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will take appropriate steps to ensure that defense articles provided by the United States to Pakistan are used for defensive purposes.
(d) 923 The President may waive the prohibitions of section 101 of the Arms Export Control Act with respect to any grounds for the prohibition of assistance under that section arising before the effective date of part B of the Nuclear Proliferation Prevention Act of 1994 to provide assistance to Pakistan if he determines that to do so is in the national interest of the United States.
(e) 924 (1) 925 No military assistance 926 shall be furnished to Pakistan and no military equipment or technology shall be sold or
923 Sec. 822(b)(2) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995; Public Law 103-236; 108 Stat. 507 at 512), amended and restated subsec. (d). The subsec. formerly read, as previously amended, as follows:
“d) The President may waive the prohibitions of section 669 of this Act at any time during the period beginning on the date of enactment of this section and ending on September 30, 1994, to provide assistance to Pakistan during that period if he determines that to do so is in the national interest of the United States.".
See the next note relating to Presidential determinations.
924 Popularly referred to as the Pressler amendment. Subsec. (e) was added by sec. 902 of the International Security and Development Cooperation Act of 1985 (Public Law 99-83; 99 Stat. 268). Presidential Determinations No. 86-3 of November 25, 1985; No. 87-3 of October 27, 1986; No. 884 of December 17, 1987; 89–7 of November 18, 1988; and 90-1 of October 5, 1989, 54 F.R. 43797, certified that Pakistan does not have a nuclear explosive device and that U.S. assistance would reduce significantly the risk that Pakistan will possess a nuclear explosive device. The President has not certified for fiscal years 1991-1997.
On May 28 and 30, 1998, Pakistan tested nuclear explosive devices. On May 30, 1998, the President determined that such tests had transpired, and imposed a range of sanctions required pursuant to sec. 102(b) of the Arms Export Control Act (Presidential Determination No. 98–25; 63 F.R. 31881).
The India-Pakistan Relief Act, enacted as title IX of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999 (division A, sec. 101(a) of Public Law 105–277; 112 Stat. 2681), however, authorized the President to waive the application of sanctions against India and Pakistan for one year. The President issued such a determination as referred to in sec. 902 of the India-Pakistan Relief Act on December 1, 1998, that provided: “I hereby waive until October 21, 1999, the sanctions and prohibitions contained in section 101 and 102 of the Arms Export Control Act, section 620E(e) of the Foreign Assistance Act of 1961, and section 2(bX4)of the Export-Import Bank Act of 1945, insofar as such sanctions and prohibitions would otherwise apply to activities of the Export-Import Bank, the Overseas
vate Investment Corporation, and the Trade and Development Agency with respect to Pakistan and India; assistance to Pakistan and India under the International Military Education and Training program; the making of any loan or financial or technical assistance to Pakistan by any international financial institution in support of the assistance program that Pakistan is negotiating with the International Monetary Fund.” (Presidential Determination No. 99–7; Week
I Documents, vol. 34, no. 49, December 7, 1998, p. 2402). The President extended the waiver on September 30, 1999 (Presidential Determination No. 99_44; 64 F.R. 54503).
Title IX of the Department of Defense Appropriations Act, 2000 (Public Law 106–79; 113 Stat. 1283) repealed the India-Pakistan Relief Act, effective October 21, 1999. In its place, title IX of that Act provided the following:
"TITLE IX “WAIVER OF CERTAIN SANCTIONS AGAINST INDIA AND PAKISTAN “SEC. 9001. (a) WAIVER AUTHORITY.-Except as provided in subsections (b) and (c) of this section, the President may waive, with respect to India and Pakistan, the application of any sanction contained in section 101 or 102 of the Arms Export Control Act (22 U.S.C. 2799aa or 22 U.S.C. 2799aa-1), section 2(b)(4) of the Export-Import Bank Act of 1945 (12 U.S.C. 635(b)(4)), or section 620E(e) of the Foreign Assistance Act of 1961, as amended, (22 U.S.C. 2375(e)).
"(b) EXCEPTION.--The authority to waive the application of a sanction or prohibition (or portion thereof) under subsection (a) shall not apply with respect to a sanction or prohibition contained in subparagraph (B), (C), or (G) of section 102(b)2) of the Arms Export Control Act, unless the President determines, and so certifies to the Congress, that the application of the restriction would not be in the national security interests of the United States.
"(c) TERMINATAION OF WAIVER.--The President may not exercise the authority of subsection (a), and any waiver previously issued under subsection (a) shall cease to apply, with respect to India or Pakistan, if that country detonates a nuclear explosive device after the date of the enactment of this Act or otherwise takes such action which would cause the President to report pursuant to section 102(b)(1) of the Arms Export Control Act. "(d) TARGETED SANCTIONS.
