Case Brief on the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China by the Permanent Court of Arbitration

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by Abeer MustafaResearch Associate, RSIL 

SOUTH CHINA SEA ARBITRATION

(PCA Case Number 2013–19)

Between The Republic of the Philippines and The People’s Republic of China

Before An Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea 1982

Registry: Permanent Court of Arbitration                     Date of Award: 12 July 2016

[1]

Preface

The South China Sea has, especially in contemporary times, emerged as a region of great interest to global players, in terms of strategic and economic interests of the competing States. As Foreign Policy puts it, “There’s no tenser set of waters in the world than the South China Sea. For the last few years, China and its neighbors have been bluffing, threatening, cajoling, and suing for control of its resources.”[2]

To best understand the current situation in the South China Sea from a legal point of view, it is imperative to refer back to the judgment passed by the Arbitral Tribunal of the Permanent Court of Arbitration last year, in response to the claims brought by Philippines against China, primarily regarding maritime rights, entitlements and zones in the South China Sea, as well as for the protection of the marine life and the environment of the region, under the United Nations Convention on the Law of the Sea, 1982.

China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on its official maps of the region in question; other stakeholders, however, dispute this claim, as shown in the arbitral proceedings. As is noted:

… While it was the Philippines which brought the case, it wasn’t the only interested party in the Asean. Three other members have claims to parts of the South China Sea or the Spratly Islands or the Paracels that conflict with China’s expansive nine-dash theory: Brunei, Malaysia, and Vietnam. Indonesia, Asean’s largest economy, has continuing run-ins with Chinese fishing vessels and occasionally with the Chinese Coast Guard in its exclusive economic zone.[3]

Now, as the Association of South East Nations (ASEAN) heads towards working on the enforcement of this arbitration award from last year (2016), and attempting to employ a code of conduct for the South China Sea, it becomes even more important to look at the arbitral ruling from an objective vantage point.

Case Brief

The South China Sea Arbitration was conducted between the Republic of the Philippines and the People’s Republic of China by the Permanent Court of Arbitration (PCA), under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The arbitration is related to disputes between the Parties regarding the legal basis of maritime rights and entitlements, the status of certain geographic features, and the lawfulness of certain actions taken by China in the South China Sea; in particular, the following four issues, as raised by Philippines:

  1. To resolve a dispute between the parties regarding the source of maritime rights and entitlements in the South China Sea;
  2. To resolve a dispute between the parties concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the parties;
  3. To resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and preserve the marine environment, and inflicting harm on the marine environment (through land reclamation and construction of artificial islands);
  4. To find that China has aggravated and extended the disputes between the Parties by restricting access to a detachment of Philippines Marines stationed at Second Thomas Shoal.

While China and Philippines are both parties to the UNCLOS, China specifically made a declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement. In addition, China has shown disagreement with Philippines’ decision to take the matter to arbitration and has decided neither to agree with the decision of the Tribunal nor to participate in the proceedings.

The Tribunal, on its end, has taken cognizance of these factors and has purported to not deal with delimiting maritime boundaries. Furthermore, the Tribunal did not bar the proceedings, on the basis of Article 9 of Annex VII of UNCLOS[4]. In addition, the Tribunal also noted that despite China’s absence from the proceedings, since it is a party to the UNCLOS, the decision of the Tribunal would, in fact, be binding upon it, pursuant to Article 296 (1)[5] and Article 11 of Annex VII[6].

China’s Foreign Ministry, further, stated its position with regard to the proceedings by publishing a Position Paper in 2014[7]. It claimed that the Tribunal lacks jurisdiction over the matter because:

  1. The essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea;
  2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations;
  3. Philippines’ disputes would constitute an integral part of maritime delimitation between the two countries.

The Tribunal considered China’s Position Paper as a plea on jurisdiction, and conducted a separate hearing on the issue of jurisdiction and admissibility. Additionally, the Tribunal also declared that it would honour China’s declaration of 2006 and the UNCLOS and would neither delve into issues of maritime boundary delimitation or questions of sovereignty. The Philippines also stated that it, “does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them. Nor does it request a delimitation of any maritime boundaries.”[8]

Pursuant to this, the Tribunal issued its Award on Jurisdiction[9] in October 2015, in which it concluded that it did indeed have jurisdiction in the case, as per Philippines’ Final Submissions[10], and that China’s lack of participation would not prove to be a bar to its proceedings. It, further, concluded that the treaties China was relying on were either political in nature and not legally binding[11], or that they did were legally binding and yet did not bar either Party from alternative means of dispute resolution[12]. In accordance with Article 283 of the UNCLOS[13], the Tribunal found that this requirement was met in the diplomatic communications between the Parties and that Philippines’ initiation of proceedings under the UNCLOS did not constitute an abuse of of process as claimed by China.

The Tribunal, proceeding with the first two submissions made by the Philippines, considered the validity of China’s claim to historic rights in the maritime region of the South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the text and context of the Convention, in line with the principles set out in the Vienna Convention on the Law of Treaties, the Tribunal established that the Convention supersedes any treaties in force before its coming into force. It questioned China’s claim to historical rights in the region, and established that China’s state practice does not show that China had been enjoying any historical rights in the South China Sea; rather, it was enjoying the freedom of the high seas and since it did not create bar to other states’ usage of the same, it could not be understood as being a historical right. Furthermore, since China’s publishing of the same in its Notes Verbales in 2009, many states have objected to its claim as well. “The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”[14] However, the Tribunal also concluded that its jurisdiction was limited to the claims of historic rights on the maritime region and not to the land masses in the South China Sea, i.e. if it can claim historic rights on any of the islands, then it may also be able to claim maritime zones (as per the Convention) on the basis of these islands.

Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of the features in the South China Sea. It differentiates between low-tide elevations[15], high-tide features[16] and rocks[17]. In its Award on Jurisdiction, the Tribunal clarified that:

This is not a dispute concerning sovereignty over the features, notwithstanding any possible question concerning whether low-tide elevations may be subjected to a claim of territorial sovereignty. Nor is this a dispute concerning sea boundary delimitation: the status of a feature as a “low-tide elevation”, “island”, or a “rock” relates to the entitlement to maritime zones generated by that feature, not to the delimitation of such entitlements in the event that they overlap.[18]

The Philippines put forward three categories for classifying low-tide elevations: where a low-tide elevation is located within 12 miles of a high-tide feature[19], where the low-tide elevation is beyond 12 miles but within the state’s exclusive economic zone or continental shelf[20], and where the low-tide elevation is located beyond the areas of natural jurisdiction[21].

For the purpose of identifying the nature of the features in the South China Sea, the Tribunal relied upon satellite imagery that had been conducted on the area and direct surveys that had been carried out, by navies or otherwise, in the area, and relied upon maps that were sufficiently detailed. They chose a certain tidal height to maintain uniformity across the features, and decided to rely, in cases where there had been significant man-made changes, alterations or construction on the features, upon maps/imagery/surveys that depicted the features as they had been in their original form.[22]

Again the Tribunal relied upon statements previously made by China to obtain their stance on the nature of the features, since China had neither submitted any document to the Tribunal nor had it discussed these in its Position Paper.

The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide features. The Tribunal further noted that for the purposes of Article 121(3), the high-tide features at Scarborough Shoal and the reefs were rocks that cannot sustain human human habitation or economic life of their own and so have no exclusive economic zone or continental shelf. The Tribunal found the same to be true of the Spratly Islands and so concluded that China, therefore, has no entitlement to any maritime zone in the area of Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive economic zone and continental shelf of the Philippines as they lie within 200 nautical miles of the Philippines’ coast and there are no overlapping entitlements in the area with respect to China.

