International law is a reality

Saad-ur-Rehman KhanLaw is used by thousands in Pakistan as a means of justifying acts which may or may not be justified otherwise in society. Once lawyers accept law as their true calling, they further justify their expertise by becoming experts in certain areas – constitutional, corporate or criminal (the three Cs).

Interestingly, however, one significant area of law that is rarely touched upon in Pakistan is the subject of international law. Lawyers most commonly pursue litigation in our society. Litigation is usually related to the practice of domestic law on a daily basis. Some lawyers often develop a natural talent in settling disputes outside of court, in which case they become experts on the law of arbitration. Again, one particular subject that the majority of lawyers fail to practice is the sort of law that affects Pakistan internationally.

While many argue over whether international is even law in the correct sense, denying its existence to the extent that lawyers fail to comprehend its importance is worrying. The myth that international law is anything but law and not worthy of practice is alarming. It is true that the legal fraternity in Pakistan refuse to pursue international law as part of their practice. Perhaps, the nature of international law is such that it presents a system of law that exits in a vacuum; hence, the sceptical attitude towards pursuing it in practice. But how then does one justify Pakistan’s actions to the international community? Is it through the mechanisms of domestic law? Does domestic law even apply internationally? Or is it though the Foreign Office? Why does the Foreign Office even exist?

The appropriate answer to these questions falls under the rubric of international law. Pakistan, being a sovereign state, must not only comply with its domestic law obligations but also its international law obligations. We are party to thousands of international treaties. These range from treaties signed against the use of force, prevention of terrorism, anti-money laundering to the protection of women, children, refugees and disabled persons. The ambit is much wider than one would imagine. How then must we proceed? Will the practice of domestic law justify our position to the international community, or must we enhance our knowledge about our treaty commitments under international law?

A country moves forward when it incorporates relevant issues to its national plans of action. While Pakistan also has the absolute right to do so, it is imperative to keep in mind its position internationally. For the proponents who doubt the existence of international law how do we explain the establishment of the military courts to the international world? How do we justify the lifting of the death moratorium? How do we put an absolute end to drone strikes? How do we ensure our prisoners detained abroad will be sent back? How do we claim rights on land in which foreign companies have invested billions of dollars? How do we ensure easier trade without evading mandatory tariffs? These are but just a few questions that come to mind when asking: how does Pakistan justify its actions to the international community?

International law is a law that exists without cogent enforcement mechanisms. Because of international law Pakistan can justify its position on any given matter simply by virtue of its accession and ratification to certain treaties. Military courts may be justified on the basis that we are in a state of war with the Taliban. In such instances, the law of war under International Humanitarian Law (IHL) applies.

In essence, this would mean that the law of peace under human rights laws will cease to exist in a conflict zone. In the same manner, Pakistan would argue that the use of drones infringes its sovereignty under Article 2(4) of the United Nations Charter which provides for the prohibition on the use of force. Similarly, cases such as Dr Aafia Siddiqui’s can be justified under the Convention on the Transfer of Sentenced Persons which provides that a foreigner who is deprived of his/her liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society.

Land issues such as the Reko-Diq mining dispute, which could potentially cost Pakistan billions of dollars, are currently being arbitrated internationally in the International Centre for Settlement of Investment Disputes (ICSID) and the International Chamber of Commerce (ICC). Once decided, the award given by the arbitral tribunal can be enforced in Pakistan by virtue of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Trade barriers with the EU have been relaxed as of 2014, as Pakistan was granted the GSP Plus status, which would enable us to export goods to the EU on a preferential custom tariff. However, this is conditional upon Pakistan implementing 27 conventions on human rights, environment, good governance, labour, etc.

Therefore, international law is practised every day in Pakistan without anyone’s common knowledge. Our Foreign Office’s primary mandate is to facilitate Pakistan’s international commitments and oversee the adaption of future commitments. Pakistan’s 18th Constitutional Amendment made way for the devolution of power to all provinces. That means that all provinces are now responsible for ensuring that our international obligations are met independently.

However, are all provinces even aware of the state’s obligations? Would a lack of implementation of international law not brand us a negligent state? Would we not be the target of the western world in such a case? Would we not encounter resistance from the international community in the form of sanctions, pressure and general condemnation?

Take the Iran-Pakistan gas pipeline, for instance. Bilateral treaties such as this enable us to enter into agreements with other states for the supply of power (in this case). If, however, we do not deliver on time, it is likely we will suffer in the form of penalties over the delay.

In this regard, Pakistan must undertake to train relevant persons in specific ministries on issues of international law. Treaty cells must be established in all provinces to ensure that timely implementation of international obligations take place provincially. We, as a state, have a responsibility towards the international community for upholding our international commitments. It is time to act – now.

The writer is a lawyer.

Email: saadrehman@rsilpak.org