Why India’s Position on the Arms Trade Treaty Endures

Why India’s Position on the Arms Trade Treaty Endures

 

Sangeet Jain

 

Introduction

 

The Arms Trade Treaty is a multilateral treaty, regulating international trade in conventional arms. It was envisioned as a tool to prevent conflict and human rights violations fuelled by poorly regulated trade in arms, which could not conceivably be controlled via national legislation alone.  The treaty’s initial pace was unprecedented – it’s ratification target achieved in less than two years. It currently has 180 signatories and 89 ratifications. However, in order to be a success, it needs to be universalised, which is among the major items on its current agenda. India had been a vigorous participant in the Treaty’s negotiating process. However, the final draft did not meet its expectations and it chose to abstain when the treaty was put to vote at the UNGA on the 2nd of April, 2013. This paper aims to evaluate, by present standards, whether India must re-look its stand taken on the Arms Trade Treaty then. It presents and examines India’s objections sequentially, looking at arguments both for and against India joining the Treaty. In conclusion, the paper finds that India’s arguments for not joining the Treaty continue to hold good. It also makes recommendations for the further course India must pursue with respect to the Arms Trade Treaty.

 

Reviewing India’s Objections to the Treaty

 

India's official explanation of vote was provided by Ambassador Sujata Mehta ( The Hindu, 2018 ) , India’s lead negotiator for the treaty. There were two key issues at the heart of India’s concerns: a) The skewed approach of the treaty b) its failure to include non-state actors in its purview.

According to the Stockholm International Peace Research Institute (SIPRI), India is the world’s largest arms importer, accounting for around 13% of total global arms import between 2012 and 2016. As an importing state, it expected that the treaty would ensure a “balance of obligations” between exporting and importing states. However, India was disappointed with the outcome text which was allegedly tilted in favour of the exporting states. It argued, along with a number of others, that the treaty was designed in a way that it could be easily exploited as a justification to unilaterally deny arms to an importing country. This would threaten India’s national security imperatives.

 

India is also a state plagued by terrorism, and therefore one of its major expectations from the treaty was that it would be tough on terrorism. However, the treaty does not include non-state actors in its purview, and therefore does not address the pressing concern of illicit trafficking and use of conventional arms by non-state actors. This is a major lacuna which may serve to make the treaty ineffective.

 

Examining India’s Objections

 

India's argument that the Arms Trade Treaty was skewed in favour of exporting states had many takers in the international community. There are multiple clauses in the Treaty and aspects related to Treaty negotiations with biased implications, examined below.

 

Article 7 and Discretionary Power Given to the Exporting State

Article 7 gives exporting State parties the discretionary power to question the motives of a sovereign arms- importing state. If, in the subjective judgment of the exporting state, the importer is likely to undermine international peace and security or violate international law, the exporter is directed to deny authorization to export. The exporter must decide whether there is “overriding risk” of any violation by the importing state – the definition and parameters of overriding risk are left to the exporter to decide. This clause can potentially be used as a justification to deny importing states arms. Such discretion is unchallenged and is liable to be a geopolitical call. There is a normative imperative to question such a bias inherent in the treaty – it is an underlying feature of international law that a sovereign state has the prerogative to defend itself by any means. It is also entirely conceivable that it would leave importing states like India in a rather vulnerable position. (Nayan R, 2012 )

 

The Question of Equal Treatment

While the treaty addresses the possibility of importing states using arms to violate international humanitarian law by targeting civilians or using arms for illicit purposes, it fails to even consider the possibility that exporting states may do the same. Article 7 directs the exporting state to consider “confidence-building measures and jointly developed programs” to mitigate risks of arms sales. However, this may quickly translate into political intervention in the importing state’s territory as leverage lies completely with the exporting state.

 

Article 11: Overlooking Exporting State Responsibility

 

Article 11 addresses diversion of arms. The exporting state can take appropriate measures in case of detection of diversion of arms. However, in cases where the exporting state has prior knowledge of diversion of arms or is complicit in the diversion, the treaty does not impress any responsibility upon the exporting state. Therefore, rampant violations by exporting states can be overlooked.

