Hassan Aslam Shad, an International Law expert based in the Middle East, has written extensively on International Lawfare. He has also spent time at the office of the President of the International Criminal Court, The Hague. He is a graduate of Harvard Law School. Najma Minhas Editor Global Village Space interviewed him to understand why he views the new political map issued by Pakistan through the lawfare angle.
GVS: What is the significance of Pakistan’s new political map being issued?
Hassan Aslam Shah: Let me take you back to the political dimensions of this move by Pakistan before I get into the legal discussion. So, in the last one year or so, narratives coming from India and Pakistan – India is you know, on the way to becoming a Hindu fascist country that is dehumanizing Muslims, and maltreating them. We can see what’s happening in Ayodhya; where foundations are being laid for the Hindu Rashtra, we’ve been talking about this since the last one year or so.
Pakistan, on the other hand, has been, if I may use the term, slaying its demons. It is moving away from the past – it’s becoming a more inclusive, more pluralist society in which people of different religions are accepted. So this is more of a sort of, political dimension.
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GVS: The opening of Kartarpur Corridor, for example.
Hassan Aslam Shah: Absolutely, that was again, another move by Imran Khan to make Pakistan a more inclusive country. Now what has happened in the last one year is that Pakistan saw what happened on 5th August 2019 –exactly a year ago- when Pakistan was left basically, stunned by India’s move on repealing Article 370 of its constitution.
Now that was you know, something that shook us from our 70 years of slumber. We realized that we had been sitting idle; we did not have a cohesive narrative that we could sell to the world. India got us off guard.
It had been making us go on wild goose chases, and we were not able to sell our narrative to anyone. Since, the last year or so, we started realizing that we have to take this war of narratives to India. And this is what we have done successfully in the last year.
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GVS: So you see, the map as part of taking the war of narratives towards India and to the international community?
Hassan Aslam Shah: In the last year, Pakistan has flagged the Indian aggression in Kashmir at the global level. Pakistan has been more vocal in opposing what has been happening to the Kashmiris. And, the timing of this cartographic masterstroke, as I would call it, would not have been better.
What Pakistan has done, and let me run you through the key takeaways of this move by Pakistan. First, Pakistan has labelled the entire Jammu and Kashmir as disputed territory. Now, that’s significant because if Pakistan had included Azad Jammu & Kashmir and Gilgit-Baltistan as part of its territory in the new political map, then Pakistan would not be seen coming to the world with what I call clean hands.
Pakistan needs to be seen by the world community as coming with clean hands and, Pakistan has also not done what India was claiming yesterday that Pakistan was showing the Indian’ illegally occupied’ Jammu and Kashmir, as we call it now, as part of its territory.
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GVS: What has happened on the Indian touching side of Kashmir is that Pakistan has extended its international boundary and showed that the Indian state Himachal Pradesh’s border with Kashmir is an international border.
Hassan Aslam Shah: So I think, Pakistan has done the right thing and what Pakistan has also done most importantly is that, if you look at the disputed border between India and China – Pakistan has labelled that as ‘Frontier Undefined’. Now that’s again very important because that has been China’s position also since the abrogation of Article 370 when China made a statement saying that China does not accept this move.
So, in a way, Pakistan has played a massive stroke in terms of policymaking by making China formally a part of its political discourse. And, this is most significant because this move will sort of, you know, sandwich India in between China and Pakistan. So, this is a very very important move in my view, by Pakistan.
GVS: India’s Ministry of External Affairs has strongly protested. It issued a statement saying that it is an exercise in political absurdity. At the same time, they questioned its legal validity. Can they question the legal validity? Is what Pakistan doing legal?
Hassan Aslam Shah: It absolutely is. Pakistan’s political map is in line with United Nations Security Council’s resolutions that have defined Jammu and Kashmir as an international dispute. So Pakistan, as I mentioned earlier, has not shown either Gilgit-Baltistan or Azad Jammu and Kashmir as part of its territory. It has labelled it as a disputed region. It is 100% in line with the United Nations Security Council’s resolutions.
