Only a deal with ambiguous wordings can allow for further deals that take into account various interests.
If the US were to specify the wordings it would say "Hyde act" and if India was to specify the wordings it would say "We want nuke material. We do not want controls on our strategic programs. We will test when we like"
All deals have to be kept within the ambiguous arena.
The wording of the 123 allows for a great deal of leeway before the Hyde act kicks. India can never again carry out a surprise test like 1974 or 1998 without getting Mr Hyde in the game. But there is talk of certain circumstances (changed security environment) in which India could test and still not have the Hyde act come into force. See para 2 of 123 quoted below. See also the conditions in para 5 about "return" of items.
On the question of testing, the analysis of the Hyde act says:
As further clarified in the section-by-section analysis included
in this report, the conferees believe that there should be no ambi-
guity regarding the legal and policy consequences of any future In-
dian test of a nuclear explosive device. In that event, the President
must terminate all export and reexport of U.S.-origin nuclear mate-
rials, nuclear equipment, and sensitive nuclear technology to India.
The conferees expect the President to make full and immediate use
of U.S. rights to demand the return of all nuclear-related items,
materials, and sensitive nuclear technology that have been ex-
ported or reexported to India if India were to test or detonate, or
otherwise cause the test or detonation of, a nuclear explosive device
for any reason, including such instances in which India describes
its actions as being â€˜â€˜for peaceful purposes.â€™â€™ This legal condition is
further strengthened in the Conference agreement beyond section
129 of the AEA by a provision that the waiver authority in this leg-
islation terminates with any Indian test. The conferees believe that
termination would include the suspension and revocation of any
current or pending export or reexport licenses, and that the return
of U.S.-origin items and materials should extend to any special nu-
clear material produced by India through the use of any nuclear
materials, equipment, or sensitive nuclear technology exported or
reexported to India by the United States.
The prohibition concerning a recipient country not engaging in
activities involving source or special nuclear material under Section
129 are permanently waived for India, as India will undoubtedly
continue to produce fissile material, until such time after it is able
to fulfill its commitment in the July 18, 2005, Joint Statement to
work with the United States toward conclusion of a future Fissile
Material Cut-off Treaty.
But the 123 agreement does not carry the word "test" but says this about termination of this agreement
ARTICLE 14 â€“ TERMINATION AND CESSATION OF COOPERATION
1. Either Party shall have the right to terminate this Agreement prior to its expiration
on one yearâ€™s written notice to the other Party. A Party giving notice of termination shall
provide the reasons for seeking such termination. The Agreement shall terminate one
year from the date of the written notice, unless the notice has been withdrawn by the
providing Party in writing prior to the date of termination.
2. Before this Agreement is terminated pursuant to paragraph 1 of this Article, the
Parties shall consider the relevant circumstances and promptly hold consultations, as
provided in Article 13, to address the reasons cited by the Party seeking termination. The
Party seeking termination has the right to cease further cooperation under this Agreement
if it determines that a mutually acceptable resolution of outstanding issues has not been
possible or cannot be achieved through consultations. The Parties agree to consider
carefully the circumstances that may lead to termination or cessation of cooperation.
They further agree to take into account whether the circumstances that may lead to
termination or cessation resulted from a Partyâ€™s serious concern about a changed security
environment or as a response to similar actions by other States which could impact
3. If a Party seeking termination cites a violation of this Agreement as the reason for
notice for seeking termination, the Parties shall consider whether the action was caused
inadvertently or otherwise and whether the violation could be considered as material. No
violation may be considered as being material unless corresponding to the definition of
material violation or breach in the Vienna Convention on the Law of Treaties. If a Party
seeking termination cites a violation of an IAEA safeguards agreement as the reason for
notice for seeking termination, a crucial factor will be whether the IAEA Board of
Governors has made a finding of non-compliance.
4. Following the cessation of cooperation under this Agreement, either Party shall
have the right to require the return by the other Party of any nuclear material, equipment,
non-nuclear material or components transferred under this Agreement and any special
fissionable material produced through their use. A notice by a Party that is invoking the
right of return shall be delivered to the other Party on or before the date of termination of
this Agreement. The notice shall contain a statement of the items subject to this
Agreement as to which the Party is requesting return. Except as provided in provisions of
Article 16.3, all other legal obligations pertaining to this Agreement shall cease to apply
with respect to the nuclear items remaining on the territory of the Party concerned upon
termination of this Agreement.
5. The two Parties recognize that exercising the right of return would have profound
implications for their relations. If either Party seeks to exercise its right pursuant to
paragraph 4 of this Article, it shall, prior to the removal from the territory or from the
control of the other Party of any nuclear items mentioned in paragraph 4, undertake
consultations with the other Party. Such consultations shall give special consideration to
the importance of uninterrupted operation of nuclear reactors of the Party concerned with
respect to the availability of nuclear energy for peaceful purposes as a means of achieving
energy security. Both Parties shall take into account the potential negative consequences
of such termination on the on-going contracts and projects initiated under this Agreement
of significance for the respective nuclear programmes of either Party.
6. If either Party exercises its right of return pursuant to paragraph 4 of this Article,
it shall, prior to the removal from the territory or from the control of the other Party,
compensate promptly that Party for the fair market value thereof and for the costs
incurred as a consequence of such removal. If the return of nuclear items is required, the
Parties shall agree on methods and arrangements for the return of the items, the relevant
quantity of the items to be returned, and the amount of compensation that would have to
be paid by the Party exercising the right to the other Party.
7. Prior to return of nuclear items, the Parties shall satisfy themselves that full
safety, radiological and physical protection measures have been ensured in accordance
with their existing national regulations and that the transfers pose no unreasonable risk to
either Party, countries through which the nuclear items may transit and to the global
environment and are in accordance with existing international regulations.
8. The Party seeking the return of nuclear items shall ensure that the timing, methods
and arrangements for return of nuclear items are in accordance with paragraphs 5, 6 and
7. Accordingly, the consultations between the Parties shall address mutual commitments
as contained in Article 5.6. It is not the purpose of the provisions of this Article regarding
cessation of cooperation and right of return to derogate from the rights of the Parties
under Article 5.6.
9. The arrangements and procedures concluded pursuant to Article 6(iii) shall be
subject to suspension by either Party in exceptional circumstances, as defined by the
Parties, after consultations have been held between the Parties aimed at reaching
mutually acceptable resolution of outstanding issues, while taking into account the effects
of such suspension on other aspects of cooperation under this Agreement.