On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second Thomas Shoal were all found to be low-tide elevations, of which Hughes Reef lay within 12 miles of McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay within 12 miles of Gaven Reef (North) and Namyit Island, and Subi Reef lay within 12 miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.

 

In the issue of Chinese interference with the living and non-living resources (primarily concerned with fishing practices in the South China Sea and oil and gas exploration and exploitation) of the Philippines, the Tribunal considered diplomatic statements from China to the Philippines and regulations related to the matter that China had passed domestically. The Philippines put forward four contentions related to living resources: China’s prevention of fishing by Philippine vessels at Mischief Reef since 1995, and at Second Thomas Shoal since 1995, China’s revision of the Hainan Regulation[23] and China’s moratorium on fishing in the South China Sea in 2012[24]. The Tribunal finds that China had breached Articles 77[25] and 56[26] of the Convention through the operation of its marine surveillance vessels (which interfered with Philippines’ oil and gas exploration) and through its moratorium on fishing which interfered with the exclusive economic zone of the Philippines, respectively.

The Tribunal also found China in breach of Article 58 (3)[27] of the Convention, due to its failure to prevent fishing by Chinese flagged ships in the exclusive economic zone of the Philippines, failing to respect the sovereign rights of the Philippines over its fisheries in its exclusive economic zone.

Submission 10 of the Philippines related to China’s interference with Philippines’ fishing vessels and practices in the Scarborough Shoal. While both the states had conflicting views on the situation (China believed that it was Philippines who was causing the interference) and both claimed historic rights (Philippines distinguished this by clarifying that it only referred to historic fishing rights) to the region, the Tribunal opined that China was, in fact, in contravention of the Convention by interfering with the traditional fishing practice of the Philippines in its exclusive economic zone through the deployment of its official ships in the region. The Tribunal also noted that this decision does not depend on the question of sovereignty, and that the Tribunal once again refrained from commenting on the matter.

Philippines’ successive contention related to China’s activities on the reefs in the South China Sea, with regards the practices it had adopted for the purpose of large-scale construction and reclamation at seven locations in the Spratly Islands[28], and its practices with regards to fishing[29] in the South China Sea. Philippines claimed that China had been harming and causing damage to the marine environment of the South China Sea through these practices and despite objections from the surrounding states, China had not ceased its actions. It was also noted that while some of the fishing ships were not state-appointed ships and were being manned by non-state actors, the Chinese government had neither condemned their actions nor made any efforts to stop them from proceeding. The Tribunal, assisted by three independent experts on coral reef biology, expert briefs and satellite imagery, found that China was in breach of the Convention for failing to stop the fishing vessels from engaging in harmful harvesting practices[30] and also for its island-building activities[31]. The Tribunal further opined that China’s construction on Mischief Reef, without authorization from Philippines was in violation of Philippines’ sovereign rights in its exclusive economic zone and continental shelf and a breach of the Convention[32].

The next consideration before the Tribunal was the demeanour of China’s law enforcement vessels at Scarborough Shoal[33] and the lawfulness of these actions. The Philippines also raised the issue under the relevant provisions of the Convention on the International Regulations for Preventing of Collisions at Sea, 1972 (COLREGS). The Tribunal found that China, through the actions of its law enforcement vessels, endangered Philippine vessels and personnel and created a serious risk of collision and found China in breach of Article 94 of the Convention[34].

The Tribunal, in response to Submission 14 of the Philippines, opined that China had, in the course of the proceedings of this arbitration, aggravated and extended its disputes with Philippines, through its actions of dredging, artificial island-building and construction activities[35].

Lastly, the Tribunal did not find it necessary to make any further declaration, owing to the fact that both the parties are already parties to the Convention and are already obliged to comply with it.

[1] Available at: http://ichef-1.bbci.co.uk/news/624/cpsprodpb/18105/production/_90356589_south_china_sea_spratlys.png

[2] As available at: http://foreignpolicy.com/2017/07/31/the-week-donald-trump-lost-the-south-china-sea/

[3] As available at: http://globalnation.inquirer.net/159582/asean-south-china-sea-arbitral-ruling-maritime-dispute

[4] “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

[5] “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”

[6] “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.”

[7] Available at: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

[8] P. 11 – 12, Permanent Court of Arbitration’s Award on the South China Sea Arbitration

[9] Available at: http://www.pcacases.com/web/sendAttach/1506; A summarized form can be found at para 164 of the Permanent Court of Arbitration’s Award on the South China Sea Arbitration

[10] Para 112, Permanent Court of Arbitration’s Award on the South China Sea Arbitration

[11] The China-ASEAN Declaration on the Conduct of the Parties in the South China Sea 2002

[12] Treaty of Amity and Cooperation in Southeast Asia; Convention on Biological Diversity

[13] This article deals with the Parties’ obligations to “exchange views regarding [the dispute’s] settlement by negotiation or other peaceful means.”

[14] Para. 278, Permanent Court of Arbitration’s Award on the South China Sea Arbitration

[15] A feature that is exposed at low tide, but covered with water at high tide; low-tide elevations do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.

[16] Features that are above water at high tide; of these, those features that have the capacity to sustain human habitation or economic life of their own are referred to as islands.

[17] High tide features that cannot sustain human or economic life of their own; rocks do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.

[18] Para. 403, Permanent Court of Arbitration’s Award on Jurisdiction

[19] Sovereignty of this elevation rests with the State by virtue of its sovereignty over the high-tide feature.

[20] Exclusive sovereign rights and jurisdiction lie with the coastal state.

[21] These elevations are part of the deep seabed and no state can claim sovereignty over the same.

[22] This was in line with the Convention which deals only with ‘naturally formed’ features, as per its Article 13.

[23] Since 2012, China considers the Spratly and Paracel Islands, as well as the Scarborough Shoal, to be part of the Hainan Province; despite repeated requests from the Philippines, China never clarified the status of the Hainan Regulation.

[24] The moratorium was placed by China in the area north of the 12°N latitude, was applicable to foreign ships as well and was, as China claimed, in an effort to rehabilitate the area’s marine resources.

[25] Rights of the coastal state over the continental shelf

[26] Rights, jurisdiction and duties of the coastal state in the exclusive economic zone

[27] Rights and duties of other states in the exclusive economic zone

[28] These practices were found to cause extensive damage to the coral reef environment.

[29] This includes China’s activities of using propellers to break up coral, fishing for endangered turtles and using poaching practices.

[30] Articles 192 and 194(5) of UNCLOS

[31] Articles 192, 194(1), 194(5), 197, 123 and 206 of UNCLOS

[32] Articles 60 and 80 of UNCLOS

[33] Especially in 2012 when these vessels physically obstructed Philippine vessels from approaching the Shoal.

[34] Duties of the flag state.

[35] See Para. 1181 of the Permanent Court of Arbitration’s Award on the South China Sea Arbitration

Detention in Pakistan: The Means to an End or the End Itself?

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by Minahil KhanResearch Associate, RSIL Detention

Detention is the deprivation of the right to liberty and under Article 9 of the Constitution of Pakistan, no person can be deprived of his right to life and liberty save in accordance with law. An individual’s right to liberty can thus only be taken in accordance with the grounds and procedure established by the law. This article explores the rampant use of detention under the various instruments available under the law before the framing of a formal criminal charge. As the use of detention becomes more prevalent, it raises worrying questions of fundamental rights and the State’s overall strategy (or lack thereof) in dealing with counter-terrorism and counter-militancy challenges in Pakistan.

