Published in the Daily Times & Written by Research Associate Moghees Khan
Mustafa Farooq is a second year law student at the University of Alberta Law School (formerly at Osgoode Hall Law School). He was a Rhodes Scholar finalist in 2012 and he enjoys freelance work and community building. His areas of interest are criminal advocacy and intellectual property.
“I truly enjoy working at RSIL, and with the awesome group that we have here. RSIL has given me an extraordinary number of opportunities to expand my horizons, network, learn about international law and contribute to its development in Pakistan.”
Zahra Mashhood will graduate from the University of Cambridge with a Bachelor of Arts (Hons) in Law next year. She is currently Editorial Projects Officer for the International Bar Association and is also working as a research intern on international treaty investment for the University of Cambridge. She volunteers as a caseworker at her University’s Innocence Network Project to correct miscarriages of justice. As part of her research with RSIL, she is working on the reform of Pakistan’s counter-terrorism policies. She hopes to specialize in both international commercial law and public international law in the future, and plans to pursue an LLM (Public International Law) at Leiden University, The Hague
“I have thoroughly enjoyed my internship with RSIL this year. Although I was extremely apprehensive at first about attending, as I have not visited Pakistan in over five years, the programme has far exceeded my expectations. The opportunities provided to listen to world-class Pakistani speakers, who are at the top of their respective fields, has proved invaluable as well as inspirational. I also appreciated the chance to be given a separate project to work on, alongside the internship programme. The entire RSIL team has been extremely friendly and has helped me settle in perfectly. I would definitely recommend RSIL’s internship programme to all young lawyers out there that are interested in making a real difference within Pakistan.”
Bilal Kazim Butt completed his Bachelors in Law (Hons) from the University of Manchester in 2013. During his L.L.B., Bilal was a member of the Manchester Debating Union. He also volunteered in his free time at the university’s legal advice center and with the East Manchester School Project, which informed the community of their legal rights. His areas of interest are primarily international humanitarian law and international criminal law.
“I found my internship at RSIL to be a very engaging and an exciting experience. During the internship we learned about the basics of international law and focused on international law issues specific to Pakistan including drone strikes, Kashmir and the Indus Water Treaty. We were subject to high-quality teaching and were encouraged to ask questions and actively participate in discussions. During the internship we took part in various activities like debating and had the privilege of meeting various guest speakers who shared their experiences of law. Overall this was an amazing experience that not only taught me about international law but also provided me with valuable insight on the kind of work RSIL does. I would recommend this internship to every aspiring international lawyer!”
Jehanzeb Jehangiri is currently seeking a Bachelors of Law from the University of London External Programme from The Institute of Legal Studies in Lahore.
“Law has always been a passion and RSIL has helped me realize it further. With interactive and sometime long lectures and activities afterwards, they have provided me with a different and innovative insight into the field of law, which was previously unknown to me. I have enjoyed the experience, and somehow it has led me to realize international law as top priority for when I plan my further education. Other than that I am a film junkie (you name it and I have seen it) and a very good cook (all thanks to Jamie Oliver).
Tamara Saleem is currently in her third year, pursuing a law degree (LLB) at Middlesex University, London.
“I joined the RSIL Internship programme and found it to be extremely helpful. It increased my general knowledge about different areas of international law as well as the realization that Pakistan has no such platform where international law issues can be properly addressed. The internship programme and the people working at RSIL have been extremely helpful, generating a genuine interest in international law.”
Noor Habib is currently pursuing a Bachelor of Arts (Hons) in the Humanities and Political Science from the Lahore University of Management Sciences. Her interests include writing, languages and current affairs. She works as a tutor at the Academic Writing Lab and is on the executive council of the Halqā-e-Dānish, a society for the appreciation of classical literature. She would like to pursue a career in research and development.
“At RSIL we grappled with tough legal questions using the most interesting methods- From simulating peace conferences, generating potential resolutions to border disputes to debating contentious legal issues. The summer internship program was well designed and highly enjoyable. Not only did we learn about the various facets of international law itself, but also its real life application. I have come across some of the best instructors and mentors at RSIL and would love to keep working with them in the future as well. All in all, it has been a fantastic learning experience.”
Click on the link below for access to the 337-page report currently heating up debate in Pakistan.
The report was leaked to the Al-jazeera Investigation Unit and published earlier in July.
