Kishenganga and Ratle projects: Pakistan-India face-off before neutral expert today

ISLAMABAD: Pakistan and India are set to initiate today (February 27) the legal battle on the controversial designs of 330 MW Kishenganga and 850 MW Ratle Hydropower projects before the Neutral Expert (NE), the international forum located in The Hague. The NE was constituted by the World Bank at the desire of New Delhi, a senior official at Attorney General’s Office told The News.

“Pakistan’s delegation, headed by the secretary Water Resources Ministry and comprising Pakistan’s commissioner of Indus Waters, top officials of the Attorney General’s Office and a team of international lawyers hired by the Government of Pakistan would advocate the country’s case for justice.” The NE proceedings to finalise the rules of procedures will continue for two days (February 27-28) on how to advance the legal fight on the designs of both the projects being built on Pakistan’s rivers by India. India has built the Kishenganga project on Jhelum and Ratle on Chenab rivers.

The Court of Arbitration has already held two-day proceedings to finalize the rules of procedure on January 27-28 in The Hague.

India had boycotted the CoA proceedings on January 27-28, arguing that on both projects there are differences, not disputes, so the case should be listened to by a Neutral Expert.

However, Pakistan wants the CoA to listen to the case as there are disputes on the designs of both projects. India has also issued a notice to Pakistan in January, asking for changes in the Indus Waters Treaty.

“India fears that Pakistan’s case is very strong and in case New Delhi loses the fight, it would not be able to construct future projects on Pakistan rivers with poundage and spillways. So to create hurdles in the legal fight, India has issued notice to Pakistan by invoking Article 12 of the Waters Treaty and asked for a response to the notice within 90 days.”

The official said that the Indus Waters Treaty does not bind Pakistan to respond within 90 days. However, Pakistan is weighing its options to respond at appropriate time. Pakistan has emphasized on making its case strong in both legal forms — CoA (court of arbitration) and NE (Neutral Expert).

The World Bank earlier constituted the Court of Arbitration (CoA) on the demand of Pakistan. Likewise, it also formed a one-man Neutral Expert as was demanded by India. Both forums will listen to the case to accommodate both the parties to the dispute — Pakistan and India.

The World Bank on October 17 appointed Sean Murphy as chairman of the Court of Arbitration (CoA) and Michel Lino as the Neutral Expert.

Pakistan has raised three objections to the Kishanganga project’s design, saying that the pondage of the project is 7.5 million cubic meters, which is excessive and it should be one million cubic meters. Pakistan also wants India to raise the intake by up to 1-4 meters and also raise the spillways up to nine meters high.

On the issue of the Ratle Hydropower plant, Islamabad raised four objections. Pakistan wants India to maintain the freeboard at one meter whereas India wants to keep it at two meters. In addition, India wants to keep the pondage of 24 million cubic meters but Pakistan wants it to be restricted to eight million cubic meters. Pakistan also wants the intake of the project should be raised by up to 8.8 meters and its spillways should be raised by up to 20 meters.

“Pakistan’s case is very strong. In the case of interpretation of Treaty with reference to the Kishenganga, The Hague court has already given the verdict on the issues of drawdown and pondage in favour of Pakistan. So we are certain that Pakistan will win the case, ” the official said.

The 850 MW Ratle Hydropower project, if constructed under its existing objectionable design, will reduce the water flow of Chenab River at Head Marala by 40 percent, which will be detrimental to the irrigation in central Punjab of Pakistan. India has awarded the contract of the Rattle project to a private company that will run the project on BOT (build, operate, and transfer) basis for 35 years and then hand over the project to India.

About the India’s notice, the official said that Pakistan did not commit any material violation of IWT, which is why the Indian notice to introduce changes in IWT is uncalled for. Under Article 12 of the Treaty, both parties have the right to seek changes but unless one party agrees to the required changes, the existing Treaty would continue to be operational. Being low riparian, how can Pakistan violate the IWT, the official asked. He added that upper riparian can breach the Treaty and in the past India violated the treaty many times. The latest examples are of Kishenganga and Ratle projects.