India's response in case of an NSG Snub

Discussion in 'Defence & Strategic Issues' started by trackwhack, May 4, 2012.

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What should India do if we are not given full NSG membership

  1. Test a TN warhead and give them the bird

    31 vote(s)
    59.6%
  2. Dont test and continue with diplomatic begging

    5 vote(s)
    9.6%
  3. Dont test and use diplomatic clout in issues like Iran to defy the P5

    16 vote(s)
    30.8%
  1. sukhish

    sukhish Senior Member Senior Member

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    Also france in the 2011 NSG meeting raised the point about the validity of the NON NPT clause for india. so to say france is denying ENR to india is completely fabricated. India will enter into ENR aggrangement with france based on the 2008 ENR regulations which are applicable to india. infact with whomsover India enters into nuclear fuel or ENR agreement, India will go by the 2008 agreement only, and not with the guidelines which were in place prior to 2008 nor will it go by 2011 guidelines which are not india specific. there general purpose NSG guidelines and then there are India specific guidelines period. India will go by
    India specific guidelines of 2008 that's the end of the story.
     
  2. olivers

    olivers Regular Member

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    The simple and elegant legal argument of US, Russia and all 44 NSG is this: This amendment is a mere codification of the existing internal law of US, France and Russia in from 2008, which was soft international law. This soft international law was expressed and explicitly stated by the US diplomats and politicians in the congress when such questions on ENR were raised in 2007, by the french ambassador before India signed the agreement in 2008 and by Russian diplomats in 2008 before the bilateral agreement was signed. All of these are assertions of customary international law and such statements carry the force of International law. International Law 101. So nothing has changed. So really the exemption is the same. Legally this is the only position. It's consistent. If nothing changed in 2008 is the same as 2011 agreements. There is a waiver to India on intrusive inspections for further nuclear co-operation. There is something called explicit expression of intent to change. So whatever is explicitly changed remains changed. So the 2008 change was explicit on no intrusive inspections in India. This is explicit. There is no explicit obligation on not changing any NSG rules which will apply to India henceforth on nuclear transactions. You did not get that obligation and you will never get such a blanket statement from 45 countries. Just like you can't say I am not in UN security council and so the resolutions will not apply on me.

    I have covered all your if's and buts and butter ladies in what follows. It's messy but your logic is messy so I have gone through all the legal interpretations wasting my time. So I have to take you through all the routes. Your arguments hold no legal basis. These are just politicians arguments. Some are dangerous to the point of asking others to act on your past transgressions. I won't respond on the if and buts and butter ladies based on the interpretations below. They are just to show what the legal interpretation of political statement are. The input was crap from a legal sense so the output will have to contain some amount of crap. I have tried to make the mixture 90% legal and 10% crap below. All the interpretations I gave below are just to show you why that logic does not work.Don't quote that or use that to write further story.

    Everything else that follows below is just to legally show you the if's and buts and butter ladies. My final legal argument is only the first paragraph. It's self contained and has no contradictions. You can improve your legal understanding by following what is below. Don't use is as my arguments on the deal. They are interpretation on your reasoning and why those don't apply even after giving you 200kms of legal leeway which extents beyond what is legal.

    we did not have ENR agreement because, ENR is suppose to be more regulated compared to just the nuclear fuel and also we never asked them for it.
    We never asked for it. On facts in 2008 Anil Kakodkar refused to sign the agreement without ENR. This is a historical fact. So your argument fails on a factual basis. We asked the everyone and their father for ENR. Read the last 4 pages. So argument is logically incoherent and negated by facts.

    On the second objection of yours ENR is not part of the agreement as it's more regulated. If this is the legal position of a country the agreement will state we promise to transfer ENR to India, subject to regulations will be formulated in a supplement to this agreement. This is an obligation to transfer with additional regulatory issues which are yet to be decided. None of the agreements have this language as far as ENR goes. In fact the India-US nuclear deal has exactly such a obligation on re-processing on us supplied spent fuel in India and a supplementary arrangement on re-processing of such fuel was discussed and a supplementary agreement was signed by the parties in 2010 or 2009. On ENR the text has a different language, which reads India-US may by a future agreement discuss civil ENR. This is not an obligation on US but a mere intent to negotiate. Even if you construe this as an obligation they just need to discuss and not agree to civil ENR and their obligation under this provision is satisfied. When there is a difference in treatment of two subjects the intention of the parties is to have a difference in interpretation. Therefore by treating ENR and reprocessing of fuel in distinct language the parties intended both of these to be interpreted distinctly. Legal interpretation 101. So legally no dice. So there was no obligation even under 123 to transfer ENR.

    either 2008 NSG waiver applies in totality or it does not.
    There is no such principle of International law. The NSG waiver of 2008 was part of a body of International law on transfer of nuclear materials. The waiver was a promulgation of law on the subject governing NSG member in 2008. The law as applied by NSG is subject to paragraph 6 and 7. Even the NSG waiver does not state that paragraph 6 or 7 will not change in future with respect to India nor doe it state what paragraph 6 and 7 entail. Paragraph 6 and 7 include the soft international law and hard international law. Soft international law on paragraph 6 and 7 are internal laws of the NSG countries, express statements by US diplomats in congress on ENR being restricted and not available to India, express statements by French and Russian diplomats of ENR not being part of the bilateral agreement in India, express declaration of such soft law in G8 in 2010 and subsequent codification of soft law into hard law by NSG in 2011. So even if I assume you are right that it has to apply in totality which is a bullshit legal argument, there is no change in NSG law between 2008 and 2011.
    If on the other hand there is a change then NSG as body much like your Supreme court can declare the law which will apply to everyone as they have merely discovered the legal principle which existed all along. So you can't tell the legislature we had no vat in 1998 when I was born so I will not pay vat. This argument mean zilch in law. NSG is a body which can evolve any law. Your problem here is you don't have a voice in NSG. NSG isn't a democractic body and can change the rules even without you being part of it. However as I suggested earlier there is no change in rules. I am trying to argue all your permutations and combinations to show however much we duck and weave the legal interpretation is the same. It's International law. Not some political bullshit all or nothing agreement. The UN security council is also a similar body. They pass resolutions on human rights violations after the violations take place. Do you tell them they are wrong as there was no law when I killed a 1000 people. This is how law operates and international norms and rules operates.

    either 2008 NSG waiver applies in totality or it does not. you can't have 2008 waiver for full scope safaguards, then 2011 paragraph 6) and 7) for ENR technologies, even though NSG clearly gave guidelines for ENR in 2008 agreement itself. if that were to be the case then even for full scope safeguards they can apply rules prior to 2008 waiver, and then all waiver of 2008 is for nothing. the 2008 waiver has some meaning to it, in that it only applies to india.

    According to the principles of legal interpretation, an amendment to a document changes only those referenced change. Every other part of the agreement will apply as is unless the context requires a different interpretation. There are a couple of way to interpret your problem.

