By Javed Iqbal
Pakistan has got an important success in the international forum regarding India-Pakistan water disputes, the International Court of Arbitration has accepted Pakistan’s position while rejecting Indian objections to the controversial projects of Kishan Ganga and Ratle. After this, the way has been paved for the arbitration court to hear Pakistan’s claim that the design of the two projects was a violation of the 1960 Indus Waters Treaty. With the establishment of Pakistan, India attacked the water and tried to stop the water of the eastern rivers from flowing into Pakistan in 1948. Against this initiative, Pakistan raised this issue in the United Nations in 1951. Negotiations began in 1954 for a treaty on the recommendations of the United Nations. After the mediation of the World Bank and efforts of about six years, the Indus Waters Treaty was reached in 1960 between the two countries. This agreement was ratified by the then-Indian Prime Minister Jawaharlal Nehru and the President of Pakistan, Ayub Khan. According to the Indus Waters Treaty, Pakistan will have the right to 80% of the water of the three western rivers Indus, Jhelum, and Chenab, while India will have the right to the three eastern rivers Ravi, Beas, and Sutlej. A permanent Indus Commission comprising the two countries was also established to implement the agreement and settle the differences. Under the agreement, technical differences on water use were agreed to be settled by a neutral expert, and in case of a serious dispute, it was agreed to refer to an arbitration court. India started violating the Indus Waters Treaty from the first day by showing its traditional trickery, sometimes by releasing too much water and causing destruction in Pakistan through floods, and sometimes by stopping water and destroying Pakistan’s agriculture. The 330-megawatt Kshan Ganga hydroelectric project on the Jhelum River and the 850-megawatt Ratale hydroelectric project on the Chenab are the links of this chain.
Pakistan initiated legal proceedings on 19 August 2016 with a request for the establishment of a Court of Arbitration. The decision to take this action was in response to India’s continued refusal to address Pakistan’s concerns. Earlier, Pakistan had raised concerns at the level of the Indus Commission regarding the Kishanganga project since 2006 and the Ratale project in 2012, while July 2015.
Once again, India tried to block the way of the international forum by showing its traditional cunning, while Pakistan’s stance was very clear. Pakistan demanded that its disputes with India be settled by an arbitration court. India, opposing this, had earlier filed a parallel request to appoint an impartial expert to stop the process. After filing its parallel application, India filed another application in the arbitral tribunal stating that parallel hearings could not be held under the treaty and hence Pakistan’s application should be dismissed. India was initially successful in that on 12 December 2016, the World Bank suspended the process of setting up an arbitral tribunal and appointing a neutral expert. The Bank invited the two countries to negotiate and agree on a forum, but Pakistan and India could not agree on a mutually acceptable forum for six years. The appointment of experts and the establishment of arbitration courts ended. Earlier, another ploy by India to create obstacles in the hearing of the arbitration court was that on January 25 this year, it issued a notice to Pakistan just two days before the hearing scheduled for January 27 and 28 in the arbitration court, in which the agreements were asked for changes. India had issued this notice under Clause 12 of the Indus Basin Agreement, however, Pakistan responded to this notice India in the first week of April, saying that Pakistan was ready to listen to India’s concerns regarding the current agreement, but that the Permanent Commission for should appear at the level of the Indus Treaty.
India had raised six objections to the arbitral tribunal, the first of which was that the establishment of the arbitral tribunal was illegal. The second was that the court was not competent to hear the case. The third was that it has not yet been decided whether the changes in the design of the project are a dispute or disputes which the arbitral tribunal was a forum to resolve. Not a dispute, the fourth objection was that Pakistan had not completed the process of regulation under Article IX(3), (4), (5) of the
Indus Waters Treaty. The fifth objection was that Article IX of the Indus Basin Treaty ( 6) Prevents the court from considering questions that are considered by an impartial expert. According to the sixth objection, the procedure followed for setting up the panel of the arbitral tribunal is not in accordance with Annexure (G) and the result is that the arbitral tribunal has not been constituted effectively. The Permanent Court of Arbitration (PCA) at The Hague has rejected India’s six objections and said that it was competent to hear and decide the petition filed by Pakistan on this dispute and it will consider all these issues and give directions. In a press release uploaded on the official website of the court, it was said that what has been decided concerning India’s objections. The Court has unanimously held, “And this includes the case of India’s non-appearance at the hearing that the jurisdiction of the Court,” is not affected. The Court also concluded that Pakistan had raised disputes under Article IX(2) with the Arbitral Tribunal and the present hearings were initiated under Articles IX(3), (4), (5) of the Indus Waters Treaty
The Court also held that the Arbitral Tribunal was properly constituted under Annexure (G) of the Indus Waters Treaty
and in accordance with paragraphs 4 to 11. Pakistan objected to the design of the Kishan Ganga project, saying that its lake has a storage capacity of 7.5 million cubic meters of water, which is too much and should have a maximum storage capacity of one million cubic meters.
Apart from this, India wants to keep the water storage capacity here at 24 million (24 million) cubic meters while Pakistan wants its limit not to exceed 8 million cubic meters. Pakistan wants to raise the lake level to 8.8 meters and the spillways up to 20 meters for this project. India fears that Pakistan’s case is too strong and India may lose this battle. If the arbitral tribunal rules against India, it will not be able to build projects on Pakistani rivers in the future, even if they are related to water collection lakes. Be or relate to the construction of spillways. If it leaves the Indus Waters Treaty. At this point, it may also harm India’s water interests because the sources of India’s major rivers Brahmaputra and Indus are in China. And China, after India’s step, would take a similar step and seriously damage India’s agriculture and irrigation system.