The Rsil Law Review
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THE RSIL LAW REVIEW PUBLISHED BY THE RESEARCH SOCIETY OF INTERNATIONAL, PAKISTAN ARTICLES • Drones: Targets, Civilians and Operators (Andrew G. Jones) • The Evolution and the Role of Individual Complaint Mechanisms in International Human Rights Law and the Status of Pakistan (Syed Muhammad Farrukh Bukhari) • The Role of Qisas and Diyaat in Facilitating Honor Killings (Shehreyar Khan) • Counter-Terrorism and Human Rights: A Review of the ATC Trial Procedure in Pakistan (Zainab Mustafa) • Deprivation of Liberty During Investigation, Preventive Detention and Internment (Minahil Khan) • Negotiations Between India and Pakistan over the Kashmir Issue (Mehak Mubin) • The WTO and its Failure to Create a Level Playing Field for Developed and Developing Nations (Zarmala Tashfeen) STUDENT NOTES • Restitution of Conjugal Rights under Islam (Maha Ali) • An Analysis of the Acceptable Standards for Living Conditions, Solitary Confinement and Unlawful Detention (Ahmed Farooq and Haniya Hasan) Volume II 2018 Issue I RSIL Law Review 2018, Vol. 2, No. 1 | 1 RSIL Law Review Volume II 2018 Issue I BOARD OF EDITORS Editors in Chief Ahmer Bilal Soofi Jamal Aziz Managing Editor Hafsa Durrani Supervising Editors Oves Anwar Zainab Mustafa Articles’ Editors Hafsa Durrani Zainab Mustafa Cover and Layout Design Khuram Shahzad RSIL Law Review 2018, Vol. 2, No. 1 | 2 RSIL Law Review Volume II 2018 Issue I About RSIL The Research Society of International Law (RSIL) is a research and policy institution whose mission is to conduct research into the intersection between international law and the Pakistani legal context. RSIL was founded in 1993 by Mr. Ahmer Bilal Soofi, Advocate of the Supreme Court of Pakistan, and aims to inform policy formulation on a national level through its efforts. The Society is a nonpartisan and apolitical organization, dedicated to examining the critical issues of law – international as well as domestic – with the intention of informing discourse on issues of national importance and effecting positive change in the domestic legal space. To this end, RSIL engages in academic research, policy analysis and an approach of engagement with policy-makers and stakeholders in the domestic and international politico-legal contexts in order to better articulate meaningful and insightful national positions on these matters. RSIL is the first and largest legal think-tank in Pakistan staffed by a team of dedicated researchers based in its Islamabad and Lahore offices, with a broad spectrum of specializations in domestic and international law. RSIL Law Review 2018, Vol. 2, No. 1 | 3 RSIL Law Review Volume II 2018 Issue I About the Review The RSIL Law Review is published by the Research Society of International Law (RSIL). It endeavours to be one of the leading law journals in Pakistan. The Review seeks to incorporate international legal scholarship and practice with a domestic legal perspective to address today’s most complex legal challenges. RSIL is committed to publishing unique, cutting edge and high impact pieces from new scholars likely to advance public debate in international, domestic and comparative law. The Review reinforces RSIL’s desire to sustain and strengthen critical learning, capacity building and legal expertise in Pakistan. Submissions: The Editors of the RSIL Law Review invite the submission of articles. Articles will be accepted with the understanding that the content is unpublished previously. The RSIL Law Review seeks to publish work that displays excellence in both written English and legal academic analysis. The submission of articles that use creativity, a trans-disciplinary approach or address comparative law issues as they relate to international law and domestic issues of international relevance is also encouraged. RSIL accepts student notes (up to 2500 words) and full-length articles (4000 – 9000 words). All those interested, should submit an abstract/articles for review through the submission form available on our website journal.rsilpak.org. Sponsorship: Individuals and organizations interested in sponsoring the RSIL Review should contact the editors at [email protected]. Copyright: Copyright for material published for the Review is held by RSIL except or where otherwise noted. The materials used and opinions expressed in these articles are solely those of the signed authors and do not necessarily reflect the views of the editors or of RSIL. While every effort is made to ensure the accuracy of the information contained in the review, the editors do not accept any responsibility for errors, emissions or claims for copyright infringement resulting therefrom. RSIL Law Review 2018, Vol. 2, No. 1 | 4 RSIL Law Review Volume II 2018 Issue I TABLE OF CONTENTS EDITOR’S NOTE Hafsa Durrani………………………………………………………………………..