(RSIL blog reposts do not necessarily reflect the opinions of the organization or its members. The reposts only serve to educate the RSIL community on current developments in international law and in Pakistan)
By: Ahmer Bilal Soofi
The ‘icy stalemate’ over the uninhabited and the least hospitable region of Siachin has become a stumbling block in Pakistan-India negotiations to normalize relations. Full-fledge military operations are being conducted by both the sides and many novel tactics and strategies are employed in combat. Pakistan Army has put a lot on stake in terms of human life, resources and its pride. Therefore, any negotiation that results in giving away even an inch of Pakistan’s claim is bound to be resented by the army.
On the other hand if Pakistan succeeds in occupying a part of Siachin territory, will India accept the occupation? Obviously not. It may launch a massive and sudden attack to occupy some chunk of Pakistan’s territory. It may also concurrently exercise its option to raise the matter in the Security Council and the General Assembly. The shapes of solutions may be mediation, bilateral negotiations, and arbitration. Pakistan’s next step in such an eventuality shall be to successfully defend the basis of its legal title to Siachin.
Therefore, war or no war, the issue that Pakistan has to confront is the legal basis of its claim and title over the disputed region of Siachin.
The Rann of Kutch Case Arbitration between India and Pakistan is a good precedent in this context. Both the countries can agree on a given number of seasoned international legal experts as arbitrators. The other forum is the International Court of Justice at Hague. The statute of ICJ is part of the UN Charter and great respect and sanctity is attached to its opinions and decisions. It has resolved a number of territorial disputes judicially in the past. There are two ways to invoke the jurisdiction of ICJ. Firstly, both the parties may agree to approach the Court directly and surrender to its jurisdiction. The proceedings in such an event shall naturally be adversary in nature and both the parties will be given proper opportunities to adduce evidence in support of their respective claims. Secondly, through the UN Secretary General the opinion of the International Court may be sought in its advisory jurisdiction. In this way, the United Nations is also indirectly implicated by being burdened with a sense of responsibility to enforce the opinion.
The choice of forum and the method to go about the same are the procedural aspects of the judicial side of Siachin. Before turning to the substantive aspect of the legal merits, it will be useful to refer briefly to the facts that are relevant for the subsequent analysis.
After partition in 1947, a war broke out between India and Pakistan over the disputed territories of Jammu and Kashmir. The United Nations sponsored a cease-fire in 1949. In the same year the Kashmir Karachi Agreement was signed. The agreement provided for the cease-fire line that bisected the Kashmir territory into the Indian Held Kashmir and Pakistan Held Kashmir. This cease-fire line moving northwards terminated short of the presently disputed territory of Siachin near the southern foot of Saltoro Range. This point of termination of the cease-fire line under the Karachi Agreement on the map is identified as NJ 9842. The fighting between Indian and Pakistani forces was curtailed well below this point. Perhaps due to reasons of expediency in reaching temporary solution, the negotiators did not bother to delimit the territory beyond NJ 9842. The agreement recorded a very general observation that the cease-fire line should continue “…. Thence north to the glaciers”.
In 1965 war territorial loss in Kashmir was generally even, although the cease-fire line was flouted at a number of places. In January 1966 at Tashkent, through the agreement generally known as the “Tashkent Declaration”, it was agreed to respect the cease-fire line position in the following words:
“The Prime Minister of India and the President of Pakistan have agreed that all armed personnel of the two countries shall be withdrawn not later than 25 February, 1966 to the positions they held prior to 5 August, 1965 and both sides shall observe the cease-fire terms on the cease-fire line”.
In 1971, Pakistan suffered territorial losses on its side of Kashmir. The Indian troops crossed the cease-fire line at various places and placed under their occupation various parts of Kashmir that were under Pakistan’s control. Another cease-fire took place on 17th December 1971. In 1972 through the Simla Agreement, the cease-fire line under Karachi Agreement was subverted. The Simla Agreement had the effect of declaring lawful the occupations by India in disregard of the earlier cease-fire line. This relinquishment of territory through the Simla Agreement was done in the following words:
“(ii) In Jammu and Kashmir the line of control resulting from the cease-fire of December 1971, shall be respected by both the sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat of use of force in violation of this line.”
The Simla Agreement had thus the effect of replacing the cease-fire line with the newly demarcated line of control’. However, nothing was stated regarding the delimitation of territory beyond the map point NJ 9842. Both the agreements were drawn in the background of wars and therefore they concentrated on the territorial delimitation of the regions of Kashmir where fighting took place or were directly related to the war fronts. Therefore, the covenants of Tashkent. Declaration or the Simla Agreement did not alter the legal status of territories that now are under dispute in Siachin. The silence of these treaties left the issue open. At that time perhaps neither country realized the dispute potential of this omission. After studying the text of Tashkent or Simla treaties, one finds no legal obligation contained therein that may operate to place any restriction, on territorial title of region of Siachin.
