Interference v Conspiracy | By Barrister Ali Tahir

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Interference v Conspiracy

The DG ISPR in categorical and unequivocal terms stated that the defence forces response on whether there was a foreign conspiracy against the last Imran cabinet was considered in the National Security Council meeting and then a statement was issued which clearly expresses what was concluded in that meeting.

That statement did not contain the words conspiracy, and the DG ISPR explained that a demarche was issued because of “undiplomatic language which is equal to interference.”

As an international lawyer, I seek to explain some important words used by the DG ISPR which are used in international diplomatic and legal parlance.

Taking a page from the book of John Austin, who called this method ‘analytical jurisprudence’, I will try and explain four important words in this column which are, of course, interrelated, ‘sovereignty’, ‘interference’, ‘conspiracy’ and ‘demarche’, and leave the reader to then make his own conclusion on whether the government or the opposition is on the right side of history.

Let’s get to Sovereignty first; the concept of sovereignty in international law and diplomacy is intimately related to the concept of a state.

Without sovereignty there is no state, and without a state there is no sovereignty. It is what independent states possess just because they are independent states.

Sovereignty therefore is power of the state coupled with the right or ability to exercise it, authority over all the individuals living in the state’s territory.

This power is regarded near absolute in theoretical terms in international law, even though practical constraints such as influence of other states or political feelings of the inhabitants of the state exist.

When all know what happened in Nazi Germany, but when the British first discovered the atrocities being committed in Germany against Jewish people in the 1930s, not even a note of protest or a demarche was sent by the British Government because it was thought that such was an interference in the internal affairs of Germany.

This brings us to interference. Since sovereignty means the power of the state to make its own decisions for its own territory and its own inhabitants, therefore, sovereignty brings with it total discretion for the government of a state to decide matters that are essentially within domestic jurisdiction, this principle is enshrined in the UN Charter in Article 2(7).

Even the discussion of a state’s internal policies internationally is a breach of the principle.Every time a state feels that another state has made comments that breach this  principle of sovereignty it is seen as an interference in the internal affairs of that state.

Just last week Tunisia lambasted Turkey for interference in internal matters after Turkish President Erdogan commented on Tunisian President’s decision to dissolve the assemblies.

In the same way, just a couple of weeks ago, Cuba also reacted strongly to an EU comment on criminal sentences handed down by Cuban courts and called it an interference in the internal affairs of Cuba.

An interference is just that, nobody has the right to tell a state on how it should exercise domestic jurisdiction, but it does not mean a design of a regime change, it has never meant that.

This brings us to conspiracy. A conspiracy is legally defined as two or more persons agreeing to do, or cause to be done, an illegal act or an act which is not illegal by illegal means.

So a conspiracy must in this scenario mean that there was some internal involvement with a foreign country, either for a regime change or another matter.

A conspiracy is, therefore, far more dangerous than interference, and will have consequences both in international law, where the state may be restrained by force under Chapter VII of the UN Charter, and domestic law, where those involved internally commit the offence of sedition, punishable by death.

This has outrightly been rejected by the DG ISPR and does not warrant further comment, other than the fact that the Vote of No-Confidence was held strictly in accordance with law and as per the orders of the Supreme Court of Pakistan, therefore, the question of conspiracy must not even arise.

But if there is no conspiracy and only interference, what is the remedy? This brings us to demarches.

A demarche is but a type of diplomatic correspondence, which of course has a history of its own customs and traditions in respect of the language, presentation and delivery in foreign affairs, what separates a demarche from other correspondence is that it is a formal diplomatic representation which outlines a state’s position on an issue in serious terms.

We can take a few examples from this year only, the EU sent a demarche to Russia on its invasion of Ukraine, then it sent a demarche to India for not taking a principled position, India sent a demarche to China over the Chinese Foreign Minister’s remarks on Illegally Occupied Indian Jammu and Kashmir and Pakistan also sent a demarche to India last year on the breach of human rights in Illegally Occupied Indian Jammu and Kashmir.

Demarches are common in the relations of the comity of nations, as the DG ISPR correctly observed that issuance of demarches are not specific to hatching of conspiracies but can also be given for other reasons.

In the current scenario the demarche was given due to undiplomatic language and interference in the internal affairs of Pakistan.

The Karchi-based writer is a Professor of Jurisprudence.

 

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