NEW DELHI: Ashley J. Tellis, a former US official integral to the India-US civil nuclear agreement and a prominent American strategic affairs expert, has emphasised that for the agreement’s vision to be realised, India needs to elucidate its civil nuclear liability legal framework, either through an amendment or by defining liability limits in commercial agreements or a comprehensive inter-governmental agreement.
According to Tellis, the US should abandon its “absurd” and “maniacal” technology control system, initially driven by concerns about India’s nuclear weapons programme, and instead, facilitate technology transfers to India across various domains.
Under the Joe Biden administration, conversations regarding civil nuclear matters have gained fresh impetus. Biden, having played a pivotal role in advancing the deal through the US Congress during his tenure as chair of the Senate Foreign Relations Committee, is eager to witness the American nuclear industry realising the anticipated benefits.
In June, Prime Minister Narendra Modi’s state visit to Washington DC, followed by Biden’s visit to Delhi in September, resulted in joint statements from both countries mentioning “increased consultations” between relevant entities.
These discussions aim to enhance opportunities for “facilitating” bilateral collaboration in nuclear energy, particularly in the collaborative development of next-generation small modular reactor technologies.
The US administration reportedly sought Tellis’ consultation on the matter and guidance on advancing the narrative of nuclear developments.
In 2005, India and the US reached a consensus on civil nuclear cooperation, solidifying the agreement in 2008. This was primarily driven by then-President George W. Bush’s dedication to overcoming structural barriers that had impeded the strategic relationship between the two nations, with a focus on the increasing influence of China.
Under the agreement, India committed to segregating civil and military nuclear reactors, allowing international inspections of the former.
In reciprocation, despite not being a signatory to the Non-Proliferation Treaty (NPT), the US facilitated India’s inclusion among nuclear-capable nations.
This involved modifications to both the international legal framework and domestic legislation, paving the way for collaboration in nuclear commerce.
Tellis highlighted in his paper that the Manmohan Singh government had deliberately aimed to enable international and domestic private sector involvement in the nuclear industry.
They achieved this by enacting nuclear liability legislation aligned with international standards outlined in the Convention on Supplementary Compensation for Nuclear Damage (CSC). This convention places responsibilities for any nuclear accident on nuclear plant operators rather than suppliers.
However, according to Tellis, an unrelated Supreme Court ruling on the Bhopal Gas tragedy during a similar period served as a stark reminder of the “ghastly tragedy,” making it challenging to pass Singh’s proposed legislation. Additionally, the BJP strongly objected to the initial legislation at that time.
Consequently, as per Tellis, a complex law was enacted, acknowledging the liability of the nuclear plant operator in principle while also granting it the right to pursue “legal recourse against suppliers for defective products or technology.”
AS per Tellis, India’s nuclear liability law, the Civil Liability for Nuclear Damage Act (CLNDA), positioned the country as an anomaly in the international nuclear commerce arena. He noted that it also created challenges for foreign endeavours to provide advanced nuclear reactors.
Tellis recognised that India attempted to devise solutions to address the issue. These initiatives encompassed offering government clarifications to resolve textual ambiguities, specifying the financial limits of a supplier’s liability, and committing to establish an insurance pool to mitigate the supplier’s risks in the event of an accident.
However, he noted that these measures had proven insufficient, asserting that most private companies were unlikely to engage in the Indian nuclear market until the matter was effectively addressed.
According to Tellis, the US administration faces a substantial and pivotal task in addressing India’s nuclear weapons programme within the broader scope of US grand strategy. He emphasised that optimal US interests lie in maintaining robust power centres around China’s periphery, with India playing a crucial role in independently countering China. This commitment to bolstering Indian capabilities and power has been consistent across the Bush administration and subsequent US administrations.
Tellis underscored that India’s ability to curb Chinese assertiveness fundamentally relies on its possession of nuclear weapons. With China’s ascendancy and expansion of its nuclear arsenal, Tellis argued that considering Indian nuclear weapons as an asset is imperative for preserving the current balance of power. Therefore, it is in the US interest to enhance the effectiveness of the Indian nuclear deterrent.
While the Nuclear Non-Proliferation Treaty (NPT) presents challenges, Tellis suggested that the US can still assist India in advancing its strategic capabilities. However, he highlighted the obstacle posed by the complex web of US export controls and end-user verifications. These controls are rooted in the denial of technology, broadly defined, with even remote connections to the Indian nuclear weapons program and its delivery systems.
Tellis pointed out that this denial has not only resulted in the withholding of export licenses in various domains but has also led to bitterness in India. Despite initiatives such as the bilateral Strategic Trade Dialogue, there is a perception that the US rhetoric supporting India does not align with its licensing practices.
The persistence of this denial regime, Tellis argued, will impede cooperation in emerging and critical technologies between the two nations, contrary to the stated policy aim. In his paper, he labelled this continued US denial, almost two decades after the nuclear deal, as “absurd.”
According to Tellis, Washington’s obligations to the NPT do not necessitate such a stringent control regime concerning India. He asserted that the existing non-proliferation rules not only prevent India from fully benefiting from the original civil nuclear agreement but also undermine the overarching objective: assisting India’s ascent to establish Asian multipolarity that counterbalances China’s rise.
Tellis urged the US executive to reconsider the rules that currently hinder tech cooperation by treating India’s nuclear weapons programme as an obstacle.