IN THE SENATE OF THE UNITED STATES
December 2, 2020
Mr. Markey (for himself and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations
To counter Saudi Arabia's possible pursuit of weapons of mass destruction, and for other purposes.
This Act may be cited as the
Stopping Activities Underpinning Development In Weapons of Mass Destruction Act or the
SAUDI WMD Act.
Congress makes the following findings:
The People's Republic of China (in this Act referred to as
China), became a full-participant of the Nuclear Suppliers Group in 2004, committing it to apply a strong presumption of denial in exporting nuclear-related items that a foreign country could divert to a nuclear weapons program.
China also committed to the United States, in November 2000, to abide by the foundational principles of the 1987 Missile Technology Control Regime (MTCR) to not
assist, in any way, any country in the development of ballistic missiles that can be used to deliver nuclear weapons (i.e., missiles capable of delivering a payload of at least 500 kilograms to a distance of at least 300 kilometers).
In the 1980s, China secretly sold the Kingdom of Saudi Arabia (in this Act referred to as
Saudi Arabia) conventionally armed DF–3A ballistic missiles, and in 2007, reportedly sold Saudi Arabia dual-use capable DF–21 medium-range ballistic missiles of a 300 kilometer, 500-kilogram range and payload threshold which should have triggered a denial of sale under the MTCR.
The 2020 Department of State Report on the Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments found that China
continued to supply MTCR-controlled goods to missile programs of proliferation concern in 2019 and that the United States imposed sanctions on nine Chinese entities for covered missile transfers to Iran.
A June 5, 2019, press report indicated that China allegedly provided assistance to Saudi Arabia in the development of a ballistic missile facility, which if confirmed, would violate the purpose of the MTCR and run contrary to the longstanding United States policy priority to prevent weapons of mass destruction proliferation in the Middle East.
The Arms Export and Control Act of 1976 (Public Law 93–329) requires the President to sanction any foreign person or government who knowingly
exports, transfers, or otherwise engages in the trade of any MTCR equipment or technology to a country that does not adhere to the MTCR.
China concluded two nuclear cooperation agreements with Saudi Arabia in 2012 and 2017, respectively, which may facilitate China’s bid to build two reactors in Saudi Arabia to generate 2.9 Gigawatt-electric (GWe) of electricity.
On August 4, 2020, a press report revealed the alleged existence of a previously undisclosed uranium yellowcake extraction facility in Saudi Arabia allegedly constructed with the assistance of China, which if confirmed, would indicate significant progress by Saudi Arabia in developing the early stages of the nuclear fuel cycle that precede uranium enrichment.
Saudi Arabia's outdated Small Quantities Protocol and its lack of an in force Additional Protocol to its International Atomic Energy Agency (IAEA) Comprehensive Safeguards Agreement severely curtails IAEA inspections, which has led the Agency to call upon Saudi Arabia to either rescind or update its Small Quantities Protocol.
In May 24, 2018, testimony before the Committee on Foreign Relations of the Senate, Secretary of State Mike Pompeo said that the United States would insist upon the
gold standard in any bilateral civilian nuclear cooperation
123 agreement with Saudi Arabia—no in-country enrichment of uranium or reprocessing of plutonium—a standard the United States achieved with the United Arab Emirates in their own May 2009 bilateral 123 agreement.
On March 15, 2018, the Crown Prince of Saudi Arabia, Mohammad bin-Salman, stated that
if Iran developed a nuclear bomb, we would follow suit as soon as possible, raising questions about whether a Saudi Arabian nuclear program would remain exclusively peaceful, particularly in the absence of robust international IAEA safeguards.
An August 9, 2019, study by the United Nations High Commissioner for Human Rights found that the Saudi Arabia-led military coalition airstrikes in Yemen and its restrictions on the flow of humanitarian assistance to the country, both of which have disproportionately impacted civilians, may be violations of international humanitarian law.
Determination of possible MTCR transfers to Saudi Arabia
Not later than 30 days after the date of the enactment of this Act, the President shall submit to the appropriate committees of Congress a written determination, and any documentation to support that determination detailing—
whether any foreign person knowingly exported, transferred, or engaged in trade of any item designated under Category I of the MTCR Annex item with Saudi Arabia in the previous three fiscal years; and
the sanctions the President has imposed or intends to impose pursuant to section 11B(b) of the Export Administration Act of 1979 (50 U.S.C. 4612(b)) against any foreign person who knowingly engaged in the export, transfer, or trade of that item or items.
Notwithstanding any provision of paragraphs (3) through (7) of section 11(B)(b) of the Export Administration Act of 1979 (50 U.S.C. 4612(b)), the President may only waive the application of sanctions under such section with respect to Saudi Arabia if that country is verifiably determined to no longer possess an item designated under Category I of the MTCR Annex received in the previous three fiscal years.
