A Bill and nuclear hopes

The Indian government believes that the Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Bill, 2005, will clear the way for enhanced nuclear cooperation with Russia and the U.S.

R. RAMACHANDRAN in New Delhi

AS the last Parliament session was coming to a close, it passed a Bill - somewhat hurriedly it seemed - "to prohibit unlawful activities in relation to weapons of mass destruction (WMDs), their means of delivery and related dual-use materials, equipment and technologies." WMDs include nuclear, chemical and biological weapons.

While the Bill, titled "The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Bill, 2005", promulgates an overarching piece of legislation to fulfil India's obligations under the United Nations Security Council Resolution 1540 of April 28, 2004, the urgency had more to do with the Prime Minister's visit to Moscow and his visit to Washington scheduled for July. In fact, the India country report on the implementation of R1540, presented to the Security Council on December 6, 2004, does not even give an indication that such a law was under consideration.

The belief in the government is that the new law will clear the way for enhanced nuclear cooperation with both Russia and the United States, particularly in nuclear power. While Russia has been all along keen to cooperate with India but for the constraints imposed by the 44-nation Nuclear Suppliers Group (NSG), it was for the first time since the 1974 nuclear explosion in Pokhran that the U.S. even obliquely indicated that possibility when the U.S. Secretary of State Condoleezza Rice opened dialogue on this front during her visit to New Delhi in April. A visit by a U.S. Nuclear Regulatory Commission (NRC) team later reiterated the possibility provided effective export control laws are in place.

One of the key requirements of the Security Council Resolution is that export controls and other legislative measures to prevent proliferation-related activities under such a law should be effective against "non-state actors" and agents of terrorism as well. This was also a condition set by the U.S. for the second phase of the Next Steps in Strategic Initiative (NSSP) to take off. Now, the questions are: Does the U.S. perceive the law to be in conformity with its requirements? Does the new law change India's equation with the NSG to facilitate nuclear technology and material imports without full-scope safeguards?

The point to emphasise is that the new law is a piece of enabling legislation. First, it is a sort of umbrella legislation for a number of laws and administrative measures that are already in place to deal with many of WMD-related activities, technologies and dual-use items. Secondly, in the context of new realities of "non-state actors" and intangibles such as brokering unlawful deals, financing, transportation and other services including software playing a role in proliferation and which the WMD Act seeks to include in its ambit, existing laws and/or rules and regulations may correspondingly need changes. These and other details, such as modified list(s) of controlled dual-use items, rules, mechanism of enforcement and other new administrative measures, are yet to be formulated and notified.

For instance, Clause 13(4) says that the Central government may notify any item as being subject to the provisions of this Act and "when such item is exhibited, sold, supplied or transferred to any entity or a foreigner who is resident, operating, visiting, studying or conducting research or business within the territorial limits of its India, or in its airspace or EEZ [Excusive Economic Zone], it shall constitute an offence." So, in principle, Indian research institutions collaborating with foreign researchers visiting or studying in India will have to be aware what these notified items are. Will the government provide Indian research institutions with such notified lists?

However, there are several problems with the Bill itself that need to be addressed or corrected even as other attendant measures are worked out. The haste with which it seems to have been drafted shows. First and foremost, the law is applicable to Indian citizens abroad (Clause 3(4)(a)). This means that all non-resident Indians (NRIs), in particular Green Card holders in the U.S., immediately come under the purview of its provisions, which relates to export, transfer, re-transfer, transit and transhipment of materials, equipment or technology related to WMD.

That is, any NRI working in high-tech area, including critical nuclear technology, say, in a U.S. firm or agency (which he or she is eligible to under U.S. law) trading in and servicing such technologies, would now need clearance or authorisation from the Indian government. In principle, such authorisation is possible under Clause (3)(5) but it is moot whether the government intends to scrutinise applications from thousands of NRIs employed in high-tech area around the world. According to informed sources, the law was drafted so that it reciprocates exactly the provisions of the U.S. law. The crucial difference is that a U.S. citizen requires U.S. government clearance before accepting employment outside the U.S. unlike in the case of an NRI.

The haste in drafting is also apparent. Clause 3(4)(c) is meaningless. It reads: The provisions of this Act also apply to "any ship, aircraft or other means of transport registered in India or outside, wherever it may be". The intended provision perhaps was: "Any ship, aircraft or other means of transport registered in India, wherever it may be." If the intent was to cover the transit of conveyance registered outside India or transhipment, there are other provisions in the Bill to do that.

The most glaring problem is that of defining a "non-state actor". While the Bill takes the definition of a "terrorist" from the definition and listing under the Unlawful Activities (Prevention) Act, 1967, who is a "non-state actor"? According to the Act, "a `non-state actor' is a person or entity not acting under the lawful authority of any country." This definition, of course, has been borrowed straight from R1540. A U.N. resolution is only indicative and need not be legally precise. But many of the so-called "non-state actors", including A.Q. Khan's network of agencies and firms, are lawfully registered entities in some country or the other. Similarly, an Indian citizen can lawfully register a company in some country and carry out acts that are unlawful under this Act. So has the government evolved criteria to designate who are "non-state actors"?