Pakistan today has a very high number of detainees; with the highest proportion of the total prison population in pre-trial/remand imprisonment.[1] This can be directly attributed to the counter terrorism and counter militancy operations all over the country which have contributed to the exponential increase in the number of detainees.[2]

In FATA and PATA alone, close to five thousand individuals have been preventively detained/interned pursuant to the military operations being conducted in aid of civil power under a  notification pursuant to  Article 245 of the Constitution.[3] The Article 245 notification was issued by the Federal Government in 2011 to deploy the Armed Forces in FATA and PATA to address the broad spectrum of actions that threaten the state.[4]

There are three main types of detention regimes in Pakistan. Firstly, remand detention as provided for under Section 167 the Code of Criminal Procedure (CrPC) and in the Anti Terrorism Act, 1997. [5] Secondly, preventive detention under the Article 10 framework. This is a permanent feature of the anti-terrorism regime in Pakistan and is operationalized through a wide variety of laws discussed below and finally, preventive detention/internment under the Article 245 framework in FATA and PATA which operates through the Actions (in Aid of Civil Power) Regulations, 2011.[6]

Under Article 10 of the Constitution, each person detained in custody is to be produced before a Magistrate within twenty-four hours. Under the CrPC, an accused can be remanded to custody by the Magistrate where it is believed that the investigation cannot be completed in twenty-four hours and where there are grounds for believing that the accusation or information is well-founded. [7] The maximum period for remand under the CrPC is fourteen days. However, for terrorism specific cases, the maximum period of remand can extend to ninety days.[8] The disparity in the period of detention under the CrPC and the ATA is one of the many contributory factors of the high number of superfluous cases in the anti-terrorism courts of Pakistan, since the ATA gives more time to the police to complete investigation while detaining the accused.

The second type of detention prevalent in Pakistan, which is contributing to the exponential increase in prison population is preventive detention. Preventive detention is the deprivation of liberty without any specific criminal charges.[9]  It aims to prevent serious future harm based on a person’s activity rather than the express commission of a crime and is primarily an executive measure. It is considered an exceptional measure of control exercised by the State for security reasons or public order provided that the requisite criteria has been met. [10] The general framework for preventive detention is found under Article 10 of the Constitution which allows for exceptional laws to deal with the detention of persons acting in a manner prejudicial to the integrity, security or defence of Pakistan.

Although preventive detention is envisaged as an exceptional measure by our Constitutional scheme, it is presently operationalized by four separate laws;  the Anti-Terrorism Act, 1997 (ATA);  Maintenance of Public Order Ordinance, 1960  (MPOO);[11] Security of Pakistan Act, 1952;[12] and the Foreigners Act, 1946.[13]

The most widely used instruments for detention are the ATA and the MPOO. While the premise for these legislations is to prevent offences relating to national security, sectarianism and the maintenance of public order, their use has become wide and rampant. These legislative instruments do not give a carte blanche to the government to use it to curtail the liberty of people however there have been instances where petty criminals and even timber smugglers have been detained under the MPOO. [14] This goes to show that, contrary to the Constitutional scheme, the current use of the preventive detention mechanism in Pakistan is far from restrictive. Perhaps part of the problem can be traced to the high rate of acquittal in most criminal cases due to failures in the prosecutorial system. To detain individuals for investigation without criminal charges is a sure-fire way to keep them off the streets. This, however, is a temporary solution to a much bigger problem. In many cases, the families of the detainees file habeas corpus petitions in the High Court upon which they may be released from preventive detention. This release can have two outcomes; if enough evidence has been gathered during the time of detention the person is then arrested and a formal case is filed or where there is lack of evidence the person is often falsely charged of a case and then remanded to police custody to ensure that he is not released back to the streets. These stopgap (and often unlawful) arrangements further increase the chances of an eventual acquittal.

In extreme cases, suspects have been reported to be  transferred to internment centres in FATA and PATA for having committed acts having a ‘nexus’ with the actions prohibited under the AACPR 2011 as witnessed in the Adyalla 11 case.[15] Internment under this framework is to continue till such time as the military action in FATA and PATA is under-way, thereby creating a system for an individual’s indefinite detention where subsequent acquittal seems probable. What makes this more problematic is that the fundamental fredoms do not apply in the internment centres in FATA and PATA. Therefore, detainees do not have the privilege to invoke Article 10 of the Constitution which gives them the right to file representations against the order of detention, to be informed of their grounds of detention and to have Review Boards constituted after three months of such detention.

Even where detainees are not transferred to the tribal areas, the sheer volume of detention cases makes it very difficult to have Review Boards constituted for every single instance of detention. The constitution of these Boards is a fundamental right of citizens and because of its practical constraints this right becomes unavailable to most detainees.

Even under the ordinary criminal system, accused individuals are remanded (detained in police custody) for periods that go far beyond the fourteen day period mandated under the law.[16] Magistrates authorize the detention of individuals without applying their judicious mind and often remand a person to custody for periods that exceed the mandated days. This is done in sheer violation of their duty under S. 167 of the CrPC.

Conclusion

Preventive detention is generally regarded as an acceptable and lawful mechanism for dealing with threats to public safety and national security. It is recognized and given due protection by our Constitution. Used correctly, it can prove to be an invaluable tool to counter the particularly unique challenges being faced by Pakistan in its fight against terrorism and militancy. Unfortunately, the detention regime in Pakistan today is being used as a bandage for the failure of our investigative, prosecutorial and judicial processes. This indiscriminate, arbitrary and often careless use of the detention regime undermines its effectiveness and runs contrary to its purpose. More importantly, it violates the fundamental rights of our citizens and weakens the legitimacy of our counter-terrorism and counter-militancy responses.

 

[1] World Prison Brief, Institute of Criminal Policy Research, available at http://www.prisonstudies.org/news/close-three-million-people-pre-trial-detention-worldwide-new-report-shows

[2] The total number of these pre-trial/remand prisoners includes approximately 50,000 people

[3] Baloch, Y., Pakistan’s Internment Centres, Bertha Foundation, 27.02.2017 available at < http://berthafoundation.org/pakistans-own-guantanamos-the-internment-centers>

Article 245(1), Constitution of Pakistan:

The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.

[4] Sheikh, M and Moghees Khan, Preventive Detention: A Guide to Pakistan’s Operations, Conflict Law Centre, Research Society of International Law, Pakistan, November 2016.

[5] Anti Terrorism Act, 1997: No. F. 9(39)/97-Legis, dated 20th August. 1997 (ATA)

[6] Actions (in Aid of Civil Power) Regulations, 2011 S.R.O 11(6)P/L/2011 (AACPR)

[7] S. 167, Code of Criminal Procedure,

[8] S. 21E, ATA

[9] Commentary on the Protection of the Civil Population, Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 2063 (1958)

[10] Jelana Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 ICRC REV. 375 (2005)

[11] Maintenance of Public Order Ordinance, 1960: Ordinance No. XXXI dated 2nd December 1960 (referred to as MPOO)

[12] The Security of Pakistan Act, 1952: Act No. XXXV of 1952

[13] Foreigners Act, 1946 (XXXI of 1946)

[14] Nazakat v Deputy Commission, 2017 PCrLJ 709

[15] S. 9(3), AACPR 2011

See Rohaifa v Federation of Pakistan, PLD 2014 SC 174, more commonly known as the Adyalla 11 case

[16] Section 167 of the CrPC deals with cases where the investigation cannot be completed within twenty-four hours and the person has to be produced before a Magistrate. Magistrates can then authorize further detention of the accused for a period of fourteen days.

Legality of the Use of Autonomous Weapon Systems

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by Sahar Haroon, Research Associate, RSIL

Autonomous weapon systems (AWS) may be understood as belonging to two distinct categories: semi-autonomous and fully autonomous. The difference between these groups is based on the extent of interference with them by a human operator. Semi-autonomous weapons denote those systems which remain under the control of humans in the performance of their critical functions. Fully autonomous weapons are those which would be capable of handling and controlling their entire functioning without human involvement.[1] Semi-autonomous weapons are part of the arsenal of many States, such as sentry-guns deployed along borders for example the Israeli ‘Iron Dome’,[2] the same is not true for the latter category.[3] Be that as it may, the possibility of the development of fully autonomous robots for military or policing purposes cannot be ignored.