Continued "(1) SENSE OF THE CONGRESS.
“(A) it is the sense of the Congress that the broad application of export controls to nearly 300 Indian and Pakistani entities is inconsistent with the specific national security interests of the United States and that this control list requires refinement; and
"(B) export controls should be applied only to those Indian and Pakistani entities that make direct and material contributions to weapons of mass destruction and missile pro
grams and only to those items that can contribute to such programs. "(2) REPORTING REQUIREMENT.-Not later than 60 days after the date of the enactment of this Act, the President shall submit both a classified and unclassified report to the appropriate congressional committees listing those Indian and Pakistani entities whose activities
contribute to missile programs or weapons of mass destruction programs. “(e) CONGRESSIONAL NOTIFICATION.—The issuance of a license for export of a defense article, defense service, or technology under the authority of this section shall be subject to the same requirements as are applicable to the export of items described in section 36(c) of the Arms Export Control Act (22 U.S.C. 2776(c)), including the transmittal of information and the application of congressional review procedures.
"(f) REPEAL.—The India-Pakistan Relief Act (title IX of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999, as contained in section 101(a) of Public Law 105-277) is repealed effective October 21, 1999.”.
The President waived the application of sanctions under the new law on October 27, 1999 (Presidential Determination No. 2000–4; 64 F.R. 60649), to the following extent:
"(1) with respect to India, insofar as such sanctions would otherwise apply to activities of the Export-Import Bank, the Overseas Private Investment Corporation, and the Trade and Development Agency; assistance under the 'International Military Education and Training program; the making of any loan or the providing of any credit to the Government of India by any U.S. bank; assistance to the Asian elephant Conservation Fund, the Rhinoceros and Tiger conservation Fund, and the Indo-American Environmental Leadership program; and any credit, credit guar. antee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and
"(2) with respect to Pakistan, insofar as such sanctions would otherwise apply to any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and the making of any loan or the providing of any credit to the Government of Pakistan by any U.S. bank.” (Presidential Determination No. 2000–4; October 27, 1999; 64 F.R. 60649).
On September 22, 2001, the President lifted all nuclear test-related sanctions against India and Pakistan, under the authority granted him in the Defense Appropriations Act, FY 2000 (Presidential Determination No. 2001-28; 66 F.R. 50095).
On October 27, 2001, the President signed Public Law 107–57 (115 Stat. 403), authorizing the waiver of remaining sanctions imposed against Pakistan for debt arrearage and the military overthrow of its democratically elected government. This authority remains available through fiscal year 2003.
See also sec. 102 of the Arms Export Control Act, as amended by the Agriculture Export Relief Act of 1998 (Public Law 105–194; 112 Stat. 627).
The Kenneth M. Ludden Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107-115; 115 Stat. 2145), provided the following relating to Pakistan:
"SPECIAL NOTIFICATION REQUIREMENTS “SEC. 520. None of the funds appropriated by this Act shall be obligated or expended for Colombia, Haiti, Liberia, Serbia, Sudan, Zimbabwe, Pakistan, or the Democratic Republic of the Congo except as provided through the regular notification procedures of the Committees on Appropriations.
“BASIC EDUCATION ASSISTANCE FOR INDONESIA AND PAKISTAN "SEC. 579. (a) Of the funds made available under the heading Development Assistance' for basic education, $8,000,000 shall be made available to Indonesia and Pakistan.
"(b) of the funds made available under the heading ‘Economic Support Fund' for Pakistan, not less than $2,500,000 shall be transferred to 'Operating Expenses of the United States Agency for International Development for the purpose of monitoring and implementing United States economic support, including that provided under the provisions of Public Law 107–38 and this general provision, of basic education, health, and democracy and governance activities in Pakistan.
"(c) Not more than 60 days after the enactment of this Act, the Administrator of the United States Agency for International Development shall report to the House Committees on Appropriations and International Relations and the Senate Committees on Appropriations and Foreign Relations on the Agency's proposed allocation of basic education funding for Indonesia and Pakistan, including in-country monitoring of budget support for basic education provided under Public Law 107-38.”.
