Hague court backs India, says neutral expert to adjudicate Indus treaty dispute

In a diplomatic victory for India, the Permanent Court of Arbitration at the Hague has turned down a plea from Pakistan, saying that the World Bank-appointed neutral expert ‘is competent’ to decide on the design and water usage by two hydropower projects in Jammu and Kashmir.

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While India has been pressing for resolution of the issues by the neutral expert as mandated under the Indus Water Treaty (IWT) between the two countries, Pakistan has been turning to the Permanent Court of Arbitration in The Hague to resolve them.

India and Pakistan signed the IWT on September 19, 1960, after nine years of negotiations with a sole aim to manage issues relating to cross-border rivers.

Pakistan has been objecting to the design of the J&K hydel projects — Kishanganga plant located on the Kishanganga (a tributary of the Jhelum) in the Gurez valley and the Ratle plant under construction on the Chenab —- alleging these violated India’s obligation under the treaty.

The Ministry of External Affairs today said: “Being committed to preserving the sanctity and integrity of the Indus Water Treaty, India will continue to participate in the ‘neutral expert’ process so that differences are resolved in a manner consistent with the provisions of the treaty”.

The treaty does not provide for parallel proceedings on the same set of issues. For this reason, India does not recognise or participate in the illegally constituted Court of Arbitration proceedings, the MEA added.

A press note issued by the Court of Arbitration said the neutral expert found that the ‘points of difference’ notified by India to the World Bank in October 2016 pertained to “whether or not the design of a plant (hydel project) conforms to the criteria set out in the treaty”.

“The neutral expert will accordingly proceed to render a decision on the merits of the points of difference after hearing the parties”.

As per the IWT, India is allowed to make run-off-river power generating units on the Indus, Jhelum, Chenab and their tributaries but cannot make water storage dams beyond a specified storage capacity. The Ravi, Beas, Sutlej and their tributaries are for 100 per cent use by India.

The Court of Arbitration further said: “The decision addresses the competence of the neutral expert to decide the ‘differences’ (raised by India).”

Objections over design of plants

Pakistan has been objecting to the design of two J&K hydel projects — Kishanganga plant located on the Kishanganga (a tributary of the Jhelum) in the Gurez valley and the Ratle plant under construction on the Chenab

It has alleged that these plants have violated India’s obligation under the Indus Water Treaty

Citing the treaty, it said: “Should the (Permanent Indus) Commission be unable to agree on a particular difference… the neutral expert shall, after hearing both parties, decide the matter.”

The MEA said “India welcomes the decision given by the neutral expert. The decision upholds and vindicates India’s stand that differences in relation to the Kishanganga and Ratle hydroelectric projects are within the competence of the neutral expert under the treaty.”

It has been India’s consistent and principled position that the neutral expert alone has the competence under the treaty to decide these differences. Having upheld his own competence, which comports with India’s view, the neutral expert will now proceed to the next (merits) phase of his proceeding. This phase will culminate in a final decision on the merits of each of the seven differences, the MEA said.