Special Section: Terrorist Attacks on America

Status of U.S. Sanctions Imposed on India and Pakistan

August 11, 2001

U.S. sanctions currently in force against India and Pakistan are reviewed below. In practice, the seemingly draconian sanctions of the 1994 Glenn Amendment, triggered by the Indian and Pakistani nuclear tests of May 1998, have been implemented with considerable flexibility, greatly mitigating their potential harshness. Moreover, in 1998 and 1999, legislation was enacted (the Brownback Amendments I and II) to permit the president to waive most of the Glenn Amendment sanctions, as well as those established under two earlier statutory provisions restricting aid to Pakistan (the 1977 Symington Amendment and the 1985 Pressler Amendment). In October 1999, President Clinton used this authority to waive a number of the most onerous sanctions imposed against India, as well as certain sanctions that had been imposed on Pakistan.

India is subject to two clusters of sanctions: Glenn Amendment sanctions triggered by the 1998 nuclear tests, and non-statutory sanctions, imposed as a matter of policy by the Clinton administration, after these tests. In addition, nuclear cooperation and exports to India have been sharply constrained for many years by the Atomic Energy Act and the Nuclear Non-Proliferation Act of 1978 because of India's pursuit of nuclear weapons and its refusal to place all of its nuclear facilities under International Atomic Energy Agency (IAEA) inspection.

Pakistan is subject to all of these, as well as to restrictions on economic and military aid under the Symington and Pressler Amendments. In addition, Pakistan is subject to sanctions triggered by its importation of medium-range missiles from China in the mid-1990s, and is also under "Section 508" sanctions, imposed as a result of the October 1999 coup.[1]

INDIA

1. Sanctions imposed under the 1994 Glenn Amendment (also known as the Nuclear Proliferation Prevention Act, or NPPA) on non-nuclear weapon states that detonate nuclear explosions;[2] triggered by the Indian nuclear tests of May 1998. The president has the authority to waive sanctions related to non-military activities under the Brownback II Amendment.

   These sanctions, applying principally to the Foreign Assistance Act and the Arms Export Control Act, include the termination of U.S. foreign aid (except for humanitarian programs and other special programs covered by "notwithstanding" authority, such as counter-narcotics – see note, below) and military exports; denial of new financing assistance from the U.S. Export-Import Bank, the Overseas Private Investment Corporation (OPIC), and the U.S. Trade Development Agency (TDA); U.S. opposition to loans or other assistance from the World Bank and other international financial institutions (except for Basic Human Needs projects); a prohibition on loans or credit from U.S. banks to the governments involved (except for food or other agricultural commodities), and a prohibition on U.S. exports or re-exports of certain dual-use goods and technology. The president can waive Glenn Amendment sanctions related to economic programs under authority granted in Brownback Amendment II.

   Status: Most of the restrictions on India under this provision on bilateral and multilateral economic assistance of various types have been gradually lifted over the past two and a half years, through liberal interpretations of the Glenn Amendment, legislation, and related presidential waivers. The economic impact on India, and on bilateral trade, has been small, and it is possible that some or all of the remaining sanctions will be lifted as a result of the Bush Administration policy review, initiated in the spring of 2001.

   Title IX of the Department of Defense Appropriations Act for FY 2000, known as Brownback Amendment II, which became law on October 25, 1999, gives the president authority to waive sanctions applied against India and Pakistan, including those restricting foreign assistance, commercial financing, Export-Import Bank financing, and opposition to lending by international financial institutions.[3] In a presidential determination issued on October 27, 1999, President Clinton exercised this authority to waive sanctions on India that restricted activities of the Export-Import Bank, the Overseas Private Investment Corporation, the Trade and Development Agency, and U.S. commercial banks, and also waived restrictions on International Military Education and Training (IMET) programs and Department of Agriculture food and agricultural commodity purchase assistance. Waivers have also been granted for non-nuclear energy cooperation and for a number of specialized programs (e.g., protection of endangered species and certain educational programs).

   Although the Brownback Amendment II provided the necessary authority, President Clinton did not waive restrictions on U.S. support for non-"basic human needs" lending from the World Bank and the Asian Development Bank.[4] However, along with other leading industrial countries, the United States has expressed its opposition to such loans by abstaining on key votes, without actively seeking to block the lending in question. Nonetheless, the continued application of the sanction is considered a political irritant by India, and the Bush administration is probably reviewing whether to waive this sanction.