Though commentators take into consideration different criteria for defining AWS, thereby contributing to the absence of a universally accepted definition, the International Committee of the Red Cross (ICRC) defines it as a “system with autonomy in its critical functions”[4] i.e. “such a system would be able to detect, track, select and attack (e.g. fire at) a target without direct, in the sense of spatially, temporally or causally proximate, human intervention.”[5]

There are multiple issues that need to be addressed and have been the point of much deliberation when it comes to AWS. First and foremost is the issue of their legality. Another issue that has been extensively discussed is whether it is ethical to handover critical decisions such as selecting and engaging targets to weapons, while taking humans-out-of-the-loop.[6] The final crucial problem is the determination of accountability for the unlawful use of a weapon which does not involve a human operator. This article touches upon the former matter while the latter two are reserved for an upcoming publication.

Furthermore, the legality of AWS may be ascertained from the perspective of both International Humanitarian Law (IHL or the law of war) and International Human Rights Law (IHRL).[7] Though these are two distinct branches of law, admittedly there exists some overlap between them. IHL primarily addresses issues related to the conduct of hostilities, while imposing obligations in such a way that measures must be taken in peacetime for proper compliance during an armed conflict. IHRL on the other hand, recognizes certain fundamentals that are guaranteed as non-derogable uniformly during both peacetime and situations of protracted armed violence as well as armed hostilities between two or more States. This article is limited to highlighting certain key aspects of the debate under IHL.

For addressing the scope of legality of AWS under IHL, it is first critical to assess whether these weapon systems are lawful under this legal regime. IHL classifies weapons as lawful and unlawful. Weapons are unlawful in their very nature, when they are incapable of adhering to the principles of IHL, for instance unable to distinguish between protected persons and legitimate military targets[8] or can only be employed in an indiscriminate manner[9] or are violative of any other rule of international law which a State is bound by.[10] Examples include all specifically prohibited weapons under IHL, such as biological weapons[11] and anti-personnel landmines.[12] Then, there are weapons which may be lawful as their nature allows them to comply with IHL obligations, however, these lawful weapons may be used in an unlawful way. Therefore, it is not the weapon itself which is prohibited under IHL rather its use in that particular way which violates the law.

Determination of whether a weapon falls into the category of being lawful or unlawful, is an obligation on States to be undertaken during the “study, development, acquisition or adoption of a new weapon, mean and method of warfare.”[13] This obligation arises from both customary and treaty law.[14] IHL imposes certain constraints[15] on States while developing or acquiring new means and methods of warfare. Among other things, it prohibits those means which cause unnecessary suffering or superfluous injury.[16] It is also prohibited to use weapons that would severely damage the natural environment,[17] or those which violate the fundamental principles of IHL, such as distinction,[18] proportionality,[19] military necessity[20] etc.

Proponents of AWS highlight the advantages of such weapons. For instance, their capability to enhance precision in attacks thereby minimizing collateral damage,[21] or the fact that they would remain objective in tense situations as opposed to human counterparts.[22]

However, there are multiple disadvantages to the development and adoption of AWS. First of all, precision in attacks is dependent on the weapon systems’ capability to not just distinguish between objects and humans but also between civilians and combatants and civilian objects and military objectives, a distinction that is not absolutely definitive and thus cannot be programmed into a system which is inherently incapable of ‘deciding’ for itself.[23] Decisions of distinction, proportionality, precautions in attacks and military necessity especially in case of dual-use or dual-nature objects[24] are beyond a machine’s ability and shall always require human input in order to comply with IHL.[25] Therefore, though the development of AWS may not be unlawful per se, they are capable of being used unlawfully, more so, if humans are taken “out-of-the-loop.”

Secondly, their development will trigger an arms race, if they have not already. Finally, they will lead to an increase in asymmetric warfare, i.e. where one party to the armed conflict is in possession of advanced military technology while the other not capable of affording or developing such advancements then relies on other unacceptable means or methods to gain advantage over the militarily-strong adversary. These unacceptable methods include blending into the civilian population in violation of the obligation upon combatants to distinguish themselves from civilians, and taking of hostages or using civilians as human shields.[26] Although, the technologically-advanced party is not legally bound to not pursue such technology which escalates asymmetric warfare,[27] it can still be a persuasive factor in understanding that AWS would contribute to greater destruction and increased warfare.[28]

*All images taken from the internet
[1] Tyler D. Evans, “At War with the Robots: Autonomous Weapon Systems and the Martens Clause”, Hofstra Law Review Vol. 41, No. 13-17, 2014, p. 702-703

[2] Yaakov Katz, “Air Force to Get Two New Iron Dome Batteries”, Jerusalem Post, 29 July 2012, available at: http://www.jpost.com/Defense/Article.aspx?id=279256 (all internet sources accessed in June and July 2017)

[3] Michael N. Schmitt, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to Critics”, Harvard National Security Journal Features, 2013, p. 3

[4] ICRC, Views of International Committee of the Red Cross on Autonomous Weapon System, Geneva, Report, 11 April 2016, p. 1

[5] Maya Brehm, “Defending the Boundary: Constraints and Restraints on the Use of Autonomous Weapon Systems under International Humanitarian and Human Rights Law”, Academy Briefing No. 9, University of Geneva, p. 14

[6] Human Rights Watch, “Losing Humanity: The Case against Killer Robots”, 19 November 2012

[7] Maya Brehm, “Defending the Boundary: Constraints and Restraints on the Use of Autonomous Weapon Systems under International Humanitarian and Human Rights Law”, Academy Briefing No. 9, University of Geneva

[8] See Article 48 of Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) [hereinafter AP I]

[9] See Article 51(4) of AP I

[10] See Article 36 of AP I

[11] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975)

[12] Convention on the Prohibition of Anti-Personnel Mines, 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999)

[13] Article 36 of AP I

[14] ICRC, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977, November 2006

[15] See Article 35(1) of AP I

[16] Article 35(2) of AP I

[17] Article 35(3) of AP I

[18] See Articles 48, 50, 51 of AP I

[19] See Article 51(5) and 57 of AP I

[20] St Petersburg Declaration Renouncing the Use, In Time of War, of Explosive Projectiles Under 400 Grammes Weight, 11 December 1868, 138 CTS 297, (entered into force 11 December 1868)

[21] Christopher P. Toscano, “Friends of Humans: An Argument for Developing Autonomous Weapons Systems”, Journal of National Security, Law and Policy, Vol. 8, No. 1, 2015, p. 61-65

[22] Christopher P. Toscano, “Friends of Humans: An Argument for Developing Autonomous Weapons Systems”, Journal of National Security, Law and Policy, Vol. 8, No. 1, 2015, p. 52-57

[23] Noel E. Sharkey, “The Evitability of Autonomous Robot Warfare”, International Review of the Red Cross, Vol. 994, No. 886, 2012, p. 788-789

[24] See Article 52(2) of AP I

[25] Marco Sassoli, “Autonomous Weapons – Potential Advantages for the Respect of International Humanitarian Law”, Professional in Humanitarian Assistance and Protection, 2 March 2013, p. 3-5, available at: https://phap.org/system/files/article_pdf/Sassoli-AutonomousWeapons.pdf

[26] Human Rights Watch, “Losing Humanity: The Case against Killer Robots”, 19 November 2012, p. 30-39

[27] Marco Sassoli, “Autonomous Weapons – Potential Advantages for the Respect of International Humanitarian Law”, Professional in Humanitarian Assistance and Protection, 2 March 2013, p. 2, available at: https://phap.org/system/files/article_pdf/Sassoli-AutonomousWeapons.pdf