 

Discriminatory Approach to Level the Playing Field

 

India is now looking at developing an indigenous arms manufacturing capacity (Kanwal Gurmeet, 2013) . In this context, it is important to note that the Arms Trade Treaty has been critiqued for being an instrument to level the playing field for Western arms suppliers and block competition from countries like Russia and China to protect their own industry. Paul Holtom and Mark Bromley of the SIPRI (Holtom, 2017 ) argue that arms suppliers in North America and Europe aim to limit potential competition by preventing access to key technology via the Arms Trade Treaty’s establishment of common standards and rules.

 

Also, among India’s foremost security concerns is the issue of terrorism, which is inextricably linked with possession of illicit arms by non-state actors. It is therefore a considerably important aberration in India’s assessment that the ATT fails to address the issue of transfer of arms to non-state actors. This concern was voiced strongly by countries like Russia as well. According to Indian lead negotiator Sujata Mehta, this lacuna in the treaty would mean that the “ATT would lower the bar on obligations of all states not to support terrorist acts.”

 

There is overwhelming evidence of instances of arms transfers to non-state actors in Yemen, Libya, Afghanistan and Syria to name just a few. Non-state actors like the ISIS in Syria have committed unspeakable atrocities and states supplying arms to these actors retain the right to do so under the ATT, thereby undermining international peace and security. However, these exporting states reserve the right to deny weapons to sovereign importing states which require weapons for legitimate defence purposes. This paradoxical approach, India argues, undermines the very purpose of the ATT.

 

The Russian negotiator Mikhail Ulyanov also drew linkages between the treaty’s skewed approach and its failure to allow non-state actors in its purview. He argued that there are interventionist motives at play and some states want “free rein” to arm rebel groups and secessionist movements in inconvenient regimes, which is substantiated by the fact that ATT’s proponents had argued that it is “necessary to allow arms transfers to liberation movements facing abusive governments”. ‘Abusive government’ is a term which may be subject to interpretation.

 

Some scholars argue that the omission to include non-state actors was a product of time and consensus constraints. Others argue that defining non-state actors is a complex task. However, whatever be the reason, it is a legitimate argument that this omission undermines the treaty’s objectives.

 

India’s objections hold water but the pros and cons of joining the treaty despite these objections must be carefully weighed. What India would gain from joining the treaty needs to be evaluated against what India could potentially lose.

 

Potential Gains

 

The Arms Trade Treaty was the first of its kind and a landmark achievement of the international community. There is tremendous pressure on India to join the Treaty and India is committed to undertaking a thorough assessment of the treaty’s progress and keeps it under review.

 

An intrinsic benefit of joining the treaty would be to give it more teeth. Implementation of the treaty comprehensively may help defence cooperation, technology development and assist development. Countries would be able to spend more on welfare rather than defense. India recognises the tremendous human and economic costs countries (especially those in Africa) are bearing due to illicit arms trade. Only a universal ATT including as many countries as possible would be an effective tool to stop the suffering and implement the UN MDG’s (Kytomaki Elli, 2014) as it would plug vulnerable points in the global arms control system, which often become the focus of diversion.

 

Therefore, perhaps the single most significant benefit of India joining the Treaty would be reputational dividend. India values the ethical core of its foreign policy and endorses the objective of ATT - the prevention of crimes against humanity. Some of India’s partners in forums such as BRICS and the NAM voted in favour of the ATT, discomfiting India considerably. Kanwal Sibal laments in an article (Sibal Kanwal, 2013) that since ATT passed with a considerable majority, India’s abstention fuels critique that India is ill-prepared to shoulder the responsibility of a UNSC permanent seat as it is unable to put the needs of the international community above its own. By joining the ATT, India would silence its critics and demonstrate moral initiative in line with its percepts.

 

A related argument is the fact that the ATT has a bearing on customary international law and therefore is not without its merits, while lacking legal recourse. It has implications for the establishment of state practice and therefore its endorsement is a demonstration of faith in international law. Indian officials claim that their export regulations are already ATT-plus and therefore, they do not require the ATT. However, scholars argue that the ATT establishes a “floor, not a ceiling”. There is a long way to go from there and therefore an argument made on this basis is without merit.

