pakistan’s export control...

Pakistan’s Export Control Measures

By

Zafar Ali Director (Policy)Strategic Export Control Division (SECDIV)

Ministry of Foreign Affairs, Pakistan

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• In the Cold War era, non-proliferation and nuclear disarmament were central to international security debate


• Post 9/11, policy makers are more conscious on proliferation of WMDs especially their acquisition and possible use by non state actors or rogue states

• Export control is not a stand alone field; it is an integral part of a country’s larger political, security and economic infrastructure

Introduction

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To Describe the Institutional Characteristics of Pakistan's Export Controls on Goods; Technologies, Material and Equipment related to Nuclear and Biological Weapons and their Delivery Systems

Aim

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Sequence of Presentation• National Commitment• Elements of an Effective Export Control Authority• Elements of Pakistan’s Export Control System• Establishment of SECDIV• National Control Lists and Licensing• Enforcement• Oversight Institutions• Conclusion

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• Pakistan shares the concern that proliferation of WMDs and their means of delivery pose a threat to international peace and security and is committed to preventing the proliferation of nuclear, radiological, chemical and biological weapons and their means of delivery


• While Pakistan is determined to safeguard its National Security and Foreign Policy objectives, it is committed to fulfill its international obligations as a responsible nuclear weapon state and is determined to pursue effective export controls

National Commitment

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Elements for an Effective Legal Authority for Strategic Export Controls

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• Legislative purpose or intent

• Establishment of jurisdiction over territory, transactions, and people

• Establishment of jurisdiction over items

• Authority to implement export control processes

• Assurances of transparency

• Responsibilities of the parties

• Requirements for documentation

• Confidentiality and procedures for information sharing

• Authority to enforce the law and the penalties for violations

Elements of an Effective Legal Authority for Strategic Export Controls

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Essential Elements of Pakistan’sExport Control System

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Essential Elements Of Pakistan’s Export Control System

Legislative Framework• Import and Export (Control) Act, 1950 (Act No. XXXIX of 1950). This Act

authorizes the Federal Government to prohibit, restrict or control the import or export of goods and regulate practices and procedures connected therewith

• Pakistan Nuclear Safety and Radiation Protection (PNSRP) Ordinance, 1984 and PNSRP Regulation, 1990. Lay down provisions for controlling import/export of nuclear substances and radioactive materials

• Statutory Notification No. SRO-782 (1), 1998. Prohibits export of fissionable materials.

• Statutory Notification No. SRO-23 (1)/1999. Prohibits the export of Anti-Personnel Landmines

• Statutory Notification No. SRO-124 (1)/ 1999. Requires a No Objection Certificate from the Defense Ministry for export of arms, ammunitions, explosives and ingredients

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Legislative Framework

• Statutory Notification No. SRO-482 (1)/2000 and SRO 111 (1)/2004. Issued by the Ministry of Commerce and lays down the Export Policy Procedures

• Chemical Weapons Convention Implementation Ordinance, 2000 (Ordinance No.LIV of 2000). This legislative framework regulates and controls the import and export of chemicals in accordance with the provisions of CWC and provides for criminal penalties in case of violations

• Pakistan Nuclear Regulatory Authority Ordinance, 2001. Under this Ordinance, PNRA is mandated to issue no objection certificate for import and export of any radioactive material or radiation sources

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Legislative Framework

• Export Control Act on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons and their Delivery Systems-2004

• The National Command Authority Ordinance, 2007. Empowers the NCA to exercise complete command and control over all nuclear and space related technologies, systems and matters and assist the Federal Government pursuant to any obligation on Pakistan relating to non proliferation

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Salient Features of Export Control Act 2004

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• Soon after the May 1998 nuclear tests, the issue drew added attention


• The bill was passed by both the houses of parliament and enforced through Gazette Notification on 23 September 2004

Evolution of Export Control Act 2004

• The rationale behind this legislation was to demonstrate that Pakistan was a vigilant and responsible nuclear power

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• The Export Control Act 2004 enables the Government to control export, re-export, transshipment, transit of goods, technologies, material and equipment that may contribute to the designing, development, production, stockpiling, maintenance or use of nuclear and biological weapons and their delivery systems. It also prohibits diversion of controlled goods and technologies

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Salient Features of Export Control Act 2004• Wide jurisdiction: -

o Every citizen of Pakistan or a person in the service of Pakistan, within and beyond Pakistan, or any Pakistani visiting or working abroad

o Any foreign national while in the territory of Pakistan; and

o Any ground transport, ship or aircraft registered in Pakistan wherever it may be

• Obligates to publish, update and periodically review the National Control Lists

• Catch All Clause. Authorization required for non listed items that are suspected or intended for sensitive use. Exporter is under legal obligation to notify if he is aware or suspects thatthe goods or technology are intended in connection with nuclear or biological weapons, or missiles capable of delivering such weapons

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• Abetment. An attempt to assist commit or abet the commission of an offence under this ordinance is liable to legal/administrative penalties in the manner as if the person concerned had committed such an offence.

