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Pakistan insists on arbitration at water dispute talks

Updated December 27, 2016

WASHINGTON: World Bank president Jim Yong Kim called Finance Minster Senator Ishaq Dar on Monday and discussed with him the minister’s request to help settle the Pakistan-India water dispute, official sources told Dawn.

The latest dispute concerns two hydroelectric power plants — Kishan­ganga and Ratle — that India is building on the Indus rivers system.

In his Dec 23 letter to Dr Kim, the finance minister said that delaying arbitration would seriously prejudice Pakistan’s interests and rights under the Indus Waters Treaty. The letter explained that Pakistan was not withdrawing its earlier request to the bank to appoint the chairman of the Court of Arbitration and since this process had already been “inordinately delayed,” Islamabad wanted the bank to appoint the chairman as soon as possible.

Pakistan believes that further delay would hurt its interests as India is working day and night to complete the two disputed projects. And once they are completed, it will be difficult to undo them.

Read: Revocation of Indus Treaty can be taken as an act of war: Aziz

The Indus Waters Treaty, signed in 1960, distributed the Indus basin rivers between the two countries, giving India control over the three eastern rivers — the Beas, the Ravi and the Sutlej — while Pakistan has the three western rivers — the Indus, the Chenab and the Jhelum. The treaty empowers the World Bank to arbitrate any water dispute between India and Pakistan.

World Bank president contacts Dar

But last week, Dr Kim sent a letter to the finance ministers of India and Pakistan, informing them that he had decided to ‘pause’ the bank’s arbitration and urged the two neighbours to decide by the end of January how they wanted to settle this dispute.

Pakistan had asked the bank to appoint the chairman of the Court of Arbitration while India demanded the appointment of a neutral expert.

Dr Kim said he was ‘pausing’ arbitration to protect the Indus Waters Treaty, which has successfully resolved previous disputes between the two neighbours.

Tensions over the water dispute intensified in November when Indian Prime Minister Narendra Modi threatened to block the flow of water into Pakistan — a threat which, if implemented, could lead to armed clashes between the two nuclear states.

In the formal request sent to the bank, Pakistan argued that the Court of Arbitration could be formed at the request of either party, if the party concludes that the dispute is not likely to be resolved by negotiation or mediation.

The bank would also be obliged to establish the court if the aggrieved party concluded that the other government was unduly delaying the negotiations.

Pakistan informed the World Bank that it has already exhausted the option to engage India for resolving the dispute through bilateral talks and was now exercising the option to take its case to the Court of Arbitration.

Inter-governmental discussions to resolve the dispute had also failed, Pakistan said.

Pakistan informed the bank that its discussions with India over the Kishanganga project began over two decades ago. Two threshold disputes relating to the permissibility of drawdown flushing and diverting the Kishanganga/Neelum River were resolved in 2013. But disputes relating to the calