Sarthak Raizada | firstname.lastname@example.org
In retaliation to India’s decision to abrogate Article 370 of the Indian Constitution, Pakistan has made several attempts to internationalize the Kashmir dispute over the past two months. According to Pakistan, the unilateral move violated international law. However, in making such claims, Islamabad has not precisely attributed India with any internationally wrongful act for violation of any specific obligation under international law. Per contra, India has maintained that constitutional changes in Jammu and Kashmir are matters that essentially fall within India’s domestic jurisdiction and have no “external orientation” or ramification. While both countries have made polar opposite competing claims, the majority of the international community has implored New Delhi and Islamabad to resolve these issues bilaterally and through peaceful negotiations. The course of events, however, demonstrates that Pakistan has ignored such requests and unabatedly continued its campaign against the abrogation of Article 370. After making a few unsuccessful bids to muster political will against India on a global scale, recently news broke out that the Pakistani government has unilaterally stopped postal services to and from India in yet another demonstration of its protest. The cessation of bilateral postal services with India has direct effect on certain protections afforded to parcels and letters in the international legal order, and constitutes a violation of Pakistan’s obligations under the Constitution of the Universal Postal Union (UPU). In this context, this post shall examine the legal position under the Constitution of UPU and the manner in which Pakistan has flouted international law by halting international postal services with India.
Established with the objective of harmonizing postal services through international collaboration, the Constitution of the Universal Postal Union serves to develop communications between people by the efficient operation of postal services. In this spirit, Article 1.1 of the Constitution metaphorically contemplates UPU countries as a single postal territory for reciprocal exchange of postal items including “freedom of transit”. The expression “single postal territory” used in Article 1.1 is, however, not equivalent to geographic territory in a spatial sense. Rather, the concept behind a single postal territory lies in the establishment of an umbrella postal administration entrusted with the responsibility of harmonizing procedural barriers to communications resulting from separate jurisdiction of the Member States and their postal offices. It entails resolution of difficult problems that had previously hindered the development of international postal services by imposing a reciprocal obligation on Member States to show mutual respect for postal items of other countries. By eliminating barriers in the global postal system, States respect and ensure respect for the right of the people to communicate and exchange information with each other. It reaffirms the inviolability of communication between ‘peoples’ that fosters friendships and strengthens social, cultural and economic ties on a global level. Any violation of this obligation not only has a direct effect on the mutual obligations shared by two States towards each other but also disrespects the significance of communication the international communityhas accorded to them.
Another principle that is essential to the functioning of universal postal system is the principle of “freedom of transit”. Having its roots in the 1874 Treaty of Bern that recognized the right of transit in the territory of the Union, the primary provisions regulating freedom of transit in the Union are Article 1.4bis of the Constitution of UPU and Article 4 of the Universal Postal Convention (UPC) as amended by the Istanbul Congress in 2016. The principle of freedom of transit essentially obliges Member States to ensure that its designated operators forward, always by the quickest routes and the most secure means which they use for their own items, closed mails and à découvert letter-post items which are passed to them by another designated operator. The freedom implies that designated operators of intermediate countries are under an obligation to provide postal items received from the designated operator of another Member State a treatment similar to their own domestic postal items. In other words, it is an embargo on any form of discrimination between the provision of services for domestic postal items and postal items received from foreign countries for transport to the country of destination. The salience of this principle has often been emphasized before various international institutions such as the WTO and Hague Conference. In a resolution adopted by the Contracting States at the Vienna Congress in 1964, freedom of transit was identified as the most fundamental principle of the Universal Postal Union without which the Union would not be able to accomplish its objectives. Thus, it is difficult to disagree with the idea that the importance of the freedom of transit inheres in its constitutive significance for the growth and survival of international postal services.
For proper and effective implementation of the obligation of a single postal territory and freedom of transit, Article 17 of UPC, obligates Member States to ensure that their designated operators provide basic services to postal items received from the designated operators of other Member States. These services extend to the acceptance, handling, conveyance and delivery of postal items. The idea and rationale behind Article 17 is quite simple and needs no justification. It is quite natural and pragmatic to oblige Member States to provide certain minimum services to postal items received from the designated operators of other countries. These micro services have macro consequences for international postal system, as without these elementary services at the national level, it is unimaginable to expect international collaboration in postal services.