    The 2011 amendment modifies paragraph 6 and 7. It specifies objective rules only for ENR transfer a) signature to NPT and b) full scope safeguards and surprise inspections in all parts of the country if there is ENR transfer.
    The simplest interpretation of this text is if India signs the NPT then they can have ENR and if they can have ENR they will be subject to surprise inspections all over the country. If India signs NPT then it's a non nuclear weapons state. It will have to give up nuclear weapons so there will be no problem. So India can't sign the NPT so it can't have ENR. We don't have to go into the other part. The legal principle here is called ripness doctrine. You don't waste time if there is a theoretical what if question. India cannot sing the NPT and have nuclear weapons so the rest of the interpretation isn't necessary. So ENR is denied to India as long as it does not sign the NPT. there is nothing which takes away from the 2008 agreement in this interpretation. The rules are meant to apply to India and to punish India for not signing the NPT. They are also mere codification of International law. Also please note the UN security council resolution asking India to disarm is still valid international law. So this agreement was a civil nuclear agreement. There is no military recognition today and there never was. It's a political statement and has no International legal sanction until UN changes the law or majority of states change the law. So this argument isn't acceptable to any other country. Forget about international law. They consider you a non nuclear weapons state. They merely adjusted the rules to allow nuclear commerce to the extent they wish to do so. Morally this may seem horrible to you. Legally it's the way it is. Law has no eyes so no more sentimental arguments please.

    There is another interpretation on this. That is that the amendment is a codification of soft law and therefore the waiver given in 2008 included the ENR restrictions and ENR was never part of the deal. This has been the argument of US, Russia, France and all of the NSG. Please refer to my previous arument on this. It's crystal clear. Amendments in law amend only specific provisions not all provisions. Whatever is not explicitly amended stays the same unless the context of the amendment changes some other parts of the legal text. Ask any lawyer. This is law 101. Also this amendment is a mere codification of the existing internal law of US, France and Russia in from 2008, which was soft international law. This soft international law was expressed and explicitly stated by the US diplomats and politicians in the congress when such questions were raised in 2007, by the french ambassador before India signed the agreement and by Russian diplomats before the bilateral agreement was signed. All of these are assertions of customary international law and such statements carry the force of International law. International Law 101.So no go.

    A third argument which will not happen in legal interpretation ever because of ripeness. India does not sign NPT so I will not think about the rest of the provision. This is where an judge stops. Just to satisfy your curiosity. Assuming NPT is changed to accommodate India as a half-nuclear power and India signs it. The intrusive surprise inspections will not apply to India, as long as we don't buy ENR from NSG. This is how the rules stand today. Now to go into a further hypothetical from here requires the conditions of NPT India signed. I am not in the business of writing fiction. So I will stop here on Ripeness argument. There is also a possibility of NPT signature + ENR + no inspections with 2011 rules applying. I will tell you the legal priciple of that when I write a novel. It constructive interpretation to save as much of the law as is necessary while maintaining the crux. Which is no ENR without NPT and sufficient safeguards. This will be done legislatively at that stage by NSG. So your argument of all or nothing is not valid and this is not how things work in the real world. You let a legislation survive if it can by trying to solve the inconsistency with the intent of 44 parties. Which is to safeguard ENR. Your choice here if you feel it's all or nothing. Stop doing business with the NSG and go on your own. International law has no recourse here.

    India specific waiver.
    Read above. NSG is a body of law and and there is not I got what I want now you can't change it. It's how things work. If you are not part of NSG you will have no representation and can't prevent such changes. However you have to suffer. Just because you are not in parliament making the law does not mean it does not apply to you. Go to China and you can't say I can't vote so I won't follow your law. Representation is not required for suffrage. There is nothing specific about it. There are thousands of similar decisions by NSG. All of these are precedents and will apply to later transactions unless the NSG decides otherwise. Read it was given to India in 2008. It may be given to Israel later. So nothing specific about it. Even if it is specific NSG is the will of 44 nation on nuclear commerce. Look above for soft law being hardened. So NSG didn't change anything.

    other general guidelines are for the rest of them. whatever is in 2008 agreement applies to india. INFCIRC/734 (Corrected) paragraph 6) and 7) of 2008 apply to india. the communique from NSG to IAEA specifically retains the word india in it. as per you logic for full scope safe guard some countires can use 2008 waiver, and then for the ENR then can use 2011 guidelines. it doesn't work that way


    The letter to IAEA does not determine NSG law. You send a letter to your servant to say these are the rules you obey. This is a document which an action
    requested document on safeguards nothing more. Even here please use the soft law and hard international law. The law has not changed. There is nothing wrong with my logic. Legal interpretation is consistent and it's the way law works.

    Someone else can use it for their safeguards. The safeguards are India specific not ENR. ENR is subject to Paragraph 6 and Paragraph 7. It doe not state in the letter. Paragraph 6 and Paragraph 7 as existing today in legal text excluding the soft international law. So logic does not work here. Law does. There is nothing inconsistent with Paragraph 6 and Paragraph 7 in 2008 and changed paragraph in 2011. Even if we assume your interpretation going the other way that 2008 Paragraph 6 and Paragraph 7 are different from Paragraph 6 and 7 of 2011, there are two alternative interpretations. NSG retains the right to change whats in Paragraph 6 and Paragraph 7 and all countries of NSG which is a consensus body will apply the new rules and not old rules of Paragraph 6 and Paragraph 7. The second interpretation is that since the text of the statement does not spell out Paragraph 6 and Paragraph 7 it will be the then existing Paragraph 6 and Paragraph 7 which apply. No representation again, does not mean no suffrage. On the fact that it will apply to everyone the change in ENR is for everyone and the exception on intrusive inspection for civil nuclear deal is for India. If you are so intent on taking this anology further and ignoring ripeness principal. Also note again the argument on this not being a recognition of your military nuclear program is important.

    The non application of UN resolution on complete reversal on nuclear weapons owned by India. Is not an argument in favor of it's non applicability. It's just a matter of not applying something right now. Just because you steal and the police wala books a case and does not take you to the court does not mean you are innocent. Just because he had tea with you and helps you buy the same equipment you earlier stole does not make you not liable for the crime you committed earlier. This waiver was not an absolution of your earlier sins. It's legally just a document to address how you will abide by the NSG rules from now on.

    Such legal interpretation in the International community will make them ask. Ok no problem the waiver was for civil program. Now we want to stop your military program. We will start inspections in your country. The international law is still against you in the UN with a resolution asking you to disarm. Such lahori logic does not apply in International Law. It was all political calculation that this is recognition by the world. All that is valid only as long as you are powerful. These legal arguments don't hold water. Look at a document legally not using politicians twisted logic.

    some countries are still dilly dallying because no country has ever supplied ENR transfer to any other country. it is considered to be very sensitive in nature. so it would require an additional arrangement. but the BLANKET restriction of
    2011 is not for india, that is one thing I'm 200% confident. also India is still trying to negotiate an agreement with japan for nuclear fuel itself. does that mean that japan doesn't consider the 2008 waiver for india at all. no countries are sensitive about these technologies and hence it is taking time.


    The 2011 amendment applies to all agreements beyond 2011 including the Japan agreement. The 2011 amendment only codifies the restrictions on ENR and this applies to all NSG countries. Amendments in law amend only specific provisions not all provisions. Whatever is not explicitly amended stays the same unless the context of the amendment changes some other parts of the legal text. Ask any lawyer. This is law 101. Also this amendment is a mere codification of the existing internal law of US, France and Russia in from 2008, which was soft international law. This soft international law was expressed and explicitly stated by the US diplomats and politicians in the congress when such questions were raised, by the french ambassador before India signed the agreement and by Russian diplomats before the bilateral agreement was signed. All of these are assertions of customary international law and such statements carry the force of International law. International Law 101. So the legal argument is a) the amendment only change what is change or in the alternative they codify the pre-exisiting soft international law. These are the two interpretations on legal principles. Both these interpretations don't change the requirement of International law to abide by the rules enacted in 2011. This is called alternate interpretation and the rest of both these interpretations is the same on Japan India or France India or Russia India or Cat - India or Dog - Cat after 2011. This will not apply to agreements with explicit obligations made prior to 2011. This will however not apply to promises to look into new agree

    Japanese agreement will be based on NSG rules as they stand today with the amended section 6 and 7. The rest of the provisions of the waiver remain unchanged. There is no legal argument here. Japan can co-operate on anything including ENR if India signs NPT same as every other NSG member's future agreements. Japan can co-operate on anything other than NPT based on 2011 agreement which is unchanged from 2008 guidelines. Also to drill it in 2011 and 2008 as per American interpretation and international legal principles has not changed because these were part of National American law, statements made in congress by Americans on this exact question and statements made by the french Ambassador. So under international law there is no change between 2008 and 2011 on ENR. It's the same.

