New Delhi:
Pakistan, thirsty for some legal action over New Delhi’s move to place the Indus Waters Treaty in “abeyance”, is planning to take India to international court in a desperate attempt to find some reprieve.
The agreement between the two neighbouring countries, signed in 1960, had lived to see the day through three wars fought in 1965, 1971, and 1999. But outraged over the most-recent terror attack in which dozens of civilian tourists were killed by Pakistan-linked terrorists in Jammu and Kashmir’s Pahalgam, New Delhi swiftly acted by taking stern diplomatic measures to place the water treaty on hold till such time that “Pakistan credibly and irrevocably abjures its support for cross-border terrorism.”
Pakistan, stumped by the move, said that “any attempt to stop or divert the flow of water belonging to Pakistan will be considered as an act of war”.
PAKISTAN’S ‘4-POINT PLAN’
Staring at a water crisis, Pakistan, which is already severely parched, is now ready to run pillar to post to find a solution to bring much respite to tens of millions of its citizens. Aqeel Malik, the Minister of State for Law and Justice, told news agency Reuters late on Monday that Islamabad is working on plans for at least three different legal options, including raising the issue at the World Bank – the treaty’s facilitator.
Islamabad is also considering taking action at the Permanent Court of Arbitration or at the International Court of Justice in the Hague where it could allege that India has violated the 1969 Vienna Convention on the Law of Treaties, the minister said. “Legal strategy consultations are almost complete,” Mr Malik said, adding the decision on which cases to pursue would be made “soon” and would likely include pursuing more than one avenue.
Mr Malik further stated that a fourth diplomatic option that Islamabad was considering was to raise the issue at the United Nations Security Council. “All the options are on the table and we are pursuing all appropriate and competent forums to approach,” he said.
The Indus Waters Treaty basically states that the distribution and use of waters from the Indus River and its tributaries – the Sutlej, Beas, Ravi, Chenab, and Jhelum – would be shared by India and Pakistan. India, being the upper riparian state, technically has rights to the waters of all six rivers, but the agreement allowed Pakistan to get the full flow of waters of the Chenab, Jhelum, and Indus.
Mr Malik blamed India for ending the Indus Waters Treaty unilaterally, saying that “The treaty cannot be ended unilaterally”, adding that “there is no such provision within the treaty.”
But Pakistan’s recourse will likely not bear fruit. Here is a look why:
WHY INTERNATIONAL COURT OF JUSTICE CANNOT ARBITRATE
The jurisdiction of the ICJ is based entirely on the consent of States (nations) and not on a universal obligation. States need to declare its acceptance in full or in part, or through declarations of compulsory jurisdiction.
On September 27, 2019, India, which abides by the international rules-based order, has also submitted a declaration recognizing the jurisdiction of the Court as “compulsory”. However, in the declaration signed by Dr S Jaishankar, India had listed down 13 exceptions wherein ICJ shall not have jurisdiction over India.
In India’s declaration, Dr Jaishankar stated that “I have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than the following”.
Out of the 13 points, point number two reads, ICJ shall not have jurisdiction for “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations”. This means that Pakistan, which is a Commonwealth nation, cannot take India to the ICJ, since its jurisdiction is not valid in the case, thereby making any such attempt by Islamabad null and void.
Similarly, point number five of the same declaration states that ICJ shall not have any jurisdiction in “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved, including the measures taken for protection of national security and ensuring national defence.”
For the Permanent Court of Arbitration, a similar consent applies, thereby ruling it out entirely.
WHY WORLD BANK CANNOT INTERVENE
The World Bank also does not have any jurisdiction over the Indus Waters Treaty besides playing the limited role of a mediator or adviser to both parties in the treaty. The World Bank is not a keeper of the treaty, and can only encourage dialogue in times of a disagreement.
In 1960 too, the World Bank had only brokered the Indus Waters Treaty between India and Pakistan as a mediator.
While the global financial body facilitates appointments of neutral experts and chairs of courts of arbitration, it is limited to the role of an appointer of such posts and cannot be responsible for the treaty’s overall management or its enforcement.
Indeed, the World Bank can facilitate a dispute resolution mechanism, but only in the capacity of a neutral adviser, with its non-binding suggestions and recommendations being possibly rejected. Hence the global body cannot be considered a guarantor of the treaty. It can neither enforce it, nor unilaterally determine its interpretation.