When Pakistan’s unilateral action in refusing to accept Indian consignments is examined under the lens of the foregoing international principles, they appear to be prima facie illegal. Since August 27, Pakistan has consistently refused to send and accept postal items to and from India. The rendition of events in various news reports show that Pakistan, in not accepting Indian postal items, has not only contravened the rule of single postal territory, it has also curtailed freedom of transit guaranteed to Indian postal items bound for other countries for transit through Pakistan.
Without any doubt, these actions defeat the very object and purpose behind the formation of UPU i.e. international collaboration in the cultural, social and economic fields. By taking such actions, Pakistan is only forcing India’s hand. Under Article 4.3 of UPC, India can take countermeasures and retaliate by discontinuing provision of postal services with Pakistan. Additionally, India can initiate arbitral proceedings against Pakistan by invoking the dispute resolution clause under Article 32 of UPU read with Article 153 of the General Regulations of the Universal Postal Union. Article 32 of the Constitution of UPU makes the jurisdiction of the arbitral tribunal conditional on the existence of a dispute between two or more Members as to the interpretation of the Acts of the Union or the responsibility imposed on a Member State by the application of those Acts. Clearly, the two conditions mentioned in the dispute resolution clause are disjunctive. Hence, qualification of a dispute under either head would be sufficient to confer jurisdiction on the arbitral tribunal.
For the fulfillment of the first condition, the arbitral tribunal will have to be prima facie satisfied that the impugned actions are capable of falling under any Act of the Union and as a consequence, the arbitral tribunal has jurisdiction ratione materiaeto entertain the dispute. In making this determination, the arbitral tribunal will have to look at the violations of treaty provisions alleged by India and if these violations are a result of the measures taken by Pakistan.
Before the arbitral tribunal, India can claim violation of Article 1.1 and 1.3bis of the Constitution (the rule of single postal territory), Article 14.bis of the Constitution along with Article 4 (freedom of transit) and Article 17 (obligations to provide basic services) of the UPC. Once India contends that Pakistan breached its obligations and responsibilities under these provisions, it would not be very difficult for the arbitral tribunal to prima facie conclude that Pakistan’s conduct, in refusing, to send and accept Indian postal items is directly related to India’s rights and obligations in UPU.
Although the second alternate requirement pertaining to jurisdiction would become a mere formality, if the arbitral tribunal assumes jurisdiction under the first part, it is suggested that the second requirement is nonetheless satisfied. Tentatively, the dispute between India and Pakistan has everything to do with the latter’s responsibility of respecting its obligations under the single postal territory rule and freedom of transit. A narrow construction of responsibilities imposed on a country by the application of Union’s Acts to restrict arbitral tribunal’s jurisdiction to a narrow band of disputes would be against the very object and purpose of establishing UPU. Since, the responsibility of Member States under these rules are elementary and fundamental to the functioning of the Union, it would be extremely unfair to suggest that the UPU Congress intended to exclude them. In other words, disputes pertaining to measures taken by Member States to impinge upon the basic values of UPU unambiguously fall within the jurisdiction ratione materiae of the arbitral tribunal under Article 32.
While Pakistan’s tryst with international law is understandably unsatisfactory, it is confounding why the country is making such moves. After being sidestepped on the many core issues it has aggressively defended, Islamabad should instead take tangible steps towards rebuilding its image as a trustworthy ally, deepen ties with its neighbors through confidence building measures, and rethink its foreign policy. Snapping postal services with India would only undermine regional cooperation, if not banefully disturb South Asian peace and security. In line with historical unity and common traditions shared by the two countries, Pakistan should take immediate first steps to preserve and promote people-to-people communications by restoring postal services if it intends to forge better relations with India. A post-boxing fight would only dampen mutual trust and diplomatic engagement between the two countries.
Sarthak Raizada is an advocate practicing at the Supreme Court of India. He is also working as a Research Assistant to Dr. Aniruddha Rajput (Member-ILC) where he has assisted him at the 71st Session of the International Law Commission held in Geneva, Switzerland. Previously, he has worked with the Office of the Additional Solicitor General of India, Vikramjit Banerjee and the antitrust team of India-based law firm Shardul Amarchand Mangaldas & Co.