    Also france in the 2011 NSG meeting raised the point about the validity of the NON NPT clause for india. so to say france is denying ENR to india is completely fabricated. India will enter into ENR aggrangement with france based on the 2008 ENR regulations which are applicable to india. infact with whomsover India enters into nuclear fuel or ENR agreement, India will go by the 2008 agreement only, and not with the guidelines which were in place prior to 2008 nor will it go by 2011 guidelines which are not india specific. there general purpose NSG guidelines and then there are India specific guidelines period. India will go by
    India specific guidelines of 2008 that's the end of the story.


    All agreements between NSG countries on nuclear transfer will be as per agreements prevailing currently. If NSG says tomorrow that they will not sell Uranium to non NPT signatories. They can make such a rule if all 44 countries agree. If all 44 wish to abide by that they will. You can do shit about it. Non representation does is not an excuse for suffrage. UN security council resolutions apply to you in spite of you not being part of it. This is how law operates.
    Only 2008 agreement will apply and nothing else will apply. Legally no. All future rules of NSG apply to countries who are in the NSG. They have to abide by the rules they set themselves. So one party of the India- Us or India-cat or India-dog is bound by NSG rules including new rules. So all NSG rules apply to you as long as you transact business related to NSG rules. Your arguments are political. How unfair it is. Legally they mean squat. France passed the resolution as part of the NSG without insisting that India specific amendment be made to the text. If one country of NSG refuses the amendment fail. So France chose to express reservation and then went along and changed the rule without India Specific language. Just because one MP makes a speech in parliament against the budget and then votes for the budget to be passed does not make the protest part of the final budget. Legal principle of text being binding rather than the words spoken in parliament. In fact the legal principle is such statement are not to be used even in interpreting the final text as it's not the final view of even the person who uttered it. He might have been convinced by the arguments and changed his mind to arrive at the final text. So that legally means zilch. All political stunts. Legally zilch.

    I have taken a lot of time to show you why legally. You can still continue to pester around on this. It's just not worth my time replying to such stuff. Please go to a good law school student in a top law school who has studied International law. Ideally he should be extremely good at International Law. Then you talk to him and discuss the agreement from a legal perspective. Then make arguments. I have taken the time to show you how law works. If you still don't believe me and will produce political arguments go into politics. Not into diplomacy. Good luck.
     
    Last edited: May 18, 2012
  3. sukhish

    sukhish Senior Member Senior Member

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    wells, I can't convience some one who is not suppose to be convinced. basically what you are saying is any country can interpret 2008 as per their requirement. for full scope safe guard they can take shelter of the 2008 waiver to supply fuel to india, but for ENR they apply 2011 paragraph 7). I just can't imagine that is the case. when shyam saran negotiated 123 agreement in 2007, this was the sticking point. because U.S law prohibits ENR. but U.S did not object to other countries supplying ENR, that was the reason why in 2008 NSG agreement ENR clause specific to india was included. now you can all the lengthy details as you want, but as far as NSG guidelines are concerned, 2008 India NSG agreement has ENR provisions for india. I have nothing more to say. no country on record has denied ENR to india, they all refer to 2008 NSG waiver. french FM jupee couple of months ago on record said that ENR trade will be as per 2008 regulations as far as india is concerned.
     
  4. sukhish

    sukhish Senior Member Senior Member

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    NSG already has rule not to supply fuel to NON NPT countries. they don't have to make special rule for that. that's is why pakistan is not allowed to trade. but that rule was changed for India along with ENR trade provision. yes NSG can make any rule as they want. again NSG also has a rule of not supplying fuel to any country which does not abide by full scope safeguards. how come India is allowed to get fuel without full scope safeguards. the full scope safeguards rule is already in place, they don't have to make a special rule. as a matter of fact under that rule India is not allowed to do nuclear trade. then how come India has signed nuclear agreement with so many countries. I just fail to understand. there is no offcial statement from U.S, russia or france as to denial of ENR to india. all they say India trade will be as per 2008 agreement. which means ENR as per 2008 agreement period. you can give 40 page long theories of some one's point of view. each and every country can take shelter of the prior 2008 waiver and deny India everything, including nuclear fuel. why are they signing agreements for nuclear fuel as per 2008 agreement. they can easily say that as per rules prior to 2008 , India is not allowed to import fuel without full scope safeguards. that would mean 2008 has no value at all. I don't think that is the case. India related nuclear trade is well documented in 2008. you don't have to give me explanations of scientists or some other people.

    I think if the rules of pre 2008 are applied on India then, in that case India should not be allowed to import fuel because of no full scope safeguards. they can't pick and choose. even after the 2011 NON - NPT inclusion in the paragraph 7). NSG clearly stated that India specific exemptions fully apply on India. so what is the whole hupla about ?

    so you are trying to say that 2008 paragraph 7) has no value for india in the 2008 waiver, only 2011 paragraph 7) superceed 2008 paragraph 7). then why would they include 2008 paragrph 7) in the NSG waiver in 2008 waiver document.

    yes that paragraph has been changed in 2011, but India agreement includes paragraph 7) of 2008 that's it. most people have misunderstood the whole 2011 paragraph 7). that's is a general requirement , but not india specific. just like prior 2008 NSG guidelines prohibit nuclear fuel to non full scope safeguards countries.
     
    Last edited: May 18, 2012
  5. olivers

    olivers Regular Member

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    Read all of the above. Pakistan can't trade in nuclear in anything including ENR. So the rule will apply only to India. As India is the only Non NPT country trading in nuclear materials.So ban ENR explicity in 2011. NSG rules apply to all 44 NSG countries. So they can't transfer ENR to countries which have not signed NPT after 2011. Simple. Don't use lahori logic. Use principles of law. The rule change in 2011 is consistent with rule change in 2008. India can tax you 80% today and 20 % next year. You have to pay the current tax rate not 2008 tax rate. It's called NSG rules which apply to 44 countries which deal in nuclear supply. So if you trade with one of the 44 you need to abide by the new rules. The explicit change in 2008 will still hold for India. This change is India can have civil nuclear supply without surprise inspections or a, b and c. This is also subject to changes by NSG. So If the NSG says no more supply to India you can't fight . It's NSG's rules which are obeyed by 44 NSG countries and by extension you, since you trade with them. Your agreement does not provide for remedial measures if this happens also. So your draft Indo-US agreement is defective. This is called a lawyer screwing you over. When governments work in secret and want things in a big hurry all this crap will happen. That's why this deal is a colossal cluster f*** by NSG. Why it's a failure and why we need to show guts and break out of it.

    So you are in trishanku land only, you get yourself into it because you wanted it before the elections. China negotiated with US for 10 years get everything in their 123 agreement. Your trishanku status is subject to the pleasure of NSG countries. So the only way out of this is to become a superpower with your own weapons. Then all of the rules won't apply to you and you can ignore treaties. This is why all the hurry to get into NSG by India now. We were better off without the deal. We had all options now only trishanku options unless you want to get out of this mess by testing weapons.
     
