BY: SHAMILA MAHMOOD
LAST week, the World Bank temporarily halted the process for appointment of chairman of a court of arbitration requested by Pakistan and a neutral expert requested by India to allow the two sides to resolve issues concerning the Kishenganga and Ratle hydroelectric projects in an amicable manner. It briefly explained that the action had been taken to ‘protect’ the Indus Waters Treaty.
Article IX of the treaty on the settlement of disputes sets out the mechanisms for resolution of legal (disputes) and technical issues (differences) ie a court of arbitration or a neutral expert or any other way agreed by the Permanent Indus Commission. The bank has a very limited role in the appointment process, and any ambiguity arising from parallel processes being initiated simultaneously fall within the purview of the court of arbitration.
From information available, it appears that Pakistan initiated arbitration proceedings well before India requested the appointment of a neutral expert. The bank had decided to proceed with both appointments but paused upon India’s objection that the pursuit of two parallel mechanisms was “legally untenable”. Thus, efforts to neutralise escalating tensions between the two neighbours, albeit a noble gesture, allows space to question the bank’s impartiality in the matter.
Navigating the conflicting interests of India and Pakistan has always presented a daunting task.
The pause is without any apparent legal basis and adds to the inordinate delay by authorities to resolve issues as required by the treaty; however, according to media reports the Kishenganga hydroelectric project is already a fait accompli and inauguration of the plant in October was postponed due to unrest in the region. The 850 MW Ratle hydroelectric project being built on the Chenab River in the Kishtwar district of India-held Kashmir is expected to start generating power in 2018.
Unfortunately, the commission has been unable to function in the true spirit of the treaty and has been ineffective in fostering an improved relationship and cooperation. Legal questions pertaining to India’s intended permanent river diversion and depletion of the reservoir below dead storage level for sediment flushing were determined by the court of arbitration in its February 2013 partial award in the Kishenganga dispute.
Much has already been written about the award which was celebrated as a victory by both sides. Although Pakistan’s gains were manifold, it was particularly significant as the award overturned the decision of the neutral expert in the Baglihar case and brought to an end India’s reliance on an erroneous and inconclusive decision.
The Baglihar decision had allowed India the control of flows by eliminating the live storage limitation set by the treaty. Stringent design and operational restrictions had, in effect, been rewritten by the neutral expert. The court restored a tenet which was fundamental to Pakistan, allaying concerns on India’s ability to manipulate water flows.
The late Prof John Briscoe described it as winning the war for Pakistan as the Kishenganga hydroelectric project diversion is a one-off; however, the finding on depletion of dead storage must be adhered to by India in all future projects.
The impact of this decision on the feasibility of India’s 150 hydroelectric projects planned on the western rivers can be gauged from its present posture and threats to abrogate the treaty which Pakistan should not be sanguine about. India has been exploring avenues to renegotiate its use of the western rivers or abrogate the Indus Waters Treaty as part of a planned strategy. The 2010 task force report titled Water Security for India: The External Dynamics by New Delhi’s Institute for Defence Studies and Analysis seems to have gone amiss. The court of arbitration’s determination has certainly put a spanner in the works.
Shortly after the partial award was announced, an undertaking was requested from India that it would not proceed with the construction of the controversial works of the dam until the resolution of the differences as the stop work order had been lifted. A confirmation was also sought in March 2013 that India would alter the design of the Kishenganga hydroelectric project to ensure compliance with the design parameters set out in the treaty and as determined by the court of arbitration. Similarly, in the case of the Ratle hydroelectric project, efforts to resolve the issues bilaterally began at the end of 2012.
The award made the treaty functional, elaborating on the mechanism and time frame for the settlement of disputes in the event of an impasse; thus it is perturbing to note that several years have been spent on arduous parleys certain to end in futility. Inaction and delay have jeopardised the achievements of the Kishenganga award. The fear of failure had been amongst the reasons for reluctance to pursue dispute settlement options previously but given the certainty of outcome the delay is inexplicable. Public interest, during the days leading to the Kishenganga arbitration and thereafter, enhanced transparency on water issues with India which has been absent for the last three years.
The bank has offered to arrange for an independent third-party mediator to help the two countries reach an agreement on issues pertaining to the two dams. However, departure from the processes provided under the treaty should be viewed with caution as this could entail the risk of revisiting matters already determined by the court of arbitration.
The peculiar relationship between the two countries is an impediment in identifying constructive solutions acceptable to both sides, and navigating the conflicting interests has always presented a daunting task. Political exigencies are a barrier, with external stakeholders often fanning the divide. However, it is the lack of will, sound negotiation skills and techniques as well as capacity constraints thanks to little or no exposure to effective trans-boundary conflict management methods, tools and terminology that has been largely to blame for dispute paralysis.
Matters of strategic national importance require urgent and robust action and must take priority. The ramifications of this development should not be viewed casually as the consequences could be catastrophic to Pakistan’s interests.
The writer was legal counsel for the Pakistan government in the Kishenganga arbitration at the Permanent Court of Arbitration, The Hague.
Published in Dawn December 20th, 2016