Indus Water Treaty: Hague Court of Arbitration Says It Is Competent To Decide Proceedings Initiated By Pakistan; India Rejects Ruling

Rejecting India's objections, the Permanent Court Of Arbitration at The Hague has ruled that it is competent to decide the proceedings instituted by Pakistan in relation to the Indus Water Treaty in 2016. Pakistan had approached the court over the design and operation of run-of-river hydro-electric plants on the Indus, Jhelum, and Chenab rivers and their tributaries. India had said the Court was not competent to decide the questions placed before it and chosen not to appoint its two arbitrators to the Court of Arbitration."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 Permanent Court of Arbitration said in a press release.In light of the determination in the Award, the court said it has also issued a Procedural Order, regarding the next phase of these proceedings. "In the next phase, the Court will address certain questions concerning the overall interpretation and application of the Treaty’s provisions on hydro-electric project design and operation, as well as the legal effect of past decisions of dispute resolution bodies under the Treaty," it said.The Court of Arbitration is chaired by Professor Sean D. Murphy of the United States. The other members are Professor Wouter Buytaert of Belgium, Jeffrey P. Minear of the United States, Judge Awn Shawkat Al-Khasawneh of Jordan, and Dr. Donald Blackmore of Australia. The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. DisputePakistan raised seven disputes in its Request For Arbitration:It asked whether India’s design for maximum Pondage of 7.55 million cubic meters of water for the Kishenganga Hydroelectric Plant is based on a method of calculations that contravenes the Treaty and whether India’s design for submerged power intakes at the Kishenganga Hydroelectric Plant contravenes the Treaty. Pakistan said the intakes are not located at the highest level consistent with satisfactory and economical construction and operation of the Plant as a Run-of-River Plant and with customary and accepted practice of design.Pakistan raised similar question in respect of Ratle Hydroelectric Plant.It further asked whether India’s design for low-level sediment outlets at the Kishenganga Hydroelectric Plant, in the form of a deep orifice spillway with three large, gated openings below Dead Storage Level and close to the reservoir bottom, contravenes the Treaty. It further asked whether India’s design for gated spillways for flood control at the Kishenganga Hydroelectric Plant, with the bottom level of the gates in normal closed position located 14.5 meters below Dead Storage Level and close to the reservoir bottom, contravenes the Treaty.It raised similar question with regard to Ratle Hydroelectric Plant, and further asked whether India’s proposed design for 2 meters of freeboard at the Ratle Hydroelectric Plant contravenes the TreatyDecisionPreliminary IssuesIn the press release, the Court said in relation to the applicable law, it observed that the Treaty is the primary source of law for the Court to interpret and apply, but that where necessary for the Treaty’s interpretation or application, it may also apply international conventions and customary international law."The Court also observed that some of India’s objections raised issues of interpretation or application of the Treaty that had already been determined by a prior Court of Arbitration convened under the Treaty, known as the Indus Waters Kishenganga Arbitration (PCA Case No. 2011-01), and that such determinations remained final and binding upon both India and Pakistan," it added.On India’s non-appearance before the Court, it concluded that a Party’s non-appearance 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. At the same time, India’s non-appearance does not lessen the Court’s standing duty to verify that it is competent and that it has jurisdiction over the dispute before it, it added."The Court of Arbitration has competence, in accordance with Paragraph 16 of Annexure G to the Indus Waters Treaty 1960, to decide all questions relating to its competence," it said in the ruling.India's ObjectionsThe World Bank had transmitted India's correspondence to the Court of Arbitration. The Court decided that it would consider India’s objections.On India's objection that the Court of Arbitration was illegally constituted, the Court said India had provided its consent by entering into and ratifying the Indus Waters Treaty, including its compulsory dispute settlement provisions. "Under the Treaty, India expressly agreed that “the Court shall decide all questions...

Indus Water Treaty: Hague Court of Arbitration Says It Is Competent To Decide Proceedings Initiated By Pakistan; India Rejects Ruling

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