Nuclear Sanctions: Section 102(b) of the Arms Control Export Act and Its Application to India and Pakistan

Publication Date: October 2001

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: International relations; Trade

Type:

Coverage: India Pakistan

Abstract:

Section 102(b) of the Arms Export Control Act (AECA) requires the President to impose sanctions on any country that he has determined is a "non-nuclear-weapon state" and has received or detonated a "nuclear explosive device." Sanctions include prohibitions on foreign assistance; munitions sales and licenses; foreign military financing; government credits, guarantees, and financial assistance; U.S. support for multilateral financial assistance; private bank lending to the affected government; and exports of certain specific controlled goods and technology. Specific exceptions exist for humanitarian aid; food and agricultural exports; food assistance; private bank loans and credits for purchases of food and agricultural commodities; and certain transactions involving intelligence activities. The statute does not provide for terminating or suspending sanctions once imposed. The President placed § 102(b) sanctions on India and Pakistan in May 1998 following nuclear tests by those countries earlier that month. The statute had never before been invoked and its full implementation give rise to various legal and policy issues. After an inter-agency review, the Administration announced its overall implementation plan for both countries June 18, 1998. Concerns over the lack of an exemption for agricultural goods in § 102(b)(2)’s prohibition on government credits and guarantees led to enactment of the Agriculture Export Relief Act (P.L. 105-194), which exempted Department of Agriculture programs through FY99; it also permanently exempted government financing for medicine and medical goods and allowed private loans for fertilizer exports. In October 1998, Congress authorized the President to waive for one year certain § 102(b)(2) prohibitions applicable to the two countries, as well as other related statutory restrictions (India-Pakistan Relief Act, P.L. 105-277). The President exercised this authority December 1, 1998.

Congress has since authorized the President to waive indefinitely, as they apply to India and Pakistan, all sanctions imposed under §§ 101 or 102 of the AECA; a nuclear-related restriction in the Export-Import Bank Act; and § 620E(e) of the Foreign Assistance Act (FAA)(Pressler Amendment), which restricts military aid and exports to Pakistan (DOD Appropriations Act, 2000, P.L. 106-79, § 9001). The President may waive military and export control sanctions only if he certifies to Congress that applying a restriction would not be in U.S. national security interests; any licenses for defense exports must be notified to Congress and are subject to
Congressional review. In October 1999, President Clinton waived sanctions with regard to certain programs and commercial transactions specific to each country. In August and early September 2001, both the Bush Administration and Members of Congress began to call for removal of the sanctions, mainly as applicable to India; legislation to lift the measures has also been introduced. Following the September 11 attacks on the World Trade Center and the Pentagon, the President waived for both India and Pakistan prohibitions on exports of defense items and sensitive technology and military financing, citing U.S. national security interests; also waived were any remaining sanctions in §§ 101 or 102 of the AECA, the Export-Import Bank Act, and the Pressler Amendment. Foreign assistance to Pakistan continues to be restricted because of an anti-coup provision in appropriations legislation and other debt-related restrictions; also, three Pakistani entities are subject to two-year AECA missile proliferation sanctions. Legislation allowing removal of restrictions on Pakistan (S. 1465) was reported by the Senate Foreign Relations Committee October 4. This report will be updated.