RECENTLY, the International Court of Justice (ICJ) accepted jurisdiction as the latest forum to host the long-standing diplomatic feud between Pakistan and India.
As the UN’s principal judicial organ granted India’s request for provisional measures, there was bafflement in Pakistan. Given an inundation of media coverage and opinion pieces, the public stood assured that Pakistan would deliver a blow to its arch rival. The post-match analysis that followed focused inordinately on the limitations of the legal team and composition of the bench rather than a substantive engagement with the allegations brought against Pakistan.
The debate surrounding the Kulbhushan case, has, in fact, revealed the continual failure of the state to firstly, understand fully the commitments it has made under international law, and, secondly, to make a sincere effort towards their implementation domestically.
The Pakistani government prides itself on its reputation in the international diplomatic community, including at the UN. The Foreign Office and its missions abroad work relentlessly to ensure that in all negotiations Pakistan is accorded the entirety of political and economic benefits that are its due as a member of the international polity.
A key aspect of this involves becoming party to international treaties including the Vienna Convention on Consular Relations, 1963 and its Optional Protocol that has become the target of extreme ire since the Kulbhushan case began. The convention grants foreign nationals who are arrested or detained the right to have their consulate notified of their arrest. It provides access to the arrested foreign national by his embassy to converse, and to arrange his legal representation. After India’s reliance upon the convention resulted in a diplomatic defeat, there is emerging support for Pakistan’s withdrawal from it, particularly from its Optional Protocol that vests compulsory jurisdiction in the ICJ to decide disputes under it.
International commitments must be met.
However, missing from the debate are the vulnerable voices of over 11,700 Pakistanis that the Foreign Office estimates are currently detained abroad. Over 1,920 of these are indigents who travelled to Saudi Arabia hoping for a better life but instead became victims of human trafficking.
Exploited as drug carriers, these Pakistanis were arrested, tried and, in certain cases, sentenced to death under a criminal justice system where effective legal representation is not provided and the right to appeal is limited. All proceedings are conducted in Arabic — a language unknown to the detainees.
The Vienna Convention provides these Pakistanis with access to their embassies that can assist them with legal help during arrest and trial and to make representations on their behalf to host governments. As India drags Pakistan to the ICJ for denying consular access to their national, the Lahore High Court is hearing a petition on behalf of 10 families of Pakistanis facing execution in Saudi Arabia on the grounds that the government has failed to extend any consular assistance in their cases.
There is a disconnect between Pakistan’s international commitments and their implementation. As illustrated above, non-compliance of treaties including the Vienna Convention impacts the lives of Pakistani citizens more than those of foreign nationals. Immunity from international treaties and decisions is often sought on the grounds that Pakistan is a ‘dualist country’ and therefore not directly accountable.
This is a misconceived understanding of international law. Pakistan has clarified unequivocally at international fora that treaties do not require domestic legislation to take effect. For example, in March 2017, in its reply to a query by the UN Human Rights Committee regarding the enforceability of the International Covenant on Civil and Political Rights, Pakistan stated it became directly applicable upon ratification. However, superior courts refuse to apply international conventions in the absence of corresponding domestic legislation.
Failure to harmonise these competing interpretations has frustrated domestic implementation. This adversely impacts Pakistan’s standing at international fora.
In addition to the defeat at the ICJ, this month also saw the country receive a scathing review from the Committee Against Torture with regards to its obligations under the UN Convention Against Torture and Cruel, Inhuman and Degrading Treatment. Pakistan is now due to face two more treaty body reviews and the Universal Periodic Review this year. Unless the disconnect between the Foreign Office and domestic machinery regarding the enforceability of international law is resolved, it is unlikely that the country’s performance will improve.
It is, thus, critical for Pakistan to institutionalise international legal principles at all levels. As it prepares to appear before multiple international diplomatic fora, the country must take effective steps to move beyond mere ratification and provide its citizens with the rights they are entitled to under universal human rights standards.
The writer is a human rights lawyer.
Published in Dawn, May 28th, 2017