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After New Delhi announced that it would hold the Indus Waters Treaty with Pakistan in abeyance in response to the terror attack in Pahalgam on April 22 that left 26 people dead, Islamabad issued a strong counter. It said that it would consider “any attempt to stop or divert the flow of water belonging to Pakistan…as an Act of War…” Pakistan also said it was exploring legal strategies to keep the waters from India flowing.
However, it’s clear that Pakistan’s options are limited.
Detailing the legal strategies available to Pakistan, the country’s Minister of State for Law and Justice Aqeel Malik told Reuters that Islamabad could raise the issue at the World Bank, which mediated the treaty. It could also move the Permanent Court of Arbitration or the International Court of Justice in The Hague claiming that India has violated the 1969 Vienna Convention on the Law of Treaties.
At the diplomatic level, Pakistan could raise the issue with the United Nations Security Council too, he said. The World Bank, after negotiating the treaty on sharing the water of the Indus River System in 1960, also played a role in settling disagreements between India and Pakistan.
For instance, in May 2005, after consultation with the two countries, the World Bank appointed Raymond Lafitte as a “neutral expert” to settle differences between them over the Baglihar Dam on the Chenab river in India. In 2007, he cleared the project.
The World Bank stepped in again in 2022 when a dispute arose about India’s Kishenganga and Ratle hydroelectric power plants on the Chenab, both part of the Indus riparian system. India asked for a neutral expert to consider the matter while Pakistan requested the establishment of a Court of Arbitration.
The World Bank appointed Michel Lino as a neutral expert and Sean Murphy as chairman of a Court of Arbitration.
But India declined to participate in the hearings of the Court of Arbitration. It said that the World Bank’s decision to constitute the court contravened the provisions of the Indus Water Treaty. India said that it could not “be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the Treaty”.
So far, India has not formally told the World Bank about its decision to hold the Indus Water Treaty in abeyance. A World Bank spokesperson said that the institution was a “signatory to the treaty for a limited set of defined tasks” and it does “not opine on treaty-related sovereign decisions taken by its member countries”.
The jurisdiction of the International Court of Justice depends on the consent of member-states and is not an obligation. In September 2019, India’s External Affairs Minister S Jaishankar signed a declaration recognising the court’s jurisdiction as “compulsory” with 13 exceptions.
Of these exceptions, point number two concerns disputes with “any State which is or has been a Member of the Commonwealth of Nations”. Pakistan is a member of the Commonwealth. Number 3 is about “disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India”. For India, Jammu and Kashmir is an internal matter.
Number 4 relates to disputes arising from hostilities, armed conflicts, self-defence, resistance to aggression, international obligations, or related actions involving India, including national security and defence measures. This would squarely cover the situation arising from the Pahalgam attack, as far India is concerned.
Under number 13, India reserves the right to amend or terminate the declaration after notifying the United Nations secretary general of its decision.
Another option Pakistani minister Malik mentioned is raising the matter in the United Nations Security Council. In this case, the most relevant section of the United Nations charter would be Article 35, which says that a member state “may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly”.
Article 34, says that the security council may investigate any dispute or situation that could cause friction or threaten international peace and security.
In June 2020, Egypt took a dispute about the Grand Ethiopian Renaissance Dam to the security council under Article 35. The dam on the Blue Nile River in Ethiopia’s Benishangul-Gumuz region has led to transboundary water disputes between Ethiopia and its lower riparian countries: Egypt and Sudan.
In September 2021, the security council asked the three countries to take forward a negotiation process led by the African Union. At that time, India’s deputy permanent representative to the United Nations, said New Delhi’s position is that, “as a general rule, transboundary water issues do not belong to the domain of the Security Council”.
It is possible that the UN Security Council may take the water dispute between India and Pakistan more seriously because both sides are nuclear powers and the suspension of the Indus Water Treaty could trigger a fullscale war.
Preventing such escalation is key for the security council. In 2022, the five permanent members of the security council had made a joint statement underscoring that they “consider the avoidance of war between Nuclear Weapon States and the reduction of strategic risks as our foremost responsibilities”.
Though lower riparian countries such as Pakistan, in this case, have a right over the shared river waters, cooperation largely depends on the water situation in the upper riparian region, the nature of bilateral relations and the power capabilities of the countries involved.
It is not unknown for even unfriendly countries to cooperate on matters that are in their larger interests. The United Nations and the World Bank have played a role in sealing deals between riparian neighbours, but their role largely depends on the global political situation at the time.
Though Pakistan could use diplomatic mechanisms to try to resolve India’s unilateral suspension of the Indus Water Treaty, legally, Islamabad’s hand is weak.
Amit Ranjan is a Research Fellow at the National University of Singapore’s Institute of South Asian Studies.
This article first appeared on Scroll.in
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