Author: Syed Tauheed, Vidyavardhaka Law College, Sheshadri Iyer Road, Mysore
To the Point
In the recent past, India has questioned the jurisdiction of International Court of Arbitration (ICA) in cases where disputes under Indus Waters Treaty (IWT) 1960, signed between Pakistan and India arose. It is not just a water sharing dispute, but also regards the outer limits of the treaty law, principle of sovereignty, and the scope at which the international adjudicatory bodies can intervene in a dispute between two states.
Legal Jargon
The issue is concerned with the general principle that pacta sunt servada (agreements must be observed), competence of jurisdiction and consent doctrine of international adjudication. The Indian standpoint is based upon the argument that the IWT provides a self-contained method of dispute resolution in the form of the Permanent Indus Commission, the Neutral Expert proceedings, and arbitration in only selected circumstances. India by refusing ICA jurisdiction in the current case asserts principle of sovereign equality as a principle in international law and under Vienna Convention on the Law of Treaties (1969) this is done because of the inability of international tribunals to work beyond the scope of consents of states.
The Proof
One of the most effective transboundary water-sharing agreements in the history is described as the Indus Waters Treaty, 1960 sponsored by World Bank. It allocated:
Dried up, and kept in its course entirely within India with the Eastern Rivers (Ravi, Beas and Sutlej).
The Western Rivers (Indus, Jhelum, Chenab) were mainly awarded to Pakistan and India was permitted to use the rivers to a small extent (hydropower, domestic use and non-consumptive use).
Arguments have occurred periodically over Indian hydroelectric schemes on the Western Rivers, India is accused by Pakistan of breaching stipulations of the treaties. In the recent past, Pakistan has moved the ICA to seek arbitral proceedings whereas India demanded a Neutral Expert as provided under the IWT to the case. In its Bush analysis, India has contended that there is a legal inconsistency in having the same dispute proceed in parallel before a Neutral Expert and the ICA and that arbitration in the given case is a form of jurisdictional arrogation.
With this positioning, India concludes that sovereignty and integrity of treaties need to be placed over the increment of the jurisdiction of international tribunals.
Sovereignty Dilemma
The IWT dispute throws light on the long-standing conflict between domestic and international adjudication on one side, and sovereignty on the other. The implied right granted to states due to sovereignty is that the state could exercise dominion over the resources within its territory. India still holds that so long as it does not violate the limitation prescribed by the IWT, sovereign control over the project on its side of the rivers was entitled.
International adjudication rests, however, on the principle of neutral treatment of disputes. Pakistan considers arbitration to be a neutral platform to challenge India schemes. However, international tribunals can do so on the condition that states so willingly authorized them. Under the Vienna Convention on The Law of Treaties (1969), it is obvious that tribunals only obtain their jurisdiction under treaty provisions.
Therefore, the exceptional circumstance in which India objects to ICA jurisdiction does not challenge international law but instead, the consensual element of dispute settlement becomes stronger. The case proves that sovereignty still plays the central role even in an extremely cooperation-focused framework such as an IWT.
A self-contained regime is a convention which does not just stipulate the rules but also makes its way to resolve the disputes. These treaties are subject to the principle lex specialis derogat legi generali, and in other words the treaty rules override general rules of international law.
This principle is well exemplified by The Indus Waters Treaty, IWT. It provides India and Pakistan with elaborate guidelines on the distribution of water of Indus River and generates three tiers of case resolution. First, disputes have to be considered by the Permanent Indus Commission. Second, the parties can refer to a judgment by a Neutral Expert in the case some technical issues have not been settled. Severe conflicts are the only type of conflicts that can be subjected to arbitration wherein the case will be outside the provision of the treaty.
These levels safeguard the consent of the states and offer certainty. When an external tribunal ignores such a hierarchy and embarks on adjudicating on water issues before time, then the trust that holds the treaty to be operational may fizzle out. The many threats issued by India to those seeking to disrupt the self-contained structure of the IWT have been the risk of destabilizing South Asia.
Abstract
This paper discusses the case in which India disputed the jurisdiction of the Indus Waters Treaty by the International Court of Arbitration. It places the problem in the wider context of treaty law, state sovereignty and international court boundaries. Discussing the dispute settlement mechanism of the IWT with an application of jurisprudence in this regard, it states that India seems to be pressing the point about the precedence of the negotiated treaty system on an external adjudication mechanism. Finally, this controversy demonstrates the longstanding conflict between international legal arrangements and the sovereign rights of states in such hot fields of activity as transboundary water administration.
Case Laws
Indus Waters Kishenganga Arbitration ( Pakistan v. India, 2013)
The ICA supported India in its right to divert the waters to carry out the Kishenganga project but placed a minimum flow requirement in order to safeguard downstream Pakistan. This case demonstrates how the arbitral process based on treaty specifics can alleviate sovereignty conflicts to comply with environmental duties but also conveys why India has been reluctant to endure successive arbitral review.
Certain Iranian Assets ( Iran v. USA, ICJ, 2019)
The ICJ specified that the jurisdiction is restricted to the acceptance of the treaties which was a representation that was supported by India regarding that arbitral tribunal is not allowed to extend further beyond what was agreed by the states in the IWT.
Case Concerning the Gab n Double cacute iberc writing oac technologies gacellք b illups hyperbounce rad busac independence r rones de Guinea-Bissau Cases (Gambia v. Guinea-Bissau, 1996)
ICJ restated the obligatory effect of an agreement (pacta sunt servada), but recognized both sovereignty and the environment. The case takes on a relevance to the IWT dispute whereby treaty obligations need to work hand in hand with the sovereign rights.
Conclusion
This aspect has been seen in India, which rejected the jurisdiction of the ICA on the basis of the Indus Waters Treaty to state the boundaries of international adjudication on state sovereignty. Although arbitration offers an independent venue, its legality is pegged on an agreement by the states. The IWT was designed in such a way as to provide detailed systems of dispute settlement, at various levels, and resort to some other method usurps the very integrity of the treaty.
The gentler lesson that can be drawn on this episode is that international law operates only optimally when it considers treaty frameworks and consent of the states. The transboundary water conflict is very closely connected to the concepts of sovereignty and national security, therefore, diplomacy and conformity with IWT can be more effective than frequent opposing conflicts about arbitration.
FAQS
1. What is Indus Waters Treaty (IWT)?
It is a 1960 water agreement between India and Pakistan mediated by the World Bank which apportioned eastern rivers to India and western rivers to Pakistan.
2. What reasons have made India not accept ICA jurisdiction?
India says that IWT provides that disputes between the parties should be settled through Neutral Experts and the Permanent Indus Commission and that arbitration in such a case will go above and beyond the agreed mechanism.
3. Are there ways in which international courts can supersede the treaties structure?
No. It is only by the express consent of states that tribunals can have jurisdiction under international law, and that such jurisdiction can only serve to displace the operation of self-contained treaty regime.
4. What precedent is this?
It supports the idea that resolutions of the disputes through international treaties prevail over external arbitration, which preserves the state sovereignty.
5. And how will things go forward?
Although its activities may persist in court, a permanently sustainable resolution seeks prioritization and collaboration through resolution activities, trust-creating, and respect of the provisions of the treaty.