[28] ICRC, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, Document prepared by the ICRC for the 30th International Conference of the Red Cross and Red Crescent, 26-30 November 2007, available at: https://casebook.icrc.org/case-study/icrc-ihl-and-challenges-contemporary-armed-conflicts#chapter2

Gender Neutrality in Rape Laws of Pakistan

Posted 2 CommentsPosted in articles

by Hafsa Durrani

Gender neutrality within rape laws aims at recognizing that both men and women can be the victims of rape as well as its perpetrators.[1] However, the existing rape laws within Pakistan are far from being gender neutral as they have been drafted within the traditional male-on-female rape framework. The legal language employed by draftsmen not only shapes the law but also the mindsets of the public and how they perceive what rape is. “Language… is socially constructed…Rather than being neutral or naturally ordained, it reflects the world views and chosen meanings of those who have had power to affect definitions and create terms. The selected terms and meanings then shape our understandings of what things are, of the way the world is.”[2] Legal language tends to reflect the status quo rather than make room for new understandings and viewpoints. And in the context of Pakistan’s rape law the language used is male-centric and perpetuates notions of male superiority over women, shrouding away ground realities from the public. The truth being that both men and women fall prey to acts of sexual violence such as rape, and both sexes can also be responsible for the commission of such violence.  Therefore, the need arises for gender neutral rape law within Pakistan in order to holistically address all aspects of the offense.

To understand a case for gender neutrality within rape law, we must first understand how the existing law is gendered or male-centric. In Pakistan, the offence of rape is covered under Section 375 of the Pakistan Penal Code (PPC)[3] that defines rape in the following words:

“A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,

(i) against her will;

(ii) without her consent;

(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt;

(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or

(v) With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

The law views rape through the traditional male-on-female paradigm, excluding other instances of same-sex rapes or female-on-male rape. This is clear from the words used in the provision: “a man is said to commit rape who has sexual intercourse with a woman.” It also goes on to say that “penetration” is sufficient for the offence of rape- explicitly excluding other instances of non-vaginal penetration offences that may constitute rape. The way PPC defines rape is blatantly gendered, disseminating into the society the age-old patriarchal notion that “rape” is an action that can only be committed by a man against a woman; and men can never be victimized, and even if they are then, “[that] act has a meaning so different for men that it cannot be labeled as rape.”[4]

Furthermore, the mens rea (guilty mind) under Section 375 of PPC requires that the accused was or should have been aware of the lack of consent of the woman. In determining the criteria for the required mens rea, Pakistani courts follow the British judgment in DPP v Morgan,[5] which ruled that the defendant must possess a reasonable belief to assert a mistake of fact as negating the intent required for the crime. An honest mistake is insufficient to prove that the defendant believed that his victim consented to the sex; his belief must be based on reasonable grounds. Relying on man’s “reasonable belief” to determine the existence of consent can be problematic as this is an objective test and objectivity is traditionally associated as a male quality. Hence, any test premised on male-qualities will tend to be gendered and biased towards the male perspective consequently, diminishing the standpoint of the victim. The adoption of the reasonable belief standard does not help in any case, whether the victim is female or male, because it relies on “patriarchal assumptions”[6] of what behavior might be construed as consent, rendering the victim’s experience irrelevant.

The discussion above tries to explain how Pakistan’s rape law is constructed with keeping the male perpetrator in mind, and not the victim (who may belong to any gender). But in reality the cases do not always neatly fall within this paradigm and therefore, the law should be designed to cater to all possibilities. It is important to note that when discussing the need for gender-neutral rape law, one is not advocating for the dilution of the female experience from rape, as some feminist theorists may suggest, [7] rather it is a call for enacting laws that account for the experience of all victims. “The fundamental characteristic of gender-neutral reforms is that they expand the definition of rape to recognize male victims and female perpetrators. Hence, they are “neutral,” but only in the sense of including both males and females as potential rapists and victims.”[8] Our society needs to break away from conventional notions of male-on-female rape since same-sex as well as female-on-male rapes are very real and prevalent issues in Pakistan. But due to traditional patriarchal social constructions of the very concepts of “man” and “woman,” such incidents are not openly discussed for they run the risk of the male victims facing humiliation and tainting their sense of “manhood.” The operation of rape law within the traditional victim-perpetrator framework “ignores the fact that though rape is an act of power, this power differentia between a perpetrator and a victim need not be based on their respective genders, but can be a consequence of other power structures based on, for example, caste, race, or economic differences.”[9]

Under Article 25 (1) of the 1973 Constitution of Pakistan every citizen is entitled to equal protection of the law.[10] The feminist journalist, Susan Brownmiller, rightly noted in her seminal study on female rape, Against out Will: Men, Women and Rape, that, “All the acts of sex forced on unwilling victims deserve to be treated in concept as equally grave offenses in the eyes of the law, for the avenues of penetration is less significant than the intent to degrade. Similarly, the gravity of the offence ought not to be bound by the victim’s gender.”[11] Therefore, the State has a duty to protect all its citizens without discrimination. And such protection should be extended into rape laws as well otherwise it may lead to possible violations of the fundamental rights guaranteed by our Constitution.

Gender-neutral rape laws will not make gender irrelevant; in fact they will only further our understanding of sexual violence.[12] They will encourage us to seek out the reasons behind sexual violence that goes beyond the male-on-female paradigm in order to provide adequate protection to all its victims and adequate punishments to all its perpetrators. Admittedly, the majority of rape victims are female, but it is also important to provide protection to other genders that may suffer similar pain and trauma. The law should aspire to create a safe space for all rape victims to come forth to seek justice without the fear of being shamed into silence.

Works Cited

Catherine Mckinnon, Toward a Feminist Theory (Harvard University Press 1989).

< https://plato.stanford.edu/entries/feminism-rape/>

Harshad Pathak, “Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law,” (2016) 2 Asian

Journal of Comparative Law.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/9BC983FB009B7BBDEB78CED0BC5144C0/S2194607816000089a.pdf/div-class-title-beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law-div.pdf

Lucinda M. Finely, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal

Reasoning.” (1989)  Faculty Scholarship Series Paper 4011. <http://digitalcommons.law.yale.edu/fss_papers/4011>.

Philip Rumney, “In Defence of Gender Neutrality Within Rape.” (2007) 6 Seattle Journal of Social

Justice. 481.

            < http://eprints.uwe.ac.uk/14750/1/RumneySJSJ.pdf>

Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon and Schuster 1975).

 

[1] Philip Rumney, “In Defence of Gender Neutrality Within Rape.” (2007) 6 Seattle Journal of Social Justice. 481.

< http://eprints.uwe.ac.uk/14750/1/RumneySJSJ.pdf>

[2] Lucinda M. Finely, "Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning." (1989)  Faculty Scholarship Series Paper 4011. 886-910. 886. <http://digitalcommons.law.yale.edu/fss_papers/4011>.

[3] Pakistan Penal Code 1860, (Act XLV of 1860) Section 375

[4] Philip 492

[5] DPP v Morgan, 1976 A.C. 182 (1976)

[6] Catherine Mckinnon, Toward a Feminist Theory (Harvard University Press 1989). 181

< https://plato.stanford.edu/entries/feminism-rape/>

[7] Philip 493

[8] Philip 482

[9] Harshad Pathak, “Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law,” (2016) 2 Asian Journal of Comparative Law. 367-397. 385

<https://www.cambridge.org/core/services/aop-cambridge-core/content/view/9BC983FB009B7BBDEB78CED0BC5144C0/S2194607816000089a.pdf/div-class-title-beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law-div.pdf>

[10] Constitution of the Islamic Republic of Pakistan 1973, Article 25 (1)

[11] Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon and Schuster 1975). 378

[12] Philip 497

Course correction on Jadhav

Posted Posted in articles

Jamal Aziz, Executive Director, RSIL and Oves Anwar, Director, RSIL

Published in

28th May, 2017

The International Court of Justice’s order in the Kulbhushan Jadhav case resulted in a media frenzy on both sides of the border. In Pakistan, the order caused despondency and despair amongst politicians and the public alike. The Indian media, in classic fashion, claimed India’s total victory, and that Jadhav’s release was just around the corner.

