Why Does India Need an Arms Trade Treaty

An Arms Trade Treaty backed by the United Nations is necessary for a dignified survival of both state and civil society in India and South Asia. This region is a victim of gun violence that when added up equals mass destruction. The reason for such death and destruction comes from armed conflicts, insurgencies, communal violence, inter-personal rivalries and criminal activities but the method and instrument remains the same: gun violence from small arms and light weapons (SALW). Violence from these weapons results not only in death and maiming but creates victims of entire families and communities. It leads to human insecurity, tensions and threats between groups of individuals and states and adds to human rights abuses. Cumulatively the use and privileging of force to resolve essentially civil conflicts militarizes of our societies. This in itself has long term negative consequences for any society.  There is clearly an urgent need to control the illicit trade and proliferation of small arms in all of South Asia and a case study of India shows why.

Impact of SALW on India

The presence and use of large numbers of SALW impact India’s security, polity, society and economy in a number of adverse ways. Many parts of India from the North East,   Jammu & Kashmir and the Maoist dominated ‘Naxal belt’ that covers almost a third of India have low intensity/ asymmetrical conflicts. These are areas where insurgents, militants and armed militia face the state police and Para Military. Citizens and non combatants are caught in the cross fire where homes and workplaces become battlefields. Small arms and light weapons that are increasingly sophisticated are the obvious and ideal choice for these proxy wars.

When anti-state groups possess lethal and increasingly sophisticated weaponry their capability is enhanced and they effectively challenge the normal law enforcing agencies like the local police who are not equipped to handle such weaponry.  Since the designated role of the local police is maintaining civil law and order and not low intensity conflict, the military has to be assigned to areas of civil conflict. The Indian military has a limited role in civil discord and can act only under emergency situations under special laws like the Disturbed Areas Act and the Armed Forces Special Powers act.   In these the Indian army gets overstretched because rather than guard borders, it is engaged in internal civil disputes. Most areas under special national security laws are known for human rights violations.  The consequence is that both state and human security is undermined.

The uses of illicit weapons have a divisive for India’s polity, where according to the United Nations sources possesses 40 million firearms many illegal. In many areas and cities like Delhi or Mumbai, or parts of Bihar and Uttar Pradesh, gun violence is part of criminal activity and used as a solution to resolving interpersonal conflicts, land and commercial disputes. The illegal trade and possession of small arms is linked to a number of illegal activities and intersects with other forms of trafficking including that of women and children and narcotics. Clearly, every aspect of the illegal arms business is nasty and dangerous. Sections of India’s polity have criminal nexus and access to illicit arms that are put to divisive uses. 

The illicit trade and proliferation of SALW impact the Indian economy directly and indirectly. Economic activities decline in areas of conflicts. Insurgents get a say in the control of natural resources, oil pipelines and have a parallel system of tax extraction. The conflicts in and around India provide immense possibilities for the gun runners because degenerated insurgencies use every possible illegal means from extortion, kidnapping, banditry, smuggling to acquire these weapons. The small arms trade like that of trade in narcotics generates vast amounts of unaccountable cash.  This cash is attractive enough to sustain conflicts and encourage a continuation of illicit trades. Of course, there are also numerous illegal arms factories and sources within India as well. The demand and supply for small arms is thus self sustaining and international arms trade treaty is the only way out of this spiral.  This cash also manages political clout and helps prevent a consensus on an international treaty.

Illegal weapons come from various sources the easiest routes are infiltration from the vast borders and sea routes of this country. India is surrounded by states that have frozen long term conflicts and by regimes that are unable to control autonomous militia, whether it is Sri Lanka or Nepal. South Asian conflicts, militia  and traffickers spill over into each others borders and are interconnected through illicit channels and trade. The states in the neighbourhood that face instability like Afghanistan, Tajikistan, Myanmar are inter connected with the illegal trafficking.  

By its own admission and official records, India is unable to control the production, import, distribution and use of small arms.  This is not just India’s problem, but an international one. There is no coordinated mechanism, criteria or norms that can be applied to arms exporters or importers. This is unusual, because with WTO there are trade norms for the music industry or even fruits and vegetables. WTO came out of the political and economic will of states. Global principles on arms trade can be made effective with similar will.

The ATT as a way forward

India is not alone in this crisis and many countries face this. Its global nature prompted the United Nations Member States, six years ago to make a commitment to address the illicit trade in small arms and light weapons. India was party to this commitment.  The Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons came out of this [known as POA].  In July 2006, a UN conference to propose global principles for international arms transfers was held. A draft treat known as the Global principles on Arms Trade and Transfers (ATT) has been proposed and endorsed by well known persons, NGOs and civil societies. Despite pressure from civil society groups this conference ending without agreement. In the UN general Assembly October and December 2006  a discussion and historic vote on the Arms Trade Treaty was passed with the support of the majority countries. Only the US voted against. India along with some others like Pakistan, Israel and Russia abstained. We analyze India ’s abstention and reservations  in the context of the ATT. 

