In a paper for Carnegie Endowment for International Peace on Monday, Tellis, who is the Tata chair for strategic affairs at the think tank, has outlined the strategic logic of deeper nuclear cooperation
Ashley J Tellis, a former US official closely involved with the India-US civil nuclear agreement and a top American strategic affairs expert, has said that to meet the vision embedded in the agreement, India must clarify its civil nuclear liability legal framework either through an amendment or by specifying liability limits in commercial agreements or a broad inter-governmental agreement.
For its part, the US must drop its “absurd” and “maniacal” tech controls regime that is born out of concerns over India’s nuclear weapons programme and open doors for tech transfers to India in a range of domains, Tellis has said.
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In a paper for Carnegie Endowment for International Peace on Monday, Tellis, who is the Tata chair for strategic affairs at the think tank, has also outlined the strategic logic of deeper nuclear cooperation.
Discussions on civil nuclear issues have acquired renewed momentum under the Joe Biden administration, with Biden, who as chair of the Senate Foreign Relations Committee played a key role in pushing the deal through the US Congress, keen on seeing the American nuclear industry win benefits that it hoped for.
During Prime Minister Narendra Modi’s state visit to Washington DC in June, and then during Biden’s visit to Delhi in September, both countries, in joint statements, referred to “intensified consultations” between relevant entities on both sides to expand opportunities for “facilitating” bilateral collaboration in nuclear energy, “including in the development of next-generation small modular reactor technologies in a collaborative mode”.
The US administration is understood to have consulted Tellis on the subject and how to take the nuclear story forward.
India and US agreed on civil nuclear cooperation in 2005 and finalised it in 2008, largely due to then-President George W Bush’s commitment to overcoming the structural barriers that had inhibited the strategic relationship between the two countries, with an eye on China’s rising power. The agreement saw India agree to a separation of civil and military nuclear reactors and open up the former for international inspections, and in return, without being a signatory to the Non-proliferation Treaty (NPT), the US helped India’s entry into the club of nuclear-haves by changing both international legal regime and its own domestic legislation and opening the doors for cooperation in the domain of nuclear commerce.
Prescription for India
Tellis noted in his paper that the Manmohan Singh government had “consciously” set to make international and domestic private sector participation in the nuclear industry possible by enacting a nuclear liability legislation consistent with international standards as codified in the Convention on Supplementary Compensation for Nuclear Damage (CSC). This convention imposes burdens imposed in the case of any nuclear accident on nuclear plant operators rather than suppliers.
But an unrelated Supreme Court judgment around the same time on the Bhopal Gas tragedy reminded Indian body politic of the “ghastly tragedy”, Tellis argued, making Singh’s proposed legislation hard to enact. The BJP too, at that point, strongly opposed the original legislation.
As a result, Tellis claimed, a “convoluted” law was passed that accepted the nuclear plant operator’s liability in principle, but also bestowed on it the right to seek “legal recourse against suppliers for defective products or technology”. “India’s nuclear liability law — the Civil Liability for Nuclear Damage Act (CLNDA) — thus made the country an outlier in the realm of international nuclear commerce,” Tellis has written, adding that it also complicated foreign efforts to supply advanced nuclear reactors.
Tellis acknowledged that India sought to create “work-arounds” on the issue. “These have included providing government clarifications to the textual ambiguities, defining the limits of a supplier’s liability in specific financial terms, and committing to create an insurance pool to limit the supplier’s risks in case of an accident.”
But these, he noted, had proved to be inadequate and claimed that most private companies were unlikely to “embrace the Indian nuclear market” until the issue was resolved.
But the imperatives of “energy security, climate adaptation and geopolitical interests” have led to India keeping the nuclear option alive, with India importing reactors from Russia and pursuing negotiations with French and US companies.
Tellis then offers three possible solutions. The first, and “cleanest”, option would be to amend the law by “channeling all liability in case of a nuclear accident solely to the operator”, with the operator relying on an insurance pool. But this option, Tellis acknowledged, is unlikely before the next Indian general elections. The second option is documenting liability ceilings “into commercial contracts with nuclear suppliers” as a way to assuage their fears about open-ended liability. Tellis said that the final “perhaps least satisfying” fallback solution was an “intergovernmental agreement” that confirms the “limited liability” of foreign private companies.
Prescription for US
Tellis also, however, said the US administration had a “bigger and more consequential” task of “addressing the issue of India’s nuclear weapons programme in US grand strategy”.
He noted that US interests are best served by the “existence of strong power centers on China’s periphery” and India’s value stemmed from its ability to stand up to China independently, which was why the Bush administration and successive US administrations had been committed to enhancing Indian capabilities and power. “The ultimate bedrock of India’s ability to constrain Chinese assertiveness derived from its nuclear weapons.”
Given China’s rise and expansion of its nuclear arsenal, there was even more reason, Tellis said, to consider Indian nuclear weapons as an asset to maintain the current balance of power. It was therefore in the US interest to increase the “effectiveness” of the Indian “nuclear deterrent”.
The NPT makes this difficult, but this, Tellis has suggested, does not mean that the US can’t help India improve its own strategic capabilities. This is where the “thicket of US export controls and end-user verifications” posed a challenge, for they are premised on the denial of any technology, expansively defined, with even tenuous connections to the Indian nuclear weapons programme and its delivery systems.
This has meant, Tellis noted, that India has been denied export licenses in other areas too. While there have been recent initiatives, including a bilateral Strategic Trade Dialogue to deal with the issue of export controls, Tellis acknowledged that there is “bitterness” in India at how the US “talks a big game” about supporting India but this doesn’t translate it into licensing practices. The persistence of this denial regime will also hamper cooperation in newer emerging and critical technologies between the two countries, a stated policy aim.
In the paper, Tellis has termed this US denial, almost two decades after the nuclear deal, “absurd”. “Washington’s obligations to NPT do not require such a maniacal control regime as far as India is concerned…The inherited non-proliferation rules and how they are implemented not only prevent India from incurring the full benefits of…the original civil nuclear agreement but, even more importantly, subvert the overarching objective that drove its negotiation: assisting India’s ascendancy to create the Asian multipolarity that balances China’s rise.”
It was time, Tellis argued, for the US executive to revise its rules that made India’s nuclear weapons programme an obstacle in tech cooperation.
Source: The Hindustan Times