Further, Clause 9 contradicts this very definition. It states: "No person shall, directly or indirectly, transfer to a (sic.) non-state actors or terrorists, any material, equipment and technology notified under this Act or any other Act related to relevant activity... Provided that such transfer made to a non-state actor shall not include a transfer made as such to any person acting under lawful authority in India." This clause does not seem to make much sense at all unless "country" in the phrase "lawful authority of any country" in the definition of "non-state actor" excludes India. But that too would be meaningless.

Clause 20 makes virtually every employee (director, manager, secretary or any other officer) of a company committing an offence under the Act to be guilty and punishable unless the person is able to prove that the offence was committed without his or her knowledge. Normally the company (which means its directors) alone is held responsible. The Bill says: "Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, for the conduct of the business of the company as well as the company shall be deemed to be guilty and shall be liable to be proceeded against and punished accordingly."

Some of the punishments provided for in the Bill are as follows: for transferring to a "non-state actor" material, equipment or technology related to WMD, imprisonment for a term not less than five years but which may be extendable for life; for violating Clause 14(3) a fine not less than Rs.3 lakhs and up to Rs.20 lakhs. Lesser violations attract less severe punishments and fines.

The problems with the drafting notwithstanding, the questions raised earlier remain. For the NSSP to make progress, the U.S. would like to see the Indian export control laws and counter-proliferation measures to be "harmonised". In the U.S. perception, "harmonisation" implies that the Indian laws should contain the essential elements of the Guidelines I and II of the NSG, the Missile Technology Control Regime (MTCR), the multilateral Wassenar Arrangement and the controls under the Chemical Weapons Convention and the Biological Weapons and Toxins Convention (BWTC).

Guidelines I of the NSG refer to controls on transfers of "Trigger List" items, namely nuclear technology, material and equipment, and Guidelines II refer to nuclear-related dual-use items. The former attract full-scope safeguards of the International Atomic Energy Agency (IAEA) on "all peaceful nuclear activities" of a non-nuclear weapon state (NNWS) in the sense of the Nuclear Non-Proliferation Treaty (NPT) and latter attract only islanded safeguards on the transferred equipment or material. From the perspective of NSG, which apparently follows the NPT definition of a nuclear weapon state (NWS) - namely, one which exploded a nuclear device before January 1, 1967 - India is an NNWS, even though the present WMD Bill has declared India to be an NWS in its opening lines.

India has enacted appropriate laws and regulations for chemical and biological weapons, and corresponding materials, chemicals and organisms are included under the Special Chemicals, Organisms, Materials, Equipment and Technology (SCOMET) section of the Export-Import Act. Nuclear equipment, material and technology are covered under the Indian Atomic Energy Act of 1962. Though other dual-use items, such as nuclear and MTCR-related equipment, are covered under the SCOMET, still there are gaps. These are intended to be closed with the ongoing revisions of the SCOMET as well as Atomic Energy lists.

While the lists may themselves be in conformity with the NSG lists (and the MTCR and Wassennar lists), adherence to the NSG Guidelines on transfers is a tricky issue because it would raise the issue of definition of an NWS. Obviously, an Indian definition will not conform to the NPT definition. However, since the NSG does not by itself define an NWS or an NNWS, adhering to its Guidelines in toto (without the Indian law too not defining an NWS or an NNWS) is a possibility. Because, India is unlikely to consider exporting nuclear technology to Israel or Pakistan, the only other NPT non-signatories. It is only in such a circumstance that a conflict of Indian law with the NSG Guidelines can arise. It is this somewhat complicated issue that seems to be engaging the Indian government in its formulation of detailed rules and regulations.

So what does all this exercise lead to from India's perspective? If the U.S. is satisfied with the Indian legislative measures, one might see some progress under NSSP in terms of transfers of some dual-use technology and space cooperation, but not yet nuclear. For the NSG, the chief concern is of controls over re-export of nuclear technology if it is transferred to India. So nuclear cooperation with the U.S., Russia and France would require the NSG to respond to the Indian measures favourably.

How things are likely to play out within the NSG in the near future is not clear. Following Israel's example, India also should formulate its laws in conformity with NSG Guidelines I and II without bothering about definitions of an NWS or an NNWS and declare to adhere to NSG principles. At least then India will be in a better position to negotiate with the NSG, whether it be for fuel for Tarapur or for new power reactors. With moves initiated by Russia, France and now the U.S., the NSG may alter its stance in the near future. But one is told that more than any other country, it is the United Kingdom that does not want the NSG to be flexible.