The story so far: On April 5, 2022, the Weapons of Mass Destruction (WMD) and their Delivery Systems (Prohibition of Unlawful Activities) Amendment Bill, 2022 was introduced in the Lok Sabha. It was passed the next day. The Bill amends the WMD and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 which prohibits the unlawful manufacture, transport, or transfer of WMD (chemical, biological and nuclear weapons) and their means of delivery. It is popularly referred to as the WMD Act. The recent amendment extends the scope of banned activities to include financing of already prohibited activities.
What was the purpose of the original WMD Act?
The WMD and their Delivery Systems (Prohibition of Unlawful Activities) Act came into being in July 2005. Its primary objective was to provide an integrated and overarching legislation on prohibiting unlawful activities in relation to all three types of WMD, their delivery systems and related materials, equipment and technologies. It instituted penalties for contravention of these provisions such as imprisonment for a term not less than five years (extendable for life) as well as fines. The Act was passed to meet an international obligation enforced by the UN Security Council Resolution (UNSCR) 1540 of 2004.
What is the UNSCR 1540?
In April 2004 the UN Security Council adopted resolution 1540 to address the growing threat of non-state actors gaining access to WMD material, equipment or technology to undertake acts of terrorism. In order to address this challenge to international peace and security, UNSCR 1540 established binding obligations on all UN member states under Chapter VII of the UN Charter. Nations were mandated to take and enforce effective measures against proliferation of WMD, their means of delivery and related materials to non-state actors.
UNSCR 1540 enforced three primary obligations upon nation states — to not provide any form of support to non-state actors seeking to acquire WMD, related materials, or their means of delivery; to adopt and enforce laws criminalising the possession and acquisition of such items by non-state actors; to adopt and enforce domestic controls over relevant materials, in order to prevent their proliferation. It was to meet these obligations that enactment and enforcement of legislations to punish the unlawful and unauthorised manufacture, acquisition, possession, development and transport of WMD became necessary.
What has the Amendment added to the existing Act?
The Amendment expands the scope to include prohibition of financing of any activity related to WMD and their delivery systems. To prevent such financing, the Central government shall have the power to freeze, seize or attach funds, financial assets, or economic resources of suspected individuals (whether owned, held, or controlled directly or indirectly). It also prohibits persons from making finances or related services available for other persons indulging in such activity.
Why was this Amendment necessary?
UNSCR 1540 undergoes periodic reviews to determine the success of its implementation and to identify gaps in enforcement. In one such review undertaken in 2016, it was concluded that the risk of proliferation to non-state actors is increasing due to rapid advances in science, technology, and international commerce.
The statement of objects and reasons of the Bill presented in India echoes these developments for having made the Amendment necessary. Two specific gaps are being addressed — first, as the relevant organisations at the international level, such as the Financial Action Task Force have expanded the scope of targeted financial sanctions and demand tighter controls on the financing of WMD activities, India’s own legislation has been harmonised to align with international benchmarks.
Secondly, with advancements in technologies, new kinds of threats have emerged that were not sufficiently catered for in the existing legislation. These notably include developments in the field of drones or unauthorised work in biomedical labs that could maliciously be used for terrorist activity. Therefore, the Amendment keeps pace with evolving threats. In fact, domestic legislations and international measures that address issues of WMD security cannot afford to become fossilised. They must be agile and amenable to modifications in keeping with the changing tactics of non-state actors.
What more should India do?
India’s responsible behaviour and actions on non-proliferation are well recognised. It has a strong statutory national export control system and is committed to preventing proliferation of WMD. This includes transit and trans-shipment controls, retransfer control, technology transfer controls, brokering controls and end-use based controls. Every time India takes additional steps to fulfil new obligations, it must showcase its legislative, regulatory and enforcement frameworks to the international community.
At the domestic level, this Amendment will have to be enforced through proper outreach measures to industry and other stakeholders to make them realise their obligations under the new provisions. India’s outreach efforts with respect to the WMD Act have straddled both region-specific and sector-specific issues. Similar efforts will be necessary to explain the new aspects of the law.
It is also necessary that India keeps WMD security in international focus. There is no room for complacency. Even countries which do not have WMD technology have to be sensitised to their role in the control framework to prevent weak links in the global control system. India can offer help to other countries on developing national legislation, institutions and regulatory framework through the IAEA (International Atomic Energy Agency) or on bilateral basis.
Could the Amendment become troublesome to people on account of mistaken identity?
In the discussion on the Bill in Parliament, some members expressed concern on whether the new legislation could make existing business entities or people in the specific sector susceptible to a case of mistaken identity. The External Affairs Minister, S. Jaishankar, however, assured the House that such chances were minimal since identification of concerned individuals/entities would be based on a long list of specifics.
What is the international significance of these legislation? What is in it for India?
Preventing acts of terrorism that involve WMD or their delivery systems requires building a network of national and international measures in which all nation states are equally invested. Such actions are necessary to strengthen global enforcement of standards relating to the export of sensitive items and to prohibit even the financing of such activities to ensure that non-state actors, including terrorist and black-market networks, do not gain access to such materials. Sharing of best practices on legislations and their implementation can enable harmonisation of global WMD controls.
India initially had reservations on enacting laws mandated by the UNSCR. This is not seen by India as an appropriate body for making such a demand. However, given the danger of WMD terrorism that India faces in view of the difficult neighbourhood that it inhabits, the country supported the Resolution and has fulfilled its requirements.
It is in India’s interest to facilitate highest controls at the international level and adopt them at the domestic level. Having now updated its own legislation, India can demand the same of others, especially from those in its neighbourhood that have a history of proliferation and of supporting terrorist organisations.
Manpreet Sethi is Distinguished Fellow, Centre for Air Power Studies, New Delhi