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Indian Express
3 days ago
- Politics
- Indian Express
India rejects arbitration court's IWT ruling: ‘Holds no legal standing'
India has rejected the award of the 'so-called Court of Arbitration' on issues of general interpretation of Indus Waters Treaty, which New Delhi has kept in abeyance following the April 22 Pahalgam terror attack. Responding to queries on the latest award given by the Court of Arbitration, MEA spokesperson Randhir Jaiswal said, 'India has never accepted the legality, legitimacy, or competence of the so-called Court of Arbitration. Its pronouncements are therefore without jurisdiction, devoid of legal standing, and have no bearing on India's rights of utilisation of waters.' 'India also categorically rejects Pakistan's selective and misleading references to the so-called 'award',' Jaiswal said. 'As reiterated in our press release of 27 June 2025, the IWT stands in abeyance by a sovereign decision of the Government of India, taken in response to Pakistan's continued sponsorship of cross-border terrorism, including the barbaric Pahalgam attack,' he said. On August 8, 2025, the Court of Arbitration, chaired by Prof Sean D Murphy of the US, gave an award that 'addresses certain questions concerning the overall interpretation and application of the Treaty, including in relation to Article III (which concerns the Western Rivers) and Paragraph 8 of Annexure D (which concerns new run-of-river hydro-electric plants that India may construct on the Western Rivers).' India has not participated in the arbitration proceedings and has repeatedly objected to the competence of the court. Earlier, the Court of Arbitration had given its Award on Competence on July 6, 2023, in which it held that India's non-appearance in these proceedings does not deprive the Court of Arbitration of competence. On June 27, it gave a Supplemental Award on Competence, stating that 'India's position that it is holding the Treaty in 'abeyance', however that position may be characterized as a matter of international law, does not deprive the Court of Arbitration of competence.' India has opposed the proceedings of the Court of Arbitration since its constitution in October 2022, saying it could not be 'compelled to recognise illegal and parallel proceedings not envisaged by the Treaty' and boycotted the court hearings. It, however, continued participating in the 'Treaty-consistent Neutral Expert proceedings'.
Indian Express
11-07-2025
- Politics
- Indian Express
On Indus Waters Treaty, why India is right to boycott the ruling of Court of Arbitration
With the 'supplemental award' issued by the Court of Arbitration (CoA) on June 27, the spotlight is back on the Indus Waters Treaty (IWT). In the award, the CoA has held that it has 'a continuing responsibility to advance its proceedings in a timely, efficient, and fair manner without regard to India's position on 'abeyance', and that a failure to do so would be inconsistent with its obligations under the Treaty'. Interestingly, the CoA further held that the neutral expert is similarly competent to discharge its responsibilities, indicating that the IWT envisages overlapping jurisdiction concerning settlement of disputes as regards to the interpretation and application of the terms of IWT, despite a clear demarcation of jurisdiction under the IWT framework. This supplemental award has its roots in the Award on Competence dated July 6, 2023, whereby the CoA upheld its jurisdiction and competence to determine all aspects of the dispute set forth in the unilateral request for arbitration fronted by Pakistan in 2016. Through this request, Pakistan seeks to resolve issues concerning the design and operation of the hydro-electric plants (HEPs) on the Indus, Jhelum, and Chenab Rivers and their tributaries. The 2023 award was followed by a procedural order dated May 16, wherein the COA took cognisance of the statement issued by India's foreign secretary which indicated that 'the Indus Waters Treaty of 1960 will be held in abeyance with immediate effect, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism'. Noting the development, the CoA requested each party to submit its response and its bearing on the competence of the CoA. Pakistan submitted its response on June 11, inter alia, alleging the weaponisation of water flowing from the Indus water system by India. The hearings proceeded ex-parte, with no submissions being advanced on behalf of India which is consistent with its earlier approach of boycotting any proceedings conducted by the CoA. Ultimately, the June 27 ruling was issued. This ruling sparked an immediate response by the Ministry of External Affairs, which emphatically rejected the ruling stating that an award rendered by an illegally constituted tribunal infringes the core aspects of the dispute resolution mechanism envisaged under the IWT, and is 'per se void'. Article IX(1) of the IWT places the onus of