Pakistan Minister of State for Law and Justice Aqeel Malik has said that the government was working on three different legal options, including raising the issue at the World Bank. The other two options he mentioned in an interview with a news agency are the Court of Arbitration (CoA) and the International Court of Justice (ICJ).
Going to the World Bank may be the first option it resorts to, as that would be the cheapest and fastest. Preparing its brief to be submitted before the bank will likely not be that difficult, but it seems to have doubts about Ajay Banga, the present World Bank president. Banga, a Sikh, who got a five-year term, became the 14th president of the bank in June 2023.
Banga is well versed with the ongoing tussle between India and Pakistan over Indus Waters Treaty (IWT). Why? He became the bank’s president on June 2, 2023, and one of the first briefs he got was about the visit of Neutral Expert Michel Lino to India some days after he assumed charge. He is aware that India has chosen to boycott Court of Arbitration (CoA) proceedings which were initiated simultaneously, along with the Neutral Expert visits.
In IWT, there are 12 articles, and eight annexures numbered from A to H. In the Annexure F, all the processes, legal details and other relevant facts regarding Neutral Expert are defined. The next annexure, Annexure G, deals with Court of Arbitration (CoA). However, in whole of the Treaty, there is not one word, or phrase, which suggests that Annexure F and Annexure G can be applied to any case (difference or dispute as defined under the IWT) simultaneously.
This initiating of simultaneous proceedings before a Neutral Expert and the Court of Arbitration (CoA) is not defined anywhere in the IWT. Invoking the jurisdiction of Netural Expert happens when the two Indus Commissioners are unable to resolve anything mutually and it escalates to the next level by being called a DIFFERENCE. If the DIFFERENCE is defined as a DISPUTE, that can be invoked by referring it to a Court of Arbitration.
Self-serving interpretation
In 12 articles, and eight annexures, there is not one word on an unprecedented situation created by Pakistan. Our neighbour created this situation by legally defining various problems it had with India on Ratle and Kishenganga projects both as a DIFFERENCE and a DISPUTE. That cannot be.
At the first level of dispute resolution mechanism, the ISSUES are dealt with by Permanent Indus Commission (PIC). At the second level, the problems transform into DIFFERENCES and at the third level, they mutate into a DISPUTE.
It is an either-or situation at all three levels of dispute resolution. A problem of interpretation or implementation whatever be its nature, cannot be simultaneously treated as an ISSUE, a DIFFERENCE and a DISPUTE too. It can either be an ISSUE, or a DIFFERENCE, or a DISPUTE. It cannot be called a DIFFERENCE as also a DISPUTE at the same time. Period.
This skulduggery is something Pakistan did in the case of problems with India on Ratle and Kishenganga by defining them as DIFFERENCES as also DISPUTES. The IWT has no provisions for doing so. As such, Pakistan has not been able to say even once which article, annexure or documents allow it to do so under the IWT.
Tit for Tat by India
Interestingly, Pakistan got away with the murder of the spirit of the Treaty in this manner too brazenly, and for too long. Now, what India has done is to keep the Treaty in abeyance. It needs to be pointed out that the word ABEYANCE does not appear even once in the text of the Treaty. Going beyond the text, it is a stretched and convenient interpretation that Pakistan resorted to when it termed problems it had on Ratle and Kishenganga as DIFFERENCES as well as DISPUTES.
It is, in a way, India’s turn to give it back to Pakistan, and return the favour. Turning to its own interpretation of the text of the Treaty and choosing a word ABEYANCE for its own convenience. When it suited Pakistan, on Ratle and Kishenganga projects, it interpreted the Treaty beyond what is stated in the text. Now India has also done the same, interpreted the Treaty in a manner that suits it to bring into play the word ABEYANCE.
This tit for tat from India has left Pakistan marooned, and it is trying to keep its head above the swirling waters of six rivers of Indus system. Its threat of using all legal options available to it to defend every drop of water granted by the Treaty makes good copy. However, that doesn’t make for sound arguments.
What is Article XII (3)
The last of the articles given in the IWT, Article XII is the last article called “Final Provisions’’ and lists four points numbered 1, 2, 3 and 4. Article XII(3) says that the Treaty can be amended from “time to time with mutual consultations’’. Article 4 says that till a new amended Treaty comes into force, the earlier one will continue.
What is Pakistan’s response to India’s notices to it given under Article XII(3) seeking a review and alter the Treaty? Pakistan has refused to abide by what is written there. For almost 63 years, between September 19, 1960, and January 25, 2023, Article XII(3) remained dormant but was very much present in its original form.
Pakistan went beyond the Treaty provisions when it refused to abide by its text in Article XII (3). India has also gone beyond the Treaty and brought the ABEYANCE word to start doing so in retaliation for Pakistan’s actions over weeks, months and years. The least that India should do is harass it as much mental trauma and loss as it has done till date.
