DISAPPOINTED by India’s inflexible stance on four new hydropower projects being built on Chenab river in Indian-held Kashmir, Pakistan is again inclined to seek relief from international dispute resolution bodies.

The annual meeting between the two Indus Waters Commissioners, held in Lahore after a lapse of two years, ended in a stalemate in the last week of August after India bluntly refused to make any change in its stance over the controversial projects.

After the talks, Pakistan commissioner Asif Baig Mirza told the local media: “We have decided to go to International Court of Justice. First, we will try to resolve the issue at commission’s level. If we fail, we will go for neutral experts’ inspection and then to the court of arbitration”. Only nine months ago, Pakistan lost its case on Kishanganga project in the International Court of Arbitration. It was a costly effort to seek justice.

Pakistan has raised objections on the sites of Ratle, Pakal Dul, Miyar and the Lower Kalnai hydropower projects and has asked for changes in their design with special reference to the spillways and poundage, which affect the intake location

But he spoke differently with the Indian media. “The talks ended on a positive note and we will move forward to discussing and finding out a solution to Pakistan’s objections in the next round of talks in New Delhi in October,” Baig told PTI. “We are optimistic that India will redress our concerns and the matter will be resolved without going to the International Court of Justice.”

Pakistan is also seeking a change in the design of the Kishanganga dam to ensure return of same volume of water that existed when it was diverted to the dam from Neelum river. But a loss 12pc is feared when it is sent back into Jehlum river for Neelum-Jehlum hydropower project. According to Indus Waters Treaty (IWT), the scale of the diversion must be such that any existing agricultural or hydroelectric use of the water by Pakistan is not adversely affected.

Pakistan has raised objections to the sites of 850MW Ratle, 1,000MW Pakal Dul, 120MW Miyar and the 48MW Lower Kalnai hydropower projects and has asked for changes in their design with special reference to the spillways and poundage, which affect the intake location. Intake of water should go up because spillways are low in elevation. India has already started work on Ratle hydropower project while contracts are being negotiated for other projects. These are among the many hydropower projects and dams that India plans to build on western rivers.

The designs of these projects were provided by India more than a year ago but Pakistan was interested more in seeking information about the purpose of the projects at the planning stage which India did not oblige. India, as a matter of fact, does not submit to Pakistan the reasons behind any such decision through its Indus Waters Commissioner. It only provides a blueprint of the dam or the project as required under the IWT and technical details as mentioned in the annexure to the treaty. So, Pakistan can only raise objections on technical matters of the blueprint, not question the political decision. And if India’s blueprints conform to the IWT’s technical specifications, it is free to undertake any number of projects on rivers allocated to Pakistan.

According to Ahmer Bilal Soofi, an eminent lawyer and expert on water issues, if Pakistan wants to prevent India from constructing dams or hydroelectric projects beyond a certain number or which adversely affect its agriculture, industry and population’s needs, it will have to step outside the framework of the IWT and raise the issue with India at a bilateral level. It is so because the Indian government’s decision to construct a dam or a hydroelectric project on any of the western rivers is taken outside the IWT regime and is based on its assessment of its energy needs and strategic interests.

Mr Soofi, in an op-ed piece last year, referred to a statement of Shah Mehmood Qureshi, the then foreign minister, made in May 2010, in which he stated that all water issues between Pakistan and India would be dealt with within the framework of the IWT. India felt relieved that Pakistan had chosen to remain within the IWT confines, instead of raising the issue bilaterally or at any other diplomatic forum as that would have made its task difficult. Perhaps he was trying to avoid annoying the Indians while seeking resumption of a derailed dialogue process.

A few days later, Pakistan instituted the arbitral proceedings in the International Court of Arbitration against India, challenging the legality of the construction of the Kishenganga project. Pakistan lost the case simply because the treaty does not forbid India from constructing a dam or a project on the basis of Pakistan’s objections on strategic grounds.

It does not mean that Pakistan should seek scrapping of the 1960 treaty and replace it with a new treaty. There is no denying the fact that it has proved to be a great confidence-building measure and has even withstood wars. At the most, the two countries can undertake certain reforms in the treaty to enable it to meet the modern-day challenges at a time when both of them are facing shortage of water. What is more important is that Pakistan should prefer settling most of the water disputes with India bilaterally.

Published in Dawn, Economic & Business, September 8th, 2014