Legal aspects of China-Pakistan Economic Corridor

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Comments by: Dr. Jumma Marri Baloch

The Indian Govt,Gilgit–Baltistan, Kahsmiri and Baloch must unite and fight against the CPEC at international courts of justice and prove its built illegally I am sure they can win it...

In her article "Legal aspects of China-Pakistan Economic Corridor" Claudia Waedlich confirms "The annexation of Balochistan in 1948 by the Pakistani state was an illegal act. Balochistan was recognised as a self-governing state in a subsidiary alliance with British India, and it is a fact that the independent state of Balochistan still exists commensurate with International law. Pakistan was recognised by other nations as a separate state from India in 1947, but not the addition of, or annexing of, Balochistan. The Khan of Kalat tried to restore his state in a European Court declaring that Balochistan was ‘occupied’ by Pakistan".

Legal aspects of China-Pakistan Economic Corridor

By: Claudia Waedlich

Both as a member of a think-tank and having studied law, I am currently investigating the legality of the CPEC (China-Pakistan Economic Corridor) treaty with special regard to International law, Pakistani national law and its Constitution, and UN conventions; focussing particularly on some fundamental legal questions. With this in mind, I would like to make the following preliminary judgement before proceeding to details: The treaty has feet of clay and the consistency of the contract cannot be guaranteed.

First, let`s examine the officially announced intentions that China has declared.

The corridor will incorporate a 2,000 Kilometre transport link between Kashgar in northwest China and Gwadar port in Balochistan. Gwadar port is on the Arabian Sea near the border with Iran, historically a western Baloch area, occupied by Pakistan in the past and the route would be via roads, railways and pipelines.

China and Pakistan have developed strong bilateral trade, economic ties and co-operation over several years during which China has gradually emerged as Pakistan`s major trading partner, both in terms of imports and exports. Bilateral trade and commercial links between the two countries were established in January 1963 when both signed the first bilateral, long term trade agreement.

Both countries signed a Free Trade Agreement (FTA) on November 24, 2006 and it was implemented from July 1, 2007; subsequently, both countries signed an FTA on Trade in Services on February 21, 2009 which became active from October 10 that year.

CPEC is an ‘under-construction’ mega-project which, purposely, “shall” achieve its political and economic objectives through trade and development and, “shall” also strengthen the economic and trade cooperation between the two countries. It is also expected that the corridor “shall” be helpful in creating stability in South Asia and after completion, “shall” function as the primary gateway for trade between China, Africa and the Middle East.

The first phase comprises the development of Gwadar Port and the construction of an international airport, to be completed in 2017. The Karakorum Highway connecting both countries is to be widened, whilst the rail network between Peshawar in the North and Karachi in southern Sindh is to be upgraded; the two countries also have a plan for ‘fibre-optic’ communication links.

The Strait of Hormuz is the channel for about one third of the world’s oil trade, making Gwadar`s role in Balochistan vital for ensuring China`s energy security; the proposed naval base for China in the area would act to counter US influence in the whole region.

Three corridors are planned, one of which is the western route through Gilgit–Baltistan, that demonstrates how, in the fullest extent, this treaty is illegal from the outset.

In compliance with legal standards, the contracting partners, Pakistan and China, must be legally recognised to represent Balochistan, the Pashtun areas, Gilgit–Baltistan (Kashmir) and Sindh in any treaty which directly concerns or concedes assess to these provinces or states.

The annexation of Balochistan in 1948 by the Pakistani state was an illegal act. Balochistan was recognised as a self-governing state in a subsidiary alliance with British India, and it is a fact that the independent state of Balochistan still exists commensurate with International law. Pakistan was recognised by other nations as a separate state from India in 1947, but not the addition of, or annexing of, Balochistan. The Khan of Kalat tried to restore his state in a European Court declaring that Balochistan was ‘occupied’ by Pakistan.

Gilgit-Baltistan is not part of the Pakistani Constitution nor do Kashmiris have a seat in the Assembly of Pakistan. It remains a disputed territory, meaning that Pakistan is not authorised to act on its behalf in negotiations with the Chinese, especially without asking the citizens of Gilgit–Baltistan.