   Glenn Amendment sanctions on Foreign Military Sales (FMS) and Foreign Military Financing (FMF) remain in place, as do restrictions on dual-use nuclear- and missile-related exports, for which U.S. export licenses were made subject to a presumption of denial by the Clinton administration. Indian "entities" involved in nuclear and missile activities are subject to additional restrictions (all goods to such entities require U.S. export licenses), but some easing has occurred here. On December 17, 1999, 51 organizations without "direct and material" connections to the Indian nuclear and missile programs were removed from the list of sanctioned entities, and for those remaining on the list, the Commerce Department, with interagency approval, adopted a presumption of license approval for exports of non-sensitive items. Since, historically, the United States has not engaged in significant military sales to India and has long restricted exports that might support India's nuclear and missile programs, the impact on India of these sanctions is modest. Separately, in January 2001, President Clinton consented to the return of repaired parts for British Sea King helicopters in use by the Indian Navy, which had been "trapped" in the United Kingdom by Glenn Amendment sanctions.

2. Non-statutory sanctions imposed as Clinton administration policy following the 1998 nuclear tests.

   Status: Restrictions on high-level visits and military-to-military contacts have been gradually eased, as indicated by the exchange of visits by President Clinton and Prime Minister Vajpayee last year and several subsequent ministerial-level visits.

3. Sanctions imposed under the Atomic Energy Act, prohibiting U.S. nuclear fuel and reactor transfers to non-nuclear weapon states, such as India, that have not accepted IAEA inspections on all of their nuclear facilities, an arrangement known as "full-scope safeguards." (These are not waivable under Brownback Amendment II.)

   Status: These sanctions have been in effect since 1978, when the provision was made part of U.S. law, and remain in force. There is no immediate interest in the Bush administration in altering this fundamental rule of U.S. nuclear trade (which also bars nuclear sales to Pakistan and Israel). India, however, continues to seek relief, hinting that it might purchase U.S. nuclear power reactors if the ban were lifted.[5]

PAKISTAN

1. Sanctions imposed under the 1994 Glenn Amendment on non-nuclear weapon states that detonate nuclear explosions; triggered by the Pakistani nuclear tests of May 1998. The president has the authority to waive sanctions related to non-military activities under the Brownback II Amendment.

   Status: Most of the restrictions under this provision on bilateral and multilateral economic assistance of various types remain in effect for Pakistan, notwithstanding the waiver authority granted by the Brownback Amendments.

   In contrast to the more generous treatment of India, President Clinton in his waiver of October 27, 1999, waived restrictions for Pakistan only on Department of Agriculture credits and U.S. commercial bank lending. (The waiver, which had been under consideration for some time, was influenced by the Pakistani coup of October 12.) However, the United States has not actively opposed lending through the multilateral development banks to support an IMF economic stabilization program for Pakistan (once one is agreed upon).

   Sanctions on FMS and FMF, remain in place, as do restrictions on dual-use nuclear- and missile-related exports, for which U.S. export licenses are subject to a presumption of denial. Pakistani "entities" involved in nuclear and missile activities are subject to additional restrictions (all goods to such entities require U.S. export licenses, subject to presumption of denial). A recent UN-requested waiver to permit the export of spare parts for equipment used by Pakistani forces participating in the Sierra Leone peace-keeping effort is under review.

2. Sanctions under the 1985 Pressler Amendment, banning military assistance to Pakistan, in the absence of an annual presidential determination that Pakistan "does not possess a nuclear explosive device." Waivable under Brownback Amendment II.

   Status: These restrictions were triggered in 1990, when former President George H.W. Bush declined to make the necessary determination, and largely remain in force today. IMET and non-military aid were permitted in a 1996 modification to the Pressler Amendment. In addition, in 1996, under a one-time waiver of the provision, the Clinton administration approved the sale of $368 million worth of military hardware to Islamabad (but roughly $100 million in sales was never provided because of the controversy over China's transfer of "ring magnets" for Pakistan's uranium enrichment plant. See discussion of the Symington Amendment, below.) Although the original provisions of the Pressler Amendment for ending sanctions cannot be satisfied today, the president has the authority to waive the provision, at his discretion, under the Brownback Amendment II.

3. Sanctions under the 1977 Symington Amendment, banning aid under the Foreign Assistance Act and the Arms Export Control Act to states that import uranium enrichment technology, unless the recipient agrees to place such equipment under IAEA inspection or the president waives the provision by certifying that he has "received reliable assurances that the country in question will not acquire or develop nuclear weapons...." Waivable under Brownback Amendment II.

