The Doctrine of Lawfare
Lawfare is a recently coined phrase which has found traction in international political discourse and which has since been interpreted to refer to a variety of different elements. The phrase has, however, aptly been summed up as a doctrine by David Kennedy, a renowned international legal expert of the Harvard Law School, in his article titled “Lawfare and Warfare” in the book “The Cambridge Companion to International Law”. (In the article Kennedy states: “The American military has coined a word…; `law fare' – law as a weapon, law as a tactical ally, law as a strategic asset, an instrument of war. [The US military] observes that law can often accomplish what might once have been done with bombs and missiles; seize and secure territory, send messages about resolve and political seriousness, even break the will of a political opponent.” Appearing in the book The Cambridge Companion to International Law. Citation: Crawford, J. and Koskenniemi, M. 2012. The Cambridge Companion to International Law. Cambridge: Cambridge University Press.)
From Pakistan's point of view lawfare means that international law will be employed to develop pressure points on strategic issues in order to make political gains.
Though the term itself is a neologism and the doctrine of lawfare only recently cohered by David Kennedy, lawfare as a state practice and a tool of foreign policy has existed – and been employed – for many years now. In fact, only recently has lawfare been realized as an instrument of statecraft by stakeholders within Pakistan, though in reality the practice has long since been a part of inter-state policy without Pakistani officials being consciously aware of it.
Sovereignty and Treaties
The reality of foreign relations is that every international agreement, a state enters into, erodes the country's sovereignty, thus every treaty Pakistan signs results in a chipping off a portion of its sovereignty to the extent of the subject matter of the treaty. As the number of treaties ratified by any state increases its sovereignty in the same proportion is gradually watered down. Therefore, when politicians rhetorically proclaim in their public speeches that Pakistan is a sovereign state and that we will not let any power compromise our sovereignty, their proclamations are in fact – legally speaking – inaccurate; Pakistan's sovereignty – and for that matter that of every other state – stands legally compromised with the signing of hundreds of treaties. It should, however, be remembered that there is nothing wrong in ratifying treaties which advance the mutual interests of those states party to the agreement, and a state which chooses not to ratify treaties will effectively become isolated from the international community. Treaties such as those relating to trade, environment, heritage, counterterrorism etc. have benefits which are shared mutually by the states ratifying them and therefore there is little political hesitation to be bound by them, even should doing so mean partially giving up sovereignty in the subject area of the treaty.
Lawfare as Enforcing Compliance of Treaties
Lawfare's first tactic is to use the existing treaties and their provisions which are not being complied with by a state; in such an event lawfare constitutes a case of non-performance of treaty obligations for which foreign states put pressure on the targeted state to implement this, therefore, is the first kind of lawfare offensive and its most overt form. The response to the practice of international lawfare should prima facie be compliance of the obligations the state has undertaken by entering into the treaty. In some instances though, compliance with one's international obligations is not as straight forward, as the state will need to realize its obligations over time. In certain cases compliance can readily be done to shrug off international pressure in the form of lawfare.
For example, a certain group of states may insist that Pakistan should implement labour conventions that it has ratified, in which case compliance would mean issuing a notification under Industrial Relations Ordinance – a relatively simple procedure. In another instance, however, when an international obligation exists on Pakistan to implement anti-money laundering measures, giving effect to such an obligation may require that changes be made to the domestic legal system, such as amendments to the Anti-Terrorism Act, 1997 [ATA] or the domestic anti-money laundering laws. Similarly, giving effect to the counterterrorism conventions Pakistan has entered into, may require an obligation to enact proper laws which reflect binding UN Security Council resolutions such as 1267, 1373 and 1540 among others.