The only text that gives the least ambiguous basis of some legal claim of favorable delimitation on Siachin, is the 1949 Karachi Agreement. However, the Karachi Agreement also leaves a lot to be desired in terms of definite specifications with reference to landmarks etc. Referring to the direction of the cease-fire line beyond JN 9842, it ambiguously states that then onwards the line beyond NJ 9842, shall proceed northwards towards glaciers. There is a clear omission of reference to a landmark, region or even map marking.
However, given the absence of proper demarcation, nothing prevents us to determine clearly the area that belongs to Pakistan, while interpreting the phrase in Karachi Agreement under principles of International Law.
Under the Karachi Agreement and thereafter under Tashkent Agreement the cease-fire line more or less remained the same. It did not follow a certain systemic geographical course, neither was it based on any such feature, i.e. a river, mountain range, etc. Starting roughly from near Mirpur it curved and meandered upwards; initially towards west northward up to Muzaffarabad and then later turned rather sharply east-north-wards. Then circling over Deosai Planes it proceeded northwards depicting a marked change in its general course of direction. In the Reader’s Digest International Atlas, it proceeds up to the Karakorum pass on the Chinese border. In accordance with the given map scale in the Atlas, the Siachin glacier is about fifty miles westwards from the cease-fire line moving further north-eastwards. Hardly fifty more miles west-north wards from Siachin glacier is the Mount Godwin Austin or K-2. There is no dispute regarding Pakistan’s claim over K-2 and surrounding regions. Viewing the map, it is difficult to concede to India’s claim over the territory that lies fairly deep inside the depicted international cease-fire line.
Moreover, even if one concedes, for the sake of argument, that the demarcation on the map up to Karakorum Pass is not based on any agreement or legal convenant; then the issue will be of demarcation itself. Even then, the claim of Pakistan holds good vis-à-vis India. In such territorial disputes where no geographical feature is agreed upon as a boundary then resort to the principles propounded in the International Law regulating the delimitation of seas may be useful. Such references to legal principles developed in different sets of facts and circumstances are not unusual in legal analysis and dispute settlements. Several disputes regarding delimitation of seaward boundaries between adjacent states having dented coastlines, have been decided by referring to the rule of ‘general course of direction of the case and the boundary. In a dispute between Libya and Tunisia dispute over sea delimitation, the general direction of land boundary was combined with equitable considerations.
While transplanting the same principle in Siachin one realizes that if the cease-fire line is to be extended beyond the point given in the map, then it must follow the immediately previous course of its own direction. A little, departure is permissible. But not when it distinctly changes the direction of the course of cease-fire line. Following the general course of its direction, it is extended beyond NJ 9842, then Siachin and its surrounding area falls well within Pakistan’s territory, even if a considerable departure is made. The new line of control under the Simla Agreement that replaced the cease-fire line, immediately before NJ 9842 follows almost a similar course as was followed by the cease-fire line. Therefore, for the purpose of delimitation of territory beyond NJ 9842, the general course remains almost the same. That being so, the conclusion that Siachin region falls well inside Pakistan’s territory, also remains the same.
Having discussed the issue of credibility of Pakistan’s claim on the bases of delimitation, it is now relevant to discuss the other legal merits of Pakistan’s claim over Siachin.
Is the Siachin territory a ‘res nullis’? Which means a territory that has not yet been placed under territorial sovereignty. The other examples of res nullis may be a newly formed or a remote island. In case of nullis generally the state exercising first act of state activity or sovereignty will hold a better title to any other opposing state. The Siachin territory cannot be declared as res nullis merely because it had been uninhabited and totally deserted. It was fairly accurately mapped and its geographical contours were recorded long ago in various atlases. It is however, more reasonable to refer to it as a dispute deserted region with overlapping claims of title on the basis of exercise of state activity.
In the case of Morocco and Tunis in 1923 the territory was referred to in the following words
“………. Territory is neither an object nor a substance, it is a frame-work… It must be regarded as an external, ostensible sign of the sphere within which the public power of the state is exercised…”
This description seems to merge jurisdiction with sovereignty; the distinction maintained by Brownlie. He refers to sovereignty as a legal short hand for a legal personality and considers jurisdiction a sum total of substance like rights, liberties and power, etc.
There is hardly any question of giving any operational effect to sovereignty in the shape of jurisdiction in the uninhabited and extremely inhospitable land of Siachin. In the Clipperton island case between France and Mexico in 1931, a French Lieutenant declared the island as part of France without even landing on it. No sign was posted there. However, the French informed the government of Hawaii and later issued the declaration in the prescribed journal. Later, Mexico occupied the island by force. The arbitration while giving award in favour of France laid down an important rule of international Law. It held that although the possession of the ‘animus’ is necessary for occupation and for exercising authority, but if territory being uninhabited is not capable of political authority, then a moment of appearance becomes the moment of taking possession. It may be noted that this award was with reference to a territory that was occupied by no one before.