    Last edited: May 18, 2012
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  6. olivers

    olivers Regular Member

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    Income tax in India is 20%, VAT 5% in 2010. GOI says in 2011 income tax is 25%, VAT is 5%. You will say I will pay 2010 tax rate as VAT has not changed ?

    The Indo-US agreement does not provide penalties for US or others moving away from their word. You can't take out reactors from the civilian program. You can't do anything on those fronts even if they screw you over. NSG is like the government as far as nuclear trade between the 44 countries and any others go. There is a proverb in vernacular. You hear ramayana all day and state. Rama is sita's uncle. That's what's happening with your arguments.

    For your kind information I can read provisos and agreements and interpret them including paragraph 6 and 7. These interpretations were given with legal basis and reasoning. With principle of international law. Legal interpretation principles. So read about the principles. It will take you a long time to even get to understand the principles stated. Don't argue for the sake of argument.
     
  7. sukhish

    sukhish Senior Member Senior Member

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    it's not the trishanku status. it 's very well documented in 2008 waiver. it is not a colossal cluster f*** by NSG, but a lack on understanding.
    pakistan can't get ENR, because they don't have the waiver for anything. India got waiver for ENR as well as full scope safeguards, that's it.
    so why panic. 2011 paragrph 7) is not superceding 2008 paragraph 7) in case of india. like I said it is a general requirement for all the 45 countries to follow.
    but when trading with India 2008 waiver document is used. which has ENR provisions in them. for me it's very plain simple. for India 2008 waiver and for the rest general requirements. the reason pakistan can't trade is because it is not a member of NPT ( NNWS ). India also had the same problem. but waiver changed that condition for India. waiver also has ENR provisons in it for India. NSG has clearly stated after 2011 that India specific waiver stand as they are.
    which means 2008 agreement still stands for India. it is no trsinku status. you are just not understanding it correctly. you are mixing paragraph 7) of 2008 with paragraph 7) of 2011. when countries sign any agreement with India be it fuel or ENR , they are going to look at 2008 agreement to see if it is permitted under it or not. if not they will not sign it. if there is a provision they will go ahead according to that provison. anything before 2008 or after 2008 ( 2011 ) or what ever is not india specific. for India specific 2008 is the bible.
     
  8. olivers

    olivers Regular Member

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    NSG already has rule not to supply fuel to NON NPT countries. they don't have to make special rule for that. that's is why pakistan is not allowed to trade. but that rule was changed for India along with ENR trade provision. yes NSG can make any rule as they want. again NSG also has a rule of not supplying fuel to any country which does not abide by full scope safeguards. how come India is allowed to get fuel without full scope safeguards. the full scope safeguards rule is already in place, they don't have to make a special rule.

    They made the rule to get you to give up military reactors. You didn't tell them if you change the rule I will make them military reactors again. You said it will forever be civil reactor even if I test and even if I get out of the agreement. It was your fault not their fault. They are allowed because that is the explicit change to the earlier rules for you which was made in 2008. Tax rate for all 25% in 2010. VAT 5% in 2010. In 2011 VAT 5% Men 25% Women 20%. Also new GST of 6% in 2012 VAT 5% Men 25% Women 20%. Your argument in 2012. I won't pay GST as I am a man and have to pay 25% while women only pay 20%. If GST has changed for everyone then 20% for women should also change back to one tax slab for both men and women. Lahori logic. Not legal logic.

    as a matter of fact under that rule India is not allowed to do nuclear trade. then how come India has signed nuclear agreement with so many countries. I just fail to understand.

    We have NSG rules similar to contract law in countries. It's the rule of onlly 44 sabzi walas What's in contract law is applicable to all transactions implicitly. In addition you make agreements with other countries to buy vegetables and cake. The price of the cake the place of delivery the place of purchase is decided in bilateral agreements. Not legal principles of contract law. You have to abide by NSG rules. They control over your bilateral agreement. 44 countries agree to do something for all nuclear trade. This is like your parliament passing rules. It applies to all. MP trading with panwala also once the law is passed. Just because Panwala isn't in Parliament doesn't help him.

    there is no offcial statement from U.S, russia or france as to denial of ENR to india. all they say India trade will be as per 2008 agreement. which means ENR as per 2008 agreement period. you can give 40 page long theories of some one's point of view.

    What on earth were all those statements from US. There is no ENR in congress hearings. Statements by diplomats. Theories are yours. I have given your interpretations with International law principles. I didn't just make them up. These are called principles of legal interpretation. The is something called international law. You study for donkeys years to get good at it. Not sit at a computer and type away nonsense.

    each and every country can take shelter of the prior 2008 waiver and deny India everything, including nuclear fuel. why are they signing agreements for nuclear fuel as per 2008 agreement. they can easily say that as per rules prior to 2008 , India is not allowed to import fuel without full scope safeguards. that would mean 2008 has no value at all. I don't think that is the case. India related nuclear trade is well documented in 2008. you don't have to give me explanations of scientists or some other people.

    Read above. Just cost GST is introduced in 2011 don't not mean women paying 20% are now gone. There is still value. That 20% for women hasn't change. Only there is change in GST rate.

    I think if the rules of pre 2008 are applied on India then, in that case India should not be allowed to import fuel because of no full scope safeguards. they can't pick and choose. even after the 2011 NON - NPT inclusion in the paragraph 7). NSG clearly stated that India specific exemptions fully apply on India. so what is the whole hupla about ?

    Read above. Yes GST is different from tax for women. ENR is different from rest of nuclear supply. The NSG (Government ) can fix different rules for potatoes and cabbages. They can change in in future also. How does it work 44 countries you want to trade with have the rules. They are the only 44 in the sabzi mandi.

    so you are trying to say that 2008 paragraph 7) has no value for india in the 2008 waiver, only 2011 paragraph 7) superceed 2008 paragraph 7). then why would they include 2008 paragrph 7) in the NSG waiver in 2008 waiver document.

    yes that paragraph has been changed in 2011, but India agreement includes paragraph 7) of 2008 that's it. most people have misunderstood the whole 2011 paragraph 7). that's is a general requirement , but not india specific. just like prior 2008 NSG guidelines prohibit nuclear fuel to non full scope safeguards countries.

    No misunderstanding. Just proper understanding of legal principles. Not some typing away just for the sake of argument. Read the argument I typed out with clear legal principles and principles of interpretation. They are also the US position and the position of 44 countries. Paragraph 6 of Guidelines. It does not say paragraph 6 of guidelines as in 2008. Future change will not apply to India. You don't have that in your agreement. So it's what 44 members decide as your government on these issues
    .
     
    Last edited: May 18, 2012
  9. olivers

    olivers Regular Member

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    Lahori logic. Read the legal explanation given above. I understand it perfectly. Look at the legal interpretation. I have even explained stuff in simple vegetable and tax analogy. If you still don't follow I can't help you. NSG is the subzi mandi rules of 44 exclusive traders. You follow their rules to trade sabzi with them. Their union decides the rules. You follow them or get lost. As far as the legal position used by US it's made clear and it's rock solid. US uses the best lawyers in the world for all treaties. Shyam Sharan was shana and said we didn't go with lawyers they came with lawyers. That's were we got into this mess. So before you start going in circles understand the legal principles. In the sabzi mandi rambha has special discount in 2008 for mangos. In 2008 carrots were as per sabzi mand rules 7 and 8. In 2011 sabi mandi rules for carrots 7 and 8 are changed. Ramba will still get the carrots at 2008 rules?

