THE partial award by the International Court of Arbitration (ICA) in the Indus Waters Kishenganga arbitration case, permitting India to proceed with the construction of the Kishenganga hydroelectric project, has shocked many who believed that the court would rule against it.

This expectation was unreal in the legal context of the Indus Water Treaty (IWT).

In April 2010, I had written an op-ed in Dawn underlining that if Pakistan effectively wanted to challenge the exact number of dams or hydroelectric projects that India might construct or undertake upstream on the Western rivers, it needed to step outside the framework of the IWT and raise the issue with India at a bilateral level. Later that year in July, at a talk at the Royal United Services Institute London, I reiterated the IWT’s restricted scope in addressing all water-related issues between Pakistan and India, and stressed the IWT’s essentially technical nature.

The Indian government’s decision to construct a dam or a hydroelectric project upstream on any of the Western rivers is taken outside the IWT regime and is based wholly on India’s assessment of its energy needs and strategic interests.

India does not submit to Pakistan the reasons behind any such decision through its Indus Waters commissioner. It merely submits a blueprint of the dam or project as stipulated by the IWT and technical details as mentioned in the annexure to the IWT. Crucially, within the treaty’s framework, Pakistan may only object to the technical specifications of the submitted blueprint, not question the political decision. Thus, as long as India’s blueprints conform to the IWT’s technical specifications, it can potentially undertake any number of projects.

This viewpoint was effectively endorsed in paragraph 409 of the ICA’s partial award which states: “It would make little sense, and cannot have been the parties’ intention, to read the treaty as permitting new run-of-the-river plants to be designed and built in a certain manner, but then prohibiting the operation of such a plant in the very manner for which it was designed.”

Simply put, the ICA concedes that as long as India’s blueprint conforms to the IWT, it cannot disallow the construction of a dam or a project. This is so because of the lack of any provision in the IWT authorising India specifically to build a certain number of dams or undertake a certain number of projects.

In Annexure D for instance there is a list of plants that India will construct or complete but no provision regarding the number of future projects undertaken by India. In the absence of any IWT provision authorising or limiting the number of dams, the ICA had no choice but to permit India to go ahead with the Kishenganga project subject to the treaty’s technical requirements.

Since the IWT does not bind Pakistan to presenting its objections about the precise number of dams or projects that India might construct in any prescribed manner and as this issue clearly lies outside the IWT’s ambit, it must be addressed bilaterally rather than abortively through the treaty framework.

In my op-ed, I had exposed this inherent limitation in the treaty as being against Pakistan’s interests. Soon after, in a letter to the editor, the Indian high commissioner objected to my interpretation of the IWT, which was perfectly understandable from India’s standpoint. In May 2010, the then foreign minister, Shah Mehmood Qureshi, presumably to avoid irking the Indians when Pakistan was pushing for a detailed dialogue process, stated that all water issues between Pakistan and India would be dealt with within the framework of the IWT.

Toeing this official position and choosing to stay within the treaty’s parameters, Pakistan instituted the present arbitral proceedings in the ICA against India a few months later, challenging the legality of India’s construction and operation of the Kishenganga project under the treaty. India must have been relieved that Pakistan had chosen to stay within the IWT’s confines instead of raising the issue bilaterally or at any other diplomatic forum.

Although Pakistan engaged the services of lawyers of international repute such as James Crawford QC who along with other members of the legal team tried hard to couch the request for relief in the context of legality of the project itself, they ultimately failed to persuade the ICA because the IWT contains no provision forbidding India from constructing a dam or undertaking a project on the basis of Pakistan’s objections on strategic grounds.

Although Pakistan was able to obtain certain technical advantages from the present partial award, in the public’s perception the essential relief — banning the project — could not materialise.

It is time for Pakistan to realise that the IWT does not provide any framework that caters to its strategic concerns that proliferation in the construction of dams or projects upstream on Western rivers might be used against it by India as strategic assets in times of conflict.

Of course, Pakistan should persist with the IWT. I do not subscribe to the idea of scrapping the treaty as it has been an enduring confidence-building measure and has even withstood wars. However, Pakistan’s policymakers must place and interpret the IWT within its proper legal context. As said earlier, the treaty was never intended to scrutinise the Indian government’s political decision of undertaking projects on the Western rivers. Hence, the treaty does not list the precise number of upstream dams or projects that the two countries might have agreed upon in any of its otherwise detailed annexes. It neither identifies any possible sites for upstream dams or projects nor provides any timeline for undertaking their construction.

Clearly therefore, the issue of the exact number of upstream dams or projects that India could or should construct falls outside the scope of the IWT and ought to be addressed outside its framework.

Thus, if Pakistan wants to effectively challenge India over the sheer number of upstream dams or projects being constructed as opposed to their technical design, it must not invoke the treaty’s dispute settlement mechanism but rather bilaterally take up the matter with India or with any other international forum.

The ICA’s partial award affirms this legal position as of now unless it adopts a different view when passing the final award later in the year.

In any case, given that arbitration is ongoing, the Pakistan team should take advantage of the four months time granted by the ICA and provide the necessary data and information to maximise its gains from the existing proceedings.

