Use international law to bolster national security

India should use international law as a weapon for national security, also known as lawfare, to put pressure on Pakistan to comply with its international trade treaty obligations.

In the last few months, a struggling Pakistani economy looking desperately for cheaper supplies has turned to India for importing essential items such as sugar and pharmaceuticals. This has led to a spurt in bilateral trade and has raised hopes for the resumption of normal trade relations between the two countries.

India believes that the onus is on Pakistan to resume normal trade relations. (Reuters File Photo)

Bilateral trade between the two countries, after the Pulwama terror attack, plummeted from around $2 billion in 2017-18 to a paltry $326 million in 2020-21. Pakistan’s unilateral decision to snap trade ties with India in response to India’s decision to effectively nullify Article 370 of the Constitution, hurt bilateral trade further. Notwithstanding the recent uptick, the two sides remain noncommittal about resuming bilateral trade. Playing to its domestic constituency, Pakistan continues to link the recommencement of bilateral trade with India to the Kashmir issue. India, on the other hand, believes that the onus is on Pakistan to resume normal trade relations.

The Indian government has a point when it puts the ball in Pakistan’s court for resuming bilateral trade. Pakistan’s decision to unilaterally suspend trade with India is inconsistent with the two international law instruments — the World Trade Organization (WTO) agreement and the South Asian Free Trade Area (SAFTA) agreement — that regulate trade between the two countries.

The two treaties allow a country to unilaterally suspend trade with another country only in certain exceptional circumstances, such as on the grounds of national security. However, it will be too far-fetched for Pakistan to claim that its decision to suspend trade with India is because it sees the dilution of Article 370 as a threat to its national security.

Article 370 is India’s internal matter and it cannot be used as a pretext to deviate from international trade law obligations that Pakistan owes to India. Pakistan’s unilateral action is purely political, and thus, against the letter and spirit of a rules-based international trading order.

Given that Pakistan refuses to rectify its mistake, India should bring about greater international pressure on Pakistan to comply with international law, rather than merely putting the onus on Pakistan to resume bilateral trade. One clear option that India has is to press into action the dispute settlement mechanisms available under WTO and SAFTA to expose Pakistan’s illegality.

Unlike the WTO’s dispute settlement mechanism that follows two-tiered judicial adjudication involving independent judges, SAFTA relies on the wisdom of politicians and bureaucrats to settle trade disputes. Therefore, the SAFTA dispute resolution mechanism will not be effective in achieving the desired result. India should use the WTO’s dispute settlement mechanism even if the Appellate Body — WTO’s second-tier and highest judicial mechanism — remains defunct. A WTO panel, the first-tier judicial mechanism, can still be constituted to hear India’s complaint. Challenging Pakistan’s actions at the WTO will put Islamabad on notice.

India might be deterred from going down this road for three reasons.

First, the trade volume with Pakistan is minuscule, and thus it does not make economic sense to sue Pakistan at the WTO. But India should look at this issue from a geopolitical point of view, not an economic one alone. Second, Pakistan might use the WTO forum to internationalise the Kashmir issue. But Pakistan has been using all international forums for the same anyway. Moreover, given the history of WTO panels, they have always steered clear of commenting on the political aspect of the dispute and have focussed on the trade part. Third, Pakistan might use this opportunity to put India in the dock by linking its trade action to India’s suspension of most favoured nation (MFN) status of Pakistan after the Pulwama attack. To blunt Pakistan’s attack, India could, strategically, restore Pakistan’s MFN status before bringing forward the formal complaint. This will not change anything on the ground but will give India a major legal advantage.

In summation, India should use international law as a weapon for national security, also known as lawfare, to put pressure on Pakistan to comply with its international trade treaty obligations. Realism demands that India normalise its relations with Pakistan using instruments such as trade. This will free up scarce resources to take on China, which poses the gravest threat to India.

Prabhash Ranjan is professor and vice-dean, Jindal Global Law School, OP Jindal Global University

The views expressed are personal