It is safe to assume that two schools of thought vis-à-vis resolution of Raymond Davis issue have emerged in Pakistan. For the first school, a certificate from our foreign office certifying Raymond Davis as a bona fide diplomat in Pakistan should suffice. The second school of thought however is of the opinion that the final arbitrator of Raymond’s true status is the court. However, a third nascent thought is being emerged as well. For the proponents of this thought, at the heart of the matter is the issue of interpretation of international law(s) regarding a diplomat’s immunity. Since the matter is so politicized, they say, only an international organization i.e., the International Court of Justice (ICJ) could independently interpret the law(s) in its advisory capacity. It is however easier said then done.
The way the Americans have conducted themselves from the outset clearly betrays one thing, they are in a rush. For this reason alone, they have exerted relentless pressure on our government to let Raymond go free under the pretext that he is a diplomat. Although the Americans too have recently started to say that they might be taking the matter to the ICJ, but given that it is a time consuming procedure, it is unlikely. This may be another pressure tactic on their behalf.
The notion that Pakistan as a sovereign state may approach the ICJ for an opinion is misplaced. The ICJ under Chapter IV of ICJ Statute and Article 96 of the UN Charter is competent to give an advisory opinion on any legal question at the request of any body duly authorized by the UN. Duly authorized bodies are the UN’s General Assembly, the Security Council, the International Atomic Energy Agency etc., but not any nation state. However, if anyone of the mentioned bodies takes up this matter with the ICJ then Pakistan certainly can become a party to the proceedings. But given the bilateral nature of the issue and the U.S., penchant for unilateral and at best bilateral approach for solving international disputes, it is unlikely that UN would take up this matter on behalf of Pakistan. An opinion of the ICJ moreover is just an opinion with no binding force. Although, the more recent opinions like Palestinian Wall Advisory Opinion read very much like judgments, nevertheless, a state cannot be punished per se if it does not follow the stipulations of the opinion.
An alternative course would be to approach the Court not for its advisory opinion but a binding decision. The Court under Article 36(1) of the ICJ Statute ‘all matters specifically provided for….. in treaties or conventions in force’, may adjudicate upon an issue brought before it involving signatory parties. Since both the U.S. and Pakistan are signatories to the optional protocol to the Vienna Convention on Diplomatic Relations (1961) the Court is empowered to take up Raymond Davis type issue. But the Court based in Peace Palace, Hague, works like any other court. The proceedings may not be speedy and economical. The outcome may not be of our liking.
It is pertinent to speculate what the other party i.e., the U.S., may make of the ICJ decision. The American judicial mindset could be gauged by the case of Medellin v Texas (2008), in which the United States Supreme Court in 6-3 decision overturned ICJ decision in Mexico v United States (Avena case—2004) as not binding federal law. This case, involved Vienna Convention on Consular Relations (1963). If a decision favours us then it would inadvertently affect rights and duties of the U.S. However, the changed circumstances would have no affect in the U.S., till new legislation is passed in the U.S. giving those changes a legal cover. By that time, precious time and money of Pakistani tax payers would have been wasted if not squandered, with our relationship vis-à-vis the U.S. standing on much shakier ground. All in all, no benefit to an average Pakistani.
If an international forum must be utilized, it should not be the ICJ but arbitration, where both the U.S. and Pakistan would have a greater control over the entire proceedings. Again, arbitration could both be costly and time consuming.
The best option is what the first school of thought proposes. It puts the proverbial ball in our foreign office’s court. It could be speedy and economical. But political will to take a decision, albeit admittedly difficult, is required. Does this government have what it takes? I hate to admit it, but it is not a million dollar question anymore.
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