AsiaNet-Pakistan Premier Editorial Content and Press Release Distribution Service
New Delhi, July 07, 2023 (PPI-OT): India has blatantly refused to accept the Permanent Court of Arbitration’s ruling that it was competent to look into Pakistan’s case about the Kishenganga and Ratle hydroelectric projects under the Indus Waters Treaty. The Hague-based Court of Arbitration gave an award on July 03, 2023 on a 2016 case brought by Pakistan under Article IX and Annexure G of the Indus Waters Treaty. India asked the World Bank for appointment of a Neutral Expert on the same matter in the same year.
In December 2016, World Bank paused the process of appointing the Chairman of the Court of Arbitration and Neutral Expert. The embargo was removed after six years and both the processes – Court of Arbitration and Neutral Expert – were instituted. Ahead of the first meeting, India sent a letter in December 2022 to the World Bank expressing doubt over the competence of the Court of Arbitration. This letter was then conveyed to the Court of Arbitration. India didn’t take part in CoA’s proceedings and also did not exercise its right to appoint two arbitrators to the panel.
Based on India’s objections in the letter, the Court of Arbitration observed in a press release that it could adjudicate on the matter. “In a unanimous decision, which is binding on the Parties and without appeal, the Court rejected each of the objections raised by India and determined that the Court is competent to consider and determine the disputes set forth in Pakistan’s Request for Arbitration,” said the press release of the PCA.
India’s Ministry of External affairs termed the “constitution of the Court of Arbitration in contravention of the provisions of the Indus Waters Treaty”. A MEA press note asserted that “India cannot be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the Treaty”. It noted that the Indian government is in talks with Pakistan “regarding the modification of the Indus Waters Treaty under Article XII (3) of the Treaty”. “This recent development only underlines why such modification is so necessary,” added MEA press release.
According to the press release uploaded on the official website of the Permanent Court of Arbitration, The Hague, in the light of its findings in relation to India’s objections, the court unanimously made the findings and declarations which include that India’s non-appearance in these proceedings does not deprive the court of competence. The court has authority, in accordance with Paragraph 16 of Annexure G to the Indus Waters Treaty 1960, to decide all questions relating to its competence.
The PCA also finds that the matters referred to arbitration in Pakistan’s request for arbitration concern a dispute or disputes within the meaning of Article IX (2) of the Indus Waters Treaty 1960. And the initiation of the present proceedings was in accordance with Article IX (3), (4), and (5) of the Indus Waters Treaty 1960. The PCA also says that the court was properly constituted in accordance with Paragraphs 4 to 11 of Annexure G to the Indus Waters Treaty 1960.
India had raised six objections which are i) the constitution of the court of arbitration is illegal, ii) the court doesn’t have the competence to listen to the case, iii) it is not yet established that the issue about changes in designs of the projects is a dispute as a dispute can be resolved at the PCA forum so it should be taken up by a neutral expert as it is the difference between Pakistan and India, not the dispute, iv) Pakistan had not satisfied the procedural requirements of Articles IX(3), (4), and (5) of the Treaty before initiating these proceedings, v) Article IX (6) of the Treaty prevented the court from considering the questions “being dealt with by” the neutral expert and vi) the procedure for empaneling the court of arbitration, set out in Annexure G to the Treaty, had not been complied with in the present case, with the consequence that there was no effectively constituted court of arbitration.
The court of arbitration, with the help of the provisions enshrined in the Indus Waters Treaty and past cases of hydropower projects, rejected the six objections raised by India. The official said India feared that Pakistan’s case was very strong and in case New Delhi lost the fight, it would not be able to construct future projects on Pakistani rivers with poundage and spillways. To create hurdles for CoA proceedings, New Delhi earlier issued a notice to Pakistan on January 25, seeking modifications in the Treaty two days before the court hearing that took place on January 27-28.
India had extended the notice by invoking Article 12 of the Treaty. However, Pakistan sent in the first week of April 2023 its response to India, saying it was ready to listen to New Delhi’s concerns about the prevalent treaty at the level of the Permanent Commission of Indus Waters (PCIW). Pakistan has raised three objections to the Kishenganga project’s design, saying that the project pond is 7.5 million cubic meters, which is excessive and should be one million cubic meters. Pakistan also wants India to raise intake by up to 1-4 meters and also raise the spillways up to nine meters high.
On the issue of the Ratle Hydropower plant, Islamabad raised four objections. Pakistan wants India to maintain the freeboard at one meter whereas India wants to keep it at two meters. In addition, India wants to keep the pond of 24 million cubic meters, but Pakistan wants it to be restricted to eight million cubic meters. Pakistan also wants the intake of the project to be raised by up to 8.8 meters and its spillways should be raised by up to 20 meters. Meanwhile, commenting on the PCA decision on the question of its competence to hear Pakistan-India water disputes, the Pakistan FO spokeswoman said: “The Government of Pakistan is in receipt of the award of the court of arbitration, addressing its competence and the way forward on disputes between Pakistan and India concerning Kishenganga and Ratle hydroelectric projects and wider questions of the interpretation and application of the Indus Waters Treaty.
“The court has upheld its competence and determined that it will now move forward to address the issues in dispute. The Indus Waters Treaty is a foundational agreement between Pakistan and India on water sharing. Pakistan remains fully committed to the Treaty’s implementation, including its dispute settlement mechanism. We hope that India would also implement the Treaty in good faith,” the spokeswoman said. The last meeting of the Neutral Expert took place at The Hague on 27-28 February 2023. The next meeting of the Neutral Expert process is scheduled to be held in September 2023.
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