chetak wrote: ↑07 Jul 2023 21:09
cheen threw the PCA's order into dustbin when it ruled against cheen over the “south china sea" issue
why would India be so foolish so as to follow the PCA's order on the IWT when the very process followed by the PCA is illegal
While a comparison with the Chinese case under ITLOS PCA may be tempting to make,
there are many structural differences which make our rejection of the CoA very just and legal.
Let me explain.
As the IWT CoA says, its formation is legal under the provisions of the IWT. It is also right that India's rejection of the CoA does not make it incompetent.
While superficially the CoA may appear to be correct, there are a few problems with this formulation which are what India has pointed out and which is what the CoA has not come to grips with. I would believe that this CoA is prejudiced against India already with the statements it has made and cited above.
We need to understand the three grades of issues that the Indus Commission has to deal with. Questions, differences and disputes. Questions are the initial set of problems raised by one Indus Commissioner to the other. They either become a difference or a dispute based on whether the questions fall under issues covered in Part-1 of Annexure-F of IWT or not respectively. The differences are resolved by a NE and disputes by a CoA.
What the CoA has not understood are several things:
- The issues referred to it fall under the competence of a NE as per provisions of the IWT
- An NE has already been chosen per the provisions of the IWT and the proceedings are on-going where both India and Pakistan are presenting their respective cases.
- The CoA is neither an overarching (like a Supreme Court) nor an appellate body where an NE's award can be appealed against
- Since what can be referred to the NE and to a CoA have been clearly defined in the IWT.
- The grievous error has been made by the WB which has constituted both an NE and a CoA for the same set of issues. There is no provision in the IWT for such dual process of 'settling differences and disputes'. Article IX of IWT says, "If the difference does not come within the provisions of Paragraph (2) (a), or if a Neutral Expert, in accordance with the provisions of Paragraph 7 of Annexure F. has informed the Commission that, in his opinion, the difference, or a part thereof, should be treated as a dispute, then a dispute will be deemed to have arisen which shall be settled in accordance with the provisions of Paragraphs (3), (4) and (5)" Paragraphs 3, 4 & 5 deal with the process of establishing a CoA.
- The WB, by agreeing to constitute a NE has willy-nilly concluded that the questions raised by Pakistan are only 'differences' and therefore fall under an NE and therefore CoA is superfluous. However, Pakistan has used a provision of Article IX which says, "Provided that, at the discretion of the Commission, any difference may either be dealt with by a Neutral Expert in accordance with the provisions of Part 2 of Annexure F or be deemed to be a dispute to be settled in accordance with the provisions of Paragraphs (3), (4) and (5), or may be settled in any other way agreed upon by the Commission." The highlighted 'OR' above is crucial. A question cannot be a difference and a dispute at the same time. This is the mistake of WB which had been overlooked by the CoA
- Another glaring error of the WB and the CoA is that according to Paragraph 6 of Article IX, "The provisions of Paragraphs (3), (4) and (5) shall not apply to any difference while it is being dealt with by a Neutral Expert". The NE is already on the job and the two countries have started to present their cases before him. The CoA is therefore illegal and incompetent.
Therefore, our case of rejection of the CoA constituted by the WB is valid and legal and as per provisions of Article IX of the IWT itself.
IMO, the WB and the CoA have justified the recent GoI calls for re-negotiation of the IWT and made the task easier for India to withdraw from it if Pakistan does not agree to that proposal and if this WB/CoA
tamasha continues.
Now, let us look at the ITLOS PCA which China junked.
China has signed and ratified the provisions of UNCLOS and it is therefore bound to its arbitral awards, just as India conceded a large chunk in BoB after maritime delimitation award by the PCA of ITLOS. Unlike the IWT, there are no NEs and CoAs or differences and disputes or UNCLOS Commissioners in each country etc. within the provisions of the UNCLOS. Any country can raise an issue with the ITLOS and a PCA will hear the case and give its
binding award. Simple.
China refused to present itself before the PCA, not based on any sound provisions of the UNCLOS, but based on frivolous and unsustainable accusations. For example, it said that one of the Judges (a Sri Lankan, IIRC) was married to a Filippino. The Sri Lankan judge withdrew. China then invented other reasons. For example, it accused the President of ITLOS of picking the jury panel out of malice towards China because he was a Japanese and Japan had enmity with China. Then it proffered a hilarious reason, which the Chinese diplomacy alone is capable of doing, saying that the African & European jurists on the panel were unqualified and they did not know Asian conditions. Asian conditions?
At its most fundamental core, how can any country in this modern day defend arbitrary nine dashes drawn centuries ago?