“EXCESS DEFENSE ARTICLES FOR CENTRAL AND SOUTHERN EUROPEAN COUNTRIES AND CERTAIN
OTHER COUNTRIES “SEC. 589. Notwithstanding section 516(e) of the Foreign Assistance Act of 1961 (22 U.S.C. 2321j(e)), during each of the fiscal years 2002 and 2003, funds available to the Department of
transferred to Pakistan, pursuant to the authorities contained in this Act or any other Act, unless the President shall have certified in writing to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, during the fiscal year in which military assistance is to be furnished or military equipment or technology 927 is to be sold or transferred, that Pakistan does not possess a nuclear explosive device and that the proposed United States military assistance 928 program will reduce significantly the risk that Pakistan will possess a nuclear explosive device.
(2) 925 The prohibitions in this section do not apply to any assistance or transfer provided for the purposes of:
(A) International narcotics control (including chapter 8 of part I of this Act) or any provision of law available for providing assistance for counternarcotics purposes.
(B) Facilitating military-to-military contact, training (including chapter 5 of part II of this Act) and humanitarian and civic assistance projects.
(C) Peacekeeping and other multilateral operations (including chapter 6 of part II of this Act relating to peacekeeping) or any provision of law available for providing assistance for peacekeeping purposes, except that lethal military equipment provided under this subparagraph shall be provided on a lease or loan basis only and shall be returned upon completion of the operation for which it was provided.
(D) Antiterrorism assistance (including chapter 8 of part II of this Act relating to antiterrorism assistance) or any provi
sion of law available for antiterrorism assistance purposes. (3) 925 The restrictions of this subsection shall continue to apply to contracts for the delivery of F-16 aircraft to Pakistan.
(4)925 Notwithstanding the restrictions contained in this subsection, military equipment, technology, or defense services, other than F-16 aircraft, may be transferred to Pakistan pursuant to contracts or cases entered into before October 1, 1990.
(f) 929 STORAGE COSTS.—The President may release the Government of Pakistan of its contractual obligation to pay the United States Government for the storage costs of items purchased prior to October 1, 1990, but not delivered by the United States Govern
Defense may be expended for crating, packing, handling, and transportation of excess defense articles transferred under the authority of section 516 of such Act to Albania, Bulgaria, Croatia, Estonia, Former Yugoslavia Republic of Macedonia, Georgia, India, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Mongolia, Pakistan, Romania, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: *
925 Sec. 559(aX1XD) and (E) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104-107; 110 Stat. 743) added para, designation *(1)", and added new paras. (2) through (4). These amendments are popularly collectively referred to as the “Brownback amendment.”
926 Popularly referred to as the Brown amendment. Sec. 559(a)(1)(A) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104-107; 110 Stat. 743), struck out “No assistance", and inserted in lieu thereof “No military assistance”.
927 Sec. 559(a)(1)(B) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104-107; 110 Stat. 743), struck out “in which assistance is to be furnished or military equipment or technology” and inserted in lieu thereof “in which military assistance is to be furnished or military equipment or technology”.
92% Sec. 559(aX1)(C) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104-107; 110 Stat. 743), struck out “the proposed United States assistance" and inserted in lieu thereof "the proposed United States military assistance".
929 Sec. 559(aX2) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104-107; 110 Stat. 743) added subsecs. (f), (g), and (h).
ment pursuant to subsection (e) and may reimburse the Government of Pakistan for any such amount paid, on such terms and conditions as the President may prescribe: Provided, That such payments have no budgetary impact.
(g) 929 INAPPLICABILITY OF RESTRICTIONS TO PREVIOUSLY OWNED ITEMS.—Section 620E(e) does not apply to broken, worn or unupgraded items or their equivalent which Pakistan paid for and took possession of prior to October 1, 1990 and which the Government of Pakistan sent to the United States for repair or upgrade. Such equipment or its equivalent may be returned to the Government of Pakistan: Provided, That the President determines and so certifies to the appropriate congressional committees that such equipment or equivalent neither constitutes nor has received any significant qualitative upgrade since being transferred to the United States and that its total value does not exceed $25,000,000.
(h) 929 BALLISTIC MISSILE SANCTIONS NOT AFFECTED.—Nothing contained herein shall affect sanctions for transfers of missile equipment or technology required under section 11B of the Export Administration Act of 1979 or section 73 of the Arms Export Control Act. SEC. 620F.930 NUCLEAR NON-PROLIFERATION POLICY IN SOUTH ASIA. (a) FINDINGS.—The Congress finds that
(1) the proliferation of weapons of mass destruction remains one of the most serious threats to international peace and stability;
(2) South Asia, in particular, is an area where the threat of a regional nuclear exchange remains high due to continued Indo-Pakistani tensions over issues such as Kashmir;
(3) to date, United States efforts to halt proliferation in South Asia have failed;
(4) although global disarmament is a desirable goal which should be vigorously pursued, both regional and sub-regional security arrangements can serve to decrease tensions and promote non-proliferation in certain areas;
(5) thus far, there has been some success on a regional basis, such as the South Pacific Nuclear Weapons Free Zone and the Treaty of Tlatelolco in Latin America;
(6) in particular, in Latin America, the Treaty of Tlatelolco has been signed by all the nuclear powers;
930 22 U.S.C. 2376. Added by sec. 585(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1993 (Public Law 102–391; 106 Stat. 1688).