    If you are in the union of 44 then you can prevent the rule change. So Ramba needs to get into Sabzi mandi. To make rules for all including Bakistan. Which might get ENR after a new rule change.
     
    Last edited: May 18, 2012
  10. olivers

    olivers Regular Member

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    Also in the above example. If there was unwritten rule in sabzi mandi which 44 traders follow on their own. 1 carrot per customer. In 2011 they change the rule 7 and 8 to include only 1 carrot per customer. Ramba will argue in 2011 no no I under 2008. I get 3 carrots?
     
  11. olivers

    olivers Regular Member

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    Until Ramba is sexy she will get mango at special discount. If she become ugly and poor she will get nothing. Also if Sam Uncle No1 stall does not like her in 2011 because of refusal to accommodate him and Sam Uncle has loans and ghoondas over all 43 others he can change the concession to Ramba. All 44 will write new rules. Just because Ramba has concessions does not mean all others have to get. When the general rules of all others are changed the concessions of Ramba will remain as long as the rule change does not also change the concessions themselves.
     
  12. olivers

    olivers Regular Member

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    If all 44 says alphanso mango for all will be 500 in 2012 by writing rule 8.1. Then Rambha also has to pay 500. If all 44 say alphanso mango for all will be 500 except Rambha who will continue getting discount in 2012. Then Rambha gets discount. NSG is sabzi mandi. Just to help you understand. It's exactly how governments work. It's not fair it's the way it is.

    Let's test and get out of this trishanku place. You are neither a nuclear power nor a non nuclear power.
     
  13. The enlightened

    The enlightened Regular Member

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    Damn.
    I couldn't get a thing of what has been said here. But anyways thanks guys for this wonderful and entertaining debate.
     
  14. sukhish

    sukhish Senior Member Senior Member

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    Dude you are running out of arguments,
    India NSG text is frozen in 2008 . If you read the coominique from NSG to IAEA , it includes reference to enr as per paragraph 6)and paragraph 7). , you put those paragraphs in place of the reference ,you will get the complete text. If that paragraph is changed in 2011
    It won't apply to India, as the indian text has used the 2008 paragraph seven. That NSG text specifically apply to India.

    You are just getting confused , paragraph seven of 2011
    will nor supersede paragraph seven of 7) of 2008 in case of India, but will supersede
    For all others. Even before 2008 there were guidelines for nuclear trade, along with full scope safe guards. Those terms do not apply to India because of waiver. But that does not mean they are not applicable. The full scope safeguard is still applicable to all others.

    NSG has set a separate guidelines for India compared to rest others. All the reference you are giving is for general guidelines, not for India waiver applies. Just because paragraph 7 has been changed after the NSG waiver, does not mean it applies automatically to India. For that to happen it has to nullify the Indian specific paragraph 7) of 2008. The NSG statement of 2011 did not nullify 2008 paragraph seven of India. It upheld it. It means both these paragraph seven of 2008 and 2011 are valid. But in Indian context paragraph. 7) of 2008 applies., since it was already included in 2008 waiver , and it explicitly mentioned India.

    The standard NSG guidelines are guidelines applicable to all the countries. But the guidelines which are included for India in 2008 will remain in parallel to guidelines made prior to 2008 and after 2008. The full scope safe guard is still valid , but not applicable to India. Similarly 2011 paragraph 7) is still valid to everybody ( nnws ) , but not to India . So full scope safe guard and enr ban are valid and are applicable to all the countries. They had to go out of the way to create special conditions for India in 2008. Just because the enr ban is incorporated in 2011 does not automatically make it nullify the India specific agreement. India specific agreement is a parallel agreement for India. India still would abide by all the general guidelines of NSG which are not part of the 2008 waiver. But those things which are outlined in 2008 waiver, stand in parallel to other general guidelines, even though they touch the same subject.

    Full scope safe guard, enr restrictions are still valid , but in parallel to these 2008 India specific agreement is also valid for India only case. Since Indian waiver already talks about enr subject, a future amendment simply cannot nullify India 2008 waiver. For India a parallel agreement was created, so that other countries can use that for nuclear trade with India. 2011 and pre 2008 NSG guidelines are still valid along with the 2008 Indian waiver, which clearly states what India can do and what it can't. If the NSG guidelines changes something which are not included in the 2008 agreement , then those will be applicable to India . But if NSG amends the same things, which are also outlined in India specific 2008 agreement, then those guidelines will still apply for everyone, but not to India. What you are getting is the fact that it is some kind of a parallel agreement for india. Both guidelines are valid. They had to do this parallel arrangement because India was not part of not All the general guidelines talk only about the nws and nnws states.

    It's not date of the amendment which matters ( pre 2008 or 2011 ) , but rather the context of the amendment.

    But for India 2008 guidelines are only applicable .
     
    Last edited: May 18, 2012
  15. olivers

    olivers Regular Member

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    I have shown you why NSG rules will apply. I have shown you how a legal system works. You don't follow legal arguments. Then you will state I have run out of argument. The arguments presented are legal arguments which are valid in law. I know what do for a living day in and day out in the best firms in the world. I don't need your certificate on howto read legal text. So my interpretation of law is consistent with the precepts of International law which I have illustrated and listed for you in the arguments. I have been extremely patient with you. I am very good at what I do for a living. So let's not go there.

    Your arguments are not legally valid I tried to show you even with simple analogy's why the argument is what it is. What the American position is why it is legally strong. So I know howto look at the document and interpret it. Take it or leave it. I have shown you why you are wrong legally. You Keep circling back to the same arguments 2008 is valid. There is no parallel agreement. It's India specific only to the extent where it different from the general agreement. It's NSG and it's rule which apply to 44 countries and anyone who trades with them. (The sabzi mandi analogies are to explain how International law works to a layman like you). They gave you special treatment only on civil nuclear materials plus ENR in 2008 and decided to go back on the plus ENR part in 2011 through legislative action. Or you can look at it as if they gave you special treatment on civil nuclear materials minus ENR in 2008. Whichever way you look at it the effect is the same. The NSG guidelines have changed and closed it behind you.

    Let me try again to tell you legally why you are wrong.

    The NSG text is not frozen in 2008. NSG is a body of rules, a large part of which applies to everyone including India. NSG may waive certain rules to certain countries for limited periods of time. Eg. Pakistan was allowed to import 2 nuclear reactors which the Chinese say is 4 nuclear reactors. These don't get carried over to the everyone. So there is no problem in grating an exception. The NSG can change the rules when the circumstances change. Just like GOI can change the rules if and when they want or when the situation changes. You are bound by the new rules/law. This is how a legal system works. NSG is no different.

    Existence of a special waiver does not derogate from the a general legislation. If the general legislation explicitly overwrites the certain provisions of the special legislation while leaving intact some part of the special legislation. All rules of NSG apply to India except the exceptions given in 2008, subject to changes at anytime NSG feels they are appropriate. Due to a new discovery NSG finds that exporting wrist watches made of titanium, can create a proliferation risk. They can change the rules in 2040 and it will apply to all 44 NSG countries and any countries which trade with NSG countries. The legal system is a set of rules. There is a general body of rules which applies to everyone. There are certain differences for men/women. Like the Pakistan waivers, India waivers. All of these waivers are subject to changes and corrections by NSG. NSG has the authority to set it's own rules and change them.

    The India NSG waiver does not state that NSG will not change the exceptions given to India. In fact it reads in the relevant portion that in case of changed circumstances the countries shall discuss what measures to take and act according to the NSG consensus. So they explicitly reserved the right to make changes to the NSG rules. You did not have any counter measures including your ability to move civil reactors into military roles if they did. Your policy failed not their rules. They are consistent with legal law making bodies and International legal principles. So to state you are frozen in time because you are not part of NSG rule making is not a valid legal argument. This is not how the NSG works or any legal system works.

