Expert’s ruling backs India’s position in rift with Pak over Indus Waters Treaty

India has joined meetings with the neutral expert but stayed away from proceedings of the Permanent Court of Arbitration in The Hague.

India’s position on Kishenganga and Ratle hydropower projects in Jammu and Kashmir, which Pakistan has objected to, has got a shot in the arm with a World Bank-appointed neutral expert ruling that he is competent to adjudicate on the issue.

A decision will be given after hearing both parties. (PTI file photo)

Pakistan sought the appointment of the neutral expert to handle its objections to the two projects in 2015, but it unilaterally retracted this in 2016 and sought a court of arbitration. India has joined meetings with the neutral expert but stayed away from proceedings of the Permanent Court of Arbitration in The Hague on the grounds that both processes cannot run simultaneously.

The neutral expert, International Commission of Large Dams (ICOLD) president Michel Lino, ruled on Monday that he is competent to “render a decision on the merits of the Points of Difference” between India and Pakistan on the two hydropower projects. A decision will be given after hearing both parties, Lino said in a statement issued in Vienna.

The decision validates the position taken by India in the proceedings over the Kishenganga and Ratle hydropower projects, people familiar with the matter said on condition of anonymity. “It is basically a setback for Pakistan,” one of the people said.

“The neutral expert’s decision is in line with the graded mechanism of dispute settlement envisaged in Article IX of the treaty, which Pakistan contravened by simultaneously approaching the Court of Arbitration,” a second person said.

The external affairs ministry welcomed the neutral expert’s decision under the provisions of paragraph 7 of Annexure F to the Indus Waters Treaty of 1960.

“The decision upholds and vindicates India’s stand that all seven questions that were referred to the Neutral Expert, in relation to the Kishenganga and Ratle hydroelectric projects, are differences falling within his competence under the Treaty,” the ministry said in a statement on Tuesday.

India’s had taken a “consistent and principled position” that the neutral expert alone has the competence under the Indus Waters Treaty to decide these differences. “Having upheld his own competence, which comports with India’s view, the Neutral Expert will now proceed to the next (merits) phase of his proceeding,” the statement said.

India is committed to “preserving the sanctity and integrity” of the Indus Waters Treaty and will continue to participate in the process led by the neutral expert so that the differences are resolved in a “manner consistent with the provisions of the Treaty, which does not provide for parallel proceedings on the same set of issues”, the statement said.

India described the proceedings at the Permanent Court of Arbitration as “illegally constituted” and said it doesn’t “recognise or participate” in them.

The external affairs ministry also said the governments of India and Pakistan were in touch on the matter of modifying and reviewing the Indus Waters Treaty.

In August 2024, India served formal notice on Pakistan for the review and modification of the 62-year-old treaty, largely because of Islamabad’s intransigent approach towards handling disputes related to cross-border rivers. The notice was served under Article XII (3) of the treaty, which states that provisions of the pact may be modified by a duly ratified treaty concluded for that purpose between the two governments.

India has argued that the differences over the Kishenganga and Ratle hydropower projects “fall squarely and entirely” within Annexure F of the Indus Waters Treaty and the neutral expert is “duty-bound to render a decision on the merits”. The neutral expert’s statement showed that he agreed with India’s position and found “no need to address Pakistan’s...alternative submission”.

The Indus Waters Treaty was signed in 1960 after nine years of negotiations between India and Pakistan. It was brokered by the World Bank, which too is a signatory. It is considered the most durable treaty between the two countries but has been under pressure in recent years as bilateral ties plunged to an all-time low due to tensions related to terrorism and Jammu and Kashmir.

The treaty has not been amended since it was signed in Karachi on September 19, 1960, by then Pakistan president Mohammad Ayub Khan, then Indian prime minister Jawaharlal Nehru and WAB Illif of the World Bank.

The treaty allocated the western rivers – Indus, Jhelum, Chenab – to Pakistan, and the eastern rivers – Ravi, Beas and Sutlej – to India. It allowed each country certain uses on the rivers allocated to the other.