New Delhi: A day after the Permanent Court of Arbitration (CoA) in the Hague issued a statement that it has the “competence” to consider matters concerning the construction of Kishenganga and Ratle hydroelectric projects in Jammu and Kashmir, India has toughened its stand that it “will not accept any ruling” given by the CoA, government officials told ThePrint Friday.
Pakistan has objected to the construction of the two projects on the ground that it violates the provisions of the Indus Waters Treaty (IWT).
Senior government officials also said that India is firm that it now wants to renegotiate the treaty. A committee headed by the water resources secretary Pankaj Kumar was set up last month to review the treaty and decide on provisions that can be removed or modified in the IWT.
India has held that the constitution of the CoA — set up by the World Bank on the request of Pakistan in October last year — is in contravention of the provisions of the Indus Waters Treaty and has refused to participate in its proceedings.
“We hold the constitution of CoA as illegal and will not accept any decision given by it. At the same time we are seriously working towards modifying the treaty,” a senior government official, who did not want to be named, told ThePrint.
Following the CoA’s statement Thursday, the Ministry of External Affairs (MEA) also issued a release saying that India cannot be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the IWT.
The IWT was brokered between India and Pakistan by the World Bank in 1960 and outlines how the two countries will utilise the waters of the six rivers of the shared Indus river system. While the western rivers of the system — Indus, Jhelum and Chenab — fall in Pakistan’s share, the three eastern ones — Ravi, Beas and Sutlej — are to be used by India.
Pakistan has alleged that the two hydroelectric projects violate the IWT and will reduce the water flowing into its territory. The CoA is currently looking at the objections raised by Pakistan over the two projects.
In its ruling, the Court of Arbitration has said that it finds that India’s non-appearance in these proceedings does not deprive the Court of Arbitration of competence. The CoA also declared that it is competent to consider and determine the disputes set forth in Pakistan’s Request for Arbitration.
Also Read: Why India wants to modify Indus Waters Treaty with Pakistan
Committee looking at IWT renegotiation
A second government official told ThePrint that a committee headed by Pankaj Kumar, secretary, Department of Water Resources, River Development and Ganga Rejuvenation, was set up last month to review the IWT.
“The committee, which also has representatives from the MEA’s Legal and Treaties Division and Central Water Commission (CWC), is currently looking at the treaty provision by provision. There are a lot of ambiguities in the treaty that need to be removed,” the official said.
The first official quoted above said that, prior to setting up the committee, CWC chairman Kushvinder Vohra was tasked to review the treaty and submit a report.
The official said that in his report — submitted last month to the department of water resources — Vohra had recommended deletion and modification of several clauses of the 1960 treaty that were described as no longer relevant.
“The committee under the water resources secretary is going through the report and framing its view about modifications in the treaty,” the official said.
The committee, the second official added, is also closely looking at the dispute resolution mechanism in the treaty. “There is a strong view against the involvement of a third party — which in this case is the World Bank — in dispute resolution. The way the dispute resolution mechanism is structured makes the treaty unworkable,” the official said.
Dispute resolution mechanism under IWT
According to the graded mechanism for resolution outlined in the treaty, when an issue arises, it is first taken to the Permanent Indus Commission (PIC), comprising two commissioners — one each from India and Pakistan.
If the PIC is unable to resolve the difference, then either party can take it to a neutral expert. If both the commissioners agree that the dispute requires the interpretation of the IWT, then it goes to the CoA.
The treaty states that a matter can go to the CoA under two conditions — if both the commissioners of the Permanent Indus Commission agree that the issue is legal in nature, or the neutral expert refers the matter to the CoA.
But in the present case, both the options were not followed and Pakistan unilaterally dragged India to the CoA.
That is why, government officials said, India has held that the unilateral action by Pakistan is in contravention of Article IX of IWT that spells out the graded mechanism of dispute resolution.
The second government official, who requested anonymity, said that India is now firm that it wants to renegotiate the treaty.
“We have communicated to Pakistan also for holding talks to modify the treaty under Article XII (3) of the IWT. Pakistan has not responded yet to our communication,” the second official said.
In June, India had sent a note verbale to Pakistan seeking a meeting of the water resources secretaries of the two countries to discuss the issue. India also proposed a date — 15 July — for the meeting. Pakistan is yet to respond to India’s communication.
India had first shot off a notice to Pakistan on 25 January this year to renegotiate the treaty.
The IWT has survived so far despite 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 Pakistani terrorists. 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 under the IWT.
(Edited by Anumeha Saxena)