The draft treaty –ATT, proposes a set of rules to regulate the transfer of conventional arms based on the principle that arms exporters and importers have a responsibility to ensure that they do not provide weapons that would be used in serious violations of international law. This draft draws on already existing international law and intends to establish norms for state practice. The treaty would establish basic standards for international arms transfer and workout how these norms could be applied and be operative. The ATT would not impose new norms but would reinforce states’ existing responsibilities under international law and provide a mechanism for their consistent and effective application to the trade in weapons.

The Treaty proposes that countries importing arms must meet criterion like promotion of democracy; do not violate human rights; do not engage in civil war and armed conflict; commit genocide, etc.  The global principles that will make up the Treaty oppose the sale of arms to states that support terrorism in any way. The Treaty advocates marking of weapons so as to it source and end use. The Treaty also looks into the issue of brokers and argues for their registration. In sum, the Treaty advocates greater transparency of arms sales and uses. And most pointedly is against illegal arms. It in no way targets the legitimate security needs of countries or the legal transfer of arms.

India’s Arguments in the UN First Committee:

In the United Nations India has seriously critiqued the illicit arms trade and the threat these pose to India, South Asia and the world. India supported the unanimous declaration in 2001 that called for a Programme of Action and argued for drafting an arms trade treaty. India supported the international conventional arms registry. However, during the Small Arms Review Conference in June 27, 2006, India had several reservations, and in the vote for drafting such a treaty in October and December 2006, while USA  stood out in its lone opposition to the ATT, India and  Pakistan lent silent support to this opposition by abstaining.  Most of the traditional allies of the US from both the West and East who belong to the club of exporters and importers of arms like Great Britain and Japan support the Treaty, since they are convinced that it will not jeopardize their genuine security interests.

India made many arguments in the course of this discussion that point to their fear of the Treaty and reasons for their opposition by way of abstention in the vote. The Indian representative pleaded that there is need to maintain a consensus and “any exercise to further elaborate the provisions of the programme [of Action, 2001] may not be very conducive to preserving the consensus.”  India is aware, that more often than not, there is not adequate consensus in international treaties. In critically important international instruments, like the Kyoto Protocol and International Criminal Court, there was no clear consensus. The US opposed these, yet their closest allies supported and these were passed. As India well knows, a consensus has to be created, and this cannot be done by abstaining, but by pro-active support in favour of the Treaty. The states opposing, can be made to agree by friends and strategic partners in time. 

India made the argument that effective national measure over control of SALW “are sine qua non” [without which it cannot be] for preventing and combating illicit trade and since the POA obliges states to carry this out, no further elaboration is necessary. India stated that it is the primary responsibility of states to control SALW and thus argued that it was not the responsibility of the international community. But the reality is that while  nearly all states maintain laws and regulations over SALW, many states lack the capacity to regulate and implement these laws due to governance capacity and inability to control borders. In other states these laws need updating and strengthening, several states are suppliers and receivers of used small arms, and these weapons are easy to divert for unauthorized uses and illicit trafficking. India recognizes the lack of capacity of states around its own borders to effectively control SALW and this argument on strengthening state laws is not convincing.

Further, India’s argument contradicts the very idea of international law because if states exercised this kind of restraint and responsibility, there would be indeed no need for international law at all. On the contrary, it is the lack of rule based normative international order that leads to continuous violations and conflict and illicit activities. Further, the World Trade Organization and the agreements that have been signed on trade are far ranging and severe.  Besides, treaties such as the ATT, ICC etc are primarily addressed to failed, weak and predatory states whose actions cause the worst case of genocide, spill over to other states and have global impacts. India and other responsible states that have national legislation and democratic institutions to safeguard against such violations should not fear such clauses. In fact clauses such as these would help and not deter states like India. India should thus promote them for other states. Since India has a leadership role and wants to enhance its international prestige it needs to support such treaties. 

India’s main problem with the ATT as argued by Indian representatives in the course of such discussions,  is that the focus of the ATT should be on the ‘root’ of the trade that is illicit rather than ‘expanding to the ‘licit trade’  and that the Treaty should be  dealing with the consequences of the illicit trade in SALW like armed violence, internal conflicts, underdevelopments etc. Linked to this is the traditional Indian argument that the UN has various mechanisms to deal with human rights, under development etc. Since it was the primary responsibility of states to combat illicit trade in SALW, the UN should indicate ways to strengthen international cooperation on this. The question here is first, any regulation without binding clauses has limited success and teeth unless accompanied by strict normative framework for controlling licit trade of arms.

Second there is a well established and continuous link between the licit and illicit trade that has been repeatedly shown.  Third, India should logically fear the drastic use and impact of small arms rather fear binding clauses that address universally accepted principles of international humanitarian law.  The ATT only reiterates those principles that have already been universally accepted and are in place.  They coincide with Article 1, 55, and other articles of UN Charter [the most likely to be breached is right to life]. They are part of the non derogable provisions of the ICCPR and the Rome statute of international criminal court. India is an established and unshakeable democracy with legitimate institutions that safeguard citizens’ rights. It has national instruments to address human rights and adheres to major international conventions. India should have the confidence to accept such international instruments. Fourth the development of such national criteria will strengthen India’s national claims on security rather than erode them.

