Wednesday, 28 December 2016

The Indus Water Treaty and the World Bank

Courtesy:- MALIK MUHAMMAD ASHRAF

Pakistan and India have been involved in intractable discussions to resolve the dispute regarding construction of two hydro electric power plants namely Kishenganga and Ralte being built by the latter in violation of the provisions of the Indus Water 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 the 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 asking both the parties to resolve the issue through bilateral avenues.  Giving the reason for this action the President of the Bank in a letter written to 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 is regrettably akin to what India had argued. It is tantamount to shirking the responsibility as a guarantor of the accord charged with the responsibility, as per the Treaty itself, to ensure that both parties stick 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 has welcomed the ‘ pause ‘ announced by the World Bank. A spokesman of the Indian Ministry of External Affairs has said “By temporarily halting both processes now, World Bank has confirmed that pursuing two concurrent processes can render the treaty unworkable over time. Indian remains fully conscious of her international obligations and is ready to engage in further consulting on the matter of resolving current differences regarding the two projects”

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

Reacting to the World Bank decision, Finance Minister in his letter to the President of the World Bank has rightly maintained that under the Treaty no party can ‘pause’ performance of the obligations under the Treaty and the position taken by the Bank would only prevent Pakistan from approaching a competent forum and having its grievances addressed.  It is hard to contest the points made by Ishaq Dar as under the Treaty it was the World Bank which could set up a Court of Arbitration when there was a stalemate on a dispute. The bilateral arrangement had failed to produce the desired results. It was why Pakistan had approached the guarantor to fulfill its obligations under the Treaty.
Reportedly India held a meeting of the inter-ministerial task force last week which has been tasked to enhance storage of western rivers waters, which is a very alarming development. Under the circumstances, the World Bank avoiding to take a position in line with its obligations under the Treaty amounts 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, represents lack of understanding of the prevailing situation.  India is actually trying to build pressure on Pakistan to back off from the position taken by her on the Kashmir issue, particularly in regards to current uprising in the valley. It is not a technical issue. India has been threatening to review the Indus Water Treaty in the backdrop of 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 is hoping against hope. The World Bank has a role to play as per the Treaty and it should not try to avoid it.

Under the Indus Water 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 flows. According to reliable sources India is contemplating to launch more hydropower projects with a cumulative power generating capacity of 32,000 MW on the rivers allocated to Pakistan and consequently attain the capability of regulating the water flows to Pakistan, especially reducing water flow in the 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 and also recognized the concept of environmental flows in rivers to ensure that the power generating projects were operated in an environmentally sustainable manner. The Award announced on 20 December 2013 specified that natural flow of water must be maintained in Kishanganga river at all times to maintain environment downstream. But India is not even abiding by the award of the Permanent Arbitration Commission.Pakistan is not asking for something beyond the treaty obligations of the World Bank. The World Bank must revisit its decision and set up a court of arbitration as requested by Pakistan, because there was no hope of resolving of this issue through bilateral arrangement as suggested by the previous Indian behavior on issues which ultimately had to be referred for arbitration.

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