Emerging Realities and Future Challenges

April 30, 2010

By Taimur Malik

Published in the August 2007 issue of The Friday Times.

Pakistan turned 60 years old this month. If Pakistan was a person, she would enjoy senior citizen status and post-retirement benefits. However, in today’s terror struck and trade centred world, Pakistan holds an important, increasingly difficult and yet challenging position.

This pre-eminence to the forefront of world affairs brings with it an alarmingly diverse array of obligations, duties and expectations. These normally manifest themselves in the shape of an equally varied assortment of international legal instruments. From UNSC Resolutions passed under Chapter VII to fiercely negotiated international conventions; from US domestic legislations (with international effects) to bilateral commitments: Pakistan faces unprecedented challenges under international law.

Moreover, the threat of terrorism, emergence of non-state actors, non-proliferation and the increasing number of international instruments dealing with these issues are a reality which countries like Pakistan cannot choose to ignore.

Similarly, the labyrinth of bilateral, regional and multilateral investment agreements is another reality in the life of a nation-state. Pakistan is at the centre of a growing number of such agreements including the South Asia Free Trade Agreement (SAFTA). There is also a broad based desire for a Free Trade Agreement (FTA) with the United States as well. In fact, some view it as the ultimate prize. However, in the absence of empirical evidence linking FDI increase with the signing of an FTA with the US, the merits of such expectations remain debatable.

In the past, Pakistan has suffered due to the lack of international law expertise in the country’s policy making circles. Recent examples to make the news headlines include the Tasman Spirit disaster in 2003 and the embarrassment caused by the Atlantique Aerial Incident Case at the ICJ.

Pakistan may have been in a position to recover approximately US$189 million as compensation had Pakistan been a party to the Civil Liability Convention 1992 (CLC) and the International Oil Pollution Compensation Fund 1992 at the time of the Tasman Spirit oil spill. In order to claim compensation under the CLC or the Fund, damage must be suffered in a country that is a party to the appropriate convention. Since Pakistan was not a party to either the CLC or the Fund at the time, it lost the opportunity to claim compensation under these international instruments and the only recourse available was to go to the local courts.

Fortunately, this is changing and now there is a growing awareness and appreciation of international law amongst the stakeholders and an evident desire to prevent a repeat of the mistakes of the past.
The attitude of the domestic Courts towards international law norms and practices also reflects on the country’s image. Pakistan recently became a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This effectively means that the local courts are now obliged to enforce arbitration awards rendered abroad against Pakistani entities and no appeal against the award may be admitted except only in very limited circumstances. This diminishes the need for foreign investors to get entangled in protracted legal battles in domestic courts and makes the option of investing in Pakistan more attractive. This also leads the concerned to hope that there will not be a repeat of the Supreme Court judgment in Hubco vs. Wapda and that the Courts will play their role in portraying Pakistan’s image as a responsible and compliant country.

The human rights enforcement record and practice are critical indicators of a country’s status in the league of civilized nations of the world. In this respect, Pakistan needs to ratify three important human rights treaties in the near future amid growing international pressure and to seek re-election to the Human Rights Council. The treaties include the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention against Torture (CAT). The ratification of these instruments will not only serve a diplomatic purpose but will also be a harbinger for the enforcement of fundamental rights and guarantees already provided under the Pakistani Constitution and various domestic legislations.

The Exclusive Economic Zone (EEZ) of Pakistan has at times been referred to as the fifth and largest province of Pakistan, also expected to be immensely rich in natural resources. However, under the UN Convention on Law of the Sea 1982 (UNCLOS), Pakistan needs to stake its claim to this resource rich EEZ through proper notifications and a comprehensive implementing legislation before November 2009. The previous notifications were objected to by India, USA and the Netherlands. Moreover, a timely settlement of the Sir Creek maritime boundary dispute is in the interests of both Pakistan and India. Furthermore, the domestic implementing legislation, the Maritime Zones Act 1976 is insufficient and erroneously attempts to give effect to an international Convention concluded six years after its enactment.

Counter-terrorism efforts to curb terrorist financing and anti-money laundering (AML) initiatives have also gained currency internationally over the last decade. International Conventions, diplomatic pressure and economic realities are making it expedient for countries to implement AML regimes on a priority basis. Pakistan is no different in this respect and an AML bill giving effect to these international requirements is already pending approval before the national parliament.

Be it the construction of a multinational gas pipeline or the deployment of Pakistani troops as UN Peace keeping forces in Africa; be it discussions on agricultural subsidies at the WTO or the debate concerning the legality of the Durand line: Pakistan needs the benefit of the knowledge of international law. The sooner our nation and its trustees realize this, the better off we shall be as a proud, successful and responsible country.


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