Securing Indus Waters Rights – OpEd

The Permanent Court of Arbitration (PCA) based in The Hague has declared that they have the jurisdiction to preside over the Pakistan-India conflict over the contentious Kishanganga and Ratle hydroelectric projects in the territory of Kashmir. This decision raises one of the oldest and most profound water issues under the Indus Waters Treaty, an essential treaty signed in 1960.

For decades, both Pakistan and India have been having conflicts regarding the constructions of any hydroelectric project on the Indus River as well as on its major affluents. Pakistan has always insisted on referral of these disputes to arbitration while India has sought to have the disputes settled by a Neutral expert as envisaged by the treaty. It can also be seen that this divergence is not just due to India’s mischief making but much is due to geopolitical factors and different understanding of the agreement. This divergent approach reflects deeper geopolitical tensions and differing interpretations of the treaty's provisions.

According to the Indus Waters Treaty, waters from Sutlej, Beas, and Ravi are offered to the India, while Indus, Jhelum and Chenab are specifically assigned to the Pakistan; however, the current disputes revolve around two significant hydroelectric projects, the hydro-electric plant on the Jhelum and Langer on Kishanganga’s Jhelum’s tributary and the Ratle hydroelectric plant on River Chenab.

The treaty outlines mechanisms for resolving disputes, it also provides for procedures to be followed in case of dispute where the dispute is referred to an independent expert in the case of a technical question of law or a court of arbitration in case of general dispute. Pakistan, thus, moved to Arbitration when it felt that bilateralism was not enough and that the Permanent Indus Commission has not found the right voice, which India dismissed as inadequate.

India sought the appointment of a neutral expert which was taken to the World Bank as well. The treaty was negotiated and signed by the World Bank which suspended both processes in December 2016 to not result in contradicting decisions, though this stay was not lifted until 2022. This enabled PCA to be convened while at the same time appointing a neutral expert.

Nevertheless, India continues to deny its participation in the PCA and to state that the judge has no competence in the given dispute and that the problem should be resolved with the assistance of a neutral expert only. India, nonetheless, asked the PCA not to accept the jurisdiction over the dispute and to deny the right to adjudicate the case to it.

On a unanimous basis and in a binding and final manner, the PCA rejected India’s objections. This is a victory for Pakistan which for long has indicted India of manipulating the flow of the two countries’ shared rivers through the construction of hydroelectric projects that would change the water sharing and agriculture productivity. After the PCA decision the court moves in stages to deal with matters that concern the treaty’s legal statuses particularly on the theoretical and practical aspects of hydro-electric projects. These, pointed out the court, are not issues which fit in the nature of a dispute falling under the domain of the neutral expert. This has placed it in a vantage position to have contributed to suggestions that attempts to alter the treaty for allowing third parties to interfere and make the diplomatic environment more contentious were made. The PCA rules claim that the parties under the treaty are obliged to execute the arbitration award in good faith but there are remedies which if the party requires clarifications or attempted re-interpretation of the award.

Under the lawful intelligence and strategic planning Pakistan has synchronously responded to the Indian act of fiduciary breach into the territorial waters. Moreover, through participating in international legal processes themselves, Pakistan has not only demonstrated a concern for water security issues but also the country’s resolve and determination to act upon the provisions of Indus Waters Treaty. It is a legal move that defines Pakistan’s initiatives and strategies on the global level in the defense of sovereign rights which is a major triumph in the field of diplomacy and jurisprudence.

The decision of the PCA reinforces the provision that absence of India does not make the court incompetent or the awards unenforceable. India, which persists on the position that the court’s proceedings are unlawful, the next sitting of which is due in September.

Thus, this ongoing dispute over the Indus waters only shows that Pakistan and India are not willing to resolve the issue instead the conflict even increases with time; moreover, it actually focuses on the significance of water resource in the international relations of South Asia. These legal battles shall be solved by the framework of the PCA and the neutral expert, and provide reference for the future allocation of water resources and the cooperation and development of this region.

In the future, the strategies for the effective resolution of these disputes would require increased diplomatic involvement, more openness in communication, as well as viable solutions for interaction as to water resources management. Thus, both nations have to pay special attention on the further development of cooperation frameworks in view of the treaty’s terms while simultaneously considering each other’s concerns. Since water can be considered as a primary necessity of the life throughout South Asian region, it is crucial for the governments of the countries within the region to comprehend the parameters of the hydrological cooperation instead of searching for the reasons of the hydro-political confrontation.