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Paper no. 2378
18-Sept-2007
BALOCHISTAN & ICJ - Articulating the case and educating the West
Guest Column by Nagesh Bhushan
The tone and tenor of a few Baloch groups, particularly individuals who started heckling the Khan of Kalat Mr. Mir Suleman Daud Khan and others over their desire to take the Baloch case to the ICJ, is cynical and ignorant of the long term benefits that this action could fetch for the Baloch. The ground reality in the West is very perplexing. People in America, for example, still ask where Balochistan is--often they think it is a central Asian country. Also, even less is known about the Baloch people, who regard themselves as secular and have never used religion in their struggle for freedom. Needless to mention, in the West, Balochistan is synonymous with Al-Qaeda and terrorism, thanks to the Pakistani administration’s consistent efforts to blur the line between Al-Qaeda terrorism and the uprising of the Baloch people in an effort to win their rights.
Below content is compiled based on the discussions in some popular Baloch egroups.
ANTI-ICJ: It's a waste of time and diversion from the original objectives; this should not be viewed as major development, instead as a small contribution to baloch cause. It will take another 60 years to collect that money for filing the case.
PRO-ICJ : First , this is a negative attitude and counter productive . Those who do not help , should not bark on others who are doing something small or big. The Jirga called by Khan of Kalat's was a big boost to Baloch struggle. It has shut down the Government rhetoric and Musharraf's propagand that Baloch struggle is only of three sardars.
Second, it shows the world that Balochistan was illegally and forcefully annexed to Pakistan.
Third ,it brought all the baloch tribes under one banner and unify , which so called "baloch nationalist leaders" have failed to do so and also to bring the Baloch masses under on platform.
Fourth, the decision to take the case to ICJ is a big slap on the face of Pakistan and its importance to internationalize Baloch struggle on international level.
Taking the case to ICJ is either a big contribution or small that is a different story, but it is not a bad idea .
While it may be possible that the Baloch can achieve their goals without outside moral or financial support, it is also possible that the Baloch will find they want the support of the West. To win this support, the case and logic behind the cause must be articulated and the people of the West educated. While taking the Baloch case through the courts, or simply expressing one's desire to take it through the courts, may lead to nothing but publicity, that publicity can be used to educate those whose support they seek.
As hypocritical as it might be, resistance or guerrilla groups do NOT generally win the support of those who hold power in the West--unless those in power can use the resistance for their own purposes, as they did with the Afghan mujahids against Russia. The Che Guevara’s or Zapatistas of the world who fight to correct economic, political and social injustices threaten Western power structures and those in power often try to marginalize such movements by criticizing their efforts in the media.
The very bold move to shepherd this case through the ICJ courts, however, will ultimately help the Baloch control the media spin in the West to some degree. Critics of this move should understand that the opponent has a game plan. That game plan includes characterizing the Baloch as terrorists. And given how badly informed the West is about Baloch history and its people, the opponent has to do little more than publicize the videotape of Rigi beheading a person in the Willem Marx documentary, for example, and Rigi will be seen as a terrorist. And by association, so will the Baloch resistance. Do not count on people in the West to take the time to educate themselves.
Journalist Annie Nocenti who visited Balochistan says "But the question is whether or not the ICJ can give fair hearing to Balochistan, a tribal province without clear sovereign status, now that Pakistan has become a nation of international standing. Which is why it is imperative that such a move is backed in the press. The alternative, if an appeal to the ICJ fails, is likely to be armed struggle."
In the end, while the big powers might not support the Baloch cause (unless they can use it to their advantage), there are plenty of activists who will, and together activists can help sway public opinion, but they need to know what they are supporting and why. The ICJ is a very good international public venue for this purpose--informing the West about Balochistan.
In the end, outside support cannot hurt the cause so why not pursue it, too?
Rationale behind the Grand Jirga
A Grand Jirga (meeting of clan chiefs) of Baloch tribals , convened last year after 136 years, by present Khan of Kalat Mr. Mir Suleman Daud Khan was attended by 95 tribal sardars and 300 other important "notables" . They announced in a declaration that a case would be filed in the ICJ --International Court of Justice for violation of the accord signed by the state of Kalat and the government of Pakistan in 1948. Soon after the event , Khan of Kalat speaking to Journalist Annie Nocenti expressing satisfaction for reciprocating his call by all Sardars and notables, he said “Baloch was a nation and is a nation “(thebaluch.com , Video) . Implying it is an endorsement that baloch will present their case as “state of Kalat”, though not a member of UN. However, article 34 of the Statute of the ICJ, which is part of the Charter of the United Nations, says: - "Only States may be parties in cases before the Court". This author received a email from Information department regarding this , reproduced below . When this was raised with Dr.Wahid Baloch, President of Baloch Society of North America, he said “I also got a similar letter ...but speaking to lawyers who will be handling the case they told me there are exceptions to our case” . He further added "we are relying on our expert lawyers and we will use every avenue to move forward with our case”.