What India has done, on the other hand, since last year is – it has moved in complete defiance of United Nation Security Council’s resolutions. So, what Pakistan has done is politically and legally correct and something that should benefit Pakistan’s position on Kashmir in the future as well.
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GVS: Do you feel Pakistan did this too late? India changed its map last year, and then Nepal changed its map in reaction to what India had done, where India had incorporated Nepalese territory within its map. Nepal changed the map, they got it approved by their assembly, and they put it into all their school books. Now we see Pakistan do the same thing. Is Pakistan a bit late in the game? Or, do you think this is fine at this point – the same point is still made?
Hassan Aslam Shah: We have been late in a number of things in the past, and that is because nobody had the vision or the foresight that we do today. But again, it never too late and if India had included Gilgit-Baltistan and Azad Jammu & Kashmir as part of its territory in its map – that was in defiance of United Nations Security Council resolutions. It was part of cartographic aggression by India – that would not have been justified.
What Pakistan has done instead, it has moved completely in line with its international obligations to show the entire region as disputed. Regarding the cartographic changes that are happening in the subcontinent and more specifically, between Nepal and India that we saw happen recently as you rightly mentioned, they’ve been showing parts of Indian territory as included in Nepalese territory.
Now all of this will eventually lead to you know, countries taking these matters either to the United Nations Security Council or, this could even lead to bitter disputes between these countries. So again, all these changes that are happening in the region will have ramifications one way or another.
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GVS: With what’s happening on maps, is this all part of what we talk about lawfare? Is this international lawfare that’s been taking place here?
Hassan Aslam Shah: Lawfare is, to put it simply, the use of law as a weapon of war. So, when Pakistan and India fought the case over Kulbhushan Jadhav at International Court of Justice – that was part of lawfare. The next logical step in Pakistan’s lawfare against India in my humble view should be, that Pakistan should garner the support of the countries that are sympathetic to Pakistan’s position on Kashmir.
To build its narrative further, then take this matter up at the United Nations General Assembly and to hopefully get a resolution passed by the United Nations General Assembly, to refer this matter to the International Court of Justice for an advisory opinion.
Now, the reason why I say Pakistan should go down the route of United Nations General Assembly is – although Pakistan and India are parties to several international conventions and treaties such as Genocide Convention – India has made certain reservations in declarations which excludes the jurisdiction of International Court of Justice. So, Pakistan can’t simply go to the International Court of Justice and file an application against India for human rights violations and other violations that are happening in Kashmir.
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The route that Pakistan can take – is to take this matter up at the United Nations General Assembly and flag the Indian atrocities that are being committed in Kashmir for the last 72 years.
And then, get an appropriate question framed by the United Nations General Assembly on Kashmir, which could include the right of self-determination of Kashmiris, which could include Pakistan’s claims over Kashmir’s territory and then refer the matter to the International Court of Justice for issuing what is known as an advisory opinion.
Now just let quickly tell you what an advisory opinion is – an advisory opinion is not an opinion that is binding on countries per se, unlike, for example, the Kulbhushan Jadhav case.
An Advisory opinion by the ICJ will have a persuasive value. What that means is, that it will lead to condemnation – if the ICJ determines that India has committed genocide or, India has been committing human rights violations.
All this can give further momentum to Pakistan’s lawfare against India. And, when, global condemnation starts building up furthermore momentum, then we see, as we have seen in the past, that leads to countries backing off from their initial positions and coming back to the negotiating table to resolve the dispute.
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GVS: Do you think this is the way forward for Pakistan?
Hassan Aslam Shah: Well, that’s one vertical of Pakistan’s lawfare. The other vertical of Pakistan’s lawfare could be Pakistan accepting the Rome Statute of International Criminal Court – that’s a lengthy debate, I won’t get into it now.
Another vertical is to send emissaries to different countries in the world. When I say emissaries, I mean, people who are well-versed in the history of Kashmir, who are legal experts, who can go and literally conduct presentations, who can be our floating think tanks, who can go and educate these countries about what’s happening in India and they should convince them to avoid looking at India solely from the economic prism and to look at India for what it is – a brutal, fascist, occupying force that has been subjugating the Kashmiris for the past 72 years.