Pakistan And The Contemporary Developments In International Law
PAKISTAN AND THE CONTEMPORARY DEVELOPMENTS IN INTERNATIONAL LAW
By Barrister Zeeshan Adhi, Barrister-a-law
Public international law is concerned with the relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions". Pakistan is a member of the international comity of nations and is therefore bound by principles of international law. A question often arises whether an international legal instrument can be relied upon by individuals and legal persons in a State to seek their rights and remedies. If such is not the case, the citizens of a country are limited to two options, either to rely on a domestic statute for enforcement of their rights, and/or to approach an international adjudicative body for addressing their grievance.
Pakistan is a dualist country. This essentially means that until and unless a provision of international law is enacted by way of a domestic statute, such provision does not become a part of Pakistan's domestic legal landscape. Domestic incorporation of international law in Pakistan can only occur through an act of Parliament. There are treaties, conventions and principles of customary international law, by which Pakistan is bound under international law, but they have not been incorporated into domestic law through an Act of Parliament.
International Law and Municipal Law
In simplest terms, "municipal law governs the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus, and between individuals and legal persons, while international law focuses primarily on the relations between the states". On the other hand, Black's Law Dictionary defines international law as, "The legal system governing the relationships between nations; more modernly, the law of international relations, embracing not only nations but also such participants as international organizations and individuals such as those who invoke their rights or commit war crimes". On the other hand, the term municipal law is defined by Black's Law Dictionary as, "The internal law of a nation, as opposed to international law."
Generally speaking, international law consists of customary international law, as well as various international agreements between states in the form of treaties (bilateral as well as multilateral) and conventions. Conversely, domestic law consists of statutes and legislations which form part of a body of law within a State. In Pakistan, municipal law is the domain of Parliament. Therefore, domestic application of international law, without municipal law to that effect, potentially encroaches upon the doctrine of parliamentary supremacy.
Sources of International Law
The starting point for any discussion on sources of international law is Article 38(1) of the Statute of International Court of Justice. This provision states what sources of international law the ICJ will apply when adjudicating a dispute brought before it. The article lists, as following, the sources of international law:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
Strictly speaking, Article 38(1) specifies how the International Court of Justice applies international law. However, the sources of international law enumerated in Article 38(1) are generally considered as definitive sources of international law globally, and "there is no serious contention that Article 38(1) expresses universal perception as to enumeration of sources of international law". It may be kept in mind that, "no problem has proved more refractory to lawyers and scholars than understanding and explaining how international law is made", and it is submitted that the reason for this is that there are no definitive authorities which enact and interpret provisions of international law, as is usually the case with domestic legal systems.
The Supreme Court of Pakistan has held and recognized that Article 38(1) correctly enumerates the basic sources of international law. In addition, contrary to the popular wrongly held belief amongst legal practitioners in Pakistan, the Supreme Court has also held in the same judgment that the teachings of international law jurists and writings of international law scholars are a valid source of international law.
With regards to teachings of international law jurists and writings of international law scholars, it may be pertinent to mention that the courts in England, in the case of West Rand Central Gold Mining Company v/s The King, has also held that even though teachings and writings of jurists and scholars are sources of international law, they are not necessarily binding in the same manner that international conventions and treaties are binding upon States.
Conflict between International and Municipal Law - View of International Courts
One question that often arises is what happens when the provisions of international law and municipal law conflict with each other. This question, on the international front, was conclusively dealt with by the International Court of Justice in its advisory opinion on Applicability of the Obligation to Arbitrate under Section 21 of United Nations Agreement. Herein, it was held by the Court that, "The Court must therefore conclude that the United States is bound to respect the obligation to have recourse to arbitration under Section 21 of the Headquarters Agreement. ++It would be sufficient to recall the fundamental principle of international law that international law prevails over domestic law.++ This principle was endorsed by judicial decision as long ago as the arbitral award of 14 September 1872 in the Alabama case between Great Britain and United States, and has frequently been recalled since ." (Emphasis Added)
In an earlier judgment of the Permanent Court of International Justice, titled The Greco-Bulgarian "Communities" case, it was held that, "In the first place, it is generally a accepted principle of international law that in the relations between Powers who are contracting parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty."
It may be remembered that the above cited judgments are those of international courts. Of course, the domestic courts are at liberty to develop their own legal principles and there is an increasing belief globally that "citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a`-vis the political branches, cannot afford to ignore foreign and international law."
Application of International Law in Municipal Courts
"While it is generally true that international law is concerned with the legal relations between sovereign states and national law is concerned with the legal relations of individuals within a state, there is considerable overlap between the two legal systems" . For example, when there is an act which amounts to human rights violation, a citizen can potentially seek remedy from domestic courts by relying on domestic legal principles as well as international treaties entered into by the State responsible for violations. Similarly, a foreign investor can potentially rely on a clause under bilateral investment treaty before domestic courts.
What is interesting is how the courts treat principles of international law, when adjudicating a matter, and to what extent are courts willing to apply international law. "In terms of international law, states are legally bound to honour their international obligations. How that is done, however, is regulated by the domestic legal systems of states." As such, there are two major theories on how international law interacts with municipal law, namely, monism and dualism. It is important to briefly discuss each of these theories in order to appreciate their similarities and differences.
This is a theory which supposes that domestic law and international law are parts of one body of law and ++not++ two distinct bodies of law. In essence, the proponents of this theory have argued that there is no difference whether the origination of a body of rules is from a domestic legislation or international legal framework, because both national and international law are one and the same thing. It therefore necessarily follows that for an international law to be applicable in domestic sphere, no fresh legislation is necessary.
This will mean that according to the monism theory, if a country enters into an international treaty, such treaty will be applicable in domestic law without there being a need for domestic legislation. It is also important to note that because national law and international law "operate concurrently over the same subject matter, there may be a conflict between the two systems: international law may require one result and the provisions of national law another. If this happens in a concrete case, international law is said to prevail".
This would mean that if international law and domestic law are in conflict, the courts are bound to give effect to international law. Therefore, the monists contend that "international law and municipal law not only resemble each other but, at the same time, spring from a single ground norm or standard which is the fountainhead of all laws".
On the other hand, according to the theory of dualism, international law and national law are two distinct types of law. The essence of this theory is that international law is the body of law which governs and determines the relationship between various countries. On the other hand, according to dualism, municipal law is responsible for governing disputes and rights within the domestic sphere. As such, according to the theory of dualism, there is no direct interaction between international law and municipal law, unless the former is incorporated into domestic sphere. "The effect of this doctrine is that a government may be behaving perfectly lawfully within its own territory, even though its conduct may entail international responsibility", and therefore in violation of international law.
This means that for an international treaty or convention to be applicable in the domestic sphere of a State, it is mandatory that such treaty or convention is made part of domestic legislation through the constitutional and legal norms of that country. This would ensure that the law-making power still remains with the legislature even if the executive of a State has entered into binding treaties under international law. In a strictly dualist legal system, in order to seek the application of a provision of international law, an individual or legal person will have to approach international courts since such remedy will not be available in national courts. "Dualists contend that international law cannot be directly applied within the municipal sphere by State courts. Rules of international law become binding on municipal courts if, and, only if, such rules are transformed into municipal legislation".
Pakistan a Dualist State
The courts of Pakistan have held that Pakistan is a dualist country such that before international law can be domestically applied, an international legal provision has to be enacted into domestic law. This is particularly the case in view of the doctrine of parliamentary supremacy in Pakistan wherein all domestic legislation must be enacted by the Parliament (Majlis e Shura), and no law is valid law unless so enacted.
The executive part of the federal government in Pakistan is vested with the powers to enter into, sign, and ratify international agreements and treaties. If the acts of the federal government at international level were to have domestic application, then a necessary consequence would be potential encroachment on the domain of Parliament in matters of legislation. However, recently the Supreme Court of Pakistan has started to apply international treaties even if they are not specifically incorporated into Pakistan's municipal law.
International Law Commission's Draft Articles
The International Law Commission was established by the General Assembly of the United Nations in 1947 with the stated goal of initiating studies and making recommendations for the purpose of ... "encouraging the progressive development of international law and its codification". In 2001, the International Law Commission published Draft Articles on Responsibilities of States for Internationally Wrongful Acts.
A closer look at these articles is helpful because they give an insight into how the actions of individual States with respect to international law are perceived by international legal scholars and by the United Nations. It may be kept in mind that draft articles of International Law Commission, strictly speaking, are not sources of international law. These draft articles are the basis for future treaties and conventions, and unless a treaty is signed and ratified, the draft articles are not evidence of international law. However, the drafts prepared by International Law Commission, "may constitute evidence of custom, contribute to the corpus of usages which may create new law, and evidence the opinio juris".
The opening paragraph of the draft articles says, "These articles seek to formulate, by way of codification and progressive development, the basic rules of international law concerning the responsibility of States for their internationally wrongful acts. The emphasis is on the secondary rules of State responsibility: that is to say, the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom."
The reason it is important to mention these draft articles of International Law Commission is because a bare reading of these will show that the trend in international law is tilting towards monism and it appears that States will no longer be able to rely on the doctrine of dualism to escape liability under international law. For example, Article 3 of the draft articles states, "The characterization of an act of State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law."
It may be remembered that the ICSID Tribunal (International Center for Settlement of Investment Disputes), in a case titled SGS Soci t G n rale de Surveillance S.A. v/s Islamic Republic of Pakistan, relied on this article in explaining the responsibility and liability of Pakistan. In essence, "Article 3 is a particular application of the more general principle that, from the viewpoint of international law, the provisions of national law are a question of fact". It is submitted that this phenomenon may be termed as ++"evolutionary monism"++ and is inevitable and will have to be accepted by States, including Pakistan, in view of globalization and interdependency of States.
"From an international law perspective, it is argued that international law can only be successful if effectively implemented by states in their respective domestic jurisdiction". However, there is a clear change in approach with respect to international law treaties which deal with human rights. In the Advisory Opinion entitled Reservations on the Entry into Force of the American Convention on Human Rights, the Inter American Court of Human Rights adequately captured this tendency in the following terms, "The Court must emphasize, however, that modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. "
It is submitted that the move towards utilizing international law in domestic contexts is all but natural and is a requirement of the more globalized world. Needless to say, such utilization of international law and its domestic application is necessary to enhance the reputation of Pakistan as an effective contributor to the comity of nations, and to establish its position as a State that respects and upholds provisions of international law, as well as its treaty obligations. This is particularly the case with respect to international law governing human rights of individuals.