1. Now that the ‘123 Agreement’ between USA & India has been signed, let’s look at some of its provisions which legally (though unfairly) create an uneven playing ground between these two great players:
i) The ‘no nuclear test’ clause, in a way, broadens the usual force majeure provision found in many a bilateral Contracts (or the concept of ‘contract with an alien’) but in the 123-Agreement this clause is unfairly available to only one of the two key players. What if US, in disregard of its international commitments under the nuclear test ban treaty, carries out a nuclear test? Can India rescind the 123 Agreement?
Moreso, the Agreement is silent as to whether, in the event of rescission of this contract by virtue of the aforesaid clause by the US Government, will those commercial Companies (incorporated in USA) which have received Advance Payment from the Indian Companies for certain supplies under the said Agreement, be liable to payback the moneys so received?
Of course, they have the right to stop the supplies. Should they not be made to return such unearned incomes, under the Principles of Equity?
ii) Moreso, this one-sided right to rescind (breach) the contract is contrary to the raison d’être of Indian refusal, for the past half a century, to sign the Test Ban Treaty and the Nuclear Non-Proliferation Treaty-- these Treaties unfairly create two categories of ‘haves’ and ‘have-nots’ and force the underdogs to always remain the underdogs.
iii) The comity of Nations has not yet recognised India as a legitimate holder of nuclear weapons-- India is not yet recognised as a ‘Nuclear Weapons State’.
iv) In case of legal dispute, can the letter which the Bush Administration wrote to the Chairman of one of the Committees of the US Senate, be relied upon by the Indian Government to claim the usual escape-clause that there was no ad idem between the two Governments?
2. Nevertheless, in the words of a layman, this Agreement has many tangible benefits for India, e.g.:
i) There is no embellishment upon our sovereignty by opening up our civil nuclear reactors to the IAEA-- even the mightiest countries have voluntarily subjected themselves to such inspection.
ii) There is no embargo upon India that it shall not conduct a nuclear test; the Agreement only spells out the consequences of a test-- which may or may not follow (a mere right to rescind).
iii) Thus knowing before hand what worst could ever follow, India can in a given circumstance weigh the need for a nuclear test vis-à-vis the contractual consequences thereof; and, if necessary, choose the timing of the test in a way that is in her best interests.
iv) In the background of Indian voluntary moratorium (consistent with the technical advice of its scientific community) on further nuclear tests, there is no rationale in continuing the effects of the 3-decade old apartheid policy for this intervening period especially when the Indians can, in the interests of their rapid economic advancement, use this leverage-period to strengthen their energy resources-- both in terms of nuclear supplies and new technology
The current recession and bankers' economic crises were predicted by me at least two years ago. And the Warning was again sounded on May 02, 2008 (vide my Blog 'creativegb.joeuser.com') please.