UPSC Editorial Analysis: India’s Defence Exports and International Humanitarian Law Compliance
Kartavya Desk Staff
Source: The Hindu
*General Studies-2; Topic: Effect of policies and politics of developed and developing countries on India’s interests.*
Introduction
• The Supreme Court of India recently dismissed a public interest litigation (PIL) seeking to stop India’s export of defence equipment to Israel due to allegations of war crimes in Gaza.
• Several countries, like the Netherlands and the United Kingdom, have blocked or reviewed defence exports to Israel based on concerns about violations of IHL.
• As India aspires to become a major defence-exporting nation, the question of aligning defence exports with international humanitarian law (IHL) needs urgent attention.
Current Legal Framework in India
• Indian Foreign Trade Act (FTA), 1992: Regulates the export of certain goods based on national security and international obligations.
• Weapons of Mass Destruction and their Delivery Systems Act (WMDA), 2005: Empowers the central government to prohibit the export of goods due to India’s international obligations.
• Despite these provisions, there is no explicit legal obligation for the Indian government to assess whether defence exports to a country might violate IHL, unlike in the UK or EU.
Government Initiatives
• India’s Defence Export Strategy: India is expanding its role as a defence exporter with a vision to become one of the top arms-exporting nations globally.
• Policy of Defense Diplomacy: India has focused on building strategic partnerships through defence exports, enhancing its global influence, particularly in Africa and Southeast Asia.
Challenges in India’s Legal Framework
• Lack of IHL Review Mechanism: India’s laws do not mandate a review of the IHL obligations of recipient countries.
• Absence of Alignment with International Norms: India is not a signatory to the Arms Trade Treaty (ATT), a major global instrument for regulating the international arms trade and ensuring arms are not used for war crimes or violations of IHL.
• Balancing Strategic Interests with International Law: India has to balance its foreign policy goals, such as defence exports to strategic partners like Israel, with its obligations under international law, including IHL.
• India’s current framework, under the FTA and WMDA, only considers national security and broad international obligations without a specific focus on IHL compliance.
• In cases like Vishakha vs State of Rajasthan, the Indian judiciary has previously incorporated international law to fill domestic legal voids. The Supreme Court could play a proactive role in interpreting India’s legal obligations in light of its IHL commitments.
International Best Practices
• European Union (EU) Regulation: The EU’s legal framework mandates that arms exports be blocked if there is a risk of their use in serious violations of IHL. The Dutch court’s order stopping the export of F-35 jet parts to Israel was based on this framework.
• The EU’s legal framework mandates that arms exports be blocked if there is a risk of their use in serious violations of IHL.
• The Dutch court’s order stopping the export of F-35 jet parts to Israel was based on this framework.
• United Kingdom’s Export Control Act: The UK government reviews arms exports for compliance with IHL obligations, assessing the risk that exported arms might be used to commit violations.
• The UK government reviews arms exports for compliance with IHL obligations, assessing the risk that exported arms might be used to commit violations.
• Arms Trade Treaty (ATT): ATT prohibits arms exports where there is knowledge that they will be used for war crimes. It also obliges states to assess the potential misuse of arms in serious violations of IHL.
• ATT prohibits arms exports where there is knowledge that they will be used for war crimes.
• It also obliges states to assess the potential misuse of arms in serious violations of IHL.
India’s Obligations under International Law
• Geneva Conventions: India is a signatory to the Geneva Conventions, which obligate it to respect and ensure respect for IHL. Under Common Article 1, states must refrain from supplying weapons that are likely to be used in violations of the Conventions.
• India is a signatory to the Geneva Conventions, which obligate it to respect and ensure respect for IHL.
• Under Common Article 1, states must refrain from supplying weapons that are likely to be used in violations of the Conventions.
• International Court of Justice (ICJ) Precedent: In Nicaragua vs United States, the ICJ ruled that states have a negative obligation not to supply weapons if they know these weapons will be used to violate international law.
• In Nicaragua vs United States, the ICJ ruled that states have a negative obligation not to supply weapons if they know these weapons will be used to violate international law.
Challenges in Implementation
• India’s relationships with countries like Israel are based on strategic and diplomatic interests. Curtailing arms exports could strain these relationships.
• Defence exports are becoming a growing part of India’s economy, and any restrictions could impact domestic defence manufacturers.
• A lack of specific legislation focusing on IHL compliance during arms exports hampers India’s ability to align with international norms fully.
Way Forward
• India should amend the Foreign Trade Act and WMDA to include provisions that mandate the assessment of the IHL compliance of importing countries. This would bring India’s legal framework closer to international standards.
• Though not currently a signatory, India could consider acceding to the ATT to enhance its credibility as a responsible arms exporter.
• India should create a mechanism similar to the UK’s Export Control Act, ensuring that defence exports do not contribute to human rights violations.
• India must carefully weigh its defence exports’ strategic benefits against the potential risks of contributing to IHL violations, which could damage its global reputation.
Conclusion
• By balancing strategic, economic, and legal considerations, India can maintain its leadership in the global arms trade while adhering to its international obligations under the Geneva Conventions and other customary international law norms.
Practice Question:
Discuss the absence of specific legal obligations in India to assess international humanitarian law (IHL) compliance before exporting defence equipment, in comparison to frameworks like the UK’s Export Control Act and EU regulations.