resolving any question concerning interpretation or application of the IWT or the existence of any fact which may establish a breach of the IWT, at the first instance, on the Permanent Indus Commission (PIC), constituted under Article VIII. The endeavour of the PIC is to resolve the said question mutually, failing which a 'difference' would be deemed to have arisen. Clause (2) of Article IX stipulates that a difference falling under Annexure F, Part I of the IWT must be dealt with by a highly-qualified engineer (termed as a 'neutral expert'). This provision is akin to a sole jurisdiction clause, which operates to the exclusion of all other modes of resolving differences. Differences relating to operations of any hydroelectric plant (HEP) constructed by India and its conformity with the provisions of the IWT fall under Part I of Annexure F, vesting exclusive jurisdiction in the neutral expert. The above interpretation of Article IX to the Treaty aligns with both Pakistan and India's position seeking appointment of a neutral expert for the resolution of the differences. However, such a request was withdrawn by Pakistan prior to filing its request for arbitration in 2016. Pertinently, a neutral expert has been appointed by the World Bank on October 13, 2022, and a decision on the neutral expert's competence was rendered on January 7 holding that the points of difference with respect to the aforestated HEPs fall within the scope of Part I of Annexure F. The hearing on merits is set to take place in accordance with the Revised Work Programme issued by the neutral expert on March 11, in which India is actively participating. In light of these developments, it is apparent that the CoA has been illegally constituted and has no competence or jurisdiction over the aforestated disputes. The findings of the CoA with respect to its competence stem from an incorrect reading of the provisions of the Treaty. According to the CoA, these provisions vest an overriding power in the Tribunal to decide whether it enjoys compétence de la compétence. However, the Tribunal has failed to note that the Treaty qualifies the competence of the CoA by subjecting it to other provisions of the IWT, including Article IX(2)(a) and (6) which vest broad and exclusive competence in the neutral expert to decide differences relating to design and operation of HEPs. Unless the neutral expert decides to refer the difference to arbitration, a CoA has no competence to look into the said issues. The Tribunal appreciates this aspect in a different section of its June 27 ruling where it quotes various provisions of the Treaty and observes that 'the primary source of law for this Court to interpret and apply is the Treaty'. Once this is made apparent, there is little room to squirm away from the exclusive mandate of the neutral expert to decide any and all issues pertaining to HEPs. Be that as it may, having established its continuing competence, the CoA is likely to furnish an award on merits. The question which logically follows is: What will be the status and effect of an award which is rendered by an illegally constituted CoA, particularly if it goes against the Indian standpoint? An award rendered by an international tribunal functioning under the aegis of the Permanent Court of Arbitration (a permanent arbitral body chosen as the Secretariat by the CoA) would fall under Article I(2) of the New York Convention (NYC) and acquire the characteristics of an 'arbitral award'. Consequently, it can be enforced under the NYC and all signatories to the NYC are obligated to recognise and enforce the award unless the embargos under Article V of the said convention come into play. Article V provides that recognition and enforcement of an arbitral award may be refused where, inter alia, it is shown that the said award contains decisions on matters beyond the scope of the submission to arbitration or the constitution of the arbitral tribunal was not in accordance with the agreement between the parties. The Indian Arbitration Act contains identical grounds for refusal of enforcement of a foreign award. Both these grounds will be available to the Indian state before its courts as and when and if the award on merits is sought to be enforced against it. The chances of these arguments succeeding are high. The source of all competence for any tribunal under any arbitral regime is the will of the parties including their consent to arbitrate, the extent of which is to be inferred from the text of the Treaty. Such competence is always subject to terms of the agreement which are birthed from the exercise of party autonomy. To circumvent the expression of such will by resorting to dubious means of interpretation simply to arrogate to itself competence which lies in the domain of another adjudicatory authority under the IWT violates the fundamentals on which international arbitration stands. The author is an Advocate-on-Record in the Supreme Court of India
