ISLAMABAD:
The Permanent Court of Arbitration (PCA) in The Hague reopened a long-stalled procedure on Thursday after rejecting India’s objections to a Pakistan-initiated process regarding water use in the Indus River basin.
Pakistan’s claim that the ICJ has “competence to determine” the disagreement between the two countries over India’s alterations to the plans for the Kishanganga and Ratle hydropower facilities has been deemed admissible by the PCA.
Pakistan claims that India’s planned hydropower dams will reduce flows on the river that feeds 80% of its irrigated agriculture, and the two nations have been at odds for decades over hydroelectric projects on the shared Indus River and its tributaries.
Specifically, Pakistan is upset over India’s plans to build the 850MW Ratle Hydroelectric project on the Chenab River in Indian Occupied Jammu and Kashmir (IIOJK), as well as India’s 330MW Kishanganga project on the Jhelum River.
In 2016, Pakistan asked the Permanent Court of Arbitration (PCA) to settle the dispute, prompting India to ask the World Bank to appoint a neutral expert per the Indus Waters Treaty (IWT) of 1961.
When the Permanent Indus Water Commission failed to resolve Islamabad’s concerns about the Kishanganga project in 2006 and the Ratle project in 2012, the Pakistani capital turned to the Permanent Court of Arbitration (PCA) for government-to-government mediation.
India refused to participate in the proceedings at The Hague because it did not believe in the court’s legitimacy.
The court issued a statement saying it had “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 in a unanimous decision, which is binding on the Parties and without appeal.”
It did not specify when or how the case would proceed, but it did say that it would deal with the legal implications of previous decisions of dispute resolution organizations under the treaty, as well as the interpretation and application of the bilateral IWT, particularly its provisions on hydroelectric projects.
India claims the treaty does not prohibit the building of the Kishanganga and Ratle Hydroelectric projects.
The PCA handles legal, technical, and systemic issues, while the impartial expert exclusively examines technical matters, as specified by the treaty [IWT].
Due to the need for legal interpretation of systemic issues, Pakistan requested the creation of the PCA. India then asked for the appointment of an impartial expert as part of a formal dispute settlement process, which it initiated rather late in the game.
India’s typical poor faith was on display in its submission of a request to resolve problems made by Pakistan, according to a statement.
On December 12, 2016, the World Bank suspended the processes for the establishment of the PCA and appointment of neutral expert out of concern for conflicting conclusions from two parallel processes and extended an invitation to both governments to discuss and agree on one forum.
Pakistan and India were unable to agree on a mutually acceptable forum, so the World Bank established the PCA and recruited a neutral expert after suspending the project for six years while India built the Kishanganga dam.
Experts from around the world, including Advocate Zohair Waheed and Advocate Leena Nishter from Pakistan’s attorney general’s office, represented Pakistan at the PCA.
Attorney Ahmed Irfan Aslam represented Pakistan at the PCA.
When asked whether the Court of Arbitration in The Hague has the authority to hear the water dispute between Pakistan and India, a spokesperson for Pakistan’s Foreign Office stated, “The Government of Pakistan is in receipt of the Award of the Court of Arbitration, addressing its competence and the way forward on the disputes between Pakistan and India concerning the Kishanganga and Ratle Hydroelectric Projects; and, wider questions of the interpretation and application of the Indus Waters Treaty.”
She also noted that the court had confirmed its authority and will move through with hearing the case.
She explained that the Indus Waters Treaty was the cornerstone of water relations between India and Pakistan. Pakistan’s commitment to the Treaty and its dispute-resolution process remains unwavering. We trust that India would follow the treaty’s terms in good faith as well.
