The ‘non-binding’ myth

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.

... contd.