……6 ARTICLES: DRONES: TARGETS, CIVILIANS AND OPERATORS Andrew G. Jones…………………………………………………………………………..8 THE EVOLUTION AND THE ROLE OF INDIVIDUAL COMPLAINT MECHANISMS IN INTERNATIONAL HUMAN RIGHTS LAW AND THE STATUS OF PAKISTAN Syed Muhammad Farrukh Bukhari………………………………………………………22 THE ROLE OF QISAS AND DIYAAT IN FACILITATING HONOR KILLINGS Shehreyar Khan……………………………………………………………….…..……..38 COUNTER-TERRORISM AND HUMAN RIGHTS: A REVIEW OF THE ATC TRIAL PROCEDURE IN PAKISTAN Zainab Mustafa………………………………………………..……………………........57 DEPRIVATION OF LIBERTY DURING INVESTIGATION, PREVENTIVE DETENTION AND INTERNMENT Minahil Khan……………………………………………………………………...….….72 NEGOTIATIONS BETWEEN INDIA AND PAKISTAN OVER THE KASHMIR ISSUE Mehak Mubin………………………………………………………………………….....95 RSIL Law Review 2018, Vol. 2, No. 1 | 5 THE WTO AND ITS FAILURE TO CREATE A LEVEL PLAYING FIELD BETWEEN DEVELOPED AND DEVELOPING NATIONS Zarmala Tashfeen…………………………………………………………………...….105 STUDENT NOTES: RESTITUTION OF CONJUGAL RIGHTS UNDER ISLAM Maha Ali…………………………………………………………………...…………....116 AN ANALYSIS OF THE ACCEPTABLE STANDARDS FOR LIVING CONDITIONS, SOLITARY CONFINEMENT AND UNLAWFUL DETENTION Ahmed Farooq and Haniya Hasan…………………………………………………......120 RSIL Law Review 2018, Vol. 2, No. 1 | 6 RSIL Law Review Volume II 2018 Issue I Editor’s Note The RSIL Law Review is proud to present its second publication. This issue contains seven articles and two student notes. All nine pieces are a display of the diverse and creative scholarship flourishing in today’s Pakistani legal fraternity. Andrew G. Jones, a PhD candidate of the Chine University of Political Science and Law, discusses in his article the legality of armed drones as being used for both military and civilian operations. The article focuses on the individual human elements of drones as well as the legal consequences individuals face because of the use of this new technology. Syed Muhammad Farrukh Bukhari, a PhD scholar at the Istanbul University, writes in great detail about the development and incorporation of the Individual Complaint Mechanism (ICM) as a tool to realize the rights granted under several human rights conventions. He discusses the procedure of the ICM as well as its significance within the United Nations Human Rights Enforcement System. Shehreyar Khan, a graduate of the University of London External LL.B program, provides a critical analysis of the qisas and diya laws in light of Pakistan’s obligations under international human rights law. Zainab Mustafa, a Research Fellow at the Conflict Law Center of RSIL, in her article maps out the investigation and trial procedure of offences under Pakistan’s Anti- Terrorism Act 1997. She provides an in-depth review of the entire process while highlighting the defects prevalent in the system at each step of the way. Minahil Khan, fellow Research Associate at the Conflict Law Center of RSIL, explores and analyzes the different domestic legal frameworks that are employed to detain individuals in Pakistan. Her article focuses on how the two primary mechanisms of detention- ‘arrest, remand and bail’ and ‘preventive detention’- are often used indiscriminately and arbitrarily, undermining their effectiveness and legitimacy. Mehak Mubin, a practicing lawyer, reviews all the negotiations and agreements that have been held between India and Pakistan regarding the Kashmir issue. She explains the various strategies adopted and analyzes their varying levels of success. Zarmala Tashfeen, a Law Clerk at the Supreme Court of Pakistan, discusses in her article how the World Trade Organization (WTO) has at times failed to provide a level playing field between developed and developing nations, by enacting rules that seem to have benefitted the richer countries more than the poorer countries. This Issue includes two student notes, the first note by Maha Ali, discusses the origin and evolution of the legal remedy known as the restitution of conjugal rights, in matrimonial RSIL Law Review 2018, Vol. 2, No. 1 | 7 issues. The second note, co-authored by Ahmed Farooq and Haniya Hasan, analyzes the acceptable standards for prisons and detention institutions prescribed under various laws of Pakistan and to what extent they are being implemented. I am grateful to the entire Board of Editors for their hard work in reviewing and editing the articles. Also I am immensely grateful to Mr. Ahmer Bilal Soofi and Mr. Jamal Aziz, for their constant support and guidance throughout the process. Hafsa Durrani Managing Editor Feb 2018 RSIL Law Review RSIL Law Review 2018, Vol. 2, No. 1 | 8 Drones: Targets, Civilians and Operators Andrew G. Jones* INTRODUCTION The use of armed unmanned aerial vehicles (drones) has been the subject of much discussion since the beginning of the new