The government of Pakistan must proactively raise Indian Prime Minister Narendra Modi’s threat of revoking Indus Water Treaty (IWT) at international forums, besides engaging in a legal diplomacy with India for resolution of outstanding issues, said Barrister Ahmer Bilal Soofi, a leading international law expert here Wednesday.
Speaking at Institute of Strategic Studies Islamabad (ISSI) public talk titled “Pakistan-India: Avoiding a Water War,” Soofi said that termination of the IWT cannot be done unilaterally according to Article 12(4) of the treaty. “The Treaty is thus, perpetual and guaranteeing in nature,” he argued.
According to him, the IWT is a regulatory framework giving technical specifications, adding it is confined to these technicalities and does not address the substantive decision of the number of dams that the Indian government may wish to construct.
Soofi said that Modi’s threat of revoking the treaty should be taken seriously, adding it is also surprising in its nature, as in the international history it is for the first time when a head of a government is announcing that his country is going to revoke a treaty.
“This was totally an irresponsible statement and a serious threat as well and we must be mindful of the development, as the water issues with India are going beyond the IWT parameters,” he added. He further stated that Pakistan has mostly dealt with its water security issues from technical and political point of views, but never backed up its stance by strong legal arguments.
He suggested that engineers and lawyers in Pakistan need to sit together to interpret the IWT in a holistic manner, adding young scholars and lawyers should be encouraged to study water laws and develop their expertise in this area. In his presentation, he showcased the legal aspects governing the IWT and discussed the various aspects surrounding it, including what areas it does not cover, and emerging water security issues.
He stated that every dispute should be looked at from five different viewpoints: customary international law, judicial decisions, academic writings, international organisations and other treaties.
He stated that although the IWT has its governing text, yet there are other treaties and their texts, having customary value governing this treaty as well. “It is also imperative to understand that not every water issue falls under the IWT’s jurisdiction. Other water security issues should be tabled separately and bilaterally,” he said.
He also talked about how international law declares a positive obligation to not inflict unreasonable harm on the lower riparian state.
He pointed out that Pakistani officials have been invoking the wrong forum on construction of dams by India, adding Pakistan’s reservations on the technical aspects of a dam’s construction will invoke the IWT’s dispute-resolution mechanisms.
About the World Bank’s declaring a pause on the IWT, he said what the WB is suggesting is quite strange to ask the parties to suggest an option, adding hence the WB is a party to the treaty and being an arbitrator it should have determined any solution to the dispute.
“This is quite unique that the World Bank has thrown back …I am not aware of the technical details but if there is construction of a dam [on Indian side], the advantage would definitely goes to India [due to the pause],” he added.
Soofi further suggested legal diplomacy instead of political one with India on outstanding issues including Pathankot, Mumbai and Uri attacks, the issue of Kulbhushan Yadav, Kashmir dispute as well as Siachen and Sir Creak issues.
According to him, these issues cannot be resolved politically and suggested that legal teams of the two countries should sit together to find solutions to these very issues.
Earlier, former Ambassador Khalid Mahmood, chairman board of governors of ISSI, in his remarks said that the water security issue is a very important one.
Being one of the most water scarcest countries and an agricultural economy, he said that stakes for Pakistan are high and the issue should be taken very seriously amid threatening statements coming from Indian top leadership.