Yet, a dispassionate and legally sound analysis would reveal a reality that is far less sensational. What this case has exposed is the utter lack of capacity in international law on both sides of the border, resulting in the inability of the many stakeholders to grasp even the basic tenets of this case and its wider implications.

The ICJ has granted temporary reprieve to Jadhav. This means that it has stayed his execution by Pakistani authorities until the case has been decided by the court. While this development is significant from a political and diplomatic point of view, from a legal perspective it does not hold much value — indeed one may argue that it was expected. In the three previous cases on consular access before the ICJ, the court in every case issued almost identical orders staying the executions. Therefore, this development should not be viewed for more than it actually is and will not have any impact on the subsequent phases of this case.

However, the real battle begins now. The next phase will now require the ICJ to see whether it has jurisdiction to hear the merits of this case. It is at this point where Pakistan will insist on a bilateral resolution of this dispute based on the 2008 Consular Agreement between India and Pakistan. Pakistan will also argue that the Vienna Convention on Consular Relations (VCCR) — which is at the heart of the dispute — does not apply in the case of foreign spies or terrorists.

If Pakistan’s arguments are not accepted by the court, we will then move to the merits stage where the court will examine the actual claims that India has made against Pakistan. This is where the court will determine whether consular access should have been given to Jadhav or not, whether the decision of the military court in this case can be annulled by the ICJ, whether Pakistan can be asked to review the decision or whether Pakistan can be ordered to release Jadhav.

The foregoing demonstrates that Pakistan is now entering the most critical phase of the proceedings. The legal position that we adopt in these stages will determine our political and diplomatic position on the broader issue of Indian intervention in Pakistan. The Indian side was wrong footed by the capture of Jadhav last year and appeared to be almost in a state of paralysis on the issue. Yet, it appears now that the Indian government was biding its time and evaluating the bold option of approaching the ICJ. This aggressive move by India seems to have caught Pakistan off-guard, which is unfortunate because we should have anticipated it and war-gamed accordingly.

The Indians must know that the relief that they have sought in this case (annulment of decision/release of Jadhav) is wishful thinking. The ICJ lacks the legal authority to make such orders. But that is not the point. India’s entire strategy is to delegitimise the nature of the Pakistani judicial process in Jadhav’s case so that Pakistan’s wider claim of Indian intervention on its territory loses international credibility.

It is, therefore, imperative that Pakistan counters this tactic through a proactive legal strategy. Pakistan’s legal arguments in the first phase were more focused on rebutting India’s claims than presenting its own stance. The wider dimension of Pakistan’s foreign policy and internal security dynamics could have been explored in this case. Yet India’s ambush and the sheer lack of time did not permit better preparation. The Pakistani government must realise that it has attained a very high moral ground with the arrest of Jadhav. The gains made on the ground must not now be lost in the ICJ.

The Pakistani government has for many years been advancing the argument of unlawful Indian intervention on its territory. It has spent the last year making hectic diplomatic efforts to showcase Jadhav’s case to the international community. However, its efforts have born little fruit on the diplomatic front. Jadhav’s case at the ICJ is a unique opportunity for Pakistan to demonstrate this position before the highest judicial organ of the UN. Pakistan’s consistent claim of Indian intervention on its territory will receive tremendous international credibility if acknowledged by the ICJ in its future judgment in this case. It will also have the potential to deprive India of its traditional stance of being a victim of Pakistani-sponsored terrorism.

To achieve these ends, Pakistan must evolve a four-pronged legal strategy in this case. First, we must forcefully explain, through precedent and cogent legal reasoning, the compulsions of national security which make this a unique case not attracting the provisions of the VCCR. Second, it is imperative that we exhaustively explain to the ICJ our domestic law and procedure under which Jadhav was tried, thereby, demonstrating that Jadhav’s trial was not ad-hoc or arbitrary. Third, a clear legal classification of Jadhav is vital right from the outset. Different legal courses will follow based on whether we classify him as a spy, combatant, enemy alien or terrorist. Finally, we must compellingly argue that the 2008 Consular Agreement takes precedence over the VCCR and showcase the significant state practice of India and Pakistan under this Agreement.

The use of the law for furthering foreign policy objectives is something Pakistan has traditionally not been very good at. The clash between India and Pakistan over the Jadhav Case at the ICJ presents a unique opportunity of course correction on this front. In the coming years, Pakistan will increasingly find that international law offers a front where we must deploy our strongest assets.

Further reading:

Understanding the Jadhav Case at the International Court of Justice (India v. Pakistan)

By Oves Anwar, Director, RSIL

Understanding the Jadhav Case at the International Court of Justice (India v. Pakistan)

RSIL is proud of it alumni for contributing to ongoing policy debates, in national newspapers and online forums. Several alumni have provided critical insight into the on-going proceedings before the International Court of Justice. These contributions can be found at the links below:

The views and opinions expressed in the following article are those of the authors and do not necessarily reflect the official policy or position of Research Society of International Law.

 

ICJ’s (Lack of) Jurisdiction in Jadhav’s Case

By Taimur Malik and Bilal Ramzan

Taimur Malik is the former Executive Director of RSIL and is currently a Partner at the Oman Office of Curtis, Mallet-Prevost, Colt & Mosle LLP. He is also the founder of www.courtingthelaw.com.

Bilal Ramzan is the Former Research Associate, RSIL and is a member of the Editorial Team of Courting The Law.

http://courtingthelaw.com/2017/05/14/commentary/icjs-lack-of-jurisdiction-in-jadhavs-case/

 

[Republished in Dawn here:]

Comment: ICJ hearing — Pakistan could succeed; India may suffer knockout

By Taimur Malik and Muhammad Bilal Ramzan

https://www.dawn.com/news/1333281/comment-icj-hearing-pakistan-could-succeed-india-may-suffer-knockout

 

ICJ’s limited jurisdiction

https://www.dawn.com/news/1332727/icjs-limited-jurisdiction

By Sikander Ahmed Shah and Abid Rizvi

Sikander Shah is the Former Senior Research Associate at RSIL, Legal Adviser at Ministry of Foreign Affairs, law faculty at LUMS and is currently pursuing his PhD

Abid Rizvi is a former Research Fellow and Senior Analyst at RSIL

 

Why consular access was denied to Kulbhushan Jadhav

https://tribune.com.pk/story/1389405/consular-access-denied-kulbhushan-jadhav/

By Jahanzaib Durrani

Formerly, Research Associate, RSIL

Published: April 21, 2017

 

Yadav and the ICJ

https://www.thenews.com.pk/print/204469-Yadav-and-the-ICJ

By Imaan Mazari Hazir

Currently, Associate, Mandviwallah and Zafar

Formerly, Research Associate, RSIL

Understanding the Jadhav Case at the International Court of Justice (India v. Pakistan)

Posted Posted in articles

By Oves Anwar, Director, RSIL Understanding the Jadhav Case

17th May, 2017

On Monday, both India and Pakistan presented oral arguments on provisional measures before the ICJ in the Jadhav Case (India v. Pakistan). The case has generated considerable debate as well as much confusion. This is not surprising as, outside the small community of international law experts, the workings of the ICJ often remain shrouded in legal technicality and jargon. This article aims at making the case before the ICJ more accessible to individuals outside the legal community (as well as to some within it). This is by no means an exhaustive discussion on the facts and legal precedents which surround the case but it will raise the most pertinent issues needed to follow the case in the coming months and perhaps years.

