24 September 2024 : The Hindu Editorial Analysis Copy

1. India’s defence exports and humanitarian law

(Source – The Hindu, International Edition – Page No. – 8)

Topic: GS3 – Indian Economy

Context

The article discusses the Supreme Court of India’s dismissal of a PIL seeking to halt defence exports to Israel, citing war crimes in Gaza.It highlights the legal gap in Indian law concerning International Humanitarian Law (IHL) compliance in defence exports, comparing India’s stance with international norms like the Arms Trade Treaty (ATT).

Introduction:

• The Supreme Court of India dismissed a Public Interest Litigation (PIL) earlier this month that sought to halt the export of defence equipment to Israel due to alleged war crimes in Gaza.
• The Court declined to intervene, citing that foreign policy is outside its domain, but the issue raised by the PIL has normative implications relevant to India’s defence export ambitions.

International Precedents:

• Several countries have curtailed arms exports to Israel, citing violations of International Humanitarian Law (IHL).
• In the Netherlands, a court blocked the export of F-35 fighter jet parts to Israel based on a European Union (EU) regulation that prohibits arms exports where there is a clear risk of IHL violations.
• Similarly, the U.K. government reviewed arms exports to Israel under its Export Control Act, concluding that there was a risk of exported arms being used to commit or facilitate violations of IHL in Gaza.

Legal Gap in India:

• Unlike the U.K. and the EU, India does not have specific laws mandating an assessment of IHL compliance before exporting arms.
• The Foreign Trade Act, 1992 (FTA), and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (WMDA), empower the government to regulate defence exports for reasons including national security and international treaty obligations.
• However, Indian law does not require the government to review whether the importing country complies with IHL obligations, thus creating a legal gap.
• The Supreme Court has previously used international law to fill gaps in domestic law, as seen in the Vishakha vs State of Rajasthan case.
• A similar approach could be applied here to address the lack of domestic laws regulating defence exports based on IHL compliance.

International Law on Arms Trade:

• The Arms Trade Treaty (ATT) is the primary international agreement regulating the trade of conventional arms.
• Article 6(3) of the ATT prohibits exporting arms if there is knowledge that they would be used to commit war crimes.
• Article 7 obligates exporting countries to assess whether their arms might be used for serious IHL violations.
• India, however, is not a signatory to the ATT, so its provisions are not binding on India.
• Yet, certain provisions of the ATT reflect customary international law, which can influence India’s international legal obligations.

India’s Obligations Under International Humanitarian Law:

• India is bound by Common Article 1 of the Geneva Conventions, which requires states to “respect and ensure respect for” IHL.
• The International Court of Justice (ICJ), in the Nicaragua vs United States case, held that states must not supply arms to countries if there is a reasonable expectation that those arms would be used in IHL violations.
• Therefore, India has an obligation under IHL to refrain from exporting arms to countries where there is a risk of violations, even though its domestic laws do not explicitly require such assessments.

Conclusion:

• While international law provides a basis for restricting arms exports to countries violating IHL, it is recommended that India amend its domestic laws, specifically the WMDA and FTA, to incorporate mandatory IHL compliance assessments for defence exports.
• Such amendments would strengthen India’s position as a responsible arms-exporting nation, aligning it with global standards on arms trade and IHL compliance.

Practice Question:  In light of India’s growing defence export ambitions, critically examine the legal framework governing arms exports. How does India’s approach compare to international standards like the Arms Trade Treaty (ATT)? (150 Words /10 marks)

2. Weighing in on business as usual with China

(Source – The Hindu, International Edition – Page No. – 8)

Topic: GS2 – International Relations – Bilateral Relations

Context

This article discusses the complex dynamics of India-China relations, especially the tensions over border disputes and China’s FDI demands.Despite economic arguments for easing FDI restrictions, strategic and security concerns, including trade imbalances and China’s industrial policies, pose challenges to India’s long-term interests.

Introduction: Speculation on India-China Relations

• Recent media reports have speculated about a potential thaw in India-China relations and the possibility of easing restrictions on Chinese FDI.
• This potential policy change represents a major shift from India’s stance of linking border issues with the normalisation of relations.

Lingering Border Tensions

• Despite ongoing discussions, India is not considering normalising relations unless peace and tranquillity are restored at the border.
• China’s transgressions at the Line of Actual Control (LAC) in Eastern Ladakh since 2020 remain unresolved, and India’s forces reportedly cannot access key patrolling points in Ladakh.

Economic Survey’s Perspective

• The Economic Survey 2024 suggests integrating with China’s supply chains through Chinese investments rather than continuing to rely on imports.
• Some economists argue that Chinese FDI could fill India’s investment gaps and enhance its participation in global supply chains, but these views overlook complex strategic and security concerns.

China’s Four Demands

• In Track-1.5 and Track-2 dialogues, Chinese scholars emphasised four demands: a level playing field for Chinese companies, visa facilitation, resumption of direct flights, and allowing Chinese journalists in India.
• India’s response has been that these demands are symptoms of a broader problem—China’s unwillingness to resolve the border issue or address structural issues in bilateral relations.

China’s Economic Strategy

• China’s unwillingness to reduce India’s significant trade deficit or improve access for Indian companies to its markets compounds the problem.
• India’s trade deficit with China surpassed $105 billion in 2023, and China’s track record of weaponizing trade dependencies presents a strategic vulnerability for India.

Global Securitization and India’s Position

• Both China and the West are increasingly securitizing their economies, and India is seen as a potential alternative destination for investments.
• However, closer integration with China’s supply chains could deter global companies from considering India as an alternative to China in global value chains.
• China’s state-driven industrial policy, which prioritises domination in future industries, exacerbates tensions in economic relations with both advanced and emerging economies.

Chinese Investment Strategies

• China’s strategy of controlling outward investment and technology flows is aimed at solidifying domestic value chains and making China indispensable in global production.
• Chinese companies have been advised to retain advanced technology within China while exporting low-cost parts, a strategy that could impede India’s manufacturing ambitions.

Risks of Chinese FDI for India

• Past experience suggests that Chinese investments in India could lead to low-value additions and undermine industrialization in sectors where China seeks global dominance.
• The notion that Chinese FDI could reduce imports from China is not supported by evidence from other regions like ASEAN, where imports from China have continued to rise despite significant investments.

Conclusion: A Selective Approach to Chinese FDI

• India cannot fully decouple from China, but it must carefully assess which sectors can allow Chinese FDI without compromising national security and industrial development.
• A selective and strategic approach to economic relations with China is essential for balancing security concerns with economic growth.

PYQ: ‘China is using its economic relations and positive trade surplus as tools to develop potential military power status in Asia’, In the light of this statement, discuss its impact on India as her neighbour. (150 words/10m) (UPSC CSE (M) GS-2 2017)

Practice Question:  Examine the strategic, security, and economic challenges posed by Chinese foreign direct investment (FDI) in India. How should India balance its economic needs with national security concerns while dealing with China? (250 Words /15 marks)