The article discusses India’s legal and ethical obligations in exporting defence equipment, highlighting gaps in its laws compared to international standards like the Arms Trade Treaty and the Geneva Conventions, particularly in relation to assessing compliance with international humanitarian law. It underscores the need for India to address these gaps, especially as it aspires to become a major defence exporter.
- Supreme Court Dismisses PIL: The Supreme Court of India recently rejected a public interest litigation (PIL) that urged the government to stop exporting defence equipment to Israel due to alleged war crimes in Gaza. The court declined to intervene, stating that foreign policy is beyond its jurisdiction.
- Broader Implications of the PIL: While the PIL was focused on Israel, the issue it raised has broader implications, especially as India seeks to expand as a major defence exporter. The concern isn’t just about one country but touches on India’s future role in global defence trade.
- Netherlands Blocks Defence Exports to Israel: A court in the Netherlands ordered the government to halt the export of F-35 fighter jet parts to Israel. This was based on an EU regulation that prohibits exporting military equipment to countries where there is a clear risk of violating international humanitarian law (IHL).
- UK’s Export Control Review of Israel: The UK government, under the Export Control Act, reviewed Israel’s compliance with IHL during the conflict in Gaza. It found that exporting certain arms to Israel could contribute to serious breaches of IHL and imposed restrictions accordingly.
- Lack of Indian Law on Defence Export Review: India does not have a law similar to the UK’s Export Control Act or EU regulations that require an assessment of a country’s compliance with International Humanitarian Law (IHL) before exporting defence equipment.
- Indian Laws on Defence Export: The Indian Foreign Trade Act (FTA) of 1992, along with the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act (WMDA) of 2005, allows the government to regulate the export of specific goods for reasons like national security and international obligations.
- India’s International Obligations: Indian law allows the government to restrict defence exports due to international treaties or agreements. However, unlike the UK or EU, Indian law does not require the government to assess IHL compliance before exporting defence goods.
- Legal Gap in India’s Export Controls: Unlike other countries, Indian law does not obligate the government to review if a receiving country is compliant with IHL, creating a legal gap in its defence export policies.
- Supreme Court’s Use of International Law: In cases like Vishakha vs State of Rajasthan, the Supreme Court of India has applied international law to fill gaps in domestic law. This issue could be framed similarly, using international law as a guide instead of treating it purely as foreign policy.
- Arms Trade Treaty (ATT): The ATT regulates the global trade of conventional arms, barring exports if there’s knowledge that the arms will be used to commit war crimes. States are also required to assess if their arms exports might violate IHL.
- India Not a Signatory to ATT: India has not signed the ATT, making it non-binding on the country. As a result, its provisions cannot be legally enforced in India, although some parts of the treaty align with customary international law.
- India’s Obligations Under Geneva Conventions: As a signatory to the Geneva Conventions, India is obligated to ensure respect for IHL. This includes not exporting arms to countries where there’s a reasonable expectation that the weapons will be used to violate the Geneva Conventions.
- High Standard for Compliance: According to scholars, the standard for determining whether arms exports will be used to violate IHL is high, requiring significant evidence before restricting exports.
Arms Trade Treaty (ATT)
The Arms Trade Treaty (ATT) is a crucial international agreement that regulates the global trade of conventional weapons. Adopted by the UN General Assembly in 2013, the treaty aims to enhance global security by promoting responsible arms transfers.
Promoting Global Peace
The ATT contributes to regional and international stability by regulating arms trade and reducing the risk of arms misuse.
Reducing Human Suffering
It aims to control the flow of weapons, preventing violence and human rights abuses in conflict zones.
Implementation and Challenges
While the treaty sets global standards, several major arms-exporting nations have not signed or ratified it, affecting universal adoption.
India’s Position
India is not a signatory, citing concerns about terrorism, national security, and an imbalance in obligations between exporting and importing countries.