Pak joins India in neutral expert proceedings of Indus Water Treaty to settle row over hydroelectric projects

The officials from Islamabad joined their counterparts from New Delhi in a neutral expert proceeding at the Permanent Court of Arbitration in Vienna on Wednesday and Thursday to settle the row over Pakistan’s objection to the Kishenganga and Ratle hydroelectric projects of India.

The meeting was convened by the neutral expert appointed by the World Bank on New Delhi’s request under the aegis of the Indus Waters Treaty. It was attended by representatives of India and Pakistan, the Ministry of External Affairs stated in New Delhi on Thursday.

India earlier had not participated in the parallel proceeding at the Court of Arbitration instituted by the World Bank itself in The Hague at the request of Pakistan for adjudication of the same dispute over the two hydroelectric projects or HEPs.

Pakistan, however, this week participated in the neutral expert proceeding instituted at the request of India.

India’s participation in the meeting at the Permanent Court of Arbitration in Vienna on Wednesday and Thursday was in line with its “consistent, principled stand” that the neutral expert proceedings were the only valid way to settle the dispute at present as per the graded mechanism provided for in the Indus Waters Treaty, the MEA said in a statement released in New Delhi.

“It is for this reason that India has taken the Treaty-consistent decision to not participate in the parallel proceedings being conducted by an illegally constituted Court of Arbitration on the same set of issues pertaining to the Kishenganga and Ratle HEPs.”

The Court of Arbitration, constituted by the World Bank in The Hague, brushed aside in July this year New Delhi’s objections and concluded that it had the competence to adjudicate Pakistan’s objection to the Kishenganga and Ratle HEPs of India.

New Delhi had not taken part in the proceedings of the Court of Arbitration and rejected its ruling. alleging that it had been constituted illegally. India had stated that it could not be “compelled to recognize or participate in illegal and parallel proceedings”, which had not been consistent with its Indus Water Treaty with Pakistan.

India had pointed out that a neutral expert, also appointed by the World Bank, had already been seized of its differences with Pakistan over the Kishenganga and Ratle projects. It had argued that the neutral expert proceedings would be the only one consistent with the Indus Water Treaty of 1960, which had not provided for parallel proceedings on the same set of issues.

The Indus Water Treaty (IWT), which governs the sharing of water of the common rivers by India and Pakistan, had created a Permanent Indus Commission (PIC), to oversee the implementation of the agreement. It had laid out distinct procedures to deal with “questions”, “differences” and “disputes”. A “question” would be resolved by the commission itself, while a neutral expert was to be appointed to settle a “difference”.

A “dispute” was to be referred to the “Court of Arbitration” – an arbitral tribunal comprising seven members. The IWT had assigned the World Bank, which had also been a signatory of the treaty, the task of appointing a neutral expert or a Court of Arbitration when requested by either or both of the parties.

Islamabad had in 2015 requested the World Bank to appoint a ‘neutral expert’ to examine its objections to the technical design features of two hydroelectric projects of India – the 330 MW Kishenganga Hydroelectric Project and 850 MW Ratle Hydro Electric Projects. It, however, had in 2016 unilaterally retracted the request and proposed that a Court of Arbitration should adjudicate on its objections. New Delhi had on the other hand asked the World Bank to appoint a neutral expert to settle the differences.

Since the IWT does not empower the World Bank to decide whether one procedure should take precedence over the other, it had paused the process on December 12, 2016. But five-year-long efforts to work out a solution acceptable to both had failed with Pakistan persistently refusing to discuss its objections with India during regular meetings of the PIC. The World Bank had finally acted on both requests and in October 2022 appointed Michel Lino as the neutral expert and Sean Murphy as the chairman of the Court of Arbitration.

New Delhi had then conveyed to Islamabad and the World Bank that the initiation of the two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes would create an unprecedented and legally untenable situation, which would risk endangering IWT itself.

India is of the view that such parallel consideration of the same issues is not covered under any provision of IWT. This is why India has issued notice to Pakistan, seeking modification of the IWT in accordance with the Article XII (3) of the treaty itself – for the first time after it was signed in 1960.

The neutral expert proceedings are ongoing and expected to continue for some time. “India is committed to engaging in a manner that supports the resolution of issues in accordance with the provisions of the IWT,” said the MEA.