 

A second argument is the diplomatic leverage that joining the Treaty would afford to India. Article 20 of the ATT provides for State parties to move amendments to the Treaty. There is a strong argument to be made for joining the Treaty in order to push for the text to be made stronger in line with India’s core concerns. India could arguably influence the Treaty more effectively from within rather than without. And if it fails to do so, the treaty does provide an option to withdraw (Art 24).

 

There is an argument made by some scholars in the international community that India cannot afford to ignore the ATT as it needs the ATT as well. Paul Newman argues that India faces a gun problem (Newman Paul, 2015) second only to the US, with illegal weapons responsible for a high number of gun deaths especially in the Indian hinterlands. India recently tightened its regulations and has stringent gun licensing laws but is still facing considerable issues in this regard. Therefore, some scholars are of the opinion that India needs international community cooperation to counter this internal security threat and the ATT would be a solution.

 

Finally, it is important to note that ATT or no ATT, arms transfer decisions are always calculated political judgments made by the exporting state. They are a product of many factors, including the relationship between the states. Joining the ATT could potentially be a means of building trust and confidence among states and help overcome any doubts an exporting state may have about the importer’s motivations and mechanisms.

 

Potential Dangers

 

India is the largest arms importer in the world, and the Arms Trade Treaty is skewed in favour of exporting states. India’s expenditure on importing arms is likely to be about USD 100 billion, over the next decade. India does not have indigenous arms manufacturing capacity currently and is therefore completely dependent on import. Therefore, India risks being vulnerable and subject to “unilateral force majeure measures” by exporting states (Singh RSN, 2013). There is a real risk that India may be denied arms transfers by states, using the ATT as a justification.

 

Is this a real or imagined possibility? A cursory glance at the Centre for Armed Violence Reduction’s report on the Arms Trade Treaty would point towards the former. The report discusses Australia’s export control policy, and lays down the following determinants for establishing “overriding risk” for the purposes of export:

 

International Obligations

 

To determine whether the export may be used contrary to Australia’s commitments and obligations. This is an ambiguous and almost all-encompassing directive, and therefore prone to misuse.

 

Human Rights Violations

 

Regional Security

 

Would the export contribute to instability in the region? This clause reeks of geopolitical calculations being used to determine which country gets what.

 

National Security

 

Might the export compromise Australia’s (in this case) “wider security interests” and its obligations to allies and friends. National security is a term easily amenable to change with the power politics of the day and such a clause leaves the importing state extremely vulnerable.

 

Foreign Policy

 

Might the export lead to adverse reactions by Australia’s allies: This implies that not only would the exporting state have a say in exporting arms, a wider set of interested parties would also influence arms export.

 

The above clauses clearly establish that there really are no criteria for determining “overriding risk” except strategic calculations and political leverage. An argument could well be made that arms transfers could be denied with or without ATT since they are a judgment call in themselves. However, using the ATT as a justification to deny arms would be a clear indictment – and a very internationally visible indictment at that – of the importing country to which arms are denied. The ATT resorts to naming and shaming and political judgments, whether legitimate or completely prejudiced, are laid transparent for the world to see. Therefore, an importing state is left vulnerable, in the unenviable position of having to constantly defend its security needs.

 

The mere inkling of “risk” is enough to derail an export, and the criteria for denial continue to expand. The CEDAW Committee recently published a report recommending state parties to recognize the gendered impact of arms trade and suggested that gender-based violence must be grounds for denying export licenses. It is crucial to note that there “merely has to be a risk that arms will be used in a manner prohibited by the treaty, without having to establish a direct link between transferred arms and the impact on women’s rights and safety”, to be in violation of Article 7(4). Germany was censured by the International Women’s Initiative which drew linkages between German arms export and domestic violence, gendered violence in India. This foreshadows possible risks that India cannot afford to take.

 

Evaluating the Treaty’s Effectiveness

 

There is an important fundamental question to be considered when determining whether joining the Arms Trade Treaty would be desirable or not: is the Treaty working. The ATT began with a frenzy of participation, but in the past couple of years, there has been a slowdown. Doubts have emerged from many quarters about the Treaty’s efficacy and pronounced it a failure.