The Problem in Siachin region is that of effective occupation which has been equated with the concept of ‘possession’ in municipal law by Professor Brownlie. He rightly comments that “…… in the absence of a formal basis for title in a treaty or judgement, and in a system without registration of title, possession plays a significant role”.
It is obvious that in a region like Siachin, actual physical possession is impossible. The natural and climatic conditions limit the exercise of permanent possession by Pakistan.
a) The mountaineering expeditions in the Siachin region had been going through Pakistan by obtaining permission from the Government of Pakistan. To name a few the Imperial College London team (1957), Australian expeditions (1960-61), Japanese expeditions (1962). There were also a number of Pakistani expeditions. These grants of permissions to expeditions continued till 1980s. Had it been a mere independent activity of adventure by a few individuals, then the legal implications would have been different. The fact of their seeking permission from the Government of Pakistan clearly shows that they considered Siachin area as forming part of Pakistan’s territory. Moreover, these expeditions coming from foreign countries confirm the territorial title of the Siachin from their own diplomatic channels, They must be receiving directions from the concerned department in their country to approach the Government of Pakistan for permission to launch an expedition in the said region. Meaning thereby, that in the concerned records of the foreign offices of other states, Pakistan’s title to Siachin holds firm. This lends more firmity to the legal claim of Pakistan.
“……… the independent activity of private individuals is of little value unless it can be shown that they have acted in pursuance of a license or some other authority received from their governments or that in some other way their governments have asserted jurisdiction through them….”
It is an admitted position and a matter of record that such expeditions have been seeking Pakistan’s permission. Thus the fact that Pakistan has been asserting its jurisdiction over the region through the grant of permission to such expeditions remains hardly disputed.
b) In 1963, Pakistan through an agreement ceded about 1,544 sq. miles territory north of Siachin, to the Peoples Republic of China. The agreement was of transfer of sovereignty and all legal titles appended to the ceded territory. China accepting the agreement and acting accordingly declared its sovereignty over the ceded territory. Such an agreement can be compared with the agreement in municipal law to transfer the property. It is elementary that until the title of the transfer or holds good, the same cannot be passed on. Pakistan could not have transferred the territory to China, until its own legal title to that territory was accepted as good, beyond dispute and doubt.
Moreover, the territory ceded to China was still northwards of Siachin. Under principles of geographical contiguity, it is difficult to accept the preposition that Pakistan’s title to its territories can be suddenly discontinued in Siachin that is well below the ceded territory.
c) In the standard atlases, the disputed region in Siachin is shown as part of Pakistan. The Britannica Atlas (1079 edition), Atlas of the World UK and US, and the Readers Digest Great World Atlas. Atlases are not merely drawings of the territories of states. They are well researched and properly investigated depiction of state territories. Moreover, when the atlases are researched by some of the most respected geographical institutes of the world, even greater sanctity and authenticity is attached to them.
They certainly are not purely legal documents and do not have the effect of transferring rights in property or territory. Yet, they are an excellent evidence of such title to territory. It is admitted that by misrepresentation of fact or some other earlier, they can neither validate a weak claim, nor can they invalidate a good title. But if all the standard atlases consistently follow a certain view, then the presumption of error is reduced to the nearest minimum.
d) It is also learnt that inhabited areas that are nearest to the disputed region are under administrative influence of Pakistan. Pakistan’s currency is used for transaction. The linguistic ties are directly rooted with northern dialects and languages spoken in northern Pakistan. The cultural heritage has direct relation with Pakistan. The mutation records are kept accordingly.
These facts are extremely crucial evidences of state activity and geographical contiguity. In the Ran of Kutch case the arbitrators looked into the fact that Sindhi tribes used the region of Rann as grazing grounds for over a hundred years.
In view of the above it is quite clear that the legal title of Pakistan was definite and was title of Pakistan was definite and was founded on a continuous and a peaceful display of sovereignty (in this case mostly symbolic in nature) over the region. Similar consideration of ‘peaceful and continuous exercise of state authority was emphasized in the famous award given in the Island of Palmas case between United States and Netherlands in 1928.
