The provision of greater opportunity and flexibility
Understanding of international law in Pakistan is cursory at best. It would be laughable to say this knowledge is at all widespread, either amongst the government or its citizenry. It is hoped that international law plays a critical role in domestic law and policy making, especially in the development of foreign policy because perpetuating an ignorance of international law is patently irresponsible.
The issue is not so much that international law should be generically incorporated into government actions. As it stands, this law is applied where necessary. Take the momentum that the GSP+ trade incentive program created as an example of the scramble to more appropriately administrate an international law framework in Pakistan’s domestic law. The real issue is how to employ this law within government decision making in a manner that proactively benefits the state.
Article 38(1) of the founding statute of the International Court of Justice provides a list of the definitive sources of international law, which include international conventions, customary practice, general principles of law recognised by nation states and to some extent, the judicial decisions and teachings of highly qualified legal scholars. From amongst these sources, states have space to manoeuvre their position and apply with some creativity these sources.
International law should not be conceptualised as a fixed set of rules that must be unquestioningly followed. That is domestic law. International law, instead, allows states to voluntarily accept to be bound by various war and peacetime agreements
International law should not be conceptualised as a fixed set of rules that must be unquestioningly followed. That is domestic law. International law, instead, allows states to voluntarily accept to be bound by various war and peacetime agreements. This flexibility places the onus on the state to then abide by the legal instrument it signed.
Not only is there greater flexibility, there is greater opportunity in international law. Pakistan should take the United States example, by actively seeking support for its decisions within international law specifically. To this end, expertise may be sought that can supply legal cover to related government decision-making.
The type of international law that can provide such cover is not necessarily treaty-based, although treaties are an important part of the equation. Non-binding declarations and voluntary guidelines may serve a crucial purpose if they are eventually transformed into enforceable law by other bodies that possess a law-making mandate. To overlook such guidelines at the time of their inception would be to play fast and loose with instruments that may eventually make a difference in assisting or restricting state action.
What does this mean in real terms? It means that the decision of a court to which Pakistan is not a party may eventually serve as the basis for future international law that will affect the state. It means that the arguments perpetuated in a session of the United Nations General Assembly may be useful to the state, but only if the state is aware that the argument was put forth.
Take for example the decision made in the case of Serdar Mohammed vs Ministry of Defence in May 2014 in the United Kingdom. Though the decision has little immediate influence on either current international law or Pakistan’s domestic law, the arguments put forth by Justice Leggatt have triggered a debate amongst international law experts and those arguments may be indicative of the future direction of the law of non-international armed conflict.
Considering that Pakistan may be engaged in a non-international armed conflict with various non-state actors, the reasoning applied in the case could serve as the basis for actions Pakistan may wish to take in the future. This, however, would require the existence of a government that isn’t comatose regarding critical areas of law to actually employ qualified lawyers to research and understand the propositions made by Justice Leggatt and how they may serve Pakistan’s purposes.
Considering that Pakistan may be engaged in a non-international armed conflict with various non-state actors, the reasoning applied in the case could serve as the basis for actions Pakistan may wish to take in the future
The initial proposition put forth states “International humanitarian law does not provide authorisation (the source of legal authority) for a power to detain in non-international armed conflicts.” This means that the authorisation for detention must be found elsewhere, either from the domestic law of the state engaged in the non-international armed conflict or from a resolution of the United Nations Security Council.
The second proposition states, “International humanitarian law has nothing to say about the grounds on which states may preventively detain particular individuals in non-international armed conflicts or what procedures should apply to detention in non-international armed conflicts.” This may indicate that the source of such grounds for internment would be international human rights law, specifically the International Covenant on Civil and Political Rights and the newly issued General Comment 35 under Article 9 the Covenant on liberty and the security of person.
The propositions put forth in this ruling are coming into the spotlight once again as they go before the Court of Appeal this week. Relevant ministries should monitor this case and other relevant international law developments more closely to give Pakistan a fighting chance at developing solid policies in anticipation future issues.
Pakistan is already quite far behind many other states in its cultivation of international law. This is obvious in the knee-jerk reactions to international events that so often blow up in the faces of obtuse law and policy makers.
Law is not an encumbrance. It as a tool and should be considered as such. International law in particular must be engaged more effectively for the benefit of the state. To fail to do so would be ruinous for Pakistan’s standing in relation to its international counterparts. It would also be indicative of a disastrous degree of lethargy at the federal level that only results in the slow self-immolation of the Pakistani state.