Uzair Ali looks at a crucial matter
Keeping in view the complicated water flow systems in the northwestern part of the subcontinent it was not surprising that issues cropped up between the new states of Pakistan and India. The water dispute was very serious as Pakistan was left at the mercy of the upper riparian, India, that was unwilling to let the Indus Riverine System’s waters flow to the lower adequately to lower riparian, Pakistan. The seriousness of the issue called for international arbitration and through the good-offices of the World Bank negotiation process began in 1951 that resulted in the signing of risks to indus Water Treaty in 1960. Throughout the years up to 2002 the treaty was rarely disputed though issues did arise but they subsided after mutual consultation. But the treaty started getting mired in controversy when India started pushing ahead aggressively with the Kishanganga and Baglihar projects.
In the meanwhile, it is reported that India has asked Pakistan to change the Indus Waters Treaty by barring third parties from intervening in disputes. In this context it is added that India had served Pakistan a notice to modify the treaty and wanted to meet to start resolving the long-running dispute within 90 days. It was mentioned that whatever small differences that may come up, how they can be resolved without the involvement of any third party since it is a bilateral treaty, consequently a third party should not be required.
Pakistan has taken notice of reports regarding India’s attempt to unilaterally modify the Indus Waters Treaty and noted that the treaty could not be unilaterally modified. It said that this was an attempt to divert attention from the ongoing arbitration proceedings in The Hague. Pakistan believes that any risk of conflicting outcomes can be arrested through coordination and cooperation between the two forums; Pakistan is engaging with both of them. In contrast, India has boycotted the arbitration court, which is competent to proceed ex-parte and is doing so. In this respect the Per-manent Court of Arbi¬tration, a non-UN intergovernmental organisation located in The Hague has started hearing a dispute between Pak¬istan and India regarding Kishanganga hydroelectric project pursuant to a decades-old water-sharing agreement.
The Indian reaction is supposed to be taken with reference to the Kishanganga issue that cropped up when it was found out that the project is located on a tributary of River Jhelum and because the water it diverts for the purpose of power generation is not returned to the Kishanganga but to the Bonar-Madmati Nullah which is a different tributary of River Jhelum. Pakistan’s challenge to the diversionary aspect of the Kishanganga project focused on the argument that it would adversely affect the Neelum-Jhelum Project being constructed by Pakistan near Muzaffarabad. India instead argued that the Neelum-Jhelum project could not be considered as the then existing hydro-electric use by Pakistan, not only because it was still under construction by Pakistan but because Pakistan had committed to the Neelum-Jhelum Project after India had committed to the Kishanganga project.
Pakistan is concerned that India’s planned hydropower dams will cut flows on the river feeding 80 per cent of its irrigated agriculture. Over the years, it has asked for a neutral expert and then an arbitration court to intervene. On the other hand, India has accused Pakistan of dragging out the complaints process and says the construction of its Kishanganga and Ratle projects is allowed by the six-decade-old Indus Water Treaty. Pakistan initiated the legal proceeding in 2016, by requesting the establishment of an ad hoc arbitration court pursuant to Article IX of the Indus Waters Treaty. Pakistan was compelled to take this step after strenuously raising its concerns in the Permanent Indus Commission starting in 2006 for the Kishanganga project and then seeking resolution in government-level talks held in New Delhi in July 2015. Pakistan’s decision to initiate proceedings is in response to India’s persistent refusal to address Islamabad’s concerns. The treaty provides for two forums for settling the disputes viz. the court of arbitration that addresses legal, technical and systemic issues and the neutral expert, which addresses only technical issues.
Keeping in view the situation, Pakistan requested the establishment of the court of arbitration because of systemic questions requiring legal interpretation. India responded to Pakistan’s initiation of the formal dispute settlement process by its own belated request for appointing a neutral expert. While the hearings continued, fearing conflicting outcomes from two parallel processes, in December 2016, the World Bank suspended the processes for the establishment of the court of arbitration and appointment of the neutral expert and invited both countries to negotiate and agree on one forum. Pakistan and India could not agree on a mutually acceptable forum. After six years, the World Bank finally lifted the suspension, created the arbitration court and appointed a neutral expert, but by this time, India had built the Kishanganga project. TW