   Status: These restrictions remain in force. The ban was to have been lifted through the 1994 Glenn Amendment, which excused all Pakistani importation of uranium enrichment equipment prior to June 29, 1994, but the ring magnets case (shipments between December 1994 and mid-1995) was deemed to be a new instance of the importation of such equipment by Pakistan, and the Symington Amendment sanctions were triggered anew. The president, however, has the authority to waive the provision, at his discretion, under the Brownback Amendment II.

4. Sanctions imposed under the Atomic Energy Act, prohibiting U.S. nuclear fuel and reactor transfers to non-nuclear weapon states, such as Pakistan, that have not accepted IAEA inspections on all of their nuclear facilities. Not waivable under Brownback Amendment II.

   Status: These sanctions have been in effect since 1978, when the provision became part of U.S. law, and remain in force. As noted above, there is no immediate interest in the Bush administration in altering this fundamental rule of U.S. nuclear trade.

5. Sanctions imposed under the Arms Export Control Act and Export Administration Act banning exports to (and imports from) entities receiving Missile Technology Control Regime Category I missiles (i.e. missiles able to carry a 500-kilogram payload 300 kilometers or more). Not waivable under the Brownback Amendment II.

   Status: In November 2000, following a determination that China had transferred M-11 missiles to Pakistan in the latter half of the 1990s, the Clinton administration imposed sanctions on the Pakistani Ministry of Defense, the Pakistani Space and Upper Atmosphere Research Commission, and their subunits. (Sanctions to expire in November 2002.)

6. Sanctions imposed under Section 508 of the FY 2000 Foreign Operations, Export Financing, and Related Programs Appropriations Act, banning all aid under this appropriation to any state whose duly elected government is overthrown, until a democratically elected government has taken office. Not waivable under Brownback Amendment II.

   Status: This provision has been renewed annually, in subsequent Foreign Operations appropriations, and these sanctions remain in force.

7. Non-statutory sanctions imposed as Clinton administration policy following the 1998 nuclear tests and the October 1999 coup.

   Status: High-level visits and military-to-military exchanges remain restricted.

Note: Counter-narcotics, certain non-governmental organization support activities, certain basic education programs, and certain other humanitarian activities are not affected by the various sanctions laws and are continuing in Pakistan. (Typically their funding is accompanied by statutory language stating that they are to be implemented, "notwithstanding any other provision of law....")

[1] Pakistan is subject to a greater number of U.S. sanctions laws than India largely because Pakistan has imported many elements of its nuclear-weapon and missile infrastructures, thereby triggering sanctions aimed at curbing such transfers. India, whose missile and nuclear programs are treated as essentially indigenous (although they have benefited from foreign assistance, especially in their early years), has not run afoul of these provisions of U.S. law.
[2] The definition of a non-nuclear weapon state is drawn from the nuclear Non-Proliferation Treaty, which defines such states as any state other than a nuclear weapon state. The latter is defined in the treaty as those countries that had detonated nuclear devices prior to January 1, 1967 (the United States, Russia, Great Britain, France, and China).
[3] The October 1998 Brownback Amendment – "Brownback I" – provided the president somewhat less sweeping waiver authority for one year. This was exercised but expired after one year.
[4] International financial institution lending for basic human needs and other U.S. humanitarian programs were exempted from sanctions by the Glenn Amendment, itself.
[5] This rule of nuclear commerce was adopted by the Nuclear Suppliers Group, which includes Russia, in 1992. Over the past two years, however, Russia has announced plans to supply India with two, and possibly four, nuclear power reactors. It has argued that because the sale is based on a 1988 contract, it is permitted under an exemption to the Group's guidelines allowing transactions to proceed that pre-date the Group's adoption of the full-scope safeguards rule. In addition, in 2000, Russia agreed to sell India fuel for the Tarapur Nuclear Power Station (units originally supplied by the United States, but for which the United States has refused to supply fuel, as required by the restrictions in the Atomic Energy Act). Russia claims that the fuel sale is permitted under another exemption to the Nuclear Suppliers Group guidelines, which allow sales of nuclear safety equipment to avert a radiological emergency. Russia has argued that if it did not supply the fuel (made from non-weapons-usable low-enriched uranium), India would be forced to use untested plutonium-uranium fuel in the facility, creating a safety hazard. The Russian fuel will be subject to inspection by the International Atomic Energy Agency. The Clinton administration objected to Russia's expansive reading of the Guidelines' "grandfather clause" as allowing the reactor sales and strongly opposed the Russian claim that fuel sale could be justified on safety grounds. At its April 2001 Plenary meeting, the Nuclear Suppliers Group indirectly expressed its concern over the Russian transactions by reaffirming its commitment to making full-scope safeguards a condition for nuclear exports. It took no other action on the matter, however.

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