This piece is also published on RSIL’s website.
Traditionally, conversations around nuclear weapons have focused on concepts of nuclear security and nuclear strategy. More recently, however, there has been an increase in normative approaches that seek to expand the scope of these conversations. One such approach is the Nuclear Responsibilities Toolkit, jointly developed by the British American Security Information Council (BASIC) and the Institute for Conflict, Cooperation and Security (ICCS) at the University of Birmingham. This approach places the notion of Nuclear Responsibilities at the centre of analytical inquiry around states’ nuclear weapons policies and practices, through a dialogue process where dialogue participants can explore (at the national, bilateral, or multilateral level) what are the nuclear responsibilities of their states or other states.
I recently had the opportunity to use the Nuclear Responsibilities Toolkit to engage with students from the Lahore University of Management Sciences and the University of Management & Technology (Lahore) in Pakistan to understand their perceptions on the obligations and sources of Pakistan’s nuclear responsibilities. Given that seventeen out of the twenty-one participants were pursuing a degree in Law, it was unsurprising that the students felt that Pakistan derived its nuclear responsibilities from law, both domestic and international. This, in turn, fostered discussions about Pakistan’s obligations to prevent loss of life and damage to the environment, enhance safety protocols, prevent proliferation and minimise dangers to humanity.
This paper builds on the ideas of the workshop participants by exploring two domestic legislative instruments through which Pakistan derives some of its nuclear responsibilities. In doing so, the perspectives contained herein can serve as a starting point for researchers interested in exploring the legal sources of some of Pakistan’s nuclear responsibilities. The piece also explores how responsibilities stemming from self-imposed legal obligations have resulted in improvements in Pakistan’s nuclear activities, before giving some suggestions on what can be done in the future.
Law and Nuclear Responsibilities in Pakistan
There are several instruments in Pakistan’s domestic legal framework that can be framed as legal sources of its nuclear responsibilities. Some of these include the Imports and Exports (Control) Act, 1950, The Pakistan Atomic Energy Commission Ordinance, 1965, The Pakistan Space and Upper Atmosphere Research Commission Ordinance, 1981 and The National Command Authority Act, 2010. This piece, however, will only explore the Pakistan Nuclear Regulatory Authority Ordinance, 2001 and the Export Control on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons and their Delivery Systems Act, 2004.
- Pakistan Nuclear Regulatory Authority Ordinance, 2001
In May 1998, Pakistan conducted its first public nuclear test as a response to Indian tests earlier in the same month. The tests immediately resulted in diplomatic fallout and both India and Pakistan were subjected to economic sanctions and condemned by the United Nations Security Council in Resolution 1172. The Pakistani Ambassador to the United Nations was reported to have remarked that ‘nuclear proliferation in South Asia was now, regrettably, a fact and no amount of sermonising could change that.’ However, it was also clear that the country needed to demonstrate seriousness in its responsibilities regarding the regulation and supervision of ‘matters related to nuclear safety and radiation protection.’ It was under these circumstances that the 2001 Pakistan Nuclear Regulatory Authority Ordinance (PNROA) was passed. The Ordinance’s purpose was to create the Pakistan Nuclear Regulatory Authority (PNRA) ‘for regulation of safety of nuclear installations, the protection against risks arising from ionising radiation, the extent of civil liability for nuclear damage resulting from any nuclear incident.’ Some of the salient features of the Ordinance with regards to Pakistan’s nuclear responsibilities pertaining to prevention of loss and life are as follows:
- Article 2(h) provides a very comprehensive definition of the term “nuclear damage”. It states that nuclear damage refers to ‘any loss of life, any personal injury or any loss of, or damage to, property’ resulting from nuclear activities. Furthermore,
- Article 2(j) defines the term “nuclear incident” as any event or series of events that result in “nuclear damage”.
- Article 16(2) enumerates the functions of the PNRA. Some of these include the regulation of radioactive safety, development of reporting procedures for nuclear incidents, creating guidelines for physical protection of nuclear installations and materials, and the creation of a licensing regime for the regulation of trade and exchange of nuclear materials.
- Article 38 enables the PNRA to enter into cooperative arrangements with other states or with international organisations.
- Article 39 empowers the PNRA to engage in environmental surveillance and develop radiation emergency plans to tackle any ‘foreseeable nuclear incidents’ that might endanger the public.
Pakistan’s responsibilities to prevent loss of life and damage to the environment, enhance safety protocols, and to cooperate with other states on nuclear safety and security, are grounded in such legal provisions. In particular, Article 38 opens the door to cooperation and engagement on global nuclear norms, which is a key component of measures such as the Nuclear Threat Initiative’s (NTI) Nuclear Security Index. Similarly, provisions pertaining to environmental surveillance enable the PNRA to work seamlessly with entities such as the National and Provincial Disaster Management Authorities and district governments to minimise the human cost of potential nuclear incidents.