The ICJ Proceedings:

Monday’s oral hearings marked the first phase of proceedings in this case. The Court will now pronounce an order regarding provisional measures. In essence, they can grant India’s request for a ‘stay’ on the execution of Kulbushan Jadhav or deny such a request on the basis that there is no urgency in the matter.

At the current phase of proceedings, the Court will make a preliminary determination of its jurisdiction to hear the case. After this stage, Pakistan, if it chooses to, can more comprehensively challenge the Court’s jurisdiction through ‘preliminary objections’. This would mark the second phase of proceedings. At the culmination of the preliminary objections phase, the Court will have to make a conclusive determination of whether or not it has the jurisdiction to hear the case. If the Court determines that it does have jurisdiction, then the case will move on to the merits phase, otherwise, the case will be dismissed for lack of jurisdiction. It is after the merits phase that a judgment would be rendered by the Court. Each phase of proceedings may include both written pleadings submitted to the Court as well as oral hearings.

What is the Jadhav Case about?

The case before the ICJ instituted by India is about an alleged violation of the Vienna Convention on Consular Relation of 1963 (VCCR). The VCCR grants States certain reciprocal rights and obligations regarding consular relations. A consul is generally a part of the diplomatic mission of a State in another State. In addition to promoting economic and commercial relations between the two countries, consular officials also look to protect their State’s interests in the host State, especially in relation to their citizens present in the host State. In this regard, Article 36(1) of the VCCR grants consular officials the “right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.” It is this specific clause that India states Pakistan has violated by not granting its consular officials access to Kulbushan Jadhav. What this translates to is that the case in the ICJ is not about Jadhav’s innocence or guilt, the ICJ has itself stated that it is not a Criminal Appellate Court (Paraguay v USA), rather the case is only whether India had a right under the VCCR and whether Pakistan violated it. It is important to note that the ICJ cannot, under any circumstances, order the release of Jadhav, despite what India may have prayed for in its application instituting proceedings before the Court.

Jurisdiction of the Court

Jurisdiction refers to whether the Court has the authority or competence to actually hear the case and render a judgment on it. In other words, is there some legal basis which empowers the Court to be able to adjudicate on the particular matter brought before it? The ICJ’s jurisdiction can be invoked on a number of bases. The primary one is through the Courts ‘compulsory jurisdiction’ under Article 36(2) of the ICJ Statute. Here States submit a ‘declaration’ accepting the Court’s jurisdiction. Unlike ordinary courts of law in a country where individuals have little choice but to accept jurisdiction, the ICJ requires states to voluntarily submit themselves to the Court’s authority and allow the Court to settle their dispute.

When submitting a ‘declaration’, States may limit the grounds on which a case is brought against it. India has for several decades had a declaration that severely limited the grounds that other countries could take it to the ICJ for. Some of these seem specific to Pakistan and that is why contentious matters such as Kashmir or Siachen have not been brought before the ICJ. Pakistan recently enhanced its own declaration on 29th March, 2017 and is now, in large part, at par with the Indian declaration. Under these declarations neither Pakistan nor India would be able to bring a case such as Jadhav’s to the Court.

However, India did not utilize the path provided in Article 36(2) to the ICJ Statute but rather that found in Article 36(1) which refers to the Court’s jurisdiction in “…all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Through this India raises the Optional Protocol to the VCCR which relates to the settlement of disputes arising out of the Convention. Both Pakistan and India have ratified this Optional Protocol which in Article 1 specifically states that, “Disputes arising out of the interpretation and application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice…” This is, therefore, the legal basis upon which the Court can exercise its jurisdiction and the limitations imposed by Pakistan’s declaration under Article 36(2) would stand bypassed. This is not to say that Pakistan cannot challenge jurisdiction on other grounds. There are significant arguments that can be made on the Court lacking jurisdiction in the matter which will be discussed below.

Jurisdiction, however, has differing standards and thresholds that need to be met at different stages of the Court’s proceedings. The current stage of proceedings – provisional measures – is instituted to prevent a continuing or imminent harm to the rights of one party. Due to the urgency of such measures, the Court does not have adequate time to assess its substantive jurisdiction comprehensively. It, therefore, only requires the requesting party (India) to establish that the Court has prima facie jurisdiction. This is a low threshold and if a clear clause in a treaty grants the Court jurisdiction, the Court will generally tend to accept jurisdiction at this stage.

If the Court accepts India’s argument of prima facie jurisdiction, then after a decision on the request for provisional measures, the Court will move on to the merits phase. However, as noted above, before the merits phase, Pakistan will have a chance to challenge the Courts substantive jurisdiction comprehensively at the preliminary objections phase. It is here that Pakistan can outline in detail its arguments for why the ICJ should decline to entertain India’s case. The ICJ will then have to make a final determination of whether it does indeed have jurisdiction in the case or not. If the ICJ determines that it does not have jurisdiction then the case will be dismissed. Alternatively, if the Court maintains that it does have substantive jurisdiction to hear the case, then the proceedings will move on to the merits phase.

Bilateral Agreement of 2008

The case is certainly not straightforward as numerous complicating factors arise. The foremost among them is perhaps the fact that in 2008, as part of the Indo-Pak Composite Dialogue, both countries entered into a Bilateral Agreement on Consular Access. The agreement is aimed at “furthering the objective of humane treatment of nationals of either country…”, and provides for concrete mechanisms for India and Pakistan to inform each other when its citizens are arrested and to provide them with consular access within three months.

The 2008 Agreement has been relied upon by both nations over the past decade for exchanging lists of nationals detained or imprisoned in each other’s countries. It is particularly relevant in the case of fishermen that inadvertently enter each other’s territorial waters. In fact, an India-Pakistan Joint Judicial Committee on Prisoners established in January 2008, has used the mechanisms under the 2008 Agreement to ensure the exchange of prisoners, consular access, and humane treatment on multiple occasions. The Agreement has also been re-affirmed on multiple occasions by joint-statements of officials from both countries. This includes a joint-statement by the Indian Minister of External Affairs, Mr. S.M. Krishna and Pakistan’s Foreign Minister, Hina Rabbani Khar on September 8, 2012, as well as numerous joint-statements by the Joint Judicial Committee on Prisoners.

What is particularly relevant about the Agreement is clause (vi) in that it specifically states, “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. This gives both Pakistan and India a degree of discretion to deny consular access where the compulsions of national security require it.

India is trying to distance itself from this agreement on the grounds that it is not registered with the United Nations. Article 102 of the UN Charter states that, “No party to any such treaty or international agreement which has not been registered… may invoke that treaty or agreement before any organ of the United Nations.” The ICJ is an organ of the United Nations. Interestingly, however, the requirement of registration is not time specific, nor does it mean that with the commencement of proceedings in the case that Pakistan has forfeited its chance to register the Agreement. Pakistan can, and probably should, register the Agreement as soon as possible. In fact, in Qatar v. Bahrain, the ICJ did not object to Qatar’s registration application to the UN Secretariat after the proceedings had commenced. The Court went on to state, “Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.”

India also alleges that the Bilateral Agreement contradicts the VCCR. The India claim is that the right to consular access under the VCCR is absolute and cannot be limited under any circumstances. This raises the question of why then did India enter into an agreement voluntarily which supposedly curtails its rights. It is important to note that the validity of the Bilateral Agreement may hinge on the wording of the VCCR which does not prevent “…States from concluding international agreements confirming or supplementing or extending or amplifying” the VCCR. The Court will have to see whether the Agreement of 2008 confirms, supplements, extends or amplifies the provisions of the VCCR. This issue is bound to raise a number of interesting issues relating to the extent that a State can limit its own rights, the status of treaties that come later in time, and the limits of the overriding compulsions of national security over international rights. Here another convention finalized in Vienna would be of utmost relevance – the Vienna Convention on the Law of Treaties (VCLT). The VCLT serves as a tool for the interpretation of international treaties and agreements. I will not go into the details of the VCLT’s impact on the case as Taimur Malik and Muhammad Bilal Ramzan have already presented an excellent analysis here.