• Appeal. Provides for an appeal by any person sentenced under this Act, before a higher court of law

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Setting up of SECDIV

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Setting up of SECDIV

• As required by Article 3 of the Export Control Act, the Prime Minister approved the setting up of Strategic Export Control Division (SECDIV) as part of the Ministry of Foreign Affairs.

• An independent Oversight Board has also been constituted to over see the implementation of the Act

• Organization of SECDIV

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Setting up of SECDIVOrganization

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Setting up of SECDIVObjectives of SECDIV

• Control export, re-export, transshipment, transit of goods, technologies, material and equipment, subject to the provisions of Export Control Act - 2004, which may contribute to the designing, development, production, stockpiling, maintenance or use of nuclear and biological weapons and their delivery systems

• Development, implementation and interpretation of Pakistan’s export control policy

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Setting up of SECDIVObjectives of SECDIV

• That exports of sensitive technologies, material and equipment, as specified in the Control Lists, do not contribute to proliferation of Weapons of WMDs and their delivery systems

• Outreach to industry, media and other relevant entities

• To investigate how well the existing strategic export policy serves our national interests and future needs

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Oversight Board

• Consists of a Chairman and ten other ex officio members. Foreign Secretary is the Chairman

Objectives for the creation of this oversight body are:-

• Monitor implementation of relevant laws on export controls that fall under the ambit of SECDIV

• Monitor the functioning of SECDIV and provide guidance in achieving its objectives

• Review and approve policy and administrative parameters for the improvement in the functioning of SECDIV

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National Control Lists and Licensing

• Export controls are used for a wide variety of purposes, all of which require a legal instrument to be implemented

• It is important both from the point of view of the exporter and the government that export controls should extend only as far as absolutely necessary and should be clearly stated

• Control lists were notified in 2005

• Lists are consistent with the international standards, are based on the EU model and incorporate items controlled by the NSG, MTCR and Australia Group

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National Control Lists and Licensing

• Exporters generally must submit a license request to the SECDIV

• The goods are given a technical 'rating'- an assessment against the control lists

• License requests typically would go through an extensive review process

Licensing

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o Eligibility of the applicant

o Objectives of non-proliferation and Compliance with unilateral and multilateral control regimes and UN embargoes, if any.

o All parties involved in the transaction

o Assurances against re-export/transfer and guarantees on non-diversion from specified end-use

o Appropriateness of the quality and quantity of the proposed export to the end-user and stated end-use

o Any legal impediments to the proposed exporto Any national security or foreign policy implications presented by

the proposed export

The application is reviewed to ascertain:-

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Interagency Linkages/Coordination

Strategic Export Control Division

MoFA

MoC

MoD

Any Other

Licenses

Security Division SPD

FBR (Customs)

Recommendations

Oversight Board

Other Relevant Department

Licensing Process

Submit Application Registration

No by SECDIV

SRN

Verify Classification

Technical & policy review Interagency Review Decision

Registration with SECDIV

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Penalties for export control violations

• Criminal. A term of up to fourteen years, or with a fine up to rupees five million, or both, and or confiscation of the offender’s property and assets inside or outside Pakistan

• Administrative. May be determined from time to time.

Enforcement

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Pakistan’s Export Control Measures Enforcement Agencies

• Pakistan’s Customs (Lead Agency)

• Maritime Security Agency

• Coast Guards

• Frontier Corps

• Pakistan Rangers

• Northern Area Scouts

• Anti Narcotics Force

• Air Port Security Force

• Police

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Enforcement – Measures Specific to Biological Agents

• Pakistan acceded to the BTWC in 1975, has ratified the Convention on Biodiversity in 1994 and is a signatory to the 2001 Cartagena Protocol

• Export Control Act 2004 defines a biological weaponas any weapon designed to kill or harm or infect people, animals or plants on a large scale through effects of the infectious or toxic properties of a biological warfare agent

• Pakistan has developed an elaborate system, supported by 2000 reporting stations for early detection and surveillance of diseases

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• National bio-safety guidelines were approved in May 2005

• A bio-safety committee has been set up to monitor research in biosciences

• National Bio-safety Rules 2005.

• Environmental Protection Act 1997

• Establishment of National Bio-safety Center to monitor implementation of bio-safety rules and the guidelines, and raise awareness on GMOs

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• Pakistan voted for and is in compliance with UNSC resolution 1540, which among other things calls for cooperation in prevention of proliferation of biological weapons

• National regulatory framework would certainly become more comprehensive with the enactment of BTWC Implementation Ordinance

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Oversight Institutions

• National Command Authority

o Strategic Plans Division

o Security Division • Strategic Export Control Oversight Board

• Pakistan Nuclear Regulatory Authority

• National Authority for CWC Implementation

• Point of Contact for BWC related Actions

• Ministry of Defense Production

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Transparency and Confidentiality

• Regulations on export control should encourage transparency and predictability of governmental decision making

• Room for exceptions to policy in the interest of the government

• Annual Performance Report

• A record of all license applications, processes, decisions, minutes etc will be maintained

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Transparency and Confidentiality

• SECDIV will also maintain a website wherein interested persons could address their queries, questions and suggestions

• SECDIV is answerable to the Oversight Board on its functioning, measures of transparency and accountability

Conclusion

pakistan’s export control...

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