Permanent Court of Arbitration Hague Rejects India’s Objections over Water Treaty Arbitration

Permanent Court of Arbitration Hague Rejects India’s Objections over Water Treaty Arbitration

The Permanent Court of Arbitration (PCA) in Hague has rejected India’s six objections challenging the Court’s jurisdiction to hear the case about the controversial designs of 330-MW Kishenganga and 850-MW Ratle hydropower projects that India is building on Pakistan’s rivers Jhelum and Chenab.

The PCA ruling came after a lingering legal battle between the two neighbors who, apart from water-sharing, are locked in a string of land and sea disputes, including Jammu and Kashmir.

The PCA declared that the Court is competent to consider the disputes set forth in Pakistan’s request for arbitration.

The Court, in its detailed Award de Ederer accepted Pakistan’s stance and rejected India’s objections.

In relation to India’s non-appearance before the Court, the PCA concluded that a party’s non-appearance did not deprive the Court of competence, nor did it have any effect on the establishment and functioning of the court, including the final and binding nature of its awards.

The Permanent Court of Arbitration, in the light of its findings in relation to India’s objections, unanimously made the findings and declarations which include that India’s non-appearance in these proceedings does not deprive the court of competence. The Court held that it has authority, in accordance with Paragraph 16 of Annexure G to the Indus Waters Treaty 1960, to decide all questions relating to its competence.

The PCA was of the view that the matters referred to arbitration in Pakistan’s request for arbitration concerned disputes within the meaning of Article IX(2) of the Indus Waters Treaty 1960 and the initiation of the present proceedings was in accordance with Article IX (3), (4), and (5) of the Indus Waters Treaty 1960.

According to PCA the Court was properly constituted in accordance with the Indus Waters Treaty 1960 to decide all questions relating to its competence.

India had raised the following six objections:

(i) The constitution of the court of arbitration is illegal.

(ii) The Court doesn’t have the competence to listen to the case.

(iii) It is not yet established that the issue about changes in designs of the projects is a dispute as a dispute can be resolved at the PCA forum so it should be taken up by a neutral expert as it is the difference between Pakistan and India, not the dispute.

(iv) Pakistan had not satisfied the procedural requirements of Articles IX(3), (4), and (5) of the Treaty before initiating these proceedings.

(v) Article IX (6) of the Treaty prevented the court from considering the questions ‘being dealt with by’ the neutral expert.

(vi) The procedure for empanelling the Court of arbitration, set out in Annexure G to the Treaty, had not been complied with in the present case, with the consequence that there was no effectively constituted court of arbitration.

The Court of arbitration, with the help of the provisions enshrined in the Indus Waters Treaty and past cases of hydropower projects, rejected the six objections raised by India.