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The Hindu Editorial Analysis
22 January 2025

Editorial 1: Time to seize the promise of the U.S.-India nuclear deal

Context

There are major challenges that limit the full fruition of the deal, but the Trump administration can iron them out.

 

Introduction

Sixteen years ago, this writer and other organisers of the Coalition for Partnership with India rejoiced at the final approval of the United States-India civil nuclear deal through the U.S. Congress. The long struggle for passage of the necessary U.S. legislation began in 2005, and it was only in late 2008 that the Coalition succeeded in working with the George W. Bush administration and U.S. Congressional leaders to make the deal legal under U.S. law.

 

The Coalition for Partnership with India

  • A loose association of businesses, Indian-Americans, and academics that supported U.S. approval of the deal in the face of fierce opposition that stipulated that the deal would promote the proliferation of nuclear weapons.
  • As a consultant to the U.S.-India Business Council, this writer was privileged to recruit and act as a liaison among Coalition components, plan strategy, and advocate before the Congress.

 

A game-changing deal

U.S.-India Civil Nuclear Deal: A Watershed Moment

  • Opening a new era in Defense and Strategic Cooperation: The U.S.-India civil nuclear deal marked a significant shift, initiating a new chapter in defense and strategic cooperation between the two countries.
    • This cooperation was crucial in overcoming the estrangement of the Cold War era.
  • Trust in Nuclear Cooperation: Trust built through cooperation on nuclear technology enabled a broader partnership in areas such as defense purchasesmilitary exercisestechnology transferintelligence sharing, and crisis management.
  • Energy and commercial expectations: The deal was envisioned to augment India's civil nuclear sector with U.S. technologyequipment, and services, including new nuclear plants.
    • The intention was to create jobs in both the U.S. and India, generate more electricity for Indian industry, and reduce reliance on fossil fuels, which are harmful to the environment.
  • Unmet goals: Despite President Obama’s 2016 announcement of plans to build six new nuclear plants in India by Westinghouse, these projects have not materialized.

 

Recent Developments and Challenges

  • Jake Sullivan's announcement: In a visit to India, Jake Sullivan, U.S. President Joe Biden’s National Security Adviser, revealed that steps were being taken to remove regulatory barriers preventing civil nuclear cooperation between India’s nuclear entities and U.S. companies.
  • The Path Forward: The removal of regulations could potentially unlock the true potential of the U.S.-India civil nuclear deal, but achieving this is not a simple task.
  • 2008 Civil Nuclear Deal and the Entity List: At the time of the 2008 deal, approximately 200 Indian entities were listed on the U.S. "Entity List", restricting U.S. companies from doing business with them.
    • The deal resulted in most of these entities being removed from the list, with a few remaining due to concerns about nuclear technology leakage and security risks.
  • Concerns over Dual-Use Technologies: Mr. Sullivan highlighted concerns over the potential diversion of technologies to adversaries, stressing the need for alignment between U.S. and Indian export control systems to prevent misuse.
  • Assessment of remaining entities: The Biden Administration has reassessed the status of the few remaining Indian nuclear entities on the Entity List, considering that they no longer pose significant security concerns.
    • This could be viewed as progress, but it remains uncertain whether U.S. security and foreign policy agencieswill share this assessment.
  • Not Just About Entity List: The removal of entities from the list and reassessment of security concerns are steps forward, but they do not address the deeper issues hindering the U.S.-India civil nuclear deal from reaching its full potential.

 

The liability risk issue

  • Enactment of the Civil Liability for Nuclear Damage Act: In 2010, India enacted the Civil Liability for Nuclear Damage Act, which was fueled by those who had lost the attempt to block the deal and their anti-foreigner rhetoric, including invocation of the infamous Bhopal/Union Carbide tragedy.
  • Departure from International Liability Norms: The Act was a departure from international civil nuclear liability norms, placing major liability obligations not on the operators of a civil nuclear facility, but on the suppliers.

