It was a day of fake celebrations for Pakistan devoid of any substance as it welcomed the “supplemental’’ ruling by the Permanent Court of Arbitration (CoA) in The Hague over two hydroelectric projects in Jammu and Kashmir. Welcoming the CoA decision, Islamabad indicated its readiness for talks with India on issues relating to Indus Waters Treaty (IWT). It needs to be mentioned here that the IWT was put in abeyance by India on April 23 following the Baisaran (Pahalgam) attack a day earlier.
The supplemental award of the CoA pertains to two hydropower projects of 850 Ratle on the Chenab, under construction, and KHEP project of 330 MW capacity on Kishenganga, a tributary of Jhelum, in Gurez area. India had rejected the constitution of the CoA ab initio and refused to nominate its arbitrators (judges/jurists). However, it had submitted itself to proceedings on these projects before the World Bank appointed Neutral Expert (NC) Michel Lino.
A year ago, in June 2024, Mr Lino had visited both these projects along with Indian and Pakistani delegations. He had also heard both sides at the beginning of the process of NE hearings which was expected to stretch over several months. However, after India put the Treaty in abeyance, it had written to Mr Lino that the process has been paused. As such, further engagements of the Indian government were also paused, he has been informed officially through the World Bank.
Pakistan’s Priority
In a statement released early on Saturday, Islamabad said that the “high priority” at this point is that “India and Pakistan find a way back to a meaningful dialogue, including on the application of the Indus Waters Treaty (IWT)”. However, a day earlier, on Friday, India had categorically rejected the CoA ruling saying it has never recognised the so-called framework for dispute resolution with Pakistan.
In a statement released by the Ministry of External Affairs (MEA), India said it rejected this so-called “supplemental award”. Referring to the ruling in the case related to Pakistan’s objections to some design elements of Kishenganga and Ratle hydropower projects, the CoA has claimed that India’s decision to put the IWT in abeyance “does not limit” its competence over the dispute. The CoA has also said that its ruling is binding on both the parties, including India which has boycotted its proceedings.
It may be pointed out here India has never recognised the CoA proceedings even as Pakistan raised objections to certain design elements of the two projects under the IWT. On the other hand, Pakistan called the ruling a “major legal win” emphasising that it is a “clear message that India cannot unilaterally suspend or sideline the treaty.” The MEA called out Pakistan by saying that “this latest charade at Pakistan’s behest is yet another desperate attempt by it to escape accountability for its role as the global epicentre of terrorism.” “Pakistan’s resort to this fabricated arbitration mechanism is consistent with its decades-long pattern of deception and manipulation of international forums,” it said in a statement.
CoA Illegal: MEA
The MEA has termed the CoA as an illegal construct as it violated the IWT. Pakistan claims that the CoA was constituted under the IWT provisions but India disputes that. The MEA stance is that the
CoA, purportedly constituted under the IWT 1960, is in fact its “brazen violation’’ as there is no provision in the Treaty for parallel proceedings before the Neutral Expert and the CoA.
“India has never recognised the existence in law of this so-called Court of Arbitration (CoA),” it said.
The MEA said India’s position has all along been that the constitution of this so-called arbitral body is in itself a serious breach of the IWT. Consequently, any proceedings before this forum and any award or decision taken by it are also illegal for that reason, it elaborated.
Incidentally, the CoA is the third step of dispute resolution mechanism prescribed under the IWT and it comprises of seven judges (arbitrators) of which two each are from India and Pakistan. Since India has refused to recognise parallel proceedings, it did not nominate any of the members to the CoA. As such, the present CoA is deemed illegal by India as there is no provision for constitution of a truncated CoA in the IWT.
The initiation of parallel proceedings on Kishenganga and Ratle projects has led to a situation whereby India invoked Article XII (3) asking Pakistan to renegotiate the Treaty. The first notice under this article was served on Pakistan on January 25, 2023, just days prior to CoA process was to begin at The Hague. When Pakistan did not respond to it under Article XII (3), India served a second notice under the same article on it on August 30, 2024.
Treaty in Abeyance
A day after the April 22 Pahalgam terror attack, India took a series of punitive measures against Pakistan that included putting the IWT 1960 in “abeyance”. Ever since that day, Pakistan has written at least four formal letters to Jal Shakti Ministry seeking restoration of the Treaty. However, the Jal Shakti Ministry forwarded all communications received from Pakistan to the MEA. After receiving the fourth formal letter, the MEA went public about Pakistan’s pleadings in these letters seeking restoration of the IWT.
Once MEA made public disclosure about Pakistan’s repeated letters, Union Home Minister Amit Shah gave an interview in which he ruled out the reinstatement of the Treaty. This indicated a clear stand of the Indian government that the IWT 1.0, as signed on September 19, 1960, is effectively a thing of the past. The period of abeyance of the Treaty has not been specified and it can last as long as India wants it.
“Following the Pahalgam terrorist attack, India has in exercise of its rights as a sovereign nation under international law, placed the Indus Waters Treaty in abeyance, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism,” the MEA said. “Until such time that the Treaty is in abeyance, India is no longer bound to perform any of its obligations under the Treaty,” it added.
For Pakistan, putting the Treaty in abeyance by India poses significant challenges and a huge psychological blow. This is a peculiar situation as India has not formally withdrawn from the Treaty under international law. However, all statements made by various government functionaries, including Prime Minister Narendra Modi, indicate that Treaty implementation may have ceased permanently.
“No Court of Arbitration (CoA), much less this illegally constituted arbitral body which has no existence in the eye of law, has the jurisdiction to examine the legality of India’s actions in exercise of its rights as a sovereign,” the MEA has stressed.
