INDIAN GOVERNMENT BRIEFS ON NEW EXPORT CONTROL LAW

S E C R E T SECTION 01 OF 03 NEW DELHI 003744 SIPDIS PASS TO NRC E.O. 12958: DECL: 05/19/2015 TAGS: PGOV KSTC KNNP TRGY ETTC CH IR IN SUBJECT: INDIAN GOVERNMENT BRIEFS ON NEW EXPORT CONTROL LAW REF: A. NEW DELHI 3652 ¶B. NEW DELHI 2601 ¶C. NEW DELHI 2599 Classified By: Charge Robert O. Blake, Jr., for Reasons 1.4 (B, D) ¶1. (C) Summary: MEA Additional Secretary (International Security) Meera Shankar expressed MEA intentions to take the lead on implementation of the new WMD law in a meeting with Charge, PolCouns, and PolMilOff on May 18. According to Shankar, the real success of the WMD bill was not its passage by Parliament, but that it had found consensus within the GOI interagency process. By framing the bill as an extension of existing laws and expansion (not restriction) of agencies' areas of responsibility, MEA was able to overcome ongoing skepticism among certain GOI agencies. An interagency group will develop a new curriculum for customs officials to raise awareness of the provisions of the new law. Shankar signaled that maintaining consensus for the more difficult task of implementation, however, would benefit from more positive signals from the US regarding flexibility to allow India access to nuclear fuel to meet its growing energy needs. Shankar refused to be drawn out on GOI plans for new export control lists to complement the WMD law, noting only that the GOI "is working on it." Finally, she disclosed that the GOI has formed a task force to share intelligence on any procurement opportunities Iran may be seeking for WMD purposes. End Summary. Consensus Was the Real Success -------------- ¶2. (C) Responding to Charge's congratulations on the passage of the new law (Ref A),Shankar downplayed the praise, stating that the law is simply the product of India's role as a responsible nuclear power and enhances its own national security. She did admit, however, that the law reflected discussions with "key interlocutors." According to Shankar, the real success of the WMD bill was not its passage by Parliament, but that it achieved consensus within the GOI interagency process comprised of the Departments of Atomic Energy, Space, Revenue, Customs, the Defense Research and Development Organization (DRDO),the Ministries of Law and Justice, Finance, and led by MEA. As the lead agency, MEA presented the bill as an umbrella for existing legislation; updating and upgrading, but not replacing current laws. "If (the agencies) thought we were intruding on their turf, they wouldn't buy in," she said, adding, "We presented the bill as expanding their areas of responsibility, not losing them." New Legal Elements -------------- ¶3. (SBU) Reiterating that laws governing exports have been on the Indian law books for some time, Shankar explained that in addition to being an umbrella for existing laws, the WMD law provides authority to reconcile differences between laws, and introduces new elements to make GOI law more responsive to current threats. For example, where definitions or provisions differ between the WMD law and other laws, the WMD law will prevail. If penal provisions differ between two laws, however, the more severe punishment will prevail. Further, India has laws regarding the export of chemical and biological weapons, but the WMD law criminalizes the transfer of a broader spectrum of weapons, and specifically prohibits transactions involving non-state actors. Control of dual-use items was implied in other GOI laws, but the WMD bill goes further to explicitly control the transfer, transit, transshipment, and brokering of dual-use items and intangible technology, according to Shankar. Implementation: Pending Questions -------------- ¶4. (SBU) Clause 7 of the law states that the GOI will designate an authority to implement the law. However, in Parliament, FM Natwar Singh raised the possibility that the law would be implemented by the Cabinet Secretariat. Charge queried which Ministry may be given this authority. According to Shankar, MEA will continue to lead the consultative process to determine the appropriate authority. She stressed that existing structures such as Customs and the Director General for Foreign Trade (DGFT) would retain enforcement responsibility. ¶5. (SBU) On possible revision of India's current control list, SCOMET, Shankar declined to speculate when the GOI might release a new list, saying only, "We're working on it." ¶6. (C) Charge also asked what enforcement-enhancing changes might be made to customs procedures which are currently focused on revenue generation. Shankar reiterated that enforcement measures are already carried out by the Ministry of Home Affairs and DGFT under the Customs Act. A new curriculum to raise awareness of the provisions of the new law would be developed by the interagency working group on SCOMET implementation, according to MEA Under Secretary (Disarmament and International Security Affairs) Nutan Kapoor. PolCouns recalled the recent break-up of a large international narcotics ring, and noted that kind of close cooperation should be the model for US-India interaction on proliferation cases. With that example in mind, he asked who would be the GOI counterpart of the Commerce Department's Bureau of Industrial Security (BIS). Shankar reiterated that MEA would remain the lead GOI agency for proliferation cases. Charge expressed hope that the GOI could provide a briefing for A/S Rademaker on GOI enforcement initiatives during his upcoming visit in June. Quid Pro Quos -------------- ¶7. (C) Achieving the full support of all the relevant ministries as well as Parliament, Shankar expected the new law to be recognized by the international community in terms of greater willingness to accommodate India's "sensitivities and concerns about existing regimes." Asserting that Secretary Rice's positive remarks on nuclear energy SIPDIS cooperation had facilitated the passage of the WMD bill by overcoming "what's in it for us" skepticism among some GOI agencies, Shankar encouraged further positive signals from the US, especially regarding access to nuclear fuel for its civil energy program. PolCouns stressed that the policy shift toward India is already demonstrable, citing recent examples of the Chidambaram visa, the launch of a new space working group, and increased US-India dual-use trade. ¶8. (U) Shankar noted PM Manmohan Singh's May 17 address to DRDO favorably measuring the new law to the highest international standards, but read an excerpt reiterating India's opposition to external controls on its indigenous programs: "India is willing to shoulder its share of international obligations as a partner against proliferation provided our legitimate interests are safeguarded. In the defense field and the nuclear field, our strategic programs are indigenous and not dependent on external sources of support. Nor can they be the subject of externally imposed constraints. Within these parameters, India is prepared for the broadest form of engagement with the international non-proliferation regime." (Speech to be reported septel.) ¶9. (C) Charge probed further about current GOI plans for adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines, as a requirement of NSSP Phase II. "I'm not in a position to say," she demurred. ¶10. (SBU) Regarding the NSSP requirement to have outreach events to explain export control to the private sector, Shankar asserted that this is also an ongoing program run by various agencies for their respective sectors, e.g., by the Department of Chemicals for the chemical industry. Pending Proliferation Cases -------------- ¶11. (C) Another source of skepticism about the value of the US-India relationship, according to Shankar, is the perceived double standard of US assistance on Chinese nuclear reactors given China's known proliferation links with Pakistan. "Our proliferation record is better than China's," Shankar asserted. Charge responded that since China is an NPT signatory, the US may work with it on civil nuclear projects. ¶12. (C) Charge inquired if the GOI had any more information on two cases of recent proliferation concern because of their Iranian connections: Sabero and Sandhya. Kapoor stated there was no further information about these cases since the GOI non-papers on March 25 (Refs B and C) and reiterated earlier GOI requests for additional information about the end-users. ¶13. (S) In light of Iran's apparent efforts to diversify its sources for WMD-related material, PolCouns asked what steps the GOI is taking to ensure that Indian entities are not involved. According to Shankar, the GOI has formed a task force of relevant agencies to share intelligence on any procurement opportunities Iran may be seeking for WMD purposes. BLAKE