India rejects the illegally constructed court of arbitration by Hague court
The Permanent Court of Arbitration (PCA) in The Hague has 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.
However even India has totally rejected the contention of the Hague Court. In fact India has called the arbitration proceeding totally illegal as a neutral expert was already looking at the issue and the World Bank-brokered treaty prohibits parallel proceedings.
No power on this earth can compel India to participate in parallel proceedings not envisaged by the Indus Water Treaty. This has been confirmed by the External Affairs Ministry. India has reacted very strongly to the “illegally constructed” Court of Arbitration in matters related to the Kishenganga and Ratle hydroelectric project.
The MEA said that India’s consistent and principled stand has been that the constitution of the so-called Court of Arbitration is in contravention of the provisions of the Indus Waters Treaty.
“We have seen a press release issued by the Permanent Court of Arbitration (PCA) mentioning that an illegally-constituted so-called Court of Arbitration has ruled that it has the ‘competence’ to consider matters concerning the Kishenganga and Ratle hydroelectric projects,” the MEA said in a statement.
It added, “India’s consistent and principled position has been that the constitution of the so-called Court of Arbitration is in contravention of the provisions of the Indus Waters Treaty. India cannot be compelled to recognize or participate in illegal and parallel proceedings not envisaged by the Treaty”.
Notably, India issued notice to Pakistan on January 25 for modification of the Indus Waters Treaty (IWT) of September 1960 after Islamabad’s actions adversely impinged the provisions of the treaty, according to sources.
The notice was conveyed on January 25 through respective Commissioners for Indus Waters as per Article XII (3) of the IWT.
The objective of the notice for modification, according to sources, is to provide Pakistan with an opportunity to enter into intergovernmental negotiations within 90 days to rectify the material breach of the IWT. This process would also update IWT to incorporate the lessons learned over the last 62 years.
India has always been a responsible partner in implementing the IWT. Pakistan’s actions, however, have encroached on the provisions of IWT and their implementation and forced India to issue an appropriate notice for modification of IWT.
In 2015, Pakistan requested the appointment of a Neutral Expert to examine its technical objections to India’s Kishenganga and Ratle Hydro Electric Projects (HEPs). In 2016, Pakistan unilaterally retracted this request and proposed that a Court of Arbitration adjudicate its objections.
Pakistan, despite repeated efforts by India to find a mutually agreeable way forward, has refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2022. The World Bank at Pakistan’s continued insistence initiated actions on both the Neutral Expert and Court of Arbitration processes. Such parallel consideration of the same issues is not covered under any provision of IWT.
The World Bank in October 2022, made appointments in two separate processes requested by India and Pakistan in relation to the Kishenganga and Ratle hydroelectric power plants.
It appointed a chairman of the Court of Arbitration and a neutral expert “in line with its responsibilities” under the Indus Waters Treaty.
A World Bank release said that the two countries disagree over whether the technical design features of the two hydroelectric plants contravene the Treaty.
Michel Lino was appointed as the Neutral Expert and Sean Murphy was appointed as Chairman of the Court of Arbitration. They will carry out their duties in their individual capacity as subject matter experts and independently of any other appointments they may currently hold, the release said.
Hague Court thinks of itself as a mighty entity. In an imperial like farhan it has issued a statement that “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.”
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 Indus Water Treaty, notably the provisions on hydroelectric projects, as well as the legal effect of past decisions of dispute resolution bodies under the treaty.
Well India too has declared the Hague Courts action as totally illegal.