    Your best case interpretation: In 2008 India was granted NSG waiver with ENR. (This is not true and I have stated why the provisos prevent such transfer even in 2008.) Even assuming this is true the rest of the general rules of NSG apply to you including any subsequent rule changes. Even changes to specific rules which apply to you as your best case interpretation goes can be changed by general rule changes which apply to everyone. So the 2011 changes did not state in the text that this will not apply to you. Since you are not explicitly excluded the general principle of interpretation of law states that such a change applies to everyone including India. You can't pick which law to obey in India. Similarly you can't choose to pick which law to obey with the NSG. All laws apply to you. You may have somme reservations grated to you, some of which may survive in 2011. NSG as the supreme body can go back on it. NSG is the supreme body on rules which govern these issues. International law trumps, national and bilateral agreements. This is the principle of International law.

    Any legislative body can change rules. Taxes change every year. You can't make an argument on the authority of NSG to make these changes. They are the will of 44 countries. They decide by consensus. So any member who did not want this to apply to India could have required the exception be made textually. They did not. So the legal intent of all 44 countries including France was to make this rule change apply to India. This is also a well known principle of legal interpretation. Particularly when the actions are based on consensus. The argument is even stronger for consensus actions. All 44 wanted the law to apply to India.

    Paragraph 6 and 7 has changed for everyone including India. No one gets to trade with the old rules including India. How difficult is it to understand for your. Just because you have a and b and only b is changed in 2011 does not change a as well. NSG can change b and leave a alone. It's their right as a legislative body of which you are not a member. They can regulate trade however they choose to according to their wishes. They are there you are not. I have told you time and again they did not change anything between 2008 and 2009. So refer to the tax examples of GST, vat, income tax and women for a layman's analogy.

    . If you read the coominique from NSG to IAEA , it includes reference to enr as per paragraph 6)and paragraph 7). , you put those paragraphs in place of the reference ,you will get the complete text. If that paragraph is changed in 2011
    It won't apply to India, as the indian text has used the 2008 paragraph seven. That NSG text specifically apply to India.


    You are just getting confused , paragraph seven of 2011
    will nor supersede paragraph seven of 7) of 2008 in case of India, but will supersede
    For all others. Even before 2008 there were guidelines for nuclear trade, along with full scope safe guards. Those terms do not apply to India because of waiver. But that does not mean they are not applicable. The full scope safeguard is still applicable to all others.


    I am not confused. I am very clear. Full scope safeguards don't apply to India. However this has nothing to do with ENR. ENR is not available to countries who have not signed NPT. The new rule change prevents you from accessing ENR. There is nothing inconstant with this interpretation. You get knocked out in rule 1 itself on NPT. So it does not matter if rule 2 says you need to allow full scope safeguards for ENR. You don't meet the eligibility criteria.
    Layman's analogy:
    To get a license you should be 18 years or older and have 40/20 vision (Better than normal vision).
    You are less than 18 years. It does not matter if you can't have 40/20 vision. It's unfair. You get knocked out in the first step itself. The rest of the clause does not matter. You become 18 years then you apply for a license. Then 40/20 applies. So There is nothing inconsistant here. Lack of primary eligibility is all that matters. NPT. Knocked out. ENR in 2011 require intrusive inspections. So what you got knocked out in the NPT stage itself. Even if you clear the NPT hurdle I still don't want to give you ENR if you have bombs. NSG rules.

    You are not a nuclear weapons state. This rule change is to facilitate civil nuclear trade not military trade or recognition.
    Logical fallacy you are making here. They have merely chosen not to enforce your previous transgressions. They have chosen to ignore it and trade with you only on civil side. They don't care if you will not accept full scope for ENR. For all they care they will want to do that to inspect your weapons if you are desperate to get ENR. Just because they allowed civil trade does not require then to allow ENR without inspections. The NSG legislature make the rules not India. If you don't like it and think it's unfair. Don't trade with them.


    Layman's analogy:
    Earlier rule in 2008: To get a license you need to be over 18 years of age.
    Special rule: Teenagers can get a license if they are 16 years or more and have legal guardians sign off on it and they have 20/40 vision.
    Rule in 2012: To get a license you need to have normal 20/20 vision and be over the age of 18.

    The rule in 2012 applies to teenagers as well. The "special legislation" applicable to teenagers is amended by the rule in 2012. This is your best case scenario.

    Layman's analogy of American argument:
    Earlier rule in 2008: To get a license you need to be over 18 years of age.
    Special rule: Teenagers can get a license if they are 16 years or more and have legal guardians sign off on it and they meet all other requirements set forth elsewhere in this legislation.
    Rule in 2012: To get a license you need to have normal 20/20 vision and be over the age of 18.
    The rule change in 2012 applies to teenagers as well. This is the American interpretation. They just made a common rule which they anyways applied 20/20 vision into codified law in 2012. This applied to India from day one in 2008. They have maintained ENR prohibitions apply consistently from day one. Your government misguided you. You don't have a right to what you think when a party goes on record to state ENR is not part of the Indo-US deal. They don't see the ENR as part of the NSG waiver. This was made clear before their congress. You still went ahead and signed a deal. It's your fault. There is no freezing in 2008. Everything applies to India except the full scope. This will apply as long as NSG does not change it's rules again. You can't prevent that as well. They will change it if you are weak. If you are broken down into 50 states. They will change it in 2050. You can't argue that they can't change it.You don't have remedies for NSG actions. Your only remedy is not to trade with the NSG. You are free to not trade with them.

    There is nothing wrong with this argument. This is the American argument. It's a very strong argument. India don't have such a strong legal basis for a counter argument.

    So all NSG rules apply to India except the rules which have been waived for you. Any such waivers are also subject to amendments. Just like your government can remove special tax rates for women anytime they choose. This is legislative prerogative. NSG is not a democracy. They don't have to be fair. It's your fault you did not have counter measures to prevent them from changing the rules afterwards. So there is nothing wrong with the rule changes legally.The specific rules can change in part and remain in part. There is nothing special about a special rule. It's subject to change. This is how law works. This is unfair, unethical. So what? NSG isn't there to promote fairness. It's there to cater to the interests of the NSG members. I have even shown you valid legal examples in the analogy above.

    All present and future NSG rules apply to India. Your confusion on legal principles.
    a) General legislation applies to all. (Pre 2008)
    b) Special legislation trumps General legislation. (2008)
    c) General legislation at a later date trumps special legislation to the extent changes are made to Special legislation. General legislation at a later date can trump only parts of the Special legislation and leave the rest of the special legislation intact. (2011).
    A as changed by B and C applies to you.


    NSG has the sovereign right to decide it's rules not India. It's not fair, but it's the way law works. This happens in law all the time. This is very common. I have given you examples of real situations where in the teenager example.

    After all this arguments which I have to make to point out problems in your argument from a legal perspective. I will just state for the record the american interpretation is the one pasted below. It's a strong argument. India doesn't have such a strong argument. We should walk away from this form a legal perspective.

