Controversial Kishanganga, Ratle projects: Hague court rejects India’s all six objections, upholds Pak position

ISLAMABAD: In a major development, the Permanent Court of Arbitration (PCA) in The Hague has rejected India’s six objections challenging the ongoing court’s jurisdiction to hear the case about the controversial designs of 330-MW Kishenganga and 850-MW Ratle hydropower projects that India is building on Pakistan’s rivers Jhelum and Chenab. The PCA declared that the court is competent to consider the disputes set forth in Pakistan’s request for arbitration.

The court, in its detailed Award de Ederer on Thursday, accepted Pakistan’s stance and rejected India’s objections and affirmed its competence. In relation to India’s non-appearance before the court, the PCA concluded that a party’s non-appearance did not deprive the court of competence, nor did it have any effect on the establishment and functioning of the court, including the final and binding nature of its awards.

At the same time, India’s non-appearance does not lessen the court’s standing duty to verify that it is competent and that it has jurisdiction over the dispute before it.

Pakistan desired to have its disputes resolved through the court of arbitration. India opposed it and scuttled the process by filing a parallel request for the appointment of a neutral expert. After filing a parallel request, India challenged the court of arbitration’s empanelment by saying that parallel proceedings cannot take place under the treaty. India wanted the court to declare the COA illegal.

“Now the court has accepted Pakistan’s stance and rejected India’s six objections, paving the way for the court of arbitration to start hearing Pakistan’s claim on merit to the effect that the above-mentioned two projects’ designs are in breach of the Indus Waters Treaty of 1961. Pakistan was represented by a team of international experts assisted by a team of the attorney general for Pakistan including Advocate Zohair Waheed and Advocate Leena Nishter. Barrister Ahmed Irfan Aslam acted as Pakistan’s agent in the PCA,” a top official at the Attorney General’s Office told The News.

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.

Meanwhile, India Thursday refused to accept the verdict saying it could not be compelled to participate in the “illegal” court proceedings.

Soon after the judgment was handed down in The Hague, Indian External Affairs Ministry (EAM) spokesman Arindam Bagchi said India could not be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the treaty. Bagchi reminded that in January, India issued a notice to Pakistan seeking a review and modification of the Indus Waters Treaty in view of Islamabad’s “intransigence” to comply with the dispute redressal mechanism of the pact.

Bagchi said India’s consistent and principled position had been that the constitution of the so-called court of arbitration was in contravention of the provisions of the Indus Waters Treaty. “A neutral expert is already seized of the differences pertaining to the Kishenganga and Ratle projects. The neutral expert proceedings are the only treaty-consistent proceedings at this juncture. The treaty does not provide for parallel proceedings on the same set of issues,” Bagchi said.

He further said India had been participating in the “treaty-consistent” neutral expert proceedings.