The Bilateral Agreement may also be fundamental to Pakistan’s case in demonstrating that no dispute exists at all. For the ICJ to decide the case under the Optional Protocol to the VCCR a dispute must exist as to the “interpretation and application of the Convention.” Pakistan can argue that the Bilateral Agreement is clear evidence of both Pakistan and India’s mutually agreed upon interpretation and application of the VCCR. If this was not the case, then why would both sovereign States put this understanding into writing in a legally binding Agreement? If Pakistan can indeed demonstrate this to the satisfaction of the Court, the Court will have to decline jurisdiction as no dispute between the parties would exists, i.e. there would be nothing to adjudicate upon.

Status of Kulbushan Jadhav

Another complicating factor is the status of Kulbushan Jadhav. India’s claim that he retired from the Navy and was now a businessman rings hollow when confronted with the fake identity that Jadhav had assumed of Mubarak Hussain Patel, corroborated by a passport found on him.

Furthermore, espionage is not a matter with considerable precedence under International Law. It is a reality of our times that espionage is conducted by almost all States today, yet legally there is no substantive regulation provided for it in international law outside the laws of armed conflict, also known as International Humanitarian Law (IHL). Under IHL, rights of communication of spies can be curbed due to the security risks they pose. By analogy, the same security risks exist in times of peace, especially if the concerned spy is engaged in funding, planning and supporting terrorism in a country. This is undoubtedly why Pakistan insists on refusing consular access to Jadhav. Any access to him may allow him to reveal the extent of information he has divulged to Pakistani authorities, the Indian intelligence assets that have been compromised, the assets that are still in play, etc. Apart from the direct national security risk this would pose, such access may also compromise on-going investigations into Jadhav’s network in Pakistan. Pakistan’s legal team at the ICJ will have to convince the Court that Jadhav’s actions are not isolated events but rather a manifestation of the overall Indian strategy to destabilize Balochistan as evidenced by the public statements of its National Security Advisor, Ajit Doval and other Indian officials.

What can India hope to get from the ICJ?

Provisional measures

India has requested for immediate provisional measures to put a ‘stay’ on the execution of Jadhav till the case is finally decided by the Court. For this it will have to establish the urgency of the case. In the Avena Case, Mexico sought provisional measures staying the execution of 54 Mexican nationals on death row in the United States. The ICJ only granted provisional measures for three of these individuals as their execution was scheduled within six months. Since the domestic proceedings in the Jadhav case have not ended as yet, it may be difficult for India to demonstrate real urgency in the matter.

Final Judgement

In its application to institute proceedings India has requested four forms of relief from the Court. Firstly, the immediate suspension of the sentence awarded to the accused. Secondly, a declaration that the sentence of the military court is violative of International Law and the provision of the VCCR. Thirdly, restrain Pakistan from executing the sentence and directing it to annul the decision. And fourthly, if Pakistan is unable to annul the decision then the Court declare the decision to be in violation of International Law and order the release of Jadhav.

Unfortunately for India, none of these different (and also quite similar) forms of relief are within the Court’s purview to grant. The only issue the ICJ can make a determination on is whether Pakistan violated its obligation to India under the VCCR. The VCCR does not provide any grounds for the annulment of a decision of a domestic court. Therefore, Jadhav’s trial or his sentence cannot be reversed by the Court. What can be discussed is what would have happened had Jadhav been granted consular access. Would Indian representatives have been able to provide better legal counsel to strengthen Jadhav’s case before the Field General Court Martial? Would access have led to a different verdict? In any decision the Court makes, the Sovereign authority of Pakistan to deal with a terrorist and spy will have to be weighed against any alleged violation of India’s rights under the VCCR.

Even if India is able to convince the Court to decide in its favour, Jadhav cannot be ordered to be released as that is outside the scope of powers of the ICJ. However, like the Court’s decision in LaGrand and Avena, Pakistan may be asked to ‘review and reconsider’ the Field General Court Martial proceedings with a view to assessing whether the granting of consular access would have made a difference to the outcome of the Jadhav case. In Avena, the court explained that ‘review and reconsideration’ involved judicial review of the process and a determination to be made whether the VCCR violation caused actual prejudice to the defendant. Importantly, however, the ICJ noted that such a review was to be conducted by the State “by a means of its own choosing…”, thus acknowledging the sovereign authority of a State over its domestic criminal matters as well as accepting the limited powers of the ICJ in such cases.

Research Society of International law RSIL

The Concept of Legal Diplomacy

Posted Posted in articles

Jamal Aziz

Executive Director RSIL

Pak-India relations are once again at a low point. The recent violence in Kashmir has raised tensions on both sides, and has once again highlighted how the Kashmir dispute remains the biggest obstacle to normalizing relations between India and Pakistan.

A major flashpoint is the apprehension of Kulbhushan Yadav, who subsequently confessed to carrying out various terrorist activities in Balochistan and Karachi at the behest of India’s Research and Analysis Wing.  Yadav’s recent conviction by a military court has raised the political temperature on both sides with the Indian side demanding consular access and family visitation rights while Pakistan seeks to formally catalogue unlawful Indian intervention and interference on its territory.

Water disputes between the two countries are also on the rise. This includes specific disputes relating to the Kishenganga and Ratle projects under the framework of the Indus Water Treaty (IWT) to broader suspicions and misgivings on both the Pakistani and Indian side which are threatening the very framework of the IWT itself.

At the same time, the lack of tangible progress in the Mumbai trials, Pathankot investigation and the Samjhauta Express case continues to be a major source of contemporary friction between the two nuclear armed neighbours.

Against this backdrop, we believe it is our national duty to make the case for legal diplomacy.

RSIL believes that legal cooperation and legal clarity identifies more durable common grounds to understand opposing points of views and can also provide solutions through legal innovations.

Legal diplomacy gives us an opportunity to cut through the political rhetoric and focus on the legal obstacles hampering peace between the two states and recommend the specific legal steps that may be undertaken in order to revive the peace process.

RSIL believes that focused efforts are required to conduct research and analysis on the legal issues facing India and Pakistan with a view to finding realistic and lasting solutions. It is our firm belief that a greater awareness of the legal challenges facing our two countries will benefit a broad range of participants in the domestic and international public sector and yield dividends in the long run.

From Pakistan’s perspective, it is hoped that an engagement with the concept of legal diplomacy will enable policymakers to better craft internal policies and legal responses to these issues in a way which conforms to Pakistan international obligations, thus solidifying its reputation as a responsible and proactive participant in the international community.

The Case for Legal Diplomacy

By Ahmer Bilal Soofi, President and Edited by Jamal Aziz, Executive Director
The Concept of Legal Diplomacy

Mr. Jamal Aziz, Executive Director RSIL, explaining the concept of Legal Diplomacy at a recent RSIL workshop on Improving Pak-India Bilateral Relations through Legal Diplomacy. The event was widely attended by diplomats, bureaucrats, journalists, lawyers and civil society members. Foreign Secretary of Pakistan, Mr. Aizaz Chaudhry, served as the Moderator whereas the Attorney General of Pakistan, Mr. Ashtar Ausaf Ali, served as the Chief Guest on the occasion.

Posted by Research Society of International Law (RSIL), Pakistan on Sunday, September 25, 2016