Indus Water Treaty: India stays away from ‘illegal’ Court of Arbitration sought by Pakistan

The proceedings of Court of Arbitration started in The Hague two days after India served Pakistan notice seeking changes in 1960 treaty

India has stayed away from the proceedings of the Court of Arbitration that commenced at The Hague last week to adjudicate the objections of Pakistan on the technical design features of its Kishanganga and Ratle hydroelectric projects in Jammu & Kashmir.

New Delhi stressed that it would not recognise the "illegally constituted so-called Court of Arbitration or any of its actions".

The proceedings of the Court of Arbitration in The Hague started on Friday — two days after India served Pakistan a notice seeking modification in the 62-year-old Indus Water Treaty, in accordance with the Article XII (3) of the treaty itself.

The government of Pakistan sent a delegation — led by its Additional Attorney General Ahmad Irfan Aslam — to The Hague. It hired Daniel Bethlehem, a barrister from the UK, to plead on its behalf before the Court of Arbitration.

India, however, refrained from participating in the proceedings of the Court of Arbitration, which was initiated by the World Bank last year following a request from Pakistan in accordance with the provision of the Indus Water Treaty (IWT).

A source in New Delhi told DH on Monday that the government of India decided against participating in the Court of Arbitration "in keeping with its principled position".

After appointing Sean Murphy as the chairman of the Court of Arbitration in October 2022, the World Bank had invited India and Pakistan to attend a meeting with him. New Delhi, according to the source, had not sent any representative to the meeting, which had, however, been attended by the officials representing the government of Pakistan.

New Delhi, however, had sent its representative to the headquarters of the World Bank in Washington DC on November 21 last for a meeting with Michel Lino, who had been appointed as the "Neutral Expert" on a request from India for settling the differences with Pakistan on the technical designs of its Kishanganga and Ratle HEPs.

The IWT was signed by India and Pakistan on September 19, 1960, for sharing of water in the transboundary Indus River System. The World Bank was also a signatory of the treaty and was mandated by the treaty to appoint a "Neutral Expert" to settle a "difference" or a "Court of Arbitration" to resolve a "dispute" as and when requested by either or both the parties.

Islamabad, in 2015 requested the World Bank the appointment of a 'Neutral Expert' to examine its objections to the technical design features of two hydroelectric projects of India — the 330 MW Kishanganga Hydroelectric Project and 850 MW Ratle Hydro Electric Projects on the Jhelum and the Chenab, respectively. The Kishanganga HEP on the Jhelum was inaugurated in 2018. The Ratle HEP on Chenab is still under construction. Islamabad, however, in 2016 unilaterally retracted the request and proposed that a Court of Arbitration should adjudicate its objections.

New Delhi, on the other hand, asked the World Bank to appoint a Neutral Expert to settle the differences. But five-year-long efforts to work out a solution acceptable to both failed as Pakistan persistently refused to discuss its objections with India during regular meetings of the PIC.

The World Bank finally acted on both requests and, in October 2022, appointed Lino as the Neutral Expert and Murphy as the chairman of the Court of Arbitration.

India's consistent principled position has been that the constitution of the so-called Court of Arbitration was in contravention of the clear letter of the Indus Waters Treaty, specifically Article IX (6), which stated that a Court of Arbitration could not adjudicate the same set of differences when a Neutral Expert was already seized of them, explained another source in New Delhi.

New Delhi conveyed to Islamabad and the World Bank that the initiation of the two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes would create an unprecedented and legally untenable situation, which would risk endangering IWT itself. This is why India has issued notice to Pakistan, seeking modification of the IWT.

India, according to the sources, has conveyed its agreement to participate in the next meeting of the validly-constituted Neutral Expert proceedings on the differences over Kishenganga and Ratle HEPs, scheduled to be held next month.