India has rejected a ruling of the Permanent Court of Arbitration (PCA), which accepted Pakistan’s request for arbitration over India’s Kishenganga and Ratle hydropower projects in Kashmir.
While New Delhi said that it could not be compelled to participate in the illegal and parallel proceedings, the PCA took a unanimous decision and rejected each of the objections raised by it against the scope procedure initiated by Islamabad.
India’s Response
In its statement mentioning the PCA press release, the Indian Ministry of External Affairs (MEA) said, “an illegally-constituted so-called Court of Arbitration has ruled that it has the ‘competence’ to consider matters concerning the Kishenganga and Ratle hydroelectric projects.”
The Ministry reaffirmed India’s position and said the constitution of the court contravenes the provisions of the Indus Waters Treaty (IWT).
Mentioning that a neutral expert is already dealing with the matter in consistence with the IWT, India said that it had been participating in those proceedings.
Press Release on Matters pertaining to the Indus Waters Treaty:https://t.co/h7aIdezYoE pic.twitter.com/YoXPEQQ2KO
— Arindam Bagchi (@MEAIndia) July 6, 2023
India said the IWT did not provide for parallel proceedings on the same issues, and the country could not be compelled to recognise or participate in “illegal and parallel proceedings” not envisaged by the IWT.
The statement further mentioned that the Indian government has been in talks with the Pakistani government regarding modifying Article XII (3) of the IWT, and the recent development shows why such modification is necessary.
The Court’s Decision
The Hague-based PCA has rejected India’s objections to a Pakistan-initiated procedure over water use in the Indus River basin, reopening a procedure that had been blocked for many years.
The decision said, “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.”
“In relation to India’s non-appearance before the Court, the Court concluded that a Party’s non-appearance does not deprive the Court of competence, nor does it have any effect on the establishment and functioning of the Court, including the final and binding nature of its awards,” the ruling remarked.
The Permanent Court of Arbitration in the Hague rejected India's objections to a Pakistan-initiated procedure over water use in the Indus River basin, reopening a procedure that had been blocked for many years https://t.co/pU6gDyYdxg
— Reuters (@Reuters) July 7, 2023
The IWT Dispute
India and Pakistan have been arguing over India’s proposal to construct the 350-megawatt Kishenganga and 850-megawatt Ratle hydroelectric projects on rivers Jhelum and Chenab, respectively.
Pakistan alleges that India’s planned hydropower dams in the upstream areas of Jhelum, and Chenab, will cut flows from the river, which feeds 80% of Pakistani irrigation needs.
To deal with the matter, Pakistan initiated the present arbitration proceedings before the Court of Arbitration through a request for arbitration on 19 August 2016. Subsequently, on 4 October 2016, India requested that the World Bank appoint a neutral expert to address the matter.
Then, in January 2023, New Delhi issued a notice to Islamabad demanding the modification of the IWT.
The treaty, signed in 1960, gave control of the western tributaries of Indus — Chenab and Jhelum — to Pakistan, while allowing India to control its eastern tributaries — Beas, Ravi, and Sutlej. The treaty enables India to establish storage facilities and run-of-the-river hydroelectric projects on the western rivers.
Accordingly, India claims that the IWT permits its hydroelectric construction and that the dispute is beyond the arbitration council’s prerogative, as Pakistan demands.