Pakistan scores big win at The Hague

The Permanent Court of Arbitration (PCA) in The Hague on Thursday 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 PCA declared Pakistan’s case – the international court has “competence to determine” the dispute over changes in the designs of the Kishanganga and the Ratle hydroelectric plants by India – admissible.

Both the countries have been arguing over the hydroelectric projects on the shared Indus River and its tributaries for decades, with Pakistan complaining that India's planned hydropower dams will cut flows on the river which feeds 80% of its irrigated agriculture.

The dispute pertains to concerns raised by Pakistan over India’s construction of the 330 megawatts Kishanganga project on the Jhelum River and plans to build 850MW Ratle Hydroelectric project on the Chenab River in Indian Illegally Occupied Jammu and Kashmir (IIOJK).

To resolve the dispute, Pakistan sought resolution through PCA arbitration proceedings in 2016, prompting India to request that the World Bank appoint a neutral expert under the terms of the Indus Waters Treaty (IWT) of 1961.

Islamabad had gone to the PCA after raising its concerns over the Kishanganga project in 2006 and over the Ratle project in 2012 at the Permanent Indus Water Commission to seek resolution of the disputes at the government-to-government level.

India boycotted The Hague court proceedings, questioning the competence of the court.

"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," the court said in a statement.

It gave no details on when and how the case will continue, but added that it will address the interpretation and application of the bilateral IWT, notably the provisions on hydroelectric projects, as well as the legal effect of past decisions of dispute resolution bodies under the treaty.

India says the construction of its Kishanganga and Ratle Hydroelectric projects is allowed by the treaty.

The treaty [IWT] provides for two forums for settlement of the disputes – the PCA that addresses legal, technical, and systemic issues and the neutral expert that addresses only technical issues.

Pakistan requested the establishment of the PCA because of systemic questions requiring legal interpretation. In response, India sought formal dispute settlement process by its own belated request for the appointment of a neutral expert.

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

Fearing conflicting outcomes from two parallel processes, on December 12, 2016, the World Bank suspended the processes for the establishment of the PCA and appointment of neutral expert, inviting both countries to negotiate and agree on one forum.

Pakistan and India could not agree on a mutually acceptable forum and the World Bank, after six years, during which India completed the construction of the Kishanganga project, finally lifted the suspension and created the PCA and appointed a neutral expert.

At the PCA, 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 at the PCA.

Meanwhile, responding to media queries concerning the competence of the Court of Arbitration in The Hague to hear Pakistan-India water disputes, the Foreign Office spokesperson said, “The Government of Pakistan is in receipt of the Award of the Court of Arbitration, addressing its competence and the way forward on the disputes between Pakistan and India concerning the Kishanganga and Ratle Hydroelectric Projects; and, wider questions of the interpretation and application of the Indus Waters Treaty.”

The court had upheld its competence, determining that it would now move forward to address the issues in the dispute, she added.

She said, “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 will also implement the treaty in good faith.”

(With input from reuters)