Arms Trade Treaty Imperils Indian Interests

Arms Trade Treaty Imperils Indian Interests

(FORCE June 2013)

Major General Mrinal Suman

Regulatory conventions and treaties have been reasonably successful in controlling proliferation of nuclear weapons and missiles in the world. However, the flourishing illicit trade of conventional weapons has been a cause for concern for the world bodies like the United Nations (UN). It is estimated that the total annual world trade of conventional arms exceeds USD 60 billion and a considerable component of it finds its way in the hands of terrorists, insurgent groups and criminal elements through questionable deals.  

   

Demand for the institution of a regulatory frame-work to regulate world trade in conventional weapons has been gaining ground. It was in 2006 that the UN General Assembly decided to work towards the establishment of common international standards for import, export and transfer of conventional arms. For that, it sought to explore the feasibility of a comprehensive and legally binding instrument. The Arms Trade Treaty (referred to as the treaty hereafter) is being touted as an effective multilateral agreement that can regulate trade in conventional weapons.  

Initially, the United States opposed the UN resolution for the treaty, preferring national controls to international oversight. Being the largest exporter of arms, a treaty without the US would have meant little. However, with change in the US administration its stand also underwent a change in October 2009. Soon thereafter, drafting of the treaty commenced.

Detailed negotiations were held in July 2012 but failed to produce an agreed draft. Another session was held from 18 to 28 March 2013. However, unanimity continued to elude the negotiators. Whereas most of the member states supported the draft treaty; Iran, North Korea and Syria blocked its adoption on the grounds that the treaty failed to ban sales to terrorists and non-state actors. India also expressed its unhappiness.

After having failed to achieve consensus, the treaty was referred to the UN General Assembly for adoption. Voting took place on 02 April 2013. An overwhelming majority of 154 members supported it. Three member states (Iran, Syria and North Korea) opposed it. India, China, Russia, Qatar and Saudi Arabia were among 23 countries that abstained. The treaty will not go into force until 90 days after it is ratified by at least 50 member states.

Salient Features of the Treaty

The treaty aims to ‘establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms’. While building confidence amongst the participating states, it seeks to prevent and eradicate illicit trade in conventional arms and prevent their diversion.

The treaty covers the complete spectrum of conventional arms like battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles, missile launchers, small arms and light weapons. Ammunition/munitions fired, launched and delivered by the above mentioned conventional weapons are also covered by the treaty. Similarly, the treaty is applicable to their spare parts and components as well.  

The treaty is designed to regulate all activities related to transfer of the conventional arms. Transfer includes export, import, transit, trans-shipment and brokering. Each member state is required to prepare and provide a national control list to the UN. 

All exporters are obliged not to violate provisions of the treaty, especially in case they have knowledge at the time of the sale that the arms would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions, attacks directed against civilians (especially women and children) or other war crimes.

Further, the exporting country has to institute national control system to oversee transfer of the conventional arms by assessing the risk of diversion of the export and considering the establishment of mitigation measures such as confidence-building and preventive measures or jointly developed and agreed programmes by the exporting and importing countries.   

Obligations on the part of an importer are far more severe. He has to provide detailed information as regards the proposed usage of arms to the exporter to convince him that the proposed deal does not violate the provisions of the treaty. In that he has to spell out the measures instituted to ensure compliance of the treaty, especially with reference to the end use.

The importing member state is expected to maintain records of such conventional arms to include quantity, value, description of model-type, details of exporting states, transit/trans-shipment state and end users. Member states may pursue, by mutual consent, arbitration to settle any dispute between them, regarding issues concerning the interpretation or application of the treaty. 

The treaty mandates that brokering be regulated and all brokers registered or given written authorization before being allowed to engage in brokering. Member states, where jointly agreed and consistent with their national laws, are expected to afford one another the widest measure of assistance in investigations, prosecutions and judicial proceedings in relation to violations of national measures established pursuant to the treaty.

All member states (importing, transit, trans-shipment and exporting) are encouraged to share relevant information with one another on effective measures to address diversion. Such information may include information on illicit activities including corruption, international trafficking routes, illicit brokers, sources of illicit supply, methods of concealment, common points of dispatch and destinations used by organised groups engaged in diversion.

Importantly, each member state is required to submit annually by 31 May to the UN, a report for the preceding calendar year concerning authorised or actual exports and imports of conventional arms.  Reports shall be made available/distributed to all member states by the UN. However, reports may exclude commercially sensitive or national security information. 

The treaty is subject to ratification, acceptance or approval by each signatory state. It shall be open for signature at the UN to all states from 3 June 2013 until its entry into force. The treaty shall enter into force ninety days following the date of the deposit of the fiftieth instrument of ratification, acceptance or approval. Following its entry into force, the treaty shall be open for accession by any state that has not signed it.

A conference of member states will be held no later than one year of the treaty coming into force to review implementation and consider amendments, if required.  All efforts shall be made to achieve consensus on each amendment. If all efforts at consensus get exhausted, without reaching an agreement, the amendment shall, as a last resort, be adopted by a three-quarters majority vote of the member states present and voting. 

Interestingly, every state party has the right to withdraw from the treaty which shall take effect ninety days after the receipt of the notification of withdrawal unless the notification of withdrawal specifies a later date. However, the withdrawing member state shall not be discharged, by reason of its withdrawal, from the obligations arising from this treaty while it was a party to it including any financial obligations that may have accrued.

Disconcerting Provisions 

As is apparent, the treaty is loaded in favour of the arms exporters. They call all the shots. Importing nations, despite having paid for the arms in hard cash, remain at their mercy. It has been rightly pointed out by North Korea that the treaty grants privileges to the exporters while imposing self-proclaimed restrictions on the importers. There is not a single provision in the treaty that empowers importers to safeguard their security and commercial interests. Further, it ignores the right to legitimate self-defence of the countries that import arms for the purpose. 

Iran faults the treaty for its legal flaws and loopholes; and considers it to be highly susceptible to politicisation and discrimination. It wants the treaty to prohibit transfer of arms to those who commit aggression which result in the loss of hundreds of thousands of lives. According to North Korea, the treaty can be politically abused – major arms exporters can cite arms embargoes and human rights as criteria to stall arms exports. Having suffered at the hands of wily Western nations, Syria questioned the treaty's failure to include an embargo on delivering weapons to ‘terrorist armed groups and non-state actors’.

Supporting Syria’s contentions, India wanted the treaty to regulate arms transfers to non-state actors like terror groups that target a nation or even internal insurgent groups like the Maoists but this was shot down. Countries like the US and the UK who supply arms to opposition groups in Syria and Libya wanted to retain the flexibility to continue to do so.

The treaty absolves nations that transfer arms under their own control or claim control of such arms. This means diversions and illicit transfers will continue to happen under different guises.

Impact on India

Being the largest importer of the conventional weapons in the world, India is going to be affected the most. To start with, India will have to provide details of end-use of the arms purchased. For that, it will have to keep national record of weapons and ammunition used to assure a disbelieving exporter that no illegal diversions have taken place. Facilities may have to be provided for verifications as well. Undoubtedly, end use verification is a highly intrusive and contentious provision. Worse, for unresolved and controversial issues, arbitrators may have to be nominated. 

Most worrisome for India is the fact that all bilateral arms supply contracts will also be covered by the treaty. It implies that the exporting nation can unilaterally, and with impunity, stall delivery of contracted arms, ammunitions and spare parts by invoking Article 7 of the treaty. In other words, India will be at the exporter’s mercy throughout the service life of the equipment. It is a huge leverage that a decadent exporting country can use to blackmail India. 

India does not allow agents in defence deals but the treaty demands regulation of brokers, including their registration and written authorisation. In the long run, India may be forced to change its policy. 

A critical issue that has been overlooked by the most observers is the fact that most major defence companies are system integrators and outsource sub-assemblies. Thus every manufacturer of critical sub-assemblies/components can stall supplies quoting national policy/directions. India has already suffered seriously on this account. Westland Sea King helicopters purchased from Britain had to be grounded after the nuclear tests of May 1998.  As the US imposed sanctions on India, supply, repair and maintenance of all US supplied parts were terminated. Resultantly, the whole fleet remained grounded for long.

    

In addition, high costs and complexities of modern ordnance forces the defence companies to follow the evolutionary concept of ‘Global Factory’ with manufacturing functions spread over a number of sites in different countries. Thus by default, every country where a critical facility is located acquires a right to veto exports. It is the most unenviable position for an importer to be in. 

 

As the treaty does not ban transfers to armed groups like the Maoists, insurgents and non-state actors, the treaty does not address India’s concerns. It will remain vulnerable to the ill-designs of the countries inimical to its interests. 

Finally

As India depends on imports for more than 70 percent of its defence requirements, it is in a highly vulnerable position and can be held hostage by unscrupulous exporters, especially during crisis situations. All defence modernisation plans can go awry as all procurement contracts will remain susceptible to rescinding under the provisions of the treaty. 

Indisputably, it is a highly skewed accord that provides an unfair advantage to the arms exporters. It will not be incorrect to state that the arms treaty has been evolved more to provide a massive leverage to the arms exporters than to regulate the trade. For example, the exporters have ensured that their sales to non-state players can continue unabated.

Although defense cooperation agreements have been kept out of the purview of the treaty, it is yet to be seen as to how many exporting countries agree to follow this route. The treaty has injected an element of uncertainty in the world arms trade as the exporters can unilaterally annul their obligations by citing the treaty, contracts signed by two sovereign nations have lost their sanctity. It goes against the basic tenets of the fair trade practices that the countries like the US swear by.  

It is time India reduces its dependence on imports by giving a boost to the indigenous defence industry by harnessing the untapped potential of the private sector. The Arms Trade Treaty is a wake-up call that India can ill-afford to ignore. *****