The writer is an advocate of the Supreme Court of Pakistan and President Research Society of International Law Pakistan.

ahmersoofi@hotmail.com

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Comments (8)

Hrleen
March 4, 2013 10:52 pm
Wah je waj..how smart ... Abide by treaties when they benefit you...go outside them when it suits you...
Geekay
March 4, 2013 9:13 pm
Even though, the advice of the article is somewhat right that both India Pakistan should talk on issues of dam on the rivers but the tone of article is not right when this is what is written - "Thus, if Pakistan wants to effectively challenge India ...." If Pakistan wants to talk, it should refrain from challenging. Agreements do not happen when someone challenge. The only reason, I believe both should talk so that money does not go waste that either country invests in any project because it takes huge amount of work to organise finance. Besides the funds could be utilised elsewhere more fruitfully. Pakistan can not think of talks at equal level if it can not finance projects or other resources . It can not restrict India somehow by another treaty or deal. Moreover the tactic of tying up India that if we can not build anything, you can not build either, will not work.
skchadha
March 5, 2013 2:20 am
So, now there is no need to confine to the framework of IWT. There is need find out solutions outside its purview. That too just because of Pakistan’s few strategic apprehensions? One of the apprehensions is about limiting the number of development project upstream? Tomorrow someone may say that it is Pakistan under the framework of IWT who should decide where, and of what design capacity, dam is to be build in Indian Territory? IWT is one of the longest lasting treaty between archrival nations anywhere in the world. No doubt that for further negotiations doors should always open. But the mute question is whether till such time we want to stick with IWT or go on making it contentious or rhetorical issue? Water is a natural resource and its potential is required to be used best for humanity. If the question of deciding such matters for particular rivers are dragged outside the purview of IWT, to me as an Indian, it gives full right to India also to protect its own interests as to the limitations whatsoever it feels in IWT. Is Pakistan prepared for it?
Sudheer
March 4, 2013 6:33 pm
This article about the IWT and the arguments provided by the author, are selective/biased to say the least. On the one hand the author advises Pak to adhere to the treaty, but, at the same time, wants Pak govt. to raise questions about the so called "other unspecified provisions of the treaty", both bilaterally and internationally, conveniently forgetting about the truth that Pakistan itself blatantly making mockery of the similar international laws. May I ask why Pakistan always takes pride in its "strategic location" and openly gloats over its ability to deny access to India to trade with Afghanistan and central Asia. As per the international law, every land locked country in the world, reserves a right to use road, railways and ports of its neighboring country to do trade with the rest of the world. But, Pakistan says that, it's within her right to allow or deny trade access to other countries and says it proudly, loudly and with an open thump on the chest! If that is the case, then, how come that Pakistan expects other countries to follow international laws? Why should India respect the rights of a lower riparian country? If you can dance to the beat of "strategic location" and deny us access to the central Asia, then, why do you expect us to be generous as an upper riparian country?
whtever
March 4, 2013 6:05 pm
I have few points to raise over here. Gentle man here who is a lawyer doesnt know any thing about hydrologic. This is the main problem of pakistan. Even though India builds tens or hundreds of dams the water will come downstream with in a period described in treaty as it also mention duration of release of water. Finally, negotations doesnt happen when u say what i have is i have, lets discuss on what you have ...
Raj
March 4, 2013 3:19 pm
In international politics whatever means you have control over you use it against your rival. India has upper hand in Western river water they can use it against Pakistan in adverse situation same as Pakistan is using geographical control over the path to middle east passing through it's territory aginst Indian business. So it is suare one. Just imagine what would happened in reverse case situation. If Pakistan has upper hand in water they would have stopped water in all the wars faught before.
Naveen Kumar
March 4, 2013 6:39 am
Interesting Article. Till now I was under pretension that it was Pakistan who wanted India to stick to IWT. Now it seems it is India who wants Pakistan to stick to IWT. I hope Dawn lets my comment through in the spirit of better understanding of each other's position. For me, the entire argument of author smacks of double standards. He argues that Pakistan should engage with India bilaterally or through 'International' fora (most likely UN, America, China) to address Pakistan's 'strategic' concerns due to dam building not because India has blocked any water (or violated any provision of IWT), but because it gives India the potential to do so in case of a Indo-Pak War. Now I would like to ask the author that when Pakistan gives away its ports to Chinese or engages the PLA in disputed Gilgit Baltistan, does it permit any strategic concerns of India to come in the way. Does Pakistan allow India to transact any goods & personnel towards Afghanistan or Central Asia through it to address India's strategic & trade concerns? Both sides are certain advantages & disadvantages which can't be altered just to address each others' strategic concerns. India is an upper riparian state (in urgent need of electricity to fuel its economy) and has greater resources (human & natural) than Pakistan. We are not playing a Cricket match where both sides must have equal players & equal number of numbers of overs for a fair war.
windcock
March 5, 2013 12:02 pm
Can the editors please explain why Mr. Naveen Kumar's letter is selected to be published but not mine?
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