India has stated that it is concerned with primarily, an instrument that will enable  identification and tracing illicit small arms and light weapons. The UN Conventional Arms Register is a step in this direction and this is clearly enunciated in the Global Principles for the ATT. India has argued that it would like that this Treaty to include a clause that prohibits sale of arms to non-state actors. This point is however implicit in the Global principles for the Draft Treaty that forbids sale to any illegal entity. Under international human rights law, states are responsible for their actions and their agents and they have a duty to prevent abuse committed by private persons whether they are or not acting on behalf of the state. Failure to exercise due diligence by not taking steps to protect citizens from crime etc, can amount to violation of human rights law. At the same time it is well established that the source of the illict trade is often the legal trade that come from states’ incapacity to secure arms. The ATT address the  issues of brokers, and India has often witnessed the power of brokers. 

The global principles can further India’s interest in a number of ways. The ATT code governs all arms transfers and stipulates that  countries importing weapons must meet criteria, like promotion of democracy. This is in favour of India and in context with the problems it faces problems from non democratic countries. Further India has signed an Agreement with the US on promotion of democracy. The global principles oppose sale to states that support terrorist and engaged in aggression.  It opposes sale of weapons to state who systematically violate Human rights, e.g. arbitrary executions, genocide etc?  India does not fall into this category?  India is a victim of irresponsible arms transfers and this Treaty can work in its favour. In fact India can effectively use this treaty for its benefit.

At the same time India is also one of the biggest importers of small arms and is positioning itself to become an exporter of these. But India is not alone in this. As players in the global arms bazaar, India like others should take interest in curbing the illegal flow of weapons. As former Secretary  General  Kofi Anan stated: Our energy, our emphasis and our anger is directed against illegal weapons, not legal ones.  Our priorities are effective enforcement, better controls and regulation, safer stockpiling, and weapons collection and destruction.  Our targets remain unscrupulous arms brokers, corrupt officials, drug trafficking syndicates, criminals and others who bring death and mayhem to our communities, and who ruin lives and destroy, in minutes, the labour of years.  To halt the destructive march of armed conflict and crime, we must stop such purveyors of death.

The proposed Treaty is in keeping with India’s historic role and plea for non-violence and civil order. India had till the 1980’s a leading and stellar role in disarmament and pleading for arms control legislation. The plan of former Prime Minister Rajiv Gandhi for universal disarmament has been repeatedly cited by those who still adhere to such idealistic principles.  India’s Constitution, its directive principles of state policy and national laws support gun control. India has in place a legal and adjudicatory system for controlling small arms, their production, their use etc. It has an autonomous National Human rights Commission to address violations. These national laws conform to international standards. India should not fear binding clauses. That fear should reside in states that are habitual violators of rights, do not conform to democratic principles.  Such an abstention represents a kind of moral failure. Surely India should not be seen to be supporting such states by abstaining from supporting such treaties.

The Indian government has repeatedly admitted the easy availability of illegal arms and that they are unable to stop or even arrest people engaged in such illegal sale or production. As recently as February 2007, after the seizure of illegal weapons of India’s southern coast, Indian Defence Ministry A.K. Antony stated that this was ‘the tip of the iceberg’. The United Nations resolutions and reports had similarly stated: “that excessive and destabilizing accumulations  of SALW are closely related to the increased incidents and intensity of conflicts and high levels of crime and violence.” It is thus logical that the international community adopt a treaty to regulate illicit arms trade. India has a historic opportunity to be involved in such an important process. Such a Treaty will help India’s foreign policy of peace and commitment to international disarmament.

The campaign and support for the ATT

Campaigners who have worked at the grass roots level mustering support for an ATT can say with confidence that have got spontaneous support from every region that  they have gone in India from the North East through Bihar to South India. It is people and unarmed civilians who suffer gun violence and it is they who want provisions to end this. People have signed on the “Million Faces” petition as part of a global civil society initiative, for arms control all over India with enthusiasm and hope that their voices will reach their government. Seminars held by the Control arms Foundation of India (CAFI) have found supporters amongst intellectuals and civil society activists. Clearly, a consensus of support to controlling arms is emerging from Indian civil society. Being a vibrant democracy, peoples support in taking such policy decisions is an important factor, especially because it is people’s security that is at stake. As the United Nations Conference begins, there is yet a big chance for India to show its leadership in this direction. Indian citizens have spoken up against gun violence. Whether it was against the guns that killed Jessica Lal, or some lesser known person in an obscure valley of Manipur, Chattisgarh or Kashmir, people in India are fighting against this illegal menace. Will India not support its citizens in this just cause?