     
    Last edited: May 18, 2012
  16. olivers

    olivers Regular Member

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    The simple and elegant legal argument of US, Russia and all 44 NSG is this: This amendment is a mere codification of the existing internal law of US, France and Russia in from 2008, which was soft international law. This soft international law was expressed and explicitly stated by the US diplomats and politicians in the congress when such questions on ENR were raised in 2007, by the french ambassador before India signed the agreement in 2008 and by Russian diplomats in 2008 before the bilateral agreement was signed . All of these are assertions of customary international law and such statements carry the force of International law. They re-affirmed the position at the G8 summit preventing ENR to all non NPT countries. In 2011 they codified soft international law into hard law. International Law 101. So nothing has changed. So really the exemption is the same. Legally this is their position. It's consistent. If nothing changed in 2008 is the same as 2011 agreements. There is a waiver to India on intrusive inspections for further nuclear co-operation. There is something called explicit expression of intent to change. So whatever is explicitly changed remains changed. So the 2008 change was explicit on no intrusive inspections in India. This is explicit. There is no explicit obligation on not changing any NSG rules which will apply to India henceforth on nuclear transactions. You did not get that obligation and you will never get such a blanket statement from 45 countries. Just like you can't say I am not in UN security council and so the resolutions will not apply on me.

    The U.S. official said that NSG members had begun discussing a list of criteria for enrichment- and reprocessing-related exports in 2004 and, by the end of the year, had agreed that NPT membership should be a criterion. The plans for U.S.-Indian nuclear cooperation were announced in July 2005. (See ACT, September 2005.)

    The official also noted that the text of the 2008 NSG decision exempts India only from the section of the NSG guidelines dealing with the requirement for full-scope safeguards and specifically says that “transfers of sensitive exports remain subject to paragraphs 6 and 7.”

    In a June 30 interview, a European diplomat agreed that, under the guidelines, India could not receive enrichment and reprocessing technology. India’s Ministry of External Affairs and its embassy in Washington did not respond to requests for comment.


    Now please don't go around in circles. I have rebutted all your arguments line by line. I have given legal reasons why they are not applicable.

    Also in one of your statements which I did not notice earlier you stated no country has transferred ENR to anyone else. A lot of them have. US transferred such technology to Japan in 1990s. Russia transferred such technology to China. UK transferred such technology to Europe and urenco. There are multiple examples. So that is also factually incorrect.
     
    Last edited: May 18, 2012
  17. sukhish

    sukhish Senior Member Senior Member

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    yes you are right they begain discussing it in 2004, but theydid not put this ban on ENR on India in the 2008 agreement.

    in 2008 waiver they removed the full scope safe guards, because it was there is pre 2008 NSG guidelines, and also referend to paragraph 6) and paragraph 7) relating to ENR transfers

    paragraphs 6) and 7) of 2008 are


    Suppliers should exercise restraint in the transfer of sensitive facilities, technology and material usable for nuclear weapons or other nuclear explosive devices. If enrichment or reprocessing facilities, equipment or technology are to be transferred, suppliers should encourage recipients to accept, as an alternative to national plants, supplier involvement and/or other appropriate multinational participation in resulting facilities. Suppliers should also promote international (including IAEA) activities concerned with multinational regional fuel cycle centres.

    Similarly, the unamended paragraph 7 noted:


    For a transfer of an enrichment facility, or technology therefor, the recipient nation should agree that neither the transferred facility, nor any facility based on such technology, will be designed or operated for the production of greater than 20% enriched uranium without the consent of the supplier nation, of which the IAEA should be advised.

    there is no ban of ENR on India.
    also 2011 NSG statement of clearly underlined that the NSG would implement the India-specific exemptions fully.
    which means India specific guidelines passed in 2008 full apply to India. the 2011 guidelines are also applicable to everbody, but not to India, because
    2008 guidlines were not nullified. you are presuming that 2011 guidelines automatically supersecde 2008 guidelines, I completely diasagree with this point of view. if India would got waiver in 2012 with exact same text as that of 2008, then the ENR ban would have been also applicable to India. but India's waiver document of 2008 has not been touched by NSG in 2011 paragraph 7) guidelines. there is no automatic replacement of paragraph 7) of 2011 with paragraph 7) of 2008 agreement, because of the fact they touched upon the same issue. German chancellar angela merkel specifically stated ( officialy ) that India specific guidelines were still fully in place along with the 2011 guidelines. 2008 india specific guidelines has the full ENR provision in them . that is the reason
    in 2008 when it came to ENR provisions, there were long negotitations. even though G-8 countries were plannning to put these provisions long back in india's waiver, they did do it in the India text. India NSG text is different text then the rest of the guildlines.

    pre 2008 guidelines regarding full scope safeguards are in place, 2011 NON-NPT paragraph 7 is also true, but also true is the 2008 full scope waiver for India, along with the ENR guidelines of paragraph 6) and 7) of 2008. all these three things are still valid.

    Like i told you just because the guildeline have been adopted in 2011 do not automatically supercede in India's case. India's document is still valid as it was in 2008, however full scope safe guards ( pre 2008 ) and NON NPT pragraph 7) of 2011 are also valid, but india's waiver is also equally valid. you are not able to conmprehend that the Indian waiver stands in parallel to all other NSG guidelines. nobody has touched upon the India waiver in the 2011 NSG meeting, all countries after 2011 guidelines said offcially that India waiver stand valid as it was in 2008. and 2008 waiver clearly has ENR provisions according to paragraph 6) and paragraph 7) of the NSG.

    so again to make my point little more clear :

    1) full scope safeguard agreement of pre 2008 is also in place, it is still an NSG guideline
    2) 2011 NON - NPT paragraph 7) is also in place. it is still valid
    3) India specific 2008 waiver from full scope safeguard is also valid.
    4) India specific ENR provisions of 2008 according to the paragraph 6) and 7) of 2008 are also valid.

    all the the four point are valid. it is just that in India's case India goes by the 2008 case and not by other general guidelines.
    since 2008 India specific guildlines are fully in place. unless they specifically nullify them that docuement is fully in place.
    along with the other general guidelines.

    don't get confused with automatic superceding wht india case. India document is still very much in place in the same wat as it was in 2008, I repeat 2011 paragraph 7) does not supercede paragraph 7) of 2008 when it comes to India.

    also pre 2008 full scope safe guards are no applicable to india, but they are still valid to other countries. India NSG agreement if different.

    just the way they had to specifically issue seperate guidelines for India , in 2008 they will have specifically nullify those guilelines, for the general guidelines to supercede. they did not not do it in 2011. they just passed general guideline in 2011 and did not touch 2008 NSG guideline.

    I feel sorry that you cannot comprehend the fact that India waiver is a seperate text than the other guidelines.
    what india do and can't do in documented in 2008 document. pre 2008 full scope guidelines and post 2011 paragraph 7) are general guidelines and are in no way superceding or preceding 2008 india text.
     
    Last edited: May 18, 2012
  18. olivers

    olivers Regular Member

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    We are back full circle. My first post discussed this exact point where I pasted the proviso. The interpretation of the proviso. Arun Shorie said this in 2009 and gave the exact same interpretation. Lots of legal commentators have said the same in 2009. I have posted an argument why 2011 rules apply in my previous post read it. It's the way law and legal systems work. There is nothing special about 2008 being unnameable. The 2008 agreement itself says it's amendable by NSG. So your insistance that 2008 apply and not 2011 applies does not hold water. Even if we apply 2008 only look at the American logic given above it addresses that also. You will not read the American explanation. You will go back to something else. Then come back to 2008. It's circular. So I will start with 2008 only.

    Let's give you this assumption only for the sake of argumentation. We have to follow only 2008. Agreement: Look at the American position.

    The U.S. official said that NSG members had begun discussing a list of criteria for enrichment- and reprocessing-related exports in 2004 and, by the end of the year, had agreed that NPT membership should be a criterion. The plans for U.S.-Indian nuclear cooperation were announced in July 2005. (See ACT, September 2005.)

