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Hours after a Court of Arbitration (CoA) ruled that it has “competence” to consider matters concerning the Kishenganga and Ratle hydroelectric projects in Jammu and Kashmir, a construction that Pakistan has opposed, India on Thursday reiterated its “consistent and principled position” that the constitution of the “so-called Court of Arbitration” is in contravention of the provisions of 1960 Indus Waters Treaty.
In a statement, the Ministry of External Affairs (MEA) said, “A Neutral Expert is already seized of differences pertaining to Kishen-ganga and Ratle projects. Neutral Expert proceedings are the only Treaty-consistent proceedings at this juncture. The Treaty does not provide for parallel proceedings on same set of issues.”
New Delhi’s reaction came after the Hague-based Permanent Court of Arbitration (PCA) issued a statement detailing the award of the CoA, chaired by Prof Sean D Murphy of the US.
“In the Award, the Court carefully considered objections to the competence of the Court raised by India (by way of correspondence to World Bank). 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,” the statement said.
The World Bank had appointed Murphy as chairman of the CoA on October 17, 2022, after Pakistan sought such a Court to consider its concerns about the designs of Kishenganga and Ratle hydroelectric power projects.
India has opposed the constitution of the CoA and contends that it is in contravention of the provisions of the Indus Waters Treaty. Till date, India has not exercised its right under Treaty to appoint two arbitrators to the CoA. New Delhi has not attended the court’s proceedings and has sent its correspondence to World Bank.
As per provisions of the treaty, all water of ‘Eastern Rivers’ — Sutlej, Beas and Ravi — will be available for ‘unrestricted use’ of India and Pakistan will receive water from ‘Western Rivers’: Indus, Jhelum and Chenab. India is constructing two hydroelectric power projects: Kishen-ganga on Kishenganga river, and Ratle project on the Chenab. Pakistan has objected to both.
“In relation to India’s non-appearance before the Court, the Court concluded that a Party’s nonappearance does not deprive the Court of competence, nor does it have any effect on the establishment and functioning of the Court, including the final and binding nature of its awards,” the CoA stated. “…India’s non-appearance does not lessen Court’s standing duty to verify that it is competent and that it has jurisdiction over the dispute before it.”
Hours after the PCA statement, the MEA stated, “We have seen a press release…that an illegally constituted so-called Court of Arbitration has ruled that it has ‘competence’ to consider matters concerning Kishenganga & Ratle hydroelectric projects. 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.”
The ministry stated, “India has been participating in the Treaty-consistent Neutral Expert proceedings. The last meeting took place at The Hague on 27-28 February. The next meeting of the Neutral Expert process is scheduled to be held in September.”
“India cannot be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the Treaty,” it stated.
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