- Export Control on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons and Their Delivery Systems Act, 2004
The 2004 Export Control on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons and Their Delivery Systems Act (hereafter referred to as the ECA 2004) is important because it followed the unmasking of the so-called ‘AQ-Khan network’. In early 2004, Dr Abdul Qadeer Khan confessed to being part of a global, illicit network of nuclear trade. While the Pakistani government has always maintained that Dr Khan’s illegal actions had no official patronage, it also realised that it needed to be seen to be making changes. Hence, only a few months after Dr Khan’s confession, the ECA 2004 was passed in September of 2004. The Act’s purpose was to highlight Pakistan’s commitment to the prevention of ‘proliferation of nuclear and biological weapons and missiles capable of delivering such weapons’ and its resolve in enforcing controls on export of ‘goods, technologies, material and equipment related to nuclear and biological weapons and their delivery systems’. Some of the salient features of the ECA 2004 with regards to Pakistan’s nuclear responsibilities are as follows:
- Article 4 empowers the Federal Government to maintain control lists which are to be reviewed and updated periodically. Furthermore, it also empowers the Federal government to control the imports, exports, re-exports and transit of all goods that come under the purview of ECA 2004.
- Article 5 creates a licensing mechanism through which the Federal government can control individuals and entities who are able to engage in trade of goods that are restricted, as set forth by the ECA 2004. Furthermore, it also creates a reporting obligation on exporters in case they are aware of, or if they suspect that goods in question are intended for illegal uses.
- Article 6 makes record-keeping mandatory for all exporters, as well as government agencies and departments.
- Articles 7 and 8 impose strict penalties on individuals and entities that violate the terms of the ECA 2004.
- Article 10 allows the Federal Government to impose trade restrictions on individuals and entities who intentionally violate their export licences by diverting controlled goods and technologies for unauthorised use.
The provisions highlighted above demonstrate how the ECA 2004 was Pakistan’s attempt to put the AQ-Khan episode behind, and show the world how serious and responsible it was with regards to upholding global non-proliferation norms. Over the years, the provisions of the Act have enabled Pakistan to stay up to date with global export control and end-user licensing regimes. According to the Pakistan Ministry of Foreign Affairs, the ECA 2004 is periodically utilised as a mechanism to revise Export Control Lists pertaining to nuclear and biological weapons, the most recent of which happened in April 2022.
Impact of Legally Grounded Nuclear Responsibilities and Way Forward
The legislative instruments illustrated in the previous sections show how nuclear responsibilities can be grounded in law. Moreover, contrary to being merely performative measures, these instruments have enabled Pakistan to synergise with global nuclear norms and laws. It was partially due to these synergies that the NTI recognised Pakistan as the most improved state in the 2020 Nuclear Security Index. The 2020 NTI report shows that Pakistan made significant progress in strengthening domestic commitments and capacity, as well as adhering to global norms. With regards to the former, Pakistan has scored maximum points on UNSCR 1540 implementation and presence of an independent regulatory authority.1 On domestic nuclear security legislation, Pakistan scores 67/100 which, although good, shows that there is still room for improvement. However, in the area of global nuclear norms, there remains plenty of room for improvement. While Pakistan does score highly on voluntary commitments, its score has decreased by 17 points between 2018 and 2020.
Furthermore, Pakistan scores poorly in demonstrating a commitment to international assurances, subscribing to Nuclear Security Information Circulars (INFCIRCs) and being party to binding international legal commitments. Some analysts suggest that Pakistan can improve on this front by becoming a party to the International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT), especially since India is also a party to the convention. However, such a decision should only be taken after careful considerations with regards to potential misuse of the treaty against Pakistan itself. Until then, Pakistan should implement its domestic legal framework in letter and spirit so that it may continue to be a source for developing responsible nuclear behaviour for the benefit of the country.
Most of the discourse on nuclear weapons, as part of a broader discussion on national security, continues to happen in silos created and curated by individuals from similar academic and professional backgrounds. As someone from an International Relations background, I have often found myself operating in similar silos composed exclusively with international relations and strategic studies students and practitioners. Therefore, interacting with students from legal backgrounds was a very refreshing and eye-opening experience for me. I use the word eye-opening because instead of focusing on traditionally discussed issues like deterrence, strategic stability, etc. the students who participated in these workshops spoke about the state’s (Pakistan in this case) duty to protect the environment, the lives of citizens and even the well-being of animals. Having benefited from the chance to learn from these students, I believe that for a state of over 220 million people, it doesn’t seem right for a handful of people to dominate the discourse on nuclear weapons, or any other issue of ‘national interest’, however one may choose to define it. In this regard, I feel initiatives like these are an excellent opportunity to not only incorporate a wider range of voices, but also learn from them.
- UNSCR 1540 was passed in 2004 and it focuses on the non-proliferation of weapons of mass destruction (WMDs), with a specific emphasis on preventing the proliferation of WMDs to non-state actors. The resolution also created a committee (commonly referred to as the 1540 Committee) to monitor the implementation of UNSCR 1540 obligations in UN member states. The committee had an initial mandate of two years, which has been extended multiple times through security council resolutions. Most recently, the UNSCR 2663 extended the mandate of the committee till 30 November 2032.
This article is co-published with the Institute for Conflict, Cooperation and Security at the University of Birmingham.
Mubashar Rizvi is a graduate student at the University of Oxford’s School of Global and Area Studies.
Views expressed belong solely to the original author of the article and do not necessarily represent the views and opinions of BASIC.