niaz
PDF THINK TANK: CONSULTANT
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- Jun 18, 2006
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Before I proceed, I would like to remind fellow members that in to order to peacefully co-exist with fellow human beings, be it the next door neighbour or a neighbouring country or a trading partner; one has to follow certain rules & regulation else there would be chaos. Let us look at the law governing the sea as an example.
Initially, a country's sovereign territorial waters extended merely 3 nautical miles or 6 km (range of cannon shot) beyond the shore. In modern times, a country's sovereign territorial waters extend to 12 nautical miles (~22 km) beyond which were the international waters. The idea of allotting nations EEZs outside the territorial limits gained acceptance only in the late 20th century. One of the first asserting exclusive jurisdiction beyond the traditional territorial waters was the United States in the Truman Proclamation of September 28, 1945. However, it was not until 1982 with the "UN Convention on the Law of the Sea" that the 200 nautical mile exclusive economic zone was formally adopted as:
Part V, Article 55 of the Convention:
“Specific legal regime of the exclusive economic zone. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed.”
Now 200 mile is an established fact and all countries abide by it. Primarily because countries generally accept that there has to be an international legal frame work on which sovereign countries can rely on.
The UN Charter, it is Preamble includes; “To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". An International Court of Justice was set up in The Haig in 1945 to this effect. International Court has no police/ force or authority to enforce her decisions. This being the responsibility of the Security Council. UN Charter Article 94(2) thus provides:
“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
Arguably, enforcement of ICJ judgments is quintessentially a political act. Should a country decide to ignore ICJ decree, unless the Security Council takes action, nothing much would come out of it. In a world of ‘Realpolitik’, if a permanent member decides to completely ignore ICJ decision or veto the ensuing resolution, such decision would be worthless.
Both the parties in any dispute think that they have the right on their side that is why one goes to a court of Law or arbitration. Please understand that now it is not a matter of right or wrong. A decision has already been announced against Pakistan. Unfortunately, it is common in Pakistan that we accept Courts’ decision only if it is in our favour and cry injustice when it is against us. Nawaz Sharif current stance is a typical example of it.
In this particular case since the judgment has gone against Pakistan, in case of non-compliance; the Gov’t of Australia, on behalf of the company, can apply to the Security Council and seek compensation / retribution. Unless China decides to veto, Pakistan will have to come up with the money else face stringent economic sanctions. It depends upon Pakistan's political clout as to whether Gov't Australia would in fact seek UN Security Council meeting on this matter or would advise the Reko Deg Mining to negotiate a settlement.
Initially, a country's sovereign territorial waters extended merely 3 nautical miles or 6 km (range of cannon shot) beyond the shore. In modern times, a country's sovereign territorial waters extend to 12 nautical miles (~22 km) beyond which were the international waters. The idea of allotting nations EEZs outside the territorial limits gained acceptance only in the late 20th century. One of the first asserting exclusive jurisdiction beyond the traditional territorial waters was the United States in the Truman Proclamation of September 28, 1945. However, it was not until 1982 with the "UN Convention on the Law of the Sea" that the 200 nautical mile exclusive economic zone was formally adopted as:
Part V, Article 55 of the Convention:
“Specific legal regime of the exclusive economic zone. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed.”
Now 200 mile is an established fact and all countries abide by it. Primarily because countries generally accept that there has to be an international legal frame work on which sovereign countries can rely on.
The UN Charter, it is Preamble includes; “To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". An International Court of Justice was set up in The Haig in 1945 to this effect. International Court has no police/ force or authority to enforce her decisions. This being the responsibility of the Security Council. UN Charter Article 94(2) thus provides:
“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
Arguably, enforcement of ICJ judgments is quintessentially a political act. Should a country decide to ignore ICJ decree, unless the Security Council takes action, nothing much would come out of it. In a world of ‘Realpolitik’, if a permanent member decides to completely ignore ICJ decision or veto the ensuing resolution, such decision would be worthless.
Both the parties in any dispute think that they have the right on their side that is why one goes to a court of Law or arbitration. Please understand that now it is not a matter of right or wrong. A decision has already been announced against Pakistan. Unfortunately, it is common in Pakistan that we accept Courts’ decision only if it is in our favour and cry injustice when it is against us. Nawaz Sharif current stance is a typical example of it.
In this particular case since the judgment has gone against Pakistan, in case of non-compliance; the Gov’t of Australia, on behalf of the company, can apply to the Security Council and seek compensation / retribution. Unless China decides to veto, Pakistan will have to come up with the money else face stringent economic sanctions. It depends upon Pakistan's political clout as to whether Gov't Australia would in fact seek UN Security Council meeting on this matter or would advise the Reko Deg Mining to negotiate a settlement.
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