Arun Shouries Articles

The ‘non-binding’ myth | May 28, 2008

Arun Shourie: Thursday, December 21, 2006

In the Act, there is no categorisation of sections into binding and non-binding. We are left with assurances proffered in private by US officials that some provisions will be ‘non-binding’. Will we rest our country’s security on these? And if we do, what is the guarantee that the next Administration will also disregard the clear enunciations of the Act passed by Congress?

Just as at every step, we are told, “But you must wait for the next step,” so whenever we point to section upon section which will so manifestly jeopardise India’s security, we are told, “But that is not binding.”

During the discussion in Rajya Sabha on August 17, on behalf of the government, member after member declared, “But this is just a law passed by a foreign legislature. It does not bind India.”

“It binds the US President, does it not?” I had to ask. How can he negotiate an agreement that violates the Act? Indeed, under the American system the Senate is the one that has the ultimate power to approve or reject international covenants. President Woodrow Wilson was one of the principal architects of the League of Nations. The Senate threw out the treaty. President Clinton twisted the arms of many a government to make them sign up on the CTBT. The Senate rejected the treaty.

Now there is an even more telling question to consider: does the Act passed by the US Congress not bind even the US Congress? The question is decisive — because of what the Congress did in this case to the proposal of the Bush Administration.

The Bush Administration had proposed that, after the two sides have signed it, the 123 Agreement should be allowed to come into force unless the Congress passes a specific ‘Resolution of Disapproval’ within 90 days. The record of the hearings before the Senate Foreign Relations Committee documents, as does the report of that committee to the full Senate, how strongly the senators objected to this proposal. They condemned the proposal as a totally unacceptable device to whittle down the powers and rights of Congress, and they rejected it decisively.

Were the Congress to pass a ‘Resolution of Disapproval’, the president can veto it, they pointed out. To set that veto aside, a new resolution will have to be passed — but this would require a two-thirds majority. And such a majority is difficult to muster, they noted.

The Joint Explanatory Statement which the conference of the two Houses submitted to them along with the final bill records the strictures explicitly, and shows the purposes that the US Congress sets out to accomplish by overturning the proposal of the Administration. The relevant passages are indeed worth reading — they give the lie to the alibi that the government, its stooges, and the American spinners are peddling. In rejecting the Administration’s proposal, the Joint Explanatory Statement says, “In effect, the Administration’s proposal would have given it excessive latitude in negotiating a nuclear cooperation agreement with India, leaving Congress with little ability to influence the terms of that agreement, regardless of any concerns it might have.

“Both the House International Relations Committee and the Senate Foreign Relations Committee rejected this approach, believing that the Administration’s proposal did not provide for appropriate congressional oversight over what was, by any measure, an unprecedented nuclear cooperative relationship with India. Both committees were troubled by the lack of consultation by the Administration with Congress before the July 18, 2005 Joint Statement and the March 2006 US-India Declaration (in which the terms by which India would separate its civil and military nuclear facilities and further commitments by the United States were announced).”

For these reasons, the US Congress has legislated that the procedure will be the opposite of what the Bush Administration had proposed. The 123 Agreement will come into force only if the Congress — if each House of the US Congress, separately — passes a specific ‘Resolution of Approval’ within 90 days of the agreement being submitted to it. If such a resolution is not passed, the agreement will not come into force. That the vote on the resolution will not be just a blind one; that the Congress will make sure that the 123 Agreement fulfils the conditions it has prescribed in the Act, is evident from the foregoing passages itself — the Congress is determined to “influence the terms of the agreement,” it is determined to see that the Administration does not whittle down its power of oversight. The point is put beyond doubt by what the explanatory statement proceeds to say: “However, any such agreement cannot enter into force until it has been submitted to the Congress, along with a completed IAEA-India safeguards agreement and other documents and presidential determinations such as a Nuclear Proliferation Assessment (required by the AEA and by this legislation, as detailed in the section-by-section review of this report), and approved by both Houses according to the existing procedures of Section 130(i) of the AEA.”

