Legal Framework in India Regarding Defence Exports

Source: The post Legal Framework in India Regarding Defence Exports has been created, based on the article “India’s defence exports and humanitarian law” published in “The Hindu” on 24th September is 2024

UPSC Syllabus Topic: GS Paper 2 -International Relations – Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests.

Context: The article discusses a Supreme Court ruling rejecting a plea to stop defense exports to Israel, citing foreign policy limits. It highlights India’s lack of laws assessing international humanitarian law compliance in arms exports, suggesting amendments to ensure responsible defense trading.

For detailed information on India Defence Exports: A Strategic Imperative read this article here

How Do Other Countries Handle Defence Exports?

1. Netherlands: A Dutch court blocked the export of F-35 fighter jet parts to Israel. This decision was based on a European Union regulation that prohibits military exports to countries at risk of violating International Humanitarian Law (IHL).
2. United Kingdom: The UK government reviewed Israel’s compliance with IHL. It found a clear risk that certain arms exported to Israel would facilitate serious IHL violations. This review was conducted under the UK’s Export Control Act.
3. Both countries enforce legal measures to ensure military exports align with international law, preventing potential violations of IHL.

What Is the Legal Framework in India Regarding Defence Exports?

1. India regulates defense exports through the Foreign Trade Act (FTA), 1992, and the Weapons of Mass Destruction (WMDA) Act, 2005.
2. These laws allow the government to restrict exports for reasons like national security and international obligations.

How Does International Law Influence India’s Defence Exports?

1. Arms Trade Treaty (ATT): The ATT prohibits exporting arms if there is knowledge they would be used to commit war crimes. India is not a signatory to the ATT, so it is not bound by its provisions. However, some ATT elements reflect customary international law.
2. Geneva Conventions: India is bound by Common Article 1 of the Geneva Conventions, requiring countries not to supply arms to nations likely to violate international humanitarian law (IHL).
3. Case Example: The International Court of Justice in Nicaragua vs United States highlighted the obligation to avoid supplying weapons if there is knowledge they may breach the Conventions.
4. Legal Gaps in India: India’s current laws, like the Foreign Trade Act and Weapons of Mass Destruction Act, do not mandate IHL compliance checks for arms exports.

What Should India Do to Improve Its Defence Export Policies?

1. India should update its laws to include mandatory IHL compliance assessments for countries purchasing Indian defense goods.
2. The Supreme Court has previously incorporated international law into domestic law when gaps existed, such as in the Vishakha vs State of Rajasthan case, where international conventions on women’s rights were used to address the absence of specific domestic laws on workplace harassment.
3. Similarly, in this defense export situation, the court could use international humanitarian law to fill gaps in Indian law regarding arms export controls, ensuring that India’s exports comply with international obligations.
4. This approach shifts the issue from foreign policy to a legal matter, addressing India’s international responsibilities.

Question for practice:

Examine how India’s legal framework for defense exports differs from countries like the Netherlands and the United Kingdom in ensuring compliance with International Humanitarian Law (IHL).