NEW DELHI: India on Friday rejected a ruling by the Permanent Court of Arbitration in The Hague that it can continue hearing a case related to Pakistan’s objections to Kishenganga and Ratle hydropower projects despite New Delhi’s decision to suspend the Indus Waters Treaty, and said it has never recognised this court.
The Indian side has never participated in the proceedings at the Permanent Court of Arbitration since Pakistan raised objections to certain design elements of the 330 MW Kishanganga and 850 MW Ratle hydropower projects in 2016 under the provisions of the Indus Waters Treaty.
On Friday, the Court of Arbitration considered the impact of the Indian government’s decision of April 23 to keep the Indus Waters Treaty in abeyance on its competence to take up the case lodged by Pakistan. In a unanimous decision, the court ruled that India’s decision “does not limit” its competence over the dispute and that the ruling “is binding on the Parties and without appeal”.
The external affairs ministry categorically rejected the “so-called supplemental award” of the Court of Arbitration, just as it “rejected all prior pronouncements of this body”. The ministry said in a statement that the Court of Arbitration is illegal and was “purportedly constituted under the Indus Waters Treaty…albeit in brazen violation of it”.
A day after the Pahalgam terror attack on April 22 that killed 26 civilians, India unveiled a slew of punitive diplomatic and economic measures against Pakistan, including the suspension of the Indus Waters Treaty of 1960. At the time, foreign secretary Vikram Misri declared the treaty “will be held in abeyance with immediate effect, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism”.
Prior to suspending the treaty, the Indian side always contended that there is a graded mechanism under the pact for addressing disputes, and that two different approaches can’t be simultaneously initiated to tackle differences.
While Pakistan sought the appointment of a neutral expert to handle its objections to the Kishenganga and Ratle projects in 2015, it unilaterally retracted this in 2016 and sought a Court of Arbitration. In 2016, the World Bank appointed both a neutral expert and the Court of Arbitration, which wasn’t recognised by India. India has attended meetings convened by the neutral expert but stayed away from the proceedings of the Court of Arbitration.
India has “never recognised the existence in law of this so-called Court of Arbitration, and India’s position has all along been that the constitution of this so-called arbitral body is in itself a serious breach of the Indus Waters Treaty”, the external affairs ministry said. Any proceedings in this and “any award or decision taken by it are also for that reason illegal and per se void”, the ministry said.
The ministry reiterated the reasons for suspending the Indus Waters Treaty after the Pahalgam attack. India exercised its rights as a sovereign nation under international law and placed the treaty in abeyance until Pakistan “abjures its support for cross-border terrorism”.
“Until such time that the Treaty is in abeyance, India is no longer bound to perform any of its obligations under the Treaty,” the ministry said. “No Court of Arbitration, 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 external affairs ministry described the Court of Arbitration’s ruling as the “latest charade at Pakistan’s behest”, and said this was “yet another desperate attempt by [Pakistan] to escape accountability for its role as the global epicenter of terrorism”.
“Pakistan’s resort to this fabricated arbitration mechanism is consistent with its decades-long pattern of deception and manipulation of international forums,” the ministry said.
The Indus Waters Treaty, which was brokered by the World Bank, allocated the western rivers – Indus, Jhelum, Chenab – to Pakistan, and the eastern rivers – Ravi, Beas and Sutlej – to India. It allowed each country certain uses on the rivers allocated to the other. The Kishenganga and Ratle projects are run-of-river hydroelectric projects that India is permitted by the treaty to build on tributaries of the Indus, Jhelum and Chenab before the rivers flow into Pakistan.
India had also rejected the Court of Arbitration’s earlier ruling of July 2023 regarding its competence to hear the dispute over the two hydropower projects.
Following India’s suspension of the Indus Waters Treaty, Pakistan’s leadership said any diversion of waters allocated to it by the pact would be seen as an “act of war”. Pakistani ministers also said they planned to challenge India’s action at the Permanent Court of Arbitration or the International Court of Justice.