 

As elucidated previously in this article, for the ATT to work, it needs to first be universalized. However, currently certain key stakeholders in the arms trade such as Russia and China are not part of the Treaty, and the US is a signatory but has not ratified it. This is crucial as Russia is the world’s second largest arms supplier and therefore, is capable of providing arms to any country which is denied arms under the ATT. Additionally, there are 180 signatories but just 89 ratifications. According to Nic Marsh of the PRS Oslo, “Having abstentions from two major arms exporters lessens the moral weight of the treaty”. As long as there are abstentions and failures to ratify the treaty, it remains weak and ineffectual. In the words of US Ambassador Mahley, “[N]ot getting a universal [ATT] agreement would make any agreement less than useless.”

 

Another crucial aspect of the treaty is its recommendatory non-binding nature. (Sorenson Joshua, 2015) The ATT’s text is largely suggestive, not obligatory and therefore binds its members to very little. There is no system of sanctions in place and no supranational body monitoring adherence. The only penalty is naming and shaming of the violator. Although it requires ratification, the Treaty largely recommends possible courses of action rather than obligating or requiring states to do anything.

 

The Centre for Armed Violence Reduction’s ATT report mentions that “identified risk factors do not automatically prohibit an exporting state from transferring arms, provided there is thorough investigation and an assurance that such arms are not likely to be used in any violations.”

 

This is testimony to the weakness of intent at the foundation of the ATT, which allows a state to export as long as it is determined to do so while ignoring indications of possible violation.

 

Arms transfers to non-state actors remains unregulated, as discussed previously, and is a huge lacuna in the treaty. The black market in arms also remains outside the Treaty’s scope – which is a fundamental flaw.

 

The treaty also contains some gaping loopholes which leaves options open for arms transfers such as “gifts, loans, leases and aid “. Under any of these labels, exporting states could arm political allies which would otherwise be barred under the treaty. This loophole, in this author’s opinion, nullifies the whole rationale for the treaty itself. The treaty is also clearly not in tune with the times as it fails to cover technology transfer – an increasingly crucial component of arms deals today. According to Max Mutschler of the Bonn International Center for Conversion (Dorrie Peter, 2015), arms deals come with intellectual property which allows recipients to produce arms locally as well. Mutschler also argues that the reporting requirements have fundamental lacunae such as the exclusion of ammunition and weapons parts and components.

 

However, the strongest argument for proclaiming the Treaty’s failure is the egregious way it has been completely ignored by its most vocal proponents (Blain Harry, 2017). Yemen stands as the most quoted example of how countries such as the UK which championed the treaty, are its biggest violators. The US and UK persist in their arms sales to Saudi Arabia despite clear evidence of the fact that those arms are being used to commit crimes against humanity in Yemen. The organization Control Arms, in its appraisal of the treaty, pointed to the case of Yemen as one of the most urgent failures of the treaty, where arms transfers persisted despite information of their negative impact. 19 State Parties and 3 signatories were complicit in this violation.

 

Therefore, the ATT will not replace other robust instruments like UN arms embargoes in a hurry, according to Mutschler. It is a nascent instrument, with much work needed in order to really make it effective.

 

Conclusion

 

The Arms Trade Treaty was hailed as a massive step in the right direction for arms control and it is. Where there were no standards at all, there is now a global consensus on minimum standards. However weak the treaty may be, it is a starting point. Its effects may be felt in the long-term as more countries accede to the treaty and it becomes difficult for states to remain outside as arms trade is very interdependent. However, as of now, it is this author’s conclusion that joining the treaty in its present state would not be in India’s best interest.

 

India must continue however, to keep the treaty under review and re-visit its progress. Russia’s Deputy Foreign Minister Ryabkov had stated in 2013 that Russia’s decision on the ATT is pending and contingent on many factors, including the speed of the treaty’s ratification. This would be a wise approach for India to take also, in this author’s opinion. India currently does not attend the ATT Conference of Parties. As a first step, it would be desirable to begin attending meetings as an Observer State in order to be apprised of the Treaty’s progress. India meanwhile, remains a strong subscriber to the UNPoA on Small and Light Weapons, demonstrating its intent on the subject of arms control, and it must continue support for that forum. In time to come, India could review changing global dynamics and push for acknowledgement of its concerns regarding the Treaty in the public domain and hopefully influence global debate to produce a much stronger ATT in due course.

 

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