Sec. 585(b) of that Act further provided:
"(b) REPORT ON SOUTH ASIAN NUCLEAR PROGRAMS. --Not later than six months after the en. actment of this Act, the President shall submit a report with respect to the People's Republic of China, Pakistan, and India in writing to the Committees on Appropriations, the Speaker of the House of Representatives, the chairman of the Committee on Foreign Relations of the Senate, on those country's nuclear and ballistic missile programs, including, but not limited to
“(1) a determination as to whether that country possesses a nuclear explosive device or whether it possesses all the components necessary for the a
such a device; "(2) a complete report on the status of that country's missile development program, foreign assistance to that program, and foreign sales of missiles or missile components to that country and steps which the United States has taken in response to such sales; and
"(3) a report on whether that country has agreed to fully adhere, and is adhering, to all peaceful nuclear cooperation agreements with the United States and has formally agreed to place all United States-supplied nuclear materials under international safeguards in perpetuity.".
(7) a critical part of this treaty is Protocol II which prohibits nuclear attacks by nuclear weapons states on signatories to the treaty;
(8) in 1991, a proposal was made for a regional conference on non-proliferation in South Asia which would include Pakistan, India, the People's Republic of China, the Soviet Union, and the United States; and
(9) thus far, Pakistan, China, Russia, and the United States have expressed interest in attending such a conference, where
as India has refused to attend. (b) POLICY.—It is the sense of the Congress that the President should pursue a policy which seeks a regional negotiated solution to the issue of nuclear non-proliferation in South Asia at the earliest possible time, including a protocol to be signed by all nuclear weapons states, prohibiting nuclear attacks by nuclear weapons states on countries in the region. Such a policy should have as its ultimate goal concurrent accession by Pakistan and India to the Nuclear Non-Proliferation Treaty, and should also include as need ed a phased approach to that goal through a series of agreements among the parties on nuclear issues, such as the agreement reached by Pakistan and India not to attack one another's nuclear facilities.
(c) 931 REPORT ON PROGRESS TOWARD REGIONAL NON-PROLIFERATION.—Not later than April 1 of each year, 932 the President shall submit a report to the Committees on Appropriations, the Speaker of the House of Representatives, and the chairman of the Committee on Foreign Relations of the Senate, on nuclear proliferation in South Asia, including efforts taken by the United States to achieve a regional agreement on nuclear non-proliferation, and including a comprehensive list of the obstacles to concluding such a regional agreement. SEC. 620G.933 PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID
TERRORIST STATES. (a) WITHHOLDING OF ASSISTANCE.—The President shall withhold assistance under this Act to the government of any country that provides assistance to the government of any other country for
931 In a memorandum of March 30, 1994, the President delegated the functions in subsec. (c) to the Secretary of State; stipulating that preparation of the report is to be coordinated with other agencies, as appropriate and the Assistant to the President for National Security Affairs (59 F.R. 17229).
932 Sec. 2219 of the Foreign Relations Authorization Act, Fiscal Years 1998 and 1999 (subdivi. sion B of Division G of Public Law 105–277; 112 Stat. 2861), struck out “Not later than April 1, 1993, and every six months thereafter,” and inserted in lieu thereof “Not later than April 1 of each year,".
933 22 U.S.C. 2377. Sec. 325 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1256) added this sec. 620G.
Sec. 329 of that Act (110 Stat. 1258) defined assistance as follows:
"(1) the term 'assistance' means assistance to or for the benefit of a government of any country that is provided by grant, concessional sale, guaranty, insurance, or by any other means on terms more favorable than generally available in the applicable market, whether in the form of a loan, lease, credit, debt relief, or otherwise, including subsidies for exports to such country and favorable tariff treatment of articles that are the growth, product, or manufacture of such country; and
"(2) the term 'assistance' does not include assistance of the type authorized under chapter 9 of part 1 of the Foreign Assistance Act of 1961 (relating to international disaster assistance).".
Sec. 149 of Public Law 104-164 (110 Stat. 1436) also added a new sec. 620G, relating to depleted uranium ammunition.