New Delhi: In what is being seen as a vindication of India’s stand, the World Bank-appointed Neutral Expert (NE) under the provisions of the Indus Waters Treaty (IWT), said Monday that it has the “competence” to decide on differences between India and Pakistan related to the design of two hydroelectric projects in Jammu and Kashmir.
India had referred seven technical issues related to the 330 MW Kishenganga and 880 MW Ratle hydroelectric projects that has been objected to by Pakistan to the NE, who was appointed in October 2022.
In a statement, the Ministry of External Affairs said, “The decision upholds and vindicates India’s stand that all seven (07) questions that were referred to the Neutral Expert, in relation to the Kishenganga and Ratle hydroelectric projects, are differences falling within his competence under the Treaty.”
India and Pakistan have locked horns over the Kishenganga hydropower plant on the tributary of Jhelum River that was inaugurated in 2018 and the 850 MW Ratle project that is coming up on the Chenab River. Pakistan has objected to the technical design parameters of the projects and has held that the dam will change the course of the river and reduce the flow of water downstream in the two western rivers of the Indus basin, on which Pakistan has unrestricted rights under the IWT.
The 1960 treaty the World Bank brokered gives India unrestricted rights over the three eastern rivers on the Indus basin—Ravi, Beas, and Sutlej—while Pakistan is allowed unrestricted use of waters on the three western rivers Indus, Jhelum and Chenab.
India can also use the waters of the western rivers for the generation of hydro-electric power, provided that the design, construction and operation of the plant shall be governed by the relevant provisions of the IWT and it “shall not store any water of, or construct any storage works on, these rivers.”
To resolve the issues raised by the two countries, the World Bank appointed the NE on the request of India and parallelly also appointed a chairman for the Court of Arbitration (CoA) on the request of Pakistan in October 2022. The move to start the two resolution processes parallelly had been objected to by India, which had held the constitution of CoA as “illegal”. Pakistan, meanwhile, had taken the stand that the differences related to the two projects do not come under the remit of the NE.
In his 7 January decision that was made public Monday, Neutral Expert Michel Lino said that after carefully considering and analysing the submission made by India and Pakistan, he has concluded that the point of difference pertains to whether or not the design of a plant conforms to the criteria set out in the IWT.
The NE also concluded “… that the fact that the 2022 Court of Arbitration is presently considering certain matters that partially overlap with the Points of Difference does not affect his competence…. the present situation is not one where, in the exercise of procedural discretion, one dispute resolution body ought to defer its consideration and decision on certain matters that will be addressed by another dispute resolution body in the interests of efficiency and economy.”
“…. the Neutral Expert will accordingly proceed to render a decision on the merits of the Points of Difference, after hearing the Parties further on those merits in accordance with the Work Programme (as it may be amended from time to time in consultation with the Parties),” the press release issued Monday reads.
The NE has held three meetings so far and has also visited the two hydropower sites in June 2024.
Why is it a vindication for India
In its statement, the MEA said that it has been India’s consistent and principled position that the neutral expert alone has the competence under the Treaty to decide these differences.
“Having upheld his own competence, which comports with India’s view, the Neutral Expert will now proceed to the next (merits) phase of his proceeding. This phase will culminate in a final decision on the merits of each of the seven differences,” the statement reads.
A senior Jal Shakti ministry official, who wished to not be named, said that India has from the start held the view that the constitution of the CoA “was not proper” and violates the provisions for graded dispute resolution specified under the IWT.
“We have objected to the constitution of the Court of Arbitration and have refused to participate in its proceedings. This continues to be our stand,” the official said.
While the CoA has started its proceedings at the Permanent Court of Arbitration, headquartered in Hague, which was appointed as registry and secretariat by the Neutral Expert, India has not participated in any of its meetings.
Under IWT provisions, CoA consists of seven arbitrators, where two are appointed by India and Pakistan each. India has also not appointed its two arbitrators as it has refused to participate in the ongoing CoA proceedings.
“We will not accept any interim measure or ex parte decision awarded by the CoA,” the official added.
While three disputes are related to Kishenganga, four are related to Ratle projects.
In its statement Tuesday, the MEA reiterated India’s stand. “Being committed to preserving the sanctity and integrity of the Treaty, India will continue to participate in the Neutral Expert process so that the differences are resolved in a manner consistent with the provisions of the Treaty, which does not provide for parallel proceedings on the same set of issues. For this reason, India does not recognize or participate in the illegally constituted Court of Arbitration proceedings.”
It’s not the first time that the World Bank has started the two parallel processes of dispute resolution. In 2016, while initially India and Pakistan had agreed on the appointment of NE, Pakistan later changed its stance and requested for constitution of CoA. The World Bank initiated the parallel process but had to “pause” the mediation process after India’s objection.
In October 2022, World Bank lifted the pause and again initiated the parallel mediation process of appointing a neutral expert at India’s request and setting up CoA as per Pakistan’s request.
IWT being reviewed
Even as the differences between India and Pakistan related to the Kishenganga and Ratle projects are being heard, India has sought to renegotiation the IWT in view of the confusion about the graded dispute resolution mechanism as well as certain other technical aspects.
The MEA in its statement Tuesday mentioned that the Governments of India and Pakistan also remain in touch on the matter of modification and review of the Indus Waters Treaty, under its Article XII (3).
The IWT has survived so far, notwithstanding three wars and several ups and downs in India-Pakistan ties. It came under strain after the 2016 attack on an army camp in Kashmir’s Uri where 19 Indian soldiers were killed by suspected Pakistani militants. The attack had led India to announce emphatically its decision to exercise its right to make full use of its share of water as specified in IWT.
source : theprint