EDITORIAL: That the permanent court of arbitration (PCA) in the Hague – a non-UN inter-governmental institution for international dispute resolution – has rejected India’s objections to its jurisdiction in a dispute over the Kishanganga and Ratle Hydroelectric projects is a major win for Pakistan.
The quarrel stems from concerns raised by Pakistan over India’s construction of the 330-megawatt Kishanganga hydroelectric project on the River Jhelum and its plan to construct the 850MW Ratle Hydroelectric project on the Chenab in Illegally Indian occupied Jammu and Kashmir, of course. Islamabad initiated legal proceedings as far back as August 2016, requesting the establishment of an ad hoc court of arbitration in keeping with the articles of the Indus Water Treaty (IWT).
A proper chronology of events is necessary to understand just how and why this issue took so long to reach the PCA, and longer still to get a verdict about its validity. Let’s not forget that this step was taken only after it raised concerns about both projects before the Permanent Indus Commission – in 2006 for the Kishanganga project and in 2012 for the Ratle project.
Islamabad then sought to resolve these issues through government-level talks in Delhi in 2015, again to no avail, and was forced to initiate legal proceedings only after exhausting all other options and India’s continued refusal to address its concerns even as increasing water scarcity emerged as one of the principal threats facing the country in this time.
But India, typically, tried to sabotage Pakistan’s legal outreach by initiating its own request for a neutral expert, challenging the court of arbitration at the same time by insisting that parallel proceedings were not allowed by the IWT; something Pakistan flagged as yet another demonstration of Delhi’s “characteristic bad faith”.
Then, fearing conflicting outcomes from the two processes, the World Bank suspended both in 2016 and invited the two countries to try the tested and failed path of negotiations once again.
It took the Bank a good six years to understand that India was not going to move to a negotiated settlement in keeping with the letter and spirit of the IWT, and lifted the suspension only after India completed the construction of the Kishanganga project; even though Islamabad insisted all this time that any possible conflicting outcomes could be settled through “coordination and cooperation between the two fora” and chose to engage with both even as Delhi boycotted the court of arbitration.
That turned out to be of little use, though, since the court had the mandate to proceed ex parte, which it did. And while it hasn’t yet said anything about how and when this case will proceed, it has made it clear that it will address the interpretation and application of the IWT, especially the provisions on hydroelectric projects, as well as the legal effects of past decisions of dispute resolution bodies under the treaty itself.
This in itself ought to jolt India out of its false belief that it can use, rather abuse, its natural advantage as the upper riparian to bully Pakistan out of its right to water from the Indus river and its tributaries by ignoring and/or twisting the rules of IWT to its advantage.
It tried desperately to prevent PCA from arbitrating on this subject, but now, in the face of this unanimous decision, it will need more than its usual dismissal of everything it doesn’t agree with, especially when it comes to Pakistan, to proceed with business as usual.
According to the UN, both countries face acute water crises. And Delhi, which has assumed an increasingly antagonistic posture since BJP (Bhartiya Janata Party) came to power once again almost a decade ago, has made it amply clear that it will not shy away from using water as a weapon in its campaign against Pakistan.
It’s a shame that Delhi’s attitude rules out any sort of meaningful progress between South Asia’s two most important countries, holding back the whole continent’s economic development.
Expectedly, India has refused to accept the court’s ruling that it was competent to look into Pakistan’s case about the Kishanganga and Ratle hydrologic projects under the IWT.
Be that as it may, Pakistan, for its part, can and should do no more than stick to the legal process and let the law take its own course.
Copyright Business Recorder, 2023
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