The Government's Lack of Capacity to Deal with Lawfare Challenges
The previous examples represent instances where compliance with international agreements is reasonable and falls within the ambit of the obligations Pakistan has voluntarily entered into. In other instances, however, a demand for compliance in the context of lawfare can be unreasonable. For example, foreign states may insist on over-compliance and asking for measures to which Pakistan did not agree to in the treaty. In such instances Pakistan can resist such lawfare pressure, responding with legal arguments that, as per its understanding of the treaty texts, it has no legal obligation to take those measures which are not contained within the ratified treaty or convention. In order to make such a determination, however, Pakistan must have the necessary legal capacity to be able to interpret the treaties it has signed from the perspective of its own national interests. A state, therefore, needs to be capable of critically examining pressure coming from foreign states and to distinguish when such pressure constitutes a legitimate reminder to comply with an existing treaty provision or an expression of lawfare pressurizing Pakistan to do what it is not otherwise obliged to.
From the Pakistani perspective the most effective way to counter the threat of lawfare is for the state to prepare itself and to build domestic capacity in international law. At the moment treaties in Pakistan are examined and ratified indiscriminately and without much critical examination by officials who might have experience in diplomacy or the domestic legal system, but who lack the necessary specialization in international law. This is an aspect of statecraft which is entirely overlooked in the Pakistani context and it is a source of great concern. At present there is no proper legal division of international law practitioners at the Ministry of Foreign Affairs [MoFA] or the Ministry of Law and Justice [MoLJ]. The MoFA currently only has one post of a legal advisor and even this post is difficult to fill with an individual who is suitably qualified in matters of international law. Though the MoFA handles international conventions and treaties on a daily basis, it lacks any recognized expertise of international law; at present the serving diplomats are following their diplomatic instincts and their experience while drafting, negotiating and interpreting the treaty framework. The MoLJ itself – the institution which vets all treaties, international MoUs and international agreements – lacks even a single lawyer capable in the field of international law.
Similarly, the Judge Advocate General [JAG] Branch of the three Armed Forces lack the requisite expertise in international law, though much of their work pertains to UN law and international humanitarian law. The President's Secretariat and the Prime Minister's Secretariat also lack in-house legal capacity on international law to advise them or to approve their speeches or clear their statements in international law; this latter is of particular significance as statements made by the heads of state constitute state practice under international law.
The Planning Division, responsible for planning major infrastructure developments and initiatives on a national scale has, at present, no international lawyer capable of approving or advising on agreements entered into by the Pakistani state, though such agreements could involve billions of dollars and have far-reaching effects on the Pakistani economy and national infrastructure. The Ministry of Interior [MoI], which is responsible for Pakistan's counterterrorism initiatives throughout the territories of the country, lacks a specialized international criminal law expert who could advise them on pertinent international law issues such as international cooperation in counterterrorism and criminal matters, extradition issues, the service of warrants internationally, the implementation of UN resolutions – particularly those relating to criminal justice and counterterrorism – and the effective implementation of the Investigation for Fair Trial Act, 2013 [FTA] by drawing comparisons with FISA and RIPA. The Ministry of Defence [MoD], is required to advise the Federal Government and the General Headquarters [GHQ] of the Pakistan Army on issues such as the Durand Line, the Siachen issue and Sir Creek among others which require interpretation of key international instruments, has no in-house international law expertise. In terms of domestic capacity therefore, this is as bad as it can get, and the State of Pakistan has no in-house strategic preparation for engaging in, or defending against, lawfare.
Comparison with other States
If we turn our attention to a comparison with some other countries, it is learned that in India, the Ministry of External Affairs – which is the counterpart to Pakistan's MoFA – retains more than thirty lawyers trained in international law. It is learned that India has a post of legal advisor in its missions in Geneva, Vienna and New York. In addition to this in-house capacity, the Indian Society of International Law [ISIL] is officially sponsored by the government, and has been provided a building next to the Supreme Court of India. The ISIL provides a training venue for sixty to seventy lawyers who are constantly rotated between various Indian ministries and who also have a parallel academic career path to ensure their professional growth and increase the value they provide to the Indian Government. Similarly, the Middle Eastern countries – on average – retain a team of between five to thirty international lawyers that provide in-house international law advice and policy input to their respective governments.
The UK Foreign and Commonwealth Office, the analog to Pakistan's MoFA, retains over fifty lawyers who are qualified as barristers or solicitors in the UK, most of whom have post-qualification experience in private practice, in other government departments or in international institutions. In addition to this in-house expertise the office also has available to it specialized international lawyers in the Crown Prosecution Service which include over two thousand barristers and Queen's Counsel [QC].
