The federal government on Monday welcomed the decision by the Permanent Court of Arbitration (PCA) in The Hague to issue an “Award on Issues of General Interpretation of the Indus Waters Treaty (IWT)” in the Indus Waters case, stating that India must generally “let flow” the waters of the western rivers for Pakistan’s “unrestricted use”.
India in April held the IWT in abeyance following the attack in occupied Kashmir’s Pahalgam that killed 26 — an incident New Delhi blamed on Islamabad without evidence. Pakistan termed any attempt to suspend its water share an “act of war”, noting the IWT had no provision for unilateral suspension. It later said it was considering court action, citing a violation of the 1969 Vienna Convention on the Law of Treaties.
A supplemental award by the PCA in June held that India could not unilaterally hold the treaty in abeyance. India, in response, said it did not recognise the court or its decisions.
A press release issued today by the PCA said it rendered an award on Friday in an arbitration initiated by Pakistan against India on August 19, 2016, pursuant to Article IX and Annexure G to the IWT.
“This arbitration concerns the interpretation and application of the IWT to certain design elements of the run-of-river hydro-electric plants that India is permitted by the treaty to construct on the tributaries of the Indus, Jhelum and Chenab Rivers.”
Regarding the overall approach to Article 3 (provisions regarding western rivers) of the IWT, the award said: “The general rule is that India shall ‘let flow’ the waters of the western rivers for Pakistan’s unrestricted use.
“There are certain specified exceptions to this rule, including in relation to the generation of hydroelectric power, but these exceptions must be strictly construed: the design and operation of run-of-river hydroelectric plants must hew strictly to the requirements in the treaty, rather than to
what India might consider an ‘ideal’ or ‘best practices’ approach.”
It further noted that questions relating to the balance between the parties’ respective rights and obligations in this regard were to be identified and addressed through the treaty’s procedures for notification, objection and dispute resolution in furtherance of the treaty’s objective and its obligations of mutual cooperation.
The PCA said that to date, India had not participated in the arbitration proceedings and had repeatedly objected to the court’s competence of the court, adding that it had addressed the issue on various counts before.
“Throughout these proceedings, the court has ensured that India is fully informed in respect of the
proceedings and that the opportunity to participate remains open to it. Notwithstanding this, the court
has endeavoured to ascertain, understand, and consider India’s views, drawing on available materials,
including the records of the commission, correspondence between the parties, and/or submissions by
India in previous dispute resolution proceedings under the treaty,” the PCA said.
It added that it had also taken steps to test the accuracy of Pakistan’s claims, including by requesting further written submissions from Pakistan, by questioning Pakistan both before and during the hearing on the merits, by requesting that Pakistan produce historical evidence concerning the operation of the IWT and the Permanent Indus Commission, and by considering publicly available materials and jurisprudence not presented by Pakistan.
The PCA explained that the Aug 8 award addressed questions concerning the treaty’s overall interpretation and application, including in relation to Article 3 and Paragraph 8 of Annexure D (which concerns new run-of-river hydro-electric plants that India may construct on the western rivers).
“The award also addresses a related question on the legal effect of decisions issued by dispute resolution bodies under the treaty (namely, courts of arbitration and neutral experts),” the PCA press release said.
More to follow.
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