17 May 2023

Proceedings under the Indus Waters Treaty (Islamic Republic of Pakistan v. Republic of India) - The Court of Arbitration Concludes Hearing on Competence

On Saturday, 13 May 2023, the Court of Arbitration concluded a hearing to consider the question of its competence to proceed in an arbitration initiated by the Islamic Republic of Pakistan against the Republic of India pursuant to Article IX and Annexure G of the Indus Waters Treaty.

The Indus Waters Treaty is an international agreement concluded by India and Pakistan in 1960 which regulates the use by the two States of the Indus system of rivers. The hearing, which commenced on 11 May 2023, took place at the Peace Palace, the headquarters of the Permanent Court of Arbitration (the “PCA”) in The Hague, the Netherlands. Pursuant to a decision by the Court of Arbitration, the PCA acts as the secretariat for the proceedings.

In these proceedings, Pakistan requests the Court of Arbitration to address the interpretation and application of the Indus Waters Treaty to certain design elements of the run-of-river hydro-electric projects that India is permitted by the Treaty to construct on the tributaries of the Indus, Jhelum, and Chenab, before those rivers flow into Pakistan.

At its first meeting in January 2023, in which India declined to participate, the Court took note of correspondence from India in which it expressed the view that the Court of Arbitration is not competent to consider the questions put to it and that such questions should instead be decided through a process under the Indus Water Treaty involving a Neutral Expert (a highly qualified engineer). The Court decided that it would consider India’s objection and address the competence of the Court as a preliminary matter in an expedited proceeding.

Pakistan was represented during the hearing by its Agent, Mr. Ahmad I. Aslam; by the Secretary of the Ministry of Water Resources, Mr. Hassan Nasir Jamy; by the Pakistan Commissioner for Indus Waters, Mr. Syed Muhammad Mehar Ali Shah; by Ms. Leena Nishtar and Mr. Zohair Waheed of the Office of the Attorney-General; and by Sir Daniel Bethlehem KC, Professor Attila Tanzi, Professor Philippa Webb, Dr. Cameron Miles, Mr. Stephen Fietta KC, Mr. Jiries Saadeh, and Ms. Laura Rees-Evans, as counsel.

India did not appear and declined to participate in the hearing.

The Court anticipates issuing a decision regarding its competence in or around June of this year.

The Court of Arbitration is chaired by Professor Sean D. Murphy of the United States. The other members are presently Professor Wouter Buytaert of Belgium, Mr. Jeffrey P. Minear of the United States, Judge Awn Shawkat Al-Khasawneh of Jordan, and Dr. Donald Blackmore of Australia. To date, India has not exercised its right under the Treaty to appoint two arbitrators to the Court of Arbitration.

Further information on the arbitration is available on the PCA website, at https://pca-cpa.org/en/cases/284/.