    The official also noted that the text of the 2008 NSG decision exempts India only from the section of the NSG guidelines dealing with the requirement for full-scope safeguards and specifically says that “transfers of sensitive exports remain subject to paragraphs 6 and 7.”


    From your logic:

    paragraphs 6) and 7) of 2008 are


    Suppliers should exercise restraint in the transfer of sensitive facilities, technology and material usable for nuclear weapons or other nuclear explosive devices. If enrichment or reprocessing facilities, equipment or technology are to be transferred, suppliers should encourage recipients to accept, as an alternative to national plants, supplier involvement and/or other appropriate multinational participation in resulting facilities. Suppliers should also promote international (including IAEA) activities concerned with multinational regional fuel cycle centres.

    Similarly, the unamended paragraph 7 noted:


    For a transfer of an enrichment facility, or technology therefor, the recipient nation should agree that neither the transferred facility, nor any facility based on such technology, will be designed or operated for the production of greater than 20% enriched uranium without the consent of the supplier nation, of which the IAEA should be advised


    Suppliers should exercise restraint in the transfer of sensitive facilities, technology and material usable for nuclear weapons or other nuclear explosive devices. The national law of France, Russia and America from before the bilateral agreement prohibit transferring ENR to non NPT countries. This is the exercise restraint they were doing for 30 years. Presidential declaration of Putin in 2009 and French internal law dealing with ENR. (The U.S. official said that NSG members had begun discussing a list of criteria for enrichment- and reprocessing-related exports in 2004 and, by the end of the year, had agreed that NPT membership should be a criterion. The plans for U.S.-Indian nuclear cooperation were announced in July 2005. (See ACT, September 2005.)) This 2005 International agreement was codified by France, Russia and America into their internal law before they signed nuclear agreement with India. Read the amendments. Read the previous 5 pages on multiple statements to this effect. All of these were in place before they signed the agreements with India. America had this in place since 2005. So the 2008 text did not say 20/20 vision. It said people should not be blind. It said so in a different place. So even under the 2008 agreement the French ambassador refused to give ENR in the bilateral treaty. So ENR was not part of the civil deal with any country. All countries agreed to discuss ENR at a later date. That's all nothing more. Show me one legal agreement or bilateral agreement in 2008 where anyone promises to transfer ENR. Transfer ENR is not the same as discuss the possibility of ENR transfer in a later agreement.
    By possibility of transfer of ENR they might mean in return for the later agreement you will give up all your weapons. Otherwise I will not give you ENR. This not a promise to transfer. This is a promise to discuss if what I get from you later is good. It also does not mean I will not abide by NSG rules which are changed. This agreement to agree could be anything under the sun or nothing at all. So no ENR transfer was promised by any of the 44 countries. You did not tell them they cannot impose these conditions on you. It's like a proposal to marry you can change your mind at any time.

    Every diplomat before signing the agreement in 2008 says ENR is not part of this bilateral agreement. France, Russia and America. Only a nuclear scientist from Russia who is not part of Russian government said we will place ENR in India. No legal standing for him as he was not even part of the governmental program. So they all got together and did you know what to you. Soft state. No one gave you ENR in 2008 and no one promised to give you ENR in 2008. They only said we will discuss. Like proposal to marry. Withdrawn now I got all I wanted from you.

    So even here your argument fails.

    All the statement after 2008 state, nothing has changed since 2008. It's called hyperbole. Read what it means. No one has stated after that that ENR transfer is part of 2008 agreement. You can interpret it to include ENR. None of the 44 countries have interpreted it this way. Only India has in it's assertions in Parliament. It never was part of it. So No ENR. Now it has become harder. Not only does 2008 apply 2011 also applies. When changes are being made in G8 you say, we are not bound by it. G8 is nobody. When it got to NSG, we are not bound by it. You are bound by it. Not legal view points. You can keep parroting it. Circular motion starts here.

    Now go back and read why specific trumps General and why later general trumps specific if passed at a later date. Also certain part of specific can survive the later general if such parts of specific are not amended by later general.

    Please provide legal basis for your arguments. They have none under International law. I have pointed to you everything with legal principles. I have rebutted all your arguments over and over and over again. You keep going in circles. You don't have any new arguments here or rebuttals for my previous arguments. Given you will repeat things I will end the discussion here. You can continue your circular journey. Just read what I have written all the answers to your questions are there. Most of your further objections will also have answers in my previous posts. You are going round and round the merry go around.
     
    Last edited: May 18, 2012
  19. sukhish

    sukhish Senior Member Senior Member

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    general trumps for all the general categories and not for India category. India is not in the general class. that's what I'm trying to explain you. after 2008 India class is different, automatic superceding of clauses is not for India, but for general category.

    again you making fuss about the date of the guideline amendment, I'm argiung about the context of the amendment.
    India is not general category, after 2008 India specific guideline is still in place. you just thumping about superceding clauses, I again say that is not thecase for india. they tried to prohibit ENR sale to india in 2008 agreement, but India stuck to its point that nuclear co poration wouldbe for the full spectrum of the civilian nuclear domain. if they were so determined they would put the same restriction in 2008, for the better part would have kept mum on the ENR all together.

    they specifically mentiond ENR in 2008 agreement. just because general guidelines has been passed post 2008 and it touch upon the same subject as that of the 2008 agreement, does not mean that it will automatically supercede the India clause. India text is not general text my dear sir. India is not in the general
    compartment. for India there is seperate compartment. unless they nullify the 2008 ENR provision for india, 2011 ENR provision will not automatically supercdede India. this is exactly what SM krishna refered to in the parlimanet. you are just thiking that india specific 2008 guidelines are valid only in 2008 for india. after 2008 India automatically falls in to the general category. I'm sorry I completely reject that point of view. India is not general category.
     
    Last edited: May 18, 2012
  20. olivers

    olivers Regular Member

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    By possibility of transfer of ENR they might mean in return for the later agreement you will give up all your weapons. Otherwise I will not give you ENR. This not a promise to transfer. This is a promise to discuss if what I get from you later is good. It also does not mean I will not abide by NSG rules which are changed. This agreement to agree could be anything under the sun or nothing at all. So no ENR transfer was promised by any of the 44 countries. You did not tell them they cannot impose these conditions on you. It's like a proposal to marry you can change your mind at any time. This also does not mean they will not respect their Internal law on NPT which they passed prior to signing deals with India. This internal law of America, Russia, France was also re-affirmed in 2011 in NSG.

    This is how international lawyers of America mess with you. They will destroy you. It's legal. It's all there in bilateral agreements. Bilateral agreements are subject to national laws unless you specifically point out the areas which do not apply in your international agreement. Otherwise any non-explicit statement is assumed to be subjugated to National law. Get it? Legal 101.
    Eg: The Putin presidential declaration on ENR+NPT is not challenged by Russia India nuclear deal. The deal is subject to national laws of Russia. Now the national law of Russia is also the NSG rule. So Russia has to break NSG rules to change the national law of Russia. Good luck getting Russia, America and France to break International law and national law after 2011. In 2008 they only had to change their internal law which they did not and refused to do so standing in India, giving that declaration that ENR is not part of the deal. The deal is subject to French law.

    In 2008 it was difficult, In 2011 you have to get someone to break International law to do this. No only 2008 applies to me. Ok 2011 applies to France, Russia and USA so they can't change their pre-Indian nuclear deal internal laws without breaking International law and NSG rules.

    So you understand the legal mess and trishanku swarga? This is it.
     
    Last edited: May 18, 2012

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