ISLAMABAD: The Permanent Court of Arbitration, a non-UN intergovernmental organisation located in The Hague, on Friday started hearing a dispute between Pakistan and India regarding Kishanganga and Ratle hydroelectric projects pursuant to a decades-old water-sharing agreement.
According to a statement issued by Pakistan’s attorney general (AG) office, the dispute pertains to concerns raised by the country over India’s construction of the 330-megawatt Kishanganga project on the Jhelum river and its plans to construct the 850-MW Ratle project on the Chenab river in India-held Kashmir.
The AG office issued the statement after taking notice of news stories appearing in the Indian press regarding the neighbouring country’s attempt to unilaterally modify the Indus Waters Treaty.
The office described such stories as misleading and noted that the treaty could not be unilaterally modified. It said that this was an attempt to divert attention from the ongoing arbitration proceedings in The Hague.
Meanwhile, Reuters reported that India has asked Pakistan to change the Indus Waters Treaty by barring third parties from intervening in disputes.
Quoting an Indian government source, the agency said on Friday that New Delhi had served Pakistan a notice to modify the treaty and wanted to meet to start resolving the long-running dispute within 90 days.
Asked what modification New Delhi wanted, a second source said: “Whatever small differences that may come up, how they can be resolved without the involvement of any third party since it is a bilateral treaty. A third party should not be required.”
Pakistan is concerned that India’s planned hydropower dams will cut flows on the river, which feeds 80 per cent of its irrigated agriculture. Over the years, it has asked for a neutral expert and then an arbitration court to intervene.
On the other hand, India has accused Pakistan of dragging out the complaints process and says the construction of its Kishanganga and Ratle projects is allowed by the six-decade-old Indus Water Treaty.
In the arbitration court, Pakistan’s delegation is led by the country’s court agent, Additional Attorney General (AAG) Ahmad Irfan Aslam, and also includes Secretary to the Ministry of Water Resources Hassan Nasir Jamy and Pakistan’s Commissioner for Indus Waters Syed Muhammad Mehar Ali Shah. Pakistan is represented by UK barrister Sir Daniel Bethlehem, among others.
Pakistan initiated the legal proceeding on Aug 19, 2016, by requesting the establishment of an ad hoc arbitration court pursuant to Article IX of the Indus Waters Treaty.
The country took this step after strenuously raising its concerns in the Permanent Indus Commission starting in 2006 for the Kishanganga project and in 2012 for the Ratle project and then seeking resolution in government-level talks held in New Delhi in July 2015. Pakistan’s decision to initiate proceedings is in response to India’s persistent refusal to address Islamabad’s concerns.
The treaty provides for two forums for settling the disputes — the court of arbitration, which addresses legal, technical and systemic issues; and the neutral expert, which addresses only technical issues.
Pakistan requested the establishment of the court of arbitration because of systemic questions requiring legal interpretation.
India responded to Pakistan’s initiation of the formal dispute settlement process by its own belated request for appointing a neutral expert. Submitting a belated request for resolving disputes raised by Pakistan was a demonstration of India’s “characteristic bad faith”, according to the AG office statement.
Fearing conflicting outcomes from two parallel processes, on Dec 12, 2016, the World Bank suspended the processes for the establishment of the court of arbitration and appointment of the neutral expert and invited both countries to negotiate and agree on one forum.
Pakistan and India could not agree on a mutually acceptable forum. After six years, the World Bank finally lifted the suspension, created the arbitration court and appointed a neutral expert, but by this time, India had built the Kishanganga project.
Pakistan believes that any risk of conflicting outcomes can be arrested through coordination and cooperation between the two forums; Pakistan is engaging with both of them. In contrast, India has boycotted the arbitration court, which is competent to proceed ex-parte and is doing so.
Published in Dawn, January 28th, 2023