singh declares as irrational and reactionary.
On July 08, 2008, Prakash Karat announced that the Left Front is withdrawing its support to the government over the decision by the government to go ahead on the United States-India Peaceful Atomic Energy Cooperation Act. The left front had been a staunch advocate of not proceeding with this deal citing national interests.
On July 9, 2008, India formally submitted the safeguards agreement to the IAEA. This development comes after the Prime Minister of India Manmohan Singh returned from the 34th G8 summit meeting in Tokyo where he met with U.S. President George W. Bush. Other world leaders of G8 have also endorsed the agreement, suggesting that it is likely to gain support from the IAEA & NSG. India has also already secured the approval from China which it thought might hold some reservations against the deal. Australia which is a key exporter of Uranium for India after the deal becomes active has also suggested its approval. According to The Hindu sources, External Affairs Minister's Pranab Mukherjee’s earlier statement said “I cannot bind the government if we lose our majority,”  implying that United Progressive Alliance government would not put its signature on any deal with IAEA if it lost the majority in either a 'opposition-initiated no-confidence motion' or if failing to muster a vote of confidence in Indian Parliament after being told to prove its majority by the president. Left Front withdrew support to UPA government on same day.
On 22 July 2008 the UPA faced its first confidence vote in the Lok Sabha after the Communist Party of India (Marxist) led Left Front withdrew support over India approaching the IAEA for Indo-US nuclear deal. The UPA won the confidence vote with 275 votes to the opposition's 256, (10 members abstained from the vote) to record a 19-vote victory. 
The IAEA Board of Governors approved the safeguards agreement on August 1st 2008, and the 45-state Nuclear Suppliers Group next had to approve a policy allowing nuclear cooperation with India. U.S. President Bush can then make the necessary certifications and seek final approval by the U.S. Congress. There were objections from Pakistan, Iran, Ireland, Norway, Switzerland and Austria at the IAEA meeting.
On September 6, 2008 India was granted the waiver at the NSG meeting held in Vienna, Austria. The consensus was arrived at after overcoming misgivings expressed by Austria, Ireland and New Zealand and is an unprecedented step in giving exemption to a country which has not signed the NPT and the Comprehensive Test Ban Treaty (CTBT)  The Indian team who worked on the deal includes Manmohan Singh, Pranab Mukherjee, Shiv Shankar Menon, Shyam Saran, MK Narayanan, Anil Kakodkar, RB Grover, and DB Venkatesh Varma.
More than 150 non-proliferation activists and anti-nuclear organisations across the world had called for tightening the initial NSG agreement to prevent harming the current global non-proliferation regime. The call said that the initial version of the "deal would be a nonproliferation disaster and a serious setback to the prospects of global nuclear disarmament" and also pushed for all world leaders who are serious about ending the arms race to "to stand up and be counted."
Dr. Kaveh L Afrasiabi, who has taught political science at Tehran University, has argued the agreement will set a new precedent for other states, adding that the agreement represents a diplomatic boon for Tehran. Ali Ashgar Soltanieh, the Iranian Deputy Director General for International and Political Affairs, has complained the agreement may undermine the credibility, integrity and universality of the Nuclear Nonproliferation Treaty. Pakistan argues the safeguards agreement "threatens to increase the chances of a nuclear arms race in the subcontinent." Pakistani Foreign Minister Shah Mahmood Qureshi has suggested his country should be considered for such an accord, and Pakistan has also said the same process "should be available as a model for other non-NPT states". Israel is citing the Indo-U.S. civil nuclear deal as a precedent to alter Nuclear Suppliers Group (NSG) rules to construct its first nuclear power plant in the Negev desert, and is also pushing for its own trade exemptions.
Brahma Chellaney, a Professor of Strategic Studies at the New Delhi-based Centre for Policy Research, argued that the wording of the U.S. exemption sought to irrevocably tether New Delhi to the nuclear non-proliferation regime. He argued India would be brought under a wider non-proliferation net, with India being tied to compliance with the entire set of NSG rules. India would acquiesce to its unilateral test moratorium being turned into a multilateral legality. He concluded that instead of the "full" civil nuclear cooperation that the original July 18, 2005, deal promised, India's access to civil nuclear enrichment and reprocessing technologies would be restricted through the initial NSG waiver.
The deal had initial support from the United States, the United Kingdom, France, Japan, Russia, and Germany. After some initial opposition, there were reports of Australia, Switzerland, and Canada expressing their support for the deal. Selig S. Harrison, a former South Asia bureau chief of The Washington Post, has said the deal may represent a tacit recognition of India as a nuclear weapon state, while former U.S. Undersecretary of State for Arms Control and International Security Robert Joseph says the U.S. State Department made it "very clear that we will not recognize India as a nuclear-weapon state".
After the first NSG meeting in August 2008, diplomats noted that up to 20 of the 45 NSG states tabled conditions similar to the Hyde Act for India's waiver to do business with the NSG. "There were proposals on practically every paragraph," a European diplomat said. A group of seven NSG members suggested including some of the provisions of the U.S. Hyde Act in the final waiver.
Richard Stratford, the regular U.S. Head of Delegation to the Nuclear Suppliers Group, had said he has no expectations that a ‘clean’ draft would be the final version.” Indian Foreign Secretary Shivshankar Menon said in April 2008 that India would be willing to accept some conditions on the waiver and that the NSG would likely punish India if it tested nuclear weapons.
The Bush Administration told Congress in January 2008 that the United States may cease all cooperation with India if India detonates a nuclear explosive device. The Administration further said it was not its intention to assist India in the design, construction or operation of sensitive nuclear technologies through the transfer of dual-use items. The statements were considered sensitive in India because debate over the agreement in India could have toppled the government of Prime Minister Manmohan Singh. The State Department had requested they remain secret even though they were not classified. Secretary of State Condoleezza Rice also previously told the House Foreign Affairs Panel in public testimony that any agreement "will have to be completely consistent with the obligations of the Hyde Act". Both the Assistant Secretary of State for South and Central Asian Affairs Richard Boucher and the Former Assistant Secretary of State for Legislative Affairs Jeffrey Bergner have also said the agreement would be in conformity with the Hyde Act.
Howard Berman, chair of the U.S. House Foreign Affairs Committee, in a letter to US Secretary of State Condoleezza Rice has warned that an NSG waiver "inconsistent" with the 2006 Hyde Act will "jeopardise" the Indo-US nuclear deal in US Congress. Berman said a deal which did not punish India for testing atomic weapons "would be inconsistent with U.S. law, place American firms at a severe competitive disadvantage and undermine critical U.S. nonproliferation objectives. It would also jeopardize congressional support for nuclear cooperation with India, this year and in the future."
Representative Edward J. Markey, founder and co-chair of the US House Bipartisan Task Force on Nonproliferation, has said any final deal will meet the conditions required by the Hyde Act and will likely not be voted on until 2009. Congressman Gary Ackerman, a co-chair of the Indian-American Caucus in the US Congress, has said the agreement will have to be passed in the next presidential administration. Joseph Biden, chair of the U.S. Senate Foreign Relations Committee, said "I think if it's not done by the time we go to the August recess, it's awfully hard" to get through in the 110th Congress. Speaker of the House of Representatives Nancy Pelosi and Senate Majority leader Harry Reid have set September 26, 2008 as the adjournment date for Congress.