- There should be consistency in international law
By: Abdul Rafay Siddiqui
The rise of populism across the world is in conjunction with vested economic interests and appeasement are displacing the universal principles enshrined in the United Nations (UN) Charter, which is the foundational treaty of the UN. This is exemplified by the recent move of India to annex Jammu & Kashmir to its territory and the ensuing response (or lack thereof) by the global community.
This annexation is a step which can greatly escalate tensions between Pakistan and India; who both possess nuclear weapons. At first, the global community showed a lack of interest towards this crucial international matter by terming it as a merely bilateral issue. However, Prime Minister Imran Khan did a commendable task of evoking the world’s conscience with regards to India’s annexation of Jammu and Kashmir by stressing that the matter be internationalized. Valid arguments for both the positions can be made, however the unfortunate truth is that international relations and law is not driven by logical or moral considerations. International relations are driven by considerations of brute self-interest and power. In this regard, power dynamics can be gauged by the inconsistencies which prevail in the international legal framework, of which Pakistan suffers from.
It is high time that the principles of international law are followed in letter and spirit in order to fulfill the mandate of the UN Charter, which concerns maintaining international peace and security. Will the world take action in finally resolving the plight of the people of Kashmir who have been subjected to grave human rights violations or will apathy make the world find itself mired in guilt?
For instance, global leaders have taken the position that India’s annexation of Jammu and Kashmir is an issue which can be resolved bilaterally. However, this matter should not be resolved bilaterally as India has unlawfully annexed Jammu and Kashmir, and has been persistently violating international humanitarian law which makes India answerable to the international community. Now let us juxtapose this matter with the Jadhav Case. In the case Pakistan rightfully made the argument that consular access matters with India are to be resolved in accordance with the Consular Agreement of 2008 signed between the two countries as per the object and purpose of that Agreement. However, the International Court of Justice (ICJ) gave the verdict that no bilateral agreement can supersede a multilateral treaty if the latter reflects customary international law. This is highly troublesome that in one matter where international humanitarian laws are blatantly being violated, the international community considers resolution through bilateral arrangement whereas in another matter a bilateral treaty for a specific purpose was in place, yet that could not be enforced because of customary international law. Interpretation of law ought to be such which entails a degree of certainty and consistency, but Pakistan’s international concerns are being dealt in an arbitrary and questionable manner.
In another matter, Pakistan has been consistently sending requests to the World Bank for empanelling the arbitration panel for resolution of a dispute with India arising out of the Indus Waters Treaty. However, the World Bank despite repeated requests from Pakistan has not considered resolving the dispute through the desired mechanism, whereas India continues to alarmingly interfere with the water flows of the Indus Rivers in Pakistan. Based on these scenarios an inconsistent application of international law is identifiable, which is largely the outcome of an international order determined by financial interests rather than moral principles.
Against this alarming backdrop of global disinterest towards Pakistan’s international legal concerns, a space for multi-national corporations has been created whereby they are able to assert their power through the sphere of private international law. Pakistan in recent times has been subjected to pay hefty damages in various international arbitrations such as the Reko Diq Case, Karkey Case and the IPPs matter. Arguments against Pakistan for being entangled in these matters are manifold, such as corruption and an activist judiciary. But, the fact is that a space in international law exists where corporations are able to recover huge amounts from host countries and are expeditiously able to enforce arbitral awards. As compared to this, the Kashmiri people since 1948 await a plebiscite to determine their future and at the same time suffer human rights violations such as, enforced disappearances, pellet gun wounds, curtailment of free speech and torture. International Law has never confronted a more severe dilemma.
The universal principles upon which the international legal framework was built upon are gradually being forgotten and getting replaced by private vested interests. Today, Pakistan finds itself in the quagmire of an inconsistent international legal framework as it confronts myriad challenges across various international fora. These challenges range from international arbitrations, water disputes and the recent annexation of Jammu and Kashmir by India. It is in such a context, that the world at large should not resort to appeasement and remember the universal principles which were enshrined after the events of World War II. It is high time that the principles of international law are followed in letter and spirit in order to fulfill the mandate of the UN Charter, which concerns maintaining international peace and security. Will the world take action in finally resolving the plight of the people of Kashmir who have been subjected to grave human rights violations or will apathy make the world find itself in guilt?