UN Article 93 (2) and Article 35 (2)
Article 93, Para 2, of the Charter of UN which empowers the General Assembly to determine the conditions on which a state not a member of UN , may become a party to the Statute of the court .
Article 93 , Para 2 says: “A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.”
We wish to reproduce an excerpt of "ANALYTICAL SUMMARY OF PRACTICE" of ARTICLE 93
During the discussion 8/ in the Security Council and its Committee of Experts of the request of Liechtenstein to learn the conditions upon which it could become a party to the Statute of the Court, the objection was raised that Liechtenstein was not a sovereign State, since it had yielded important parts of its sovereignty to Switzerland. The arguments set forth below were among those adduced in support of that view, (l) Liechtenstein did not conduct its foreign affairs independently, but did so only through Switzerland. (2) Liechtenstein was a member of a customs union with Switzerland, which meant that it was not autonomous in the matter of customs.(3) Liechtenstein did not have its own currency. (U) Liechtenstein did not have a postal system, its postal affairs being handled by Switzerland. (5) The administration of the telegraph system of Liechtenstein was also in the hands of Switzerland.(6) Liechtenstein did not have an army of its own. (?) The League of Nations had refused to permit Liechtenstein to become a party to the Statute of the Permanent Court of International Justice.
The majority of the Committee of Experts and of the Security Council, however, was of the opinion 9/ that Liechtenstein was a State within the meaning of Article 93 (2). The arguments set forth "below were among those advanced in support of that opinion. (l) Most writers and jurists considered Liechtenstein as a State. (2) It had a
population, a Government and a constitution. (3) The customs union treaty between Liechtenstein and Switzerland did not affect the independence of the former; the treaty stated that the customs union was without prejudice to the sovereign right of the Prince of Liechtenstein. (k) The fact that Switzerland represented Liechtenstein in foreign countries did not affect the sovereignty of the latter; there were several undoubted States which relied on the diplomatic service of other States.
The Security Council by a vote of 9 to none, with 2 abstentions, adopted the draft resolution recommended for adoption by the Committee of Experts and setting forth theconditions in question for Liechtenstein Source: The question whether an applicant was a "state" withinthemeaning of Article 93 (2)
Further Article 35 (2) says " A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter "
Therefore , it is appropriate for Khan of Kalat to consider an attempt to make use of the court to decide this point .In this regard if an attempt were to be made by Baloch leaders they should decide which of the above 2 -- Article 35 (2) OR Article 93 (2) -- should be adopted .
Baloch intellectuals should make use of these available avenues without taking these emails seriously. Pakistan may raise preliminary objections similar to what Mrs.Laurence Blairon of Information Department mentioned. However this matter will be decided by the court.
Not to mention the Agreements signed by Khan of Kalat --dated (11th April 1952) and (1st January 1955) will be void, as they were signed under duress. Only Instrument of accession signed on 27th March 1948 will be taken into consideration, as per my well informed source.
Therefore Baloch leaders should make an attempt by presenting their case before ICJ .
Now, the legal team of Baloch, which is preparing the case , baloch intellectuals face an uphill in order to craft an effective strategy .
Annexure:
Secretary of the Court has sent the following mail regarding this .
Dear Sir,
Today I read an article on your website entitled "Balochistan case is ready to be filed at International Court of Justice". As Head of the Information Department of the International Court of Justice (ICJ), which is mentioned in the article, I wish in this respect to clarify matters.
The Court's activities are limited to rendering judgments in legal disputes between States submitted to it by the States themselves and giving advisory opinions when it is so requested by UN organs or specialized agencies of the UN system.
Article 34 of the Statute of the Court, which is part of the Charter of the United Nations, provides: "Only States may be parties in cases before the Court". At the moment, these are the 192 Member States of the United Nations only.
It follows that neither the Court nor its Members can consider applications from private individuals or groups, provide them with legal advice or assist them in their relations with the authorities of any country.
I trust you will find this information useful.
Yours faithfully,
Laurence Blairon (Mme | Mrs.)
Secrétaire de la Cour | Secretary of the Court
Chef du département de l'information | Head of the Information Department
Cour internationale de Justice | International Court of Justice
Palais de la Paix | Peace Palace
Carnegieplein 2
2517 KJ La Haye | The Hague
Pays-Bas | The Netherlands
T: + 31 (0)70 302 23 36
F: + 31 (0)70 302 23 38
E: information@icj-cij.org
Site Internet | website: www.icj-cij.org
(The author is an analyst with many years of experience of study on the developments in South Asia and also blogs at intellibriefs.com covering Geopolitics, Security & Intelligence. The views expressed by the author are his own. He can be reached at intellibriefs@gmail.com)
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