South Asia Program

Analysis of India and Pakistan’s Export Control Laws

Ziad Haider and Souvik Saha

Pakistan’s national law entitled “Export Control on Goods, Technologies, Material and Equipment Related to Nuclear and Biological Weapons and their Delivery Systems Act, 2004” entered into force on September 23, 2004. The passage of this Act is one way in which Pakistan has sought to demonstrate its commitment to non-proliferation in the wake of the A.Q. Khan scandal.

India’s “Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005” entered into force on June 6, 2005. India passed this export control legislation during the May 2005 NPT Review Conference – a symbolic affirmation of India’s commitment to non-proliferation.

Both pieces of legislation codify India and Pakistan’s responsibilities as per UN Security Council Resolution 1540 (2004). Resolution 1540 calls upon all states to implement stringent export control laws on the transfer, shipment, re-transfer and trans-shipment of materials or technology that may be used in the development, manufacture, and proliferation of weapons of mass destruction.

Provisions

Pakistan’s export control legislation contains the following provisions:

• Establishes controls over export, re-export, trans-shipment, transit or diversion of goods, technologies, material and equipment that may be used in the development of nuclear or biological weapons.

• Affirms broad jurisdiction over Pakistani citizens, nationals abroad, foreign nationals within Pakistani territory, as well as any ground, ship, or air transportation registered in Pakistan, regardless of location.

• Affirms central government authority to administer rules and regulations of the export control law and the required licensing of exports, as well as an oversight committee to monitor the implementation aspects of the law. The law also provides plenary power to government officials with regards to inspection and confiscation of suspicious exports.

• Establishes a comprehensive and wide ranging list of federally controlled goods that may be used in the design, development, production, stockpiling, maintenance, or use of nuclear and biological weapons. The law cannot be construed to restrict or prohibit “basic scientific research in Pakistan or other peaceful applications or relevant technologies.” Basic scientific research is defined as “theoretical- or experimental work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts.”

• Provides for licensing and record-keeping and monitoring provisions. The government maintains authority in framing and notifying licenses, with the power to approve licenses for goods and technologies for peaceful civilian intentions, unless the government determines otherwise. All exporters have a legal obligation to notify relevant authorities of suspicious exports or activities.

• Provides for punitive provisions ranging from a 5 million rupee (approx. $80,000) fine to fourteen years in prison, as well as forfeiture of property and assets. Any person who aids in such prohibited activities will be tried as if they actually committed the offence. Any person who diverts controlled goods or technologies to unauthorized users will be denied further export of those technologies or goods, as well as the privilege of exporting products into Pakistan for a specified period of time.

India’s legislation contains the following major provisions:

• Establishes immediate and broad jurisdiction that extends to the entirety of India, including its Exclusive Economic Zone. It establishes jurisdiction over Indian citizens abroad, foreign nationals in India, government officials both within and abroad, as well as companies that are registered in India or have branches or associates outside of India. Additionally, any ship, aircraft, or other means of transportation, regardless of origin of registration, fall under the provisions of this Act.

• Establishes control over export, transfer, re-transfer, transit, and trans-shipment of any materials, equipment, or technology pertinent or relevant to the development of weapons of mass destruction or their means of delivery.

• Establishes Central Government authority to identity, designate, categorize, or regulate the export, transfer, re-transfer, trans-shipment, or transit of any item related to the prohibitions of this Act. The Central Government possesses the authority to define the control lists.

• Establishes Central Government authority to create advisory committees to oversee the implementation of the provisions of this Act, as well as the appointment of a Licensing Authority, and other delegations of authority to officials to act in conjunction with the Act.

• Mandates that no person shall manufacture, acquire, possess, develop, or transport a nuclear weapons or means of its delivery, as well as chemical/biological counterparts, including fissile material or radioactive material intended to cause harm. 

• Mandates that no person shall transfer missile technology that is specially designed for the delivery of weapons of mass destruction.

• Mandates that no person shall transfer these controlled items to a non-state actor or terrorist.

• Affirms legal responsibility for individuals who knowingly exports materials that are intended in the design or manufacture of weapons of mass destruction. There is an exception to those carriers that are not aware of the contents in export.

• Establishes the punitive provisions ranging from five years to life imprisonment, as well as fines of Rs.3-20 lakh ($7,000-$45,000) for those that aid and abet in activities expressly prohibited in this Act. Middlemen can face up to ten years in prison. Provisions for repeat offenders are also included in this Act.

• Codifies that any individual that forges or falsifies information with regard to materials and goods that are prohibited within this Act will be fined Rs.5 lakh ($12,000) or five times the value of the materials in question, in favor of the greater fine.

• Establishes that with respect to businesses engaged in illegal activities prohibited in this Act, all members will be considered guilty unless proven to be unaware of the activities.

Analysis

India’s and Pakistan’s export control legislation nearly mirror one another in substance and structure. Both pieces of legislation explicitly define relevant terms, and there is near symmetry in the layout and organization of the various provisions. Both provide broad jurisdiction over their citizens at home and abroad and foreign nationals in their territories. Both assert coverage for companies and businesses that may engage in prohibited activities. Both establish the relevant licensing and oversight authorities, as well as provisions for necessary delegation of authority to officials. In addition, both Acts serve to establish the Central Government or Federal Government’s supreme authority in matters related to licensing, delegation of authority, final decisions regarding the status of control items, and the actual export, transfer, re-transfer, and trans-shipment of controlled items prohibited as per the Acts.

One difference in the two Acts relates to punitive provisions. Pakistan’s export control law provides for fourteen year imprisonment terms, whereas India’s punitive measures range from five years to life imprisonment. The fine amounts also differ. Additionally, India’s export control law further confirms Resolution 1540 by addressing the actual manufacture, development, and design of weapons of mass destruction, and expressly prohibits such activities along with the transfer and export of such controlled items. India’s legislation incorporates provisions regarding terrorist actors and non-state actors. Pakistan’s legislation includes provisions for those who divert the export of controlled goods to unauthorized users specifically.

Another difference is that although India and Pakistan have ratified the Chemical Weapons Convention and the Biological Weapons Convention, India states its commitment to both conventions in the preamble to its law. In its preamble, Pakistan only refers to its status as a party to the Chemical Weapons Convention while declaring that it is committed to preventing the proliferation of biological weapons. The body of Pakistan’s law focuses on nuclear and biological weapons and their delivery systems, as the law’s title suggests, and does not mention chemical weapons while the Indian law includes nuclear, chemical and biological weapons.

Note: The text of India and Pakistan's export control laws can respectively be found at http://meaindia.nic.in/disarmament/07da01.pdf and http://www.iaea.org/Publications/Documents/Infcircs/2004/infcirc636.pdf

 

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