The US has invested the most in lawfare by employing almost two hundred international lawyers in the US Department of State to provide advice and input on international law matters. Additionally, the State Department also has a standing practice to have on its panel the names of well-known international lawyers. It is cogent to note that the states which develop economic prosperity and become international powers invariably have a very strong international law team. This team not only guides the state in its foreign affairs but also internally helps itself-discipline their own domestic policies so that they do not conflict with the state's international law obligations.
Lawfare and the Quaid's Vision
It is significant to note that statecraft is best handled by those who have a legal mind and who are better aware of domestic and international law issues. Successful politicians, those who have brought a new vision to their respective countries, have been traditionally legal graduates. Quaid-i-Azam Muhammad Ali Jinnah, won Pakistan through a lawfare framework, and the new state had to face international challenges right at the outset, particularly in Kashmir. The UN Charter had just come into existence and the world was beginning to gain familiarity with the Charter and its framework and the Quaid was fully aware of these changes to the international legal system. This is why he nominated Sir Zafarullah Khan as his Foreign Minister, a man who was an accomplished international lawyer. It is no wonder then, that during his tenure as Foreign Minister of Pakistan won its lawfare matches with India and that all the resolutions on Kashmir, which now serve as the foundation of Pakistan's case were passed during his tenure. I have examined the debates of the UNSC held during this period which invariably contained legal arguments by Pakistan's Zafarullah Khan which carried the day for the newborn state.
Following this period, over the next several decades Pakistan could not produce an international lawyer of Sir Zafarullah's standing and the Kashmir issue could not be highlighted with the same articulation as the world needed to hear. Hence, Pakistan could not convince the UN to pass even a single resolution throughout the entirety of the 60s, 70s and 80s, though it is inconceivable that Pakistani policymakers could be so negligent in the capacity building of this vital area. Subsequent leading names in the Pakistani legal system focused on domestic constitutional law but did not take interest in international law, leaving this specialized and vital field sorely neglected.
Lawfare and Pakistan Today
Following the events of 9/11, Pakistan suddenly came into sharp focus by the global community for obvious political reasons. The world's most notorious Non-state Actors [NSAs] were allegedly found in Pakistan and later, these NSAs started waging war on the State of Pakistan itself. In 2014, therefore, we stand at a crossroads where on one hand the international community is placing pressure on us to implement counterterrorism laws and human rights conventions at the same time, and on the other the present democratic regime is desperately attempting to revive the domestic economy. Today, the pressures exerted on Pakistan by means of lawfare are clear and easy to read: Pakistan has been asked to implement UNSC resolutions 1373, 1267 and 1540 and to incorporate them into the domestic law. In addition to these counterterrorism resolutions, Pakistan is also faced with the pressure to implement twenty-seven conventions relating to our grant of GSP+ states.
The domestic law of third states is also being used in this lawfare context to put constraints on the economic revival of Pakistan, such as the US Iran Sanctions Act of 1996, which has practically frozen the proposed Iran gas pipeline, cutting Pakistan off from a vital source of energy. The Leahy Amendment also threatens suspension of US military aid to Pakistan in certain cases. Similarly, several UNSC resolutions force Pakistan's hand to proscribe associates of Al Qaeda and the Taliban and to take domestic measures against them. Pakistan also has an obligation under several international conventions to provide reports to the UN, which further monitors the implementation of these conventions. Finally, bilateral investment treaties signed by Pakistan in haste place financial pressures on the State of Pakistan and may result in costly arbitrations like RekoDiq. RSIL's contribution to Pakistan's Awareness of Lawfare
Sensing the advent of lawfare and also realizing the institutional neglect of international law in Pakistan, I had incorporated RSIL back in 1993 without any government assistance. The idea was to demonstrate to the government that they should be proactive and replicate such initiatives in order to overcome the years of neglect in international law we as a nation have suffered through. The government, unfortunately, has yet to take such a step. Nonetheless, my legal team and I are working with a sense of purpose not only to create greater domestic awareness of international law but also to present RSIL as a prototype which should be replicated by the government and by the other stakeholders contributing to the development and progress of the nation.