 

Challenges for U.S. Suppliers

  • Liability risks for U.S. Suppliers: Neither of the major U.S. suppliers — GE and Westinghouse — were willing to assume these liability risks.
    • Neither the U.S. nor India was willing at that time to step in to ameliorate these liability concerns.
  • Attempted relief by the Indian Government: The Indian Government later tried to provide some relief from liability risks, especially in conjunction with the resumption of Russian participation in the Indian civil nuclear expansion.
    • Through India’s public sector General Insurance Corporation, and four other government companies, a 20-year insurance premium would be charged to cover the supplier’s liability for an accident.

 

Russian Participation in Indian Civil Nuclear Expansion

  • Russia’s acceptance of liability amelioration: The Russians accepted this risk amelioration in large part because their overseas civil nuclear entities are government owned, will have a defense of sovereign immunity, and are protected by the Russian government from liability that might otherwise put them out of business.
    • The Russians saw their increased participation in Indian civil nuclear development as bearing significant geopolitical dividends.
  • Current status of Russian involvement
    • The Russians are now moving forward with India on civil nuclear expansion.

 

U.S. Companies’ Reluctance and the Trump Administration’s Role

  • U.S. companies' reluctance: U.S. companies have been unwilling so far to accept this insurance amelioration, hindering their participation in Indian civil nuclear expansion.
  • The Gordian knot of liability: The Trump administration will need to find means to cut the Gordian knot of liability before there can be significant U.S. company involvement in Indian civil nuclear expansion.

 

Hurdles such as technology, consumer costs

  • Evolution of Civil Nuclear Technology: Civil nuclear technology has evolved rapidly since the 2008 conclusion of the U.S.-India civil nuclear deal.
    • For U.S. companies to be fully involved, they must demonstrate that they can offer the latest technology in the field.
  • Affordability concerns: The technology and its implementing equipment must be offered at a reasonable price to avoid increasing electricity costs for the Indian consumer.
  • Cost Overrun Awareness: Indian civil nuclear officials are highly aware of the disastrous cost overruns that have plagued the latest civil nuclear facilities in the U.S..
    • These overruns have left ratepayers burdened with unwelcome costs without improvements in either the quantity or quality of services.

 

Conclusion

All these challenges limit the full fruition of the U.S.-India civil nuclear deal. But they cannot be met by U.S. companies acting alone. The Trump administration can work with Indian and U.S. nuclear companies not just on regulatory issues but also those involving liability, technology, and cost as well. The hour is late, but the benefits to seizing the full promise of the U.S.-India civil nuclear deal will be tremendous.


Editorial 2: Trump 2.0 as disruptor of the global legal order

Context

U.S. President Donald Trump’s renewed majority and control over the U.S. Senate and the House are likely to help him push forward his policies more effectively

 

Introduction

Donald Trump’s second term as President of the United States marks the start of a new ‘Trumpian’ era, defined by his leadership. Foreign policy experts expect that Mr. Trump will continue to embody the image of a disruptor. The international legal order is expected to experience substantial changes.

 

The U.S. and Its Complex Relationship with International Law

  • Role in establishing International Law: The U.S. has always maintained a complicated relationship with international law.
    • The U.S. has played a vital role in establishing many key institutions and frameworks within international law.
    • It has shaped the normspriorities, and agendas of these frameworks to align with American interests.
  • Influence across various areas: This influence is evident in areas such as:
      • Climate change law
      • Space law
      • Human rights law
      • Trade and investment law
  • Policy of exceptionalism: The U.S. has often followed a policy of exceptionalism, i.e., an attitude of being ‘distinct’ and thus an ‘exception’ to the law that binds all other nations.
  • Criticism for violating norms: The U.S. has been criticised for violating or sidelining the same norms and institutions of international law that it helped create.
    • The U.S. expects other countries to follow these norms while often disregarding them itself.