Form of report
The determination required under subsection (a) shall be unclassified with a classified annex.
Prohibition on United States arms sales to Saudi Arabia if it imports nuclear technology without safeguards
The United States shall not sell, transfer, or authorize licenses for export of any item designated under Category III, IV, VII, or VIII on the United States Munitions List pursuant to section 38(a)(1) of the Arms Export Control Act (22 U.S.C. 2778(a)(1)) to Saudi Arabia, other than ground-based missile defense systems, if Saudi Arabia has, in the previous 3 fiscal years—
knowingly imported any item classified as
plants for the separation of isotopes of uranium or
plants for the reprocessing of irradiated nuclear reactor fuel elements under Part 110 of the Nuclear Regulatory Commission export licensing authority; or
engaged in nuclear cooperation related to the construction of any nuclear-related fuel cycle facility or activity that has not been notified to the IAEA and would be subject to complementary access if an Additional Protocol was in force.
The Secretary of State may waive the prohibition under subsection (a) with respect to a foreign country if the Secretary submits to the appropriate committees of Congress a written certification that contains a determination, and any relevant documentation on which the determination is based, that Saudi Arabia—
has brought into force an Additional Protocol to the IAEA Comprehensive Safeguards Agreement based on the model described in IAEA INFCIRC/540;
has concluded a civilian nuclear cooperation agreement with the United States under section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153) or another supplier that prohibits the enrichment of uranium or separation of plutonium on its own territory; and
has rescinded its Small Quantities Protocol and is not found by the IAEA Board of Governors to be in noncompliance with its Comprehensive Safeguards Agreement.
Rule of construction
Nothing in this Act shall be construed as superseding the obligation of the President under section 502B(a)(2) or section 620I(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2304(a)(2), 22 U.S.C. 2378–1(a)), respectively, to not furnish security assistance to Saudi Arabia or any country if it—
engages in a consistent pattern of gross violations of internationally recognized human rights; or
prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.
Middle East nonproliferation strategy
Not later than 60 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State and the Secretary of Energy, in consultation with the Director of National Intelligence, shall provide the appropriate committees of Congress, as an appendix to the Report on the Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments, a report on MTCR compliance and the United States Middle East nonproliferation strategy.
The report required under subsection (a) shall include the following elements:
An assessment of China’s compliance, in the previous fiscal year, with its November 2000 commitment to abide by the MTCR and United States diplomatic efforts to address non-compliance.
A description of every foreign person that, in the previous fiscal year, engaged in the export, transfer, or trade of MTCR items to a country that is a non-MTCR adherent, and a description of the sanctions the President imposed pursuant to section 11B(b) of the Export Administration Act of 1979 (50 U.S.C. 4612(b)).
A detailed strategy to prevent the proliferation of ballistic missile and sensitive nuclear technology in the Middle East and North Africa from China and other foreign countries, including the following elements:
An assessment of the proliferation risks associated with concluding or renewing a civilian nuclear cooperation
123 agreement with any country in the Middle-East and North Africa and the risks of such if that same equipment and technology is sourced from a foreign state.
An update on United States bilateral and multilateral diplomatic actions to commence negotiations on a Weapons of Mass Destruction Free Zone (WMDFZ) since the 2015 Nuclear Nonproliferation Treaty Review Conference.
A description of United States Government efforts to achieve global adherence and compliance with the Nuclear Suppliers Group, MTCR, and the 2002 International Code of Conduct against Ballistic Missile Proliferation guidelines.
An account of the briefings to the appropriate committees of Congress in the reporting period detailing negotiations on any new or renewed civilian nuclear cooperation
123 agreement with any country consistent with the intent of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
Form of report
The report required under subsection (a) shall be unclassified with a classified annex.
In this Act:
Appropriate committees of Congress
The term appropriate committees of Congress means—
the Select Committee on Intelligence of the Senate;
the Committee on Foreign Relations of the Senate;
the Select Committee on Intelligence of the House of Representative; and
the Committee on Foreign Affairs of the House of Representatives.
Foreign person; person
The terms foreign person and person mean—
a natural person that is an alien;
a corporation, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group, that is organized under the laws of a foreign country or has its principal place of business in a foreign country;
any foreign governmental entity operating as a business enterprise; and
any successor, subunit, or subsidiary of any entity described in subparagraph (B) or (C).
Middle East and North Africa
The term Middle East and North Africa means those countries that are included in the Area of Responsibility of the Assistant Secretary of State for Near Eastern Affairs.