In Pakistani law, provinces must be consulted prior to negotiations and agreements must be ratified by the province; Gilgit-Baltistan is not a province of Pakistan, neither is Balochistan, because the annexation was illegal.

Therefore, Pakistan is not entitled to conclude the CPEC contract.

The Chinese have expressed concerns about the legality of any work undertaken across Gilgit–Baltistan, a territory that is the subject of an international dispute.

A senior Chinese official told the Pakistani media that “China cannot afford to invest billions of dollars on roads that pass through a disputed territory.”

The several issues on which the Chinese have expressed reservations are:

-        Gilgit-Baltistan is claimed by India.

-        The people of Gilgit–Baltistan believe that the CPEC will allow exploitation of its water resources for the sole benefit of Pakistan.

-        Not a single Kashmiri worker is involved in this project.

-        The future development of the whole region must first be proved. (So far, the opposite seems apparent)

If you look at other developmental records of China’s various expansionist projects there is a great deal to worry about.

In Nigeria, you will not see any development of the regions through which the pipelines run.

In Khartoum, Sudan, China participated in the horrifying murder of the many Sudanese who protested about the lack of development and depletion of natural resources.

Tibet is the other example of China’s complete disregard of Human Rights. Even in its own country, the extent to which individual rights are dismissed is frightening.

Minister for Planning, Development and Reforms, Ahsan Iqbal, has said that those protesting against the CPEC will be charged under anti-terrorism laws. Political parties in Khyber, Pakhtunkhwa are also opposed to the CPEC, raising a big challenge for this multi-billion dollar project, as they submit that only Punjabis would profit by it.

Rather than the CPEC contributing to stabilising the whole region, it is instead inflaming the factions and creating more unrest.

In law, Pakistan should enter into treaties only for which it has the requisite domestic, political consensus and after it has created the necessary political and legal space for their execution. Once Pakistan signs a treaty, it is bound to make it part of domestic law and to expeditiously implement its obligations.

At present, the politics of federalism and the absence of domestic legal recording and preparedness has created a strong possibility of CPEC projects being subjected to unscheduled delays, even possible cancellations, exposing Pakistan to liability for violating its international commitments.

In accordance with UN convention, all provinces, including Balochistan and Gilgit–Baltistan, must be asked in advance to find a consensus for signing the right contract, with the right conditions; a contract which will deliver real benefit to all and development which is not only a ‘paper tiger’.

Gwadar Port has been leased to China for 40 years. Balochistan nationals are not allowed to enter the port area and Baloch fishermen are prohibited their traditional and national rights to fish in the sea around the port.

So, my question is how do China and Pakistan propose to develop Balochistan? I don`t see any effort to implement the proposals in these announcements.

Because Balochistan is an occupied country, according to its citizens, deemed a disputed territory at best in the eyes of the world, Pakistan could not negotiate with China about Gwadar. The Khan of Kalat and possibly a freely elected government of Balochistan must be the recognised contract partners of the western route through Balochistan. The contract is therefore illegal and must be renegotiated by the correct legal parties in the event of any such treaty being desirable.

Regarding the strategic threat posed by the CPEC, I do not see any realisation of the project in the coming years, even though the work in Gwadar has already begun.

The interrogation of International laws involved in the project should be pursued because there may be legal prospects of nullifying the contract.

“There is nothing more ancient than the truth” the philosopher Descartes once stated. The truth of Balochistan is that it exists. Pakistan may consider it an old-fashioned relic of former times, but they should never underestimate the will of the people. Pakistan will not survive as a state if it continues to set aside democratic processes and use illegal means to suppress the people.

In the words of one Baloch, “One can only feel like an outcast in a land that is supposedly mine. They come, they exploit and they leave.”

Claudia Waedlich (Claudia Heidelberg) is an author, trained lawyer, and Human Rights activist. She has worked as a Correspondent and Columnist in German and English for the Pashtun Times. In 2016, she co-founded the NGO, Balochistanproject, in London at Hotel Grosvenor with Dr. Richard Benkin and Dr. Reza Hossein Borr, and has since participated in many conferences and protests of the Baloch.