In most years, the Indus River had hardly gone beyond the Kotri barrage in Sindh. The fact that river flows from India to Pakistan have slowly declined is borne out by data on both sides.- File photo

PAKISTAN has failed to secure a stay order from the International Court of Arbitration in its August 25 meeting in The Hague against India’s construction of the Kishanganga hydroelectric project.

Its legal team was unable to convince the jury about the harm the Indian dam will cause to a similar thrice bigger, Pakistani project in the Neelam valley.

This setback for Pakistan means a decisive gain for India in the battle for dams and, barring some miracle, Pakistan, for all practical purposes, is poised to lose the case. One unforgivable reason for this loss was an internal tussle just before the ICA hearing between the top official Kamal Majidullah and water commissioner Sheraz Memon over the choice of lawyers. As a result, Memon was dropped from the team. Majidullah had earlier sacked the most experienced and seasoned Indus water commissioner Jamaat Ali Shah for similar reasons.

At the hearing, the Indian lawyers wondered why the Pakistani delegation did not ask for a stay order in the January 2011 hearing which was the first meeting of the court. Later, the court, constituted under the Indus Water Treaty on Pakistan’s request and headed by Stephen Schwebel, a former chief justice of the International Court of Justice (ICJ), asked India to submit a report on the environmental impact of the dam, on September 7 which it did. Pakistan has also submitted a similar report to the ICA. The court, in the light of these reports, is likely to come up with interim measures before announcing a final verdict.

What the ICA has to determine is, which country is ahead on its respective project. The country which finishes its project first would get ‘’priority rights’’ to the use of the river’s waters under the Indus Water Treaty. This simple methodology provided in the IWT, though lacking merit, places India in an advantageous position as more than 40 per cent of construction work of its project has been completed. Besides, it is originally scheduled to be completed by 2014 while Pakistan’s Neelum project is to be ready by 2016.

In 2005, Pakistan had lost the Baglihar case to India and the only relief it got from the arbitrator was certain modifications in the project design. An earlier dispute over the Salal dam project was resolved in the 1970s by the two foreign secretaries.

Pakistan, as such, has not benefited from the IWT mechanism of resolving disputes while India has. Maybe, because it fails to prepare a good legal defence, as is obvious in the current case, whereas India takes the challenge seriously.

Some observers point out that Pakistan is feeling alienated from the IWT after repeated failures to get redress of its grievances and, hence, would like to replace it with a new treaty. But it is not easy to agree on a new pact in the present circumstances. It is Pakistan’s misfortune that rivers which irrigate its agricultural lands and help establish power stations have their origins in India and this hard fact cannot be changed.

The IWT took eight years of negotiations to finalise a draft acceptable to both sides. A pragmatic approach would be to amend and update the treaty to remove the lacuna it suffers from.

For instance, there is no provision in the treaty which allows India to construct a certain number of dams. Nor is there one that prohibits India from making dams beyond a certain number. So, the number of dams on the western rivers, allotted to Pakistan, is an issue outside the scope of the treaty. But once the decision to construct a dam or reservoir is taken by India, the matter enters the framework of the treaty, which only provides technical specifications for building such a dam or reservoir. A Pakistani lawyer, Ahmer Bilal Soofi, argues that Pakistan has the right to protest outside the IWT if it is convinced that the construction of an Indian dam or reservoir would threaten its strategic interests. It can raise the issue before a UN forum or with the US and the European Union. The IWT is not against such an option. But instead of moving diplomatically, Islamabad invokes the jurisdiction of a neutral expert or arbitration court. During the time the case takes, the construction is completed and Pakistan in that sense ‘loses’ the cases. According to Soofi, the fact is that neutral experts never had the legal competence to grant victory to Pakistan.

Ramaswamy R. Iyer, a former Indian secretary of water resources is of the view that the Indus Treaty need not be scraped for it is the only instance of conflict resolution that has survived three wars. But, he points out, a new and disturbing development is that water issue has ‘started to loom large’ in Indo-Pakistan relations. Speaking at a seminar on August 31 in Delhi Mr Iyer said: “Even if tomorrow Kashmir is resolved, water will remain a core issue”.

Siddharth Varadarajan of The Hindu says: “As India and Pakistan move towards the welcome resumption of dialogue, New Delhi needs to factor in a new reality: More than Kashmir, it is the accusation that India is stealing water that is rapidly becoming the ‘core issue’ in the Pakistani establishment’s narrative about bilateral problems.” In Pakistan, he observes in a recent article, per capita water availability has been falling considerably over the past few decades and is expected to fall below 700 cubic metres by 2025 — the international marker for water scarcity.

In most years, the Indus River had hardly gone beyond the Kotri barrage in Sindh. The fact that river flows from India to Pakistan have slowly declined is borne out by data on both sides. Above Marala on the Chenab, for example, the average monthly flows for September have nearly halved between 1999 and 2009. But he attributes this decline to reduced rainfall and snowmelt and not the diversion of water.

According to a WikiLeaks report, Washington had feared in 2005 that the water-related disputes between Pakistan and India would cast a long shadow over their ‘composite dialogue’ process. “Even if India and Pakistan could resolve the Baghliar and Kishanganga projects,” wrote US Ambassador to New Delhi, David Mulford in a confidential cable dated February 25, 2005, “there are several more hydroelectric dams planned for Kashmir that might be questioned under the Indus Water Treaty.”