ISLAMABAD:
Even before its unilateral suspension in the wake of a militant attack on tourists in occupied Himalayan valley of Jammu and Kashmir three days back, India was not adhering to the Indus Waters Treaty (IWT) of 1960.
In the recent past, India boycotted the proceedings of Hague based Permanent Court of Arbitration (PCA) which Pakistan approached with a complaint against change in designs of two Indian hydro-power projects on the Indus River System — Kishanganga and Ratle Hydroelectric Plants.
The PCA has reserved its decision on Pakistan’s claim. It is learnt that the award is expected to be issued this summer. Interestingly, India boycotted the PCA proceedings in this case.
Earlier in July 2023, the PCA had accepted Pakistan’s position that it had competence to determine a dispute between India and Pakistan regarding change of designs. The court of arbitration rejected India’s objection to the assumption of jurisdiction by the international forum — the PCA.
Later, the international court started hearing Pakistan’s claim on merit to the effect that the two projects’ designs are in breach of the IWT of 1960. However, India did not join the proceedings.
Regarding the recent development about the suspension of the treaty, it is learnt that Pakistan would convey its concerns to India about the non-compliance of the treaty through proper channels.
Pakistan in its official correspondence is likely to reiterate its complaint about non-compliance of the IWT condition for sharing water data. It would also be clarified that the treaty could not be suspended.
International law expert Ahmer Bilal Soofi in a recent article said Pakistan needs to weigh its options under the provisions of the IWT.
Article IX of the treaty provides a mechanism for constituting a court of arbitration. However, there is a difficulty. In private international law, an arbitration clause in an agreement survives the abrogation or termination of the agreement.
In the present case, which falls under public international law, it needs to be explored whether the arbitration clause in Article IX will survive the holding of the treaty in abeyance. “However, it is clear that India will not be responding to any such initiative after it has declared the IWT’s suspension,” he added.
Legal experts say that there is no provision to suspend the IWT. They say it is not easy for India to stop water in three rivers. The IWT has been breached by India. Pakistan has already declared that any Indian attempt to divert or stop water flow will be considered an act of war.
Meanwhile, Minister for Defense Khawaja Asif on Friday said Pakistan will approach the World Bank (WB) in view of the suspension of the IWT by India. In an interview with BBC, he said India cannot take the unilateral decision regarding the treaty. “No one can deprive Pakistan of its water rights.”
To a question about infiltration of any terrorist elements from this region to India, he said, it is impossible because hundreds of thousands of army men are present on both side of the Line of Control.
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