Is the Congress insisting on these documents just to enable senators to write articles? Is it anybody’s case that the Congress will approve an agreement that the US President enters into even though that agreement skips past and thus violates a law the Congress has itself passed?

The Act is a complete scheme. It sets out the ‘Sense of the Congress’ about the principles that are to govern US policy in this sphere. It sets out, next, particulars of the policy through which those principles are to be realised. Then the specific instruments through which that policy is to be implemented. And, finally, the determinations and reports that the US President must submit to the Congress certifying the extent to which those instruments are securing the policy objectives that the Congress has laid down.

Furthermore, there is no categorisation of sections among binding and non-binding. American spinners keep saying, and it is sad to see how many of our pressmen they are able to have parrot, “but that is non-binding”. I have for three months asked them, “But why don’t you give us a glossary of what is binding and what is not binding?” Each time, those officials and educators have said they will send a “marked up copy” of the legislation showing what alone is binding. They have not sent one.

The other day, when the three educators came to me, there was a new variant on this spin: “We can’t. The Congress will be after us. But let the Indian Government say that such and such sections are not binding, and we will not contradict it.”

Asking for acts of faith

American officials say in private, as one of the principal architects of the deal tried at length to convince me, that the Administration is determined not to let the provisions that are causing concern in India come in the way. We will get our lawyers to study the Act, they say, and tell us which are the sections not complying with which would amount to a violation of the law. The Administration, they say, will implement only those sections. Like every Administration since Nixon, this Administration will just not have the Congress encroach on the Executive’s right to implement foreign policy, they proclaim. Of course, no official will be prepared to say so in public, they say, but you can be confident on this score.

We are thus left with affirmations proffered in private. Even a fool will see that to rest our country’s security on these private statements will be a reckless act of faith. But assume, for a moment, that you can believe these averments in the case of this Administration. What guarantee is there that the next Administration — and that is just a year away — will have the same view about disregarding the clear enunciations and provisions of the Act passed by Congress?

In any case, even this Administration has not shown the slightest discomfort with the contents of the Act as it has been passed. In its dispatch of December 13, 2006, rediff.com quotes Nicholas Burns as saying, “The Congress did make a number of adjustments that we think deal in large part with some of the objections that India had registered and we are very grateful to the Congress for the leadership. I called Congressman (Tom) Lantos yesterday and I thanked him for the leadership Congress had given.” “We are contacting all the members of the committees who voted to thank them for their support.” Does that indicate any reservations? Any willingness to defy the Congress?

Moreover, my educator said, we believe that India will not go in for a test unprovoked. If some significant event occurs in the neighbourhood — for instance, if China or Pakistan tests some new generation of atomic weapons — whichever Administration is in office in the US will understand and have a very different response than was the case in 1998. This argument entails not one but five acts of faith. What event will compel us to test? Who will be in office in the US? How will he respond? What will his weight be vis a vis the Congress at that juncture? Will he be willing to pick a fight with the Congress over India at that moment?

But our aim, the deal’s advocate said, is to ensure that relations between the US and India become so intense in the coming years; that so many companies etc. develop so deep an interest in India’s continuing growth that, were a president to want to initiate steps against India in the event of India going in for tests, they will restrain him. Further acts of faith. Just for energy supplies, we are being goaded to accept these conditions. To get a sufficient number of American companies to develop that deep an interest in India, what will we have to accept down the line?

The prime minister was himself more circumspect about resting the matter on assertions that the provisions are “non-binding” than his propagandists or these advocates from America. In his statement to Rajya Sabha on August 17, he said, “We have made it clear to the United States our opposition to these provisions, even if they are projected as non-binding on India, as being contrary to the letter and spirit of the July statement.” He returned to the matter a little later, and told the House, “We have studied the proposed US legislation very carefully, including the so-called binding and non-binding provisions. The non-binding provisions do not require mandatory action, but at the same time, have a certain weight in the implementation of the legislation as a whole. We have conveyed our concerns to the US Administration in this respect.”

But now, suddenly, we must swallow everything because it will not, on the say-so of these educators and their agents here, bind our throats!

(To be continued)

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