The question of critical date is also relevant. The critical date in this case could be the time when adverse claims over Siachin were identified or that is to say when dispute relating to the territory was properly recognized. In the circumstances of this matter, the critical date perhaps will be the date when Pakistan had first information or knowledge of the Indian occupation of certain parts of Siachin territory by force. This obviously is a matter of record and military records will have to be looked into to find out such date. However, what is more relevant is not the date itself, but the validity of the title on such a critical date. In view of the general principles of International Law of Pakistan can successfully establish its continuous and peaceful display of its authority in the period leading up to the critical date, then any adverse claim by India whatsoever its basis, may be defeated.
It should be noted that ‘conquest’ should not be made the basis of the legal title of Pakistan. Before the UN Charter it was one of the recognized modes of acquiring territory. Now all occupations through conquest are unlawful in view of the Article 2(4) of the UN Charter, which prohibits resort to use of force.
However, Pakistan’s resort to military action was justifiable, as it could not wait for the activation of international dispute settlement machinery. The protest had to be vehement and an expression of strong denial of India’s forceful occupation; perhaps it was possible only through resort to armed conflict. Johnson, an authority on International Law, while commenting on similar situation has asserted that failure to manifest opposition through a sufficiently positive manner may be treated as acquiescence. He even observes that a diplomatic protest not followed by any other action becomes in time ‘academic and useless’.
In territories like Siachin, where exercise of state sovereignty through regular state activity cannot be done, the separate, isolated and detached events are to be looked into. Thus in the Clipperton Island case the court had taken the first moment of appearance as the moment completing occupation in a res nullis. (However, during dispute between Britain and United States over Antarctica, US Secretary of State through a note to British Ambassador did not agree that sovereignty accrues from mere discovery unaccompanied by occupancy and use). In another case of Eastern Greenland in 1933 between Norway and Denmark, the Permanent Court of International Justice even examined the grant of trade concessions, as evidence of exercise of state activity. The peculiar circumstances of the case required the examination of grant of trade concessions. What emerges in principle is that no concrete criteria with reference to the structure of evidence of state activity has been developed in international law through precedents or principles. The tribunals while deciding such disputes have been convinced with even lesser evidence. Provided, of course, that the adverse claim is not superior.
Now let us examine the legal effect of nature of protest by India or any other state against the claim of Pakistan over Siachin. India hardly made its protest felt prior to eighties. It requires a careful perusal of foreign office record to evaluate the nature and strength of India’s formal protest (if any) to the peaceful display of state sovereignty by Pakistan over Siachin.
A careful scrutiny of relevant record and documents may be revealing. For instance as mentioned above, the depiction of the cease-fire line in the Reader’s Digest Great World atlas shows Siachin as forming clearly part of Pakistan. On the very first page of this internationally recognized Atlas, a very selective enlistment of the organizations and persons is made who have ‘contributed’ and ‘advised’ in the preparation of the Atlas. The Information Service of India is also one of such contributors and advisors. Meaning thereby, that a matter of record, the very depiction of the cease-fire line was surely within the knowledge of the Indian authorities (at least at the time of printing of the said at last). They could have ‘advised’ against it. Yet they did not. Of all the excuses, ignorance on the basis of innocence is hardly acceptable. The obvious reason is that India at that point of time accepted Pakistan’s claim over Siachin. That is why they did not object or protest. To dispute Pakistan’s claim, was an afterthought in view of strategic importance of the region. Now, they ought to be estopped by their own conduct. The legal norms disallow them to dispute the title of Pakistan after they have lent it implied recognition, through acquiescence and absence of protest.
The protest by India may have been political in nature with reference to Kashmir. Perhaps they were never exclusive, specific and direct and formally submitted on the issue before the eighties. The relatively strong protest was when Pakistan ceded certain territory beyond Siachin to China in 1963. Yet again, this protest was restricted to the territory that was the subject matter of the treaty. Even then, given the option, India apparently, failed to mobilize the international machinery for dispute settlement.
What does this conduct amount to? This is to be construed as acquiescence by India. Then Brownlie’s statement that “acquiescence has the same effect as recognition………”, further improves upon the superior claim of Pakistan over Siachin. Absence of proper protest is always interpreted against the party. It is construed as implied acceptance of the state of affairs. Notwithstanding certain exceptions and prerequisites to the principle, it can be generally stated that the strength of India’s protest is not adequate enough to displace the legal claim of Pakistan over the territory of Siachin.
It should also be noted that no other state has protested formally over Pakistan’s title. The region is surrounded by China. USSR and Afghanistan apart from India. None of these states, that may be called as directly interested states in view of the geographical nature of the region, had ever launched formal protests against Pakistan or set up any adverse claims.
In conclusion, it can be stated that in view of the above stated information, Pakistan’s claim over the Siachin territory enjoys considerable legal superiority over that of India.