 

The Trump 1.0 years

  • A radical shift in approach: While this has been the case for many American presidencies, the Trump Presidency took it to a completely different level, almost waging a war on international law.
    • Elected with the slogan of “America First”, Mr. Trump’s first term reflected what international law scholars Oona Hathaway and Scott Shapiro call a ‘sovereigntist view of international law’,
    • which often misconceives entering into multilateral treaties as putting unacceptable limits on sovereign authority.
  • Preference for Bilateralism: Mr. Trump’s first term was marked by scepticism towards multilateralism and a preference for bilateralism,
  • which is usually the case of emerging revisionist powers but strange for the incumbent superpower.

 

Key Actions Undermining International Commitments

  • Withdrawal from key agreements: Accordingly, the Trump administration, in June 2017, famously walked away from the Paris Agreement on Climate Change.
    • Washington also reneged on a key nuclear treaty with Russia and a nuclear deal with Iran.
  • Challenges to International Trade Regimes: Mr. Trump also posed major challenges to the international trade regime by using tariffs and other protectionist measures, including against allied countries.
    • He continued blocking appointments into the World Trade Organization (WTO)’s Dispute Settlement Body’s Appellate Body, which ultimately led to the organ becoming dysfunctional.
  • Withdrawal from Trade Agreements: Under his presidency, the U.S. withdrew from the Trans-Pacific Partnership (TPP) agreement that the Obama administration had so assiduously crafted and put an end to the North American Free Trade Agreement (NAFTA) and negotiated a new trade agreement.
  • Withdrawal from International Institutions: Additionally, during the Trump first term, the U.S. withdrew from several international institutions such as
    • the United Nations Educational, Scientific and Cultural Organization (UNESCO),
    • attempted to withdraw from the World Health Organization (WHO), and
    • threatened withdrawal from the WTO.

 

Another onslaught

  • Weakening Multilateral Institutions: Mr. Trump’s return could accelerate the weakening of the normative authority of multilateral institutions.
    • While the U.S. rejoined many such institutions under the Biden administration, it might again disengage from them.
    • Within hours of his inauguration, he reportedly signed executive orders initiating the U.S.’s withdrawal from
    • WHO and the 
    • Paris Agreement.
  • Pursuing Unilateralism: Mr. Trump has announced fresh plans to 
    • raise tariffs, even if it triggers a trade war and violates WTO rules.
    • He has already announced a potential 25% tariff on imports from Mexico and Canada.
    • His onslaught on the Washington Consensus-based international trade and investment law model will continue unabated.
  • Challenges to Global South Aspirations: Any hopes of the Global South reviving the WTO’s dysfunctional Appellate Body should be abandoned.

 

Aggressive Territorial Ambitions

  • Annexation plans: Mr. Trump has proposed plans to annex Greenland and the Panama Canal, refusing to rule out coercive methods.
    • He has even suggested including Canada as the 51st State of the U.S.
  • Implications for International norms: Such ambitions are reminiscent of the 18th-19th century era of great powers acquiring territories through conquest and gunboat diplomacy.
    • In the post-UN Charter era, which prioritizes prohibition of force and self-determination, such actions could embolden revisionist states like China and Russia to pursue similar goals.
  • Potential norm violations: As scholars such as Marko Milanović highlight, even if Mr. Trump does not use force, his statements potentially violate the norm of non-intervention under Article 2(7) of the UN Charter.
  • Interference by allies: Statements by Trump allies, such as Elon Musk, regarding the internal politics and laws of allied countries like the United Kingdom and Germany, have irked many and could be construed as unacceptable intervention.

 

Conclusion: Other nations and the legal order

International lawyer Harold Koh has pointed out that the participants involved in the ‘transnational legal process’, including many officials within the U.S. itself, were able to blunt many of Mr. Trump’s policies in his first term, particularly those affecting international law. However, with Mr. Trump’s renewed majority and control over both the Senate and the House, it is more likely that he will be able to push forward his policies more effectively. In that case, other countries must cooperate to preserve the international legal order.