India abstained in the vote on the Arms Trade Treaty (ATT) which the United Nations General Assembly (UNGA) approved on April 2 with a huge majority.
We found the final text lacking in balance between the rights and obligations of exporters and importers, containing carve outs for some select countries and failing to specifically prohibit arms transfers to terrorists and unlawful non-State actors.
As one of the largest importers of arms India has legitimate concerns about exporters taking unilateral force majeure measures against importing states without cost.
And as a country that has long been the target of State-sponsored terrorism, India had reason to object to a text that skirts this universally recognised threat to peace and stability.
We were pushed into an uncomfortable position at New York because as a democratic country with high moral capital, India would not have wanted to spurn a treaty aiming to control illicit arms transfers liable to be used to commit genocide, war crimes and crimes against humanity.
Our partners in BRICS and IBSA, Brazil and South Africa, broke ranks with us and voted positively.
We also could not rally the non-aligned group behind our concerns about the treaty’s shortfalls.
More generally, by not joining treaties with wide international support we provide arguments to those against our permanent membership of the UN Security Council that we are not yet ready to bear a higher burden of responsibility within the international system as we are narrowly focused on our own interests.
We know the human costs of internecine warfare going on in parts of Africa in particular. Any international control to cut off access to arms by combating groups committing unspeakable atrocities on populations would be desirable.
To that extent the ATT’s objective to prevent and eradicate the illicit trade in conventional arms because of the humanitarian consequences of such trade for civilians, in particular women and children, is laudable, though eradicating it would seem utopian.
The ATT has not obtained universal adherence because ulterior political motives were at play and genuine efforts to reach a consensus were not made.
As usual, behind humanitarian concerns loomed geopolitical and commercial interests.
Under the cover of superior norms that should govern arms transfers so that humanitarian tragedies are avoided, the US and Britain, the treaty’s prime movers, want their companies, supposedly obliged to observe higher political and humanitarian standards, to have a level playing field in the arms market with other competitors.
For this reason, the ATT is not confined to illicit trade in deadly assault rifles, machine guns, rocket-propelled grenades — the sort of arms that are seen with rampaging combatants.
It covers virtually all arms trade — in tanks, armoured combat vehicles, large calibre artillery, combat aircraft, attack helicopters, warships, missiles and missile launchers.
Trans-shipment and brokering is also covered. Countries are required to maintain a national control list to regulate the export of ammunition/munitions fired, launched or delivered by all the conventional arms covered by the treaty, with annual reports submitted to the treaty’s secretariat.
One can hardly expect suspect countries to comply honestly with these elaborate provisions. China, which abstained, can’t be expected to divulge details of its arms supplies to Pakistan.
The geopolitical intent behind the treaty is evident from the provision requiring the exporting country to assess whether arms transfers would contribute to or undermine peace and security.
The US believes that its arms transfers are not destabilising as it keeps the regional balance in mind, as in the case of US arms aid to Pakistan.
More broadly, such a provision gives the exporting country unchallenged discretion to judge the political climate in a particular region and make choices based on its own geopolitical interests.
The clause about the possibility of arms transfers being used to commit or facilitate a serious violation of international humanitarian or human rights law can also be exploited to deny certain kinds of equipment to countries, as in Syria’s case currently.
The legal room given to the exporting party to consider whether confidence-building measures or jointly developed programmes between exporting and importing states to mitigate such risks could be undertaken is also politically loaded as it gives a locus to countries to politically intervene in specific regions to further their regional geopolitical interests, as the US and Britain in particular have done in our region.
Such provisions in an international treaty have to be judged not on the basis of the quality of our relations with the US and Britain today, which have vastly improved, but on the long-term implications of conceding rights to exporting countries that can be arbitrarily used in varying circumstances, without balancing them with cost-imposing obligations towards importing countries.
India’s priority concern about the illicit use of conventional arms by terrorists and other unlawful non-State actors is excluded from the treaty’s specific prohibitions despite our strong diplomatic efforts with the US and Britain.
India has rightly questioned the fundamental imbalance in the text against importing States.
One way to guard against the ATT affecting agreements and contracts entered into by India would be to insert a clause in our defence procurement policy that would oblige suppliers to agree to the non-application of the ATT to them.
The US and Britain would have to make a difficult call on this; France, which was very supportive of India’s concerns during negotiations, should adjust. With Russia there would be no problem as it abstained.
Our legitimate sense of frustration with the treaty stems, unfortunately, from our failure to develop an adequate indigenous defence manufacturing capability.
As one of the largest importer of arms in the world we remain vulnerable to treaties like the ATT.
Kanwal Sibal is a former foreign secretaryThe views expressed by the author are personal