Kishenganga, Ratle hydropower projects: Court of Arbitration concludes first phase on merits

ISLAMABAD: The Permanent Court of Arbitration (CoA), in an arbitration initiated by Pakistan against India pursuant to Article IX and Annexure G of the Indus Waters Treaty, concluded its proceeding’s first phase on the merits in The Hague on July 16, 2024.

The court is hearing the case taken up by Pakistan regarding the 330MW Kishnganga and 850MW Ratle hydropower projects that India is building on Pakistan’s rivers — Jhelum and Chenab, but India wants neutral expert should decide the case.

Pakistan wants the Permanent Court of Arbitration should decide the case. However, the World Bank had formed a Court of Arbitration and neutral expert (NE) to decide. Pakistan is attending both the forums -- Court of Arbitration and Neutral Expert, but India continues to boycott the proceedings of the Court of Arbitration.

Permanent Court of Arbitration (PCA) in The Hague in the earlier hearing held in July 2023 rejected India’s six objections which mainly say that the Court of Arbitration has no jurisdiction to listen to the case about the controversial designs of the 330MW Kishnganga and 850MW Ratle hydropower projects that India is building on Pakistan’s rivers -- Jhelum and Chenab, declaring that the court is competent to consider and determine the disputes set forth in Pakistan’s Request for Arbitration. And it reserves for further consideration and directions all issues not decided in this Award.

However, during the latest proceedings concluded on last Tuesday by the Permanent Court of Arbitration, according to the press release issued on July 19, 2024, Pakistan has requested th e Court of Arbitration (CoA) to address the interpretation and application of the Indus Waters Treaty to certain design elements of the run-of-river hydroelectric projects that India is permitted by the Treaty to construct on the Indus, Jhelum, and Chenab and their tributaries, before those rivers flow into Pakistan.

In accordance with the Court’s Procedural Order No. 6 dated July 6, 2023, in this phase of the proceeding, the Court is addressing certain questions concerning the overall interpretation and application of the Treaty’s provisions on hydroelectric project design and operation, as well as the legal effect of past decisions of dispute resolution bodies under the Treaty.

Pakistan was represented during the latest hearing by Raja Naeem Akbar, Deputy Agent and Federal Secretary of the Ministry of Law and Justice; Syed Ali Murtaza, Federal Secretary of the Ministry of Water Resources; Syed Muhammad Mehar Ali Shah, Pakistan Commissioner for Indus Waters; Asad Khan Burki, Legal Adviser of the Ministry of Foreign Affairs; Zohair Waheed, Office of the Attorney-General; Suljuk Mustansar Tarar, Ambassador of Pakistan to the Kingdom of The Netherlands; Ms Fatima Hamdia Tanveer and Jamal Nasir of the Embassy of Pakistan to the Kingdom of The Netherlands; Sir Daniel Bethlehem KC, Professor Philippa Webb, Dr Cameron Miles, Professor Attila Tanzi, Stephen Fietta KC, Ms Laura Rees-Evans, Abdullah Tariq, and Ms Megan Rippin, as counsel; Dr Gregory L Morris and Peter J Rae as Technical Advisers and Advocates. India did not respond to an invitation to participate in the hearing and did not appear. The Court of Arbitration is chaired by Professor Sean D Murphy of the United States. The other members are Professor Wouter Buytaert of Belgium, Jeffrey P Minear of the United States, Judge Awn Shawkat Al-Khasawneh of Jordan, and Dr Donald Blackmore of Australia. Pursuant to a decision by the Court of Arbitration, the PCA acts as the secretariat for the proceedings.