Court Arbitration Begins on Kishanganga, Ratle Projects

The Permanent Court of Arbitration began hearing a dispute between Pakistan and India over Kishanganga and Ratle hydroelectric projects on Friday.

Court Arbitration Begins on Kishanganga, Ratle Projects

The Permanent Court of Arbitration, a non-UN intergovernmental organization based in The Hague, began hearing a dispute between Pakistan and India over the Kishanganga and Ratle hydroelectric projects on Friday, in accordance with a decades-old water-sharing agreement.

According to a statement issued by Pakistan’s attorney general (AG), the dispute stems from the country’s concerns about India’s construction of the 330-megawatt Kishanganga project on the Jhelum river and its plans to build the 850-MW Ratle project on the Chenab river in India-held Kashmir.

The AG’s office issued the statement in response to news stories in the Indian press about the neighbouring country’s attempt to unilaterally modify the Indus Waters Treaty.

The office called such stories deceptive and warned that the treaty could not be unilaterally modified. It said that this was an attempt to divert attention from the ongoing arbitration proceedings in The Hague.

Meanwhile, it was reported that India has requested that Pakistan amend the Indus Waters Treaty to prohibit third-party intervention in disputes.

According to the agency, which cited an Indian government source, New Delhi had served Pakistan with a notice to modify the treaty and hoped to meet within 90 days to begin resolving the long-running dispute.

Asked what modifications New Delhi wanted, a second source said: “Whatever small differences may come up, how can they be resolved without the involvement of any third party since it is a bilateral treaty?” “A third party should not be necessary.”

Pakistan is concerned that India’s planned hydropower dams will reduce river flows, which supply 80 percent of the country’s irrigated agriculture. Throughout the years, it has asked for a neutral expert and then an arbitration court to intervene.

On the other hand, India has accused Pakistan of dragging out the complaints process and says the construction of its Kishanganga and Ratle projects is allowed by the six-decade-old Indus Water Treaty.

In the arbitration court, Pakistan’s delegation is led by the country’s court agent, Additional Attorney General (AAG) Ahmad Irfan Aslam, and also includes Secretary to the Ministry of Water Resources Hassan Nasir Jamy and Pakistan’s Commissioner for Indus Waters Syed Muhammad Mehar Ali Shah. Pakistan is represented by UK barrister Sir Daniel Bethlehem, among others.

Pakistan initiated the legal proceeding on Aug 19, 2016, by requesting the establishment of an ad hoc arbitration court pursuant to Article IX of the Indus Waters Treaty.

The country took this step after vigorously raising its concerns in the Permanent Indus Commission, beginning with the Kishanganga project in 2006 and the Ratle project in 2012, and then seeking resolution in government-level talks held in New Delhi in July 2015. Pakistan’s decision to initiate proceedings stems from India’s persistent refusal to address Islamabad’s concerns.

The treaty establishes two dispute resolution forums: the court of arbitration, which handles legal, technical, and systemic issues, and the neutral expert, who handles only technical issues. Pakistan requested the establishment of the arbitration court due to systemic issues requiring legal interpretation.

India responded to Pakistan’s formal dispute settlement process by making its own belated request for the appointment of a neutral expert. Submitting a belated request for resolving disputes raised by Pakistan was a demonstration of India’s “characteristic bad faith,” according to the AG’s office statement.

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

Pakistan and India were unable to reach an agreement on a mutually acceptable forum. After six years, the World Bank lifted the suspension, established the arbitration court, and appointed a neutral expert, but India had already completed the Kishanganga project.

Pakistan believes that conflicting outcomes can be avoided through coordination and cooperation between the two forums; Pakistan is participating in both. India, on the other hand, has boycotted the arbitration court, which has the authority to proceed ex parte, and is doing so.