• India said it cannot be compelled to participate in “illegal” proceedings at the Permanent Court of Arbitration over the Kishanganga and Ratle hydropower projects 
in Kashmir after the Hague-based tribunal ruled that it has the “competence” to consider the dispute between New Delhi and Islamabad on the matter.

• India has been maintaining that it will not join the Pakistan-initiated proceedings at the Permanent Court of Arbitration as the dispute is being already examined by a neutral expert under the framework of the Indus Waters Treaty. 

• In January, India issued a notice to Pakistan seeking a review and modification of the Indus Waters Treaty in view of Islamabad’s “intransigence” to comply with the dispute redressal mechanism of the pact.

• The last meeting of the neutral expert took place at the Hague on February 27 and 28. The next meeting is scheduled to be held in September.

Indus Waters Treaty

• India and Pakistan share the waters of six rivers — Ravi, Beas, Sutlej, Indus, Chenab and Jhelum. The basin is mainly shared by India and Pakistan with a small share for China and Afghanistan.

• The Indus Waters Treaty was signed in September 1960 after nine years of negotiations between India and Pakistan with the help of the World Bank, which is also a signatory. 

• Under the Treaty, the water from the three eastern rivers — Ravi, Sutlej and Beas — averaging around 33 million acre feet (MAF) were allocated to India for exclusive use.

• The water from western rivers — Indus, Jhelum and Chenab — averaging to around 135 MAF were allocated to Pakistan except for specified domestic, non-consumptive and agricultural use permitted to India as provided in the Treaty.

• The Treaty also sets forth distinct procedures to handle issues which may arise: “questions” are handled by the Commission, “differences” are to be resolved by a Neutral Expert, and “disputes” are to be referred to a seven-member arbitral tribunal called the “Court of Arbitration.” 

• As a signatory to the Treaty, the World Bank’s role is limited and procedural.

• The Treaty sets out a mechanism for cooperation and information exchange between the two countries regarding their use of the rivers, known as the Permanent Indus Commission (PIC), which has a commissioner from each country.

• The two commissioners are required to meet at least once every year, alternately in India and Pakistan.

• The commission enables to establish and promote cooperative arrangements for the treaty implementation, furnish or exchange of information or data provided for in the treaty, promote cooperation between the parties in the development of the waters of the Indus system.

Disagreement over two hydroelectric power plants

• The disagreement between India and Pakistan concerns the design features of the Kishanganga (330 MW) and Ratle (850 MW) hydroelectric power plants.

• The two countries disagree over whether the technical design features of these two hydroelectric plants contravene the Treaty. 

• The plants are located in India on tributaries of the Jhelum and the Chenab Rivers. The Treaty designates these two rivers, as well as the Indus, as the “Western Rivers” to which Pakistan has unrestricted use with some exceptions. Under the Treaty, India is permitted to construct hydroelectric power facilities on these rivers.

• In 2015, Pakistan requested the appointment of a neutral expert to examine its technical objections to India’s Kishenganga and Ratle hydroelectric projects.

• In 2016, Pakistan unilaterally retracted this request and proposed that a Court of Arbitration adjudicate on its objections.

• Under the pact, any difference needs to be resolved under a three-stage approach. 

• In November 2016, India had pointed out the legal untenability of the World Bank launching two simultaneous processes for appointment of a neutral expert — requested by India, and establishment of a Court of Arbitration — requested by Pakistan on Kishenganga and Ratle hydroelectric projects.

• In March 2022, the World Bank announced starting the two concurrent processes and subsequently, appointed a neutral expert and a chair of the CoA.

• When the two concurrent processes resumed in March last year, India only cooperated with the neutral expert and has been skipping the process being followed by the CoA.

The Permanent Court of Arbitration

• The Permanent Court of Arbitration (PCA) was the first permanent inter-governmental organisation to provide a forum for the resolution of international disputes through arbitration and other peaceful means.

• The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference.

What is PCA’s purpose?

Although the PCA’s initial activity concerned principally the arbitration and other forms of dispute resolution, including fact-finding, conciliation, and mediation of interstate disputes, the Hague Conventions established a flexible institution. Over time, the PCA’s Contracting Parties have, in keeping with the changing dispute-resolution needs at the international level, interpreted the institution’s mandate to include disputes involving various combinations of States, State entities, international organisations, and private parties.

The organisational structure of PCA

The PCA has a three-part organisational structure.

• The PCA Administrative Council is composed of the diplomatic representatives of the contracting powers accredited to The Hague, and of the minister of foreign affairs of The Netherlands, who acts as president. The council oversees PCA’s policies and budgets. 

• Members of the Court are potential arbitrators appointed by Contracting Parties. Each Contracting Party state is entitled to nominate up to four persons as members of the Court.

• The International Bureau — PCA’s Secretariat — is headed by the Secretary-General. The primary function of the International Bureau is to provide administrative assistance in respect to arbitration, conciliation, mediation, fact-finding, expert determination, and other dispute resolution proceedings, such as mass claims tribunals.

Dispute resolution services of PCA

i) Arbitration: The PCA provides administrative support in international arbitrations involving various combinations of States, State entities, international organizations and private parties.

ii) Mediation/conciliation: The PCA’s functions also include providing support in other forms of peaceful resolution of international disputes, including mediation, conciliation, and other forms of alternative dispute resolution (ADR). 

iii) Fact-finding / Commissions of Inquiry: The PCA is available to provide administrative support in fact-finding / commissions of inquiry involving various combinations of states, state entities, international organizations and private parties.

Manorama Yearbook app is now available on Google Play Store and iOS App Store