Arbitration on water

Reportedly a high-powered delegation of Pakistan headed by Indus Water Commissioner Maher Ali Shah is currently in Washington to hold talks with World Bank officials on Pakistan’s dispute with India about the construction of the Kishanganga and Rattle Hydro electric power plants to block the flow of water to Pakistan.

The delegation might also discuss the possibility of taking the issue to the Court of Arbitration. A similar meeting was also held with the World Bank in September 2017; it did not produce any positive results. The World Bank is the guarantor of the Indus Waters Treaty.

Perhaps a recap of the history of the dispute is needed to present the dispute in its proper perspective. Pakistan and India have been involved in intractable discussions to resolve the dispute regarding the construction of two hydroelectric power plants being built by India in violation of the provisions of the Indus Waters Treaty. So in view of the stalemate on the issue, Pakistan requested the World Bank which had brokered the accord and also assumed the role of guarantor of the treaty, to establish a court of arbitration to resolve the differences between the two countries. India simultaneously requested the World Bank for the appointment of a neutral expert.

The World Bank initially agreed to set up both the arbitration court and the appointment of a neutral expert. However, in response to the Indian objection on two parallel processes which it maintained was not legally tenable, the World Bank decided to announce a ‘pause’ and asked both the parties to resolve the issue through bilateral avenues.

The president of the Bank, in a letter written to the finance ministers of both the countries, said: “We are announcing this pause to protect the Indus Water Treaty and to help India and Pakistan to consider alternative approaches to resolving conflicting interests under the treaty and its application to two hydro electric power plants. This is an opportunity for the two countries to begin to resolve the issue in an amicable manner and in line with the spirit of the treaty rather than pursuing concurrent processes that could make the treaty unworkable over time. I would hope that the two countries will come to an agreement by the end of January”.

The position taken by the World Bank regrettably was akin to what India had argued. It was tantamount to shirking responsibility as a guarantor of the accord charged with the responsibility, as per the Treaty itself, to ensure that both parties stuck to the provisions of the accord and in case of failure of the two sides to sort out their differences on any issue related to the treaty, appoint a court of arbitration. The Indian government welcomed the ‘pause‘ announced by the World Bank.

Pakistan had approached the World Bank after being unable to find a solution to the dispute through the permanent Indus Water Commission, a body set up under the Treaty to settle disputes through mutual consultation. The arbitration was even more necessary in view of the threats by the Modi government to control the flow of water of the western rivers into Pakistan.

Therefore, reacting to the World Bank decision, the Pakistani finance minister in his letter to the president of the World Bank rightly maintained that under the Treaty no party could ‘pause’ performance of its obligations under the Treaty and that the position taken by the Bank would only prevent Pakistan from approaching a competent forum and having its grievances addressed.

As these exchanges were in progress, the Indian government tasked the inter-ministerial committee to enhance storage of western rivers waters, which was a very alarming development. Under the circumstances, the avoidance by the World Bank to take a position in line with its obligations under the Treaty amounted to almost giving up on its own brokered agreement. The hope expressed by the World Bank that both sides would be able to resolve their differences represented lack of understanding of the prevailing situation.

India has been trying to build pressure on Pakistan to back off from the position taken by Pakistan on the Kashmir issue, particularly regarding the current uprising in the valley. It was not a technical issue. India has been threatening to review the Indus Waters Treaty in the backdrop of the Uri attack which it blamed on Pakistan. In an atmosphere loaded with tensions between the two countries, expecting them to show goodwill in resolving the issue was hoping against hope. The World Bank, therefore, has a role to play as per the Treaty.

Under the Indus Waters Treaty, the waters of the eastern rivers Sutlej, Beas, and Ravi had been allocated to India and the western rivers Indus, Jhelum and Chenab to Pakistan – except for certain uses allowed to India including power generation without altering the water flow. According to reliable sources, India was contemplating to launch more hydropower projects with a cumulative power generating capacity of 32,000 MW on the rivers allocated to Pakistan.

It would have consequently attained the capability to regulate the water flows to Pakistan, especially reducing water flow in River Chenab which irrigates most of the land in Punjab. Such a situation could lead to serious consequences and may even threaten peace and security in the region in the event of armed conflict over the issue between the two countries.

It is pertinent to point out that the case of Kishanganga has already been considered by the Permanent Court of Arbitration at Hague which in its final award on the dispute, while recognizing the Indian right to build the dam, did address Pakistan’s concerns about India keeping the level of reservoirs below the Dead Storage Level. It also recognized the concept of environmental flows in rivers to ensure that the power projects were operated in an environmentally sustainable manner.

The Award announced on December 20, 2013 specified that 9m3/s of natural flow of water must be maintained in the Kishanganga river at all times to maintain the environment downstream. India was not even abiding by the award of the Permanent Arbitration Court. India, in defiance of the decision, continued building those projects according to their original design during the pause announced by the World Bank. Pakistan did inform the World Bank about that in April 2018.

Though the World Bank has not set up a court of arbitration, it is now trying to facilitate discussions between the two countries to narrow down their differences, for which it had been lobbying intensely. The credibility of the World Bank as guarantor of the Indus Waters Treaty is also at stake and one can only hope that the new initiative will lead to some positive developments.

The writer is a freelance contributor.

Email: ashpak10@gmail.com