Daily Times

Like the non-implementation of UN resolutions on the settlement of the Kashmir dispute, India also remains adamant to fulfil its obligations and commitments under the Indus Basin Water Treaty. It is building 330-MW Kishenganga and 850-MW hydropower projects on river Jhelum and Chenab respectively, whose designs are not in conformity with the prescribed provision of the Treaty.

Pakistan and India have been locked in protracted negotiations to resolve the issue through bilateral channels as well as at the level of the World Bank, which is the guarantor of the Treaty.

Pakistan 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 wanted India to raise intake by up to 1-4 meters and also raise the spillways to nine meters high.

With regard to the Ratle Hydropower plant, Islamabad raised four objections. It wanted 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 raised by 20 meters.

Pakistan and India have been locked in protracted negotiations to resolve the Indus Treaty issue through bilateral channels as well as at the level of the World Bank.

After having been frustrated to make headway in this regard due to Indian intransigence Pakistan desired to have the disputes resolved through the court of arbitration which is one of the forums in regard to the dispute-resolution mechanism envisaged in the Treaty. However, India opposed the move and tried to scuttle the process by filing a parallel request for the appointment of a neutral expert and at the same time, challenged the competence and jurisdiction of the court of arbitration; contending that parallel proceedings could not take place under the treaty.

India raised six objections to the justification of the Permanent Court of Arbitration (PCA) at the Hague taking up the case. India contended that the constitution of the court of arbitration is illegal; the court doesn’t have the competence to listen to the case; 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; Pakistan had not satisfied the procedural requirements of Articles IX(3), (4), and (5) of the Treaty before initiating these proceedings; Article IX (6) of the Treaty prevented the court from considering the questions “being dealt with by” the neutral expert and the procedure for empanelling 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.

However, the PCA, in its decision announced on Thursday, accepted Pakistan’s stance on the issue and rejected Indian objections in this regard clearing the way for the PCA to go ahead with hearing Pakistan’s claim on merit to the effect that the designs of the two projects’ designs are in breach of the Indus Waters Treaty of 1961. The court also affirmed its jurisdiction and competence to deal with the case. In regard to the non-participation of India in its proceedings, it concluded that a party’s non-appearance did not deprive the court of competence nor did it have any effect on its establishment and functioning including the final and binding nature of its awards.

India feared that Pakistan’s case was very strong and in case, New Delhi lost the fight at PCA, it would not be able to construct future projects on Pakistani rivers with poundage and spillways. Therefore, to create hurdles for PCA proceedings, New Delhi 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).

The PCA also concluded that Pakistan’s request for arbitration concerns 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 of 1960. It was further contended that PCA was properly constituted in accordance with Paragraphs 4 to 11 of Annexure G to the Indus Waters Treaty 1960.

The spokeswoman of the Ministry of Foreign Affairs, while welcoming the PCA verdict, observed, “The Indus Water 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.”

Regrettably, India, as usual, has taken exception to the decision. Indian External Affairs Ministry (EAM) spokesman said India could not be compelled to recognize or participate in illegal and parallel proceedings not envisaged by the treaty. He 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-resolving mechanism of the pact. 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. He reiterated that the neutral expert was already seized of the differences pertaining to the Kishenganga and Ratle projects. The deliberations of neutral experts are the only treaty-consistent proceedings at this juncture.”

In my view, India must learn to abide by her international commitments and the agreements concluded by her. It needs serious rethinking on its stance in regards to the dams that it is building on rivers Jhelum and Chenab as the non-resolution of these disputes could have very serious repercussions for both countries besides shattering prospects of peace in the region for ever. Living in peace is an undeniable compulsion for both countries.

The writer is a former diplomat and freelance columnist.