During the course of our work we have certainly received a great deal of appreciation, especially recently, but we hope that the same translates into improving international legal capacity in Pakistan and the creation of a proper international law think tank for Pakistan which could become a feeder institute to all relevant ministries and stakeholders, providing these institutions with young international lawyers who gradually, and over a period of time, can become invaluable assets in responding to the threats of lawfare that Pakistan faces and will continue to face in the coming years. Resources be allocated for Lawfare
The government, therefore, needs to think big: wars take place for a few days whereas lawfare is an ongoing process. The government needs to divert resources and invest in think tanks or small institutes associated with critical state institutions like the Planning Commission, the MoD, the JAG Branches and others. It was personally disheartening for me when I learned that the HEC – which was granted enormous funding for education – chose to ignore international law as an area of investment, despite my repeated requests.
In my assessment there is a good catchment area in good Pakistani law schools like LUMS, SZABIST, TILS etc. as well as in young foreign lawyers who are returning to Pakistan and are interested in taking up careers in the academic areas of international law. The government – including the Armed Forces – needs to co-opt such individuals and develop an institutional basis to invest this international law potential. During my brief tenure as an interim Law Minister, I had issued instructions to the provincial governments to set up treaty cells so that the provinces are also aware of Pakistan's international law obligations. This I felt was critical as, following the promulgation of the 18thAmendment, the implementation of several treaties, such as those relating to labour, health, arbitration, the environment, and terrorism etc. has shifted and devolved on the provinces for which they are not fully acclimatized. I had also issued directions to the Ministry of Foreign Affairs (MoFA) to pass on copies of all treaties Pakistan ratified to the provincial governments so that the latter are kept aware of its impact on the provincial territory. Awareness of international law, also needs to be done at the parliamentary level so that Parliament – and even religious parties – are fully aware of the international law which affects Pakistan. In fact, I am an ardent supporter of including international law instruments in the madrassa curriculums, which will reform the mind of the young madrassa student and potentially prove a tool of de-radicalization once he realizes the constraints placed upon the state by its treaty obligations.
As I have always said, the cost of investment in international law is far less than the cost of ignorance of international law and at present the entire nation is paying the cost of our ignorance in international law. I think that there is a pressing need to include in the budget of every government department for legal expenses for an international legal division or international law directorate. I trust that some of these thoughts may be utilized while considering revamping the JAG Branches of all the three forces that also need to have a strong in-house international law component. Similarly, the Joint Staff Headquarters can also consider an international law directorate which can give international law related input to all the three forces. I receive personally lot of requests for legal input from the officers doing various courses and is heartening to see the great deal of interest in the doctrine of lawfare. In that context, NDU and NUST could thus prove natural venues to house international law think tanks, focusing on the strategic and geopolitical aspects of international law.
The Federal Government should also be encouraged to set up a lead think tank on international law where scholars are dedicated to law relating to human rights, counterterrorism, international trade and finance, economic development and infrastructure, and providing the government with vital input into the intricacies and nuances of international law. The government needs such institutions as never before given the country's economic situation, and if the economy is to be turned around the government needs to be proactive in engaging with Pakistan's international trading partners which will, in turn, involve negotiating and entering into new trade and infrastructure agreements and joint ventures. Given the lack of domestic capacity in international law and the paucity of international law expertise in any government department, it would be difficult for Pakistan to enter into such agreements with an equal or upper hand. In other words, negotiating trade and investment treaties wisely can lead to the economic revival of Pakistan but such agreements are incredibly complex and require a dedicated team of international law experts to be able to defend Pakistan's economic rights. Therefore, the Federal Government and also the Provincial Governments need to create or house centres of international law.
The writer is the former Federal Law Minister and advocate Supreme Court of Pakistan, President Research Society of International Law Pakistan and Member Advisory Committee of United Nations Human Rights Council.
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