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Thursday April 25, 2024

First hearing of Indus water dispute begins at The Hague

India claims third party is not required and has boycotted the Court of Arbitration

By Abdul Qayyum Siddiqui
January 28, 2023
An undated photograph of an ariel view of the Indus river flowing through Ladakh, Jammu and Kashmir. — AFP/File
An undated photograph of an ariel view of the Indus river flowing through Ladakh, Jammu and Kashmir. — AFP/File

THE HAGUE: The first hearing in a dispute between Pakistan and India pertaining to the Indus Waters Treaty began at the Permanent Court of Arbitration on Friday, since the Indian government persistently failed to ally the concerns raised by Pakistan at various bilateral talks.

The dispute brought before the court stem from Indian plans to construct the 850 MW Ratle Hydroelectric Project on River Chenab in Indian Illegally Occupied Jammu and Kashmir (IIOJK) and India’s construction of the 330 MW Kishenganga hydroelectric project on River Jhelum.

As the hearing kicked off, the Office of the Attorney General took notice of news stories appearing in the Indian press regarding New Delhi's attempt at a unilateral modification of the Indus Waters Treaty.

"Such stories are misleading. The Treaty cannot be unilaterally modified. This is an attempt to divert attention from the ongoing proceedings at the Permanent Court of Arbitration under the Indus Waters Treaty," the statement clarified.

"Pakistan initiated the legal proceeding on 19 August 2016 by requesting the establishment of the ad hoc Court of Arbitration pursuant to Article IX of the Indus Waters Treaty."

Islamabad was compelled to take this step after its efforts to hold talks with India via other forums came to nought, the statement mentioned.

Pakistan — alarmed that India's hydropower plants would cut flows on the rivers they were being built on and have an adverse impact on the country's irrigation water supply — first raised its concerns in the Permanent Indus Commission starting in 2006 for the Kishenganga project and 2012 for the Ratle project.

Then, it sought a resolution for the problems via government-level talks held in New Delhi in July 2015. However, India maintains that the construction of both projects is allowed by the treaty.

Thus, Islamabad was forced to initiate proceedings at the arbitration court.

Pakistan’s legal counsel is Sir Daniel Bethlehem, KC — a barrister from the UK — along with others.

The statement further added: "Pakistan’s delegation is led by Pakistan's Agent to the Court, Mr. Ahmad Irfan Aslam, Additional Attorney-General and includes Mr. Hassan Nasir Jamy, Secretary, Ministry of Water Resources, and Syed Muhammad Mehar Ali Shah, Pakistan’s Commissioner for Indus Waters."

It must be noted that the Indus Waters Treaty, signed in 1960, presents two recourses for the settlement of any disputes that may arise regarding the distribution of water from any of the rivers covered in the treaty.

The first is the Court of Arbitration which addresses legal, technical, and systemic issues. The second recourse is a neutral expert that addresses only technical issues.

Pakistan requested the establishment of the Court of Arbitration because of systemic questions requiring legal interpretation. Soon after, India responded by requesting the appointment of a neutral expert.

"Submission of a belated request for the resolution of disputes raised by Pakistan," the statement said “was a demonstration of India's characteristic bad faith."

The two countries have been arguing over hydroelectric projects on the shared Indus river and its tributaries for several years.

On 12 December 2016, the World Bank (WB) began to fear conflicting outcomes from the two parallel processes and consequently suspended the processes for both the establishment of the arbitration court and the appointment of the neutral expert.

It, instead, invited both countries to negotiate and agree on one forum. Pakistan and India could not agree on a mutually acceptable forum.

Eventually, after the passage of six years, during which India completed the construction of the Kishenganga project, the WB finally lifted the suspension and created the Court of Arbitration, and appointed a neutral expert.

Sean Murphy was appointed as the chairman of the Court of Arbitration (CoA) and Michel Lino as the neutral expert by the World Bank on October 17.

Pakistan believes that any risk of conflicting outcomes can be arrested through coordination and cooperation between the two fora. Therefore, Pakistan is, engaging with both fora.

In contrast, according to Reuters, an Indian government source claimed that India has asked Pakistan to modify the water-sharing treaty by banning any third party from being involved in disputes.

Resultantly, India has boycotted the Court of Arbitration despite the fact that the court is competent to proceed ex parte and is doing so.

According to Reuters, the source also said on Friday that India had served Pakistan a notice to alter the treaty. The Modi-led government wants to hold meetings to resolve the long-standing dispute within 90 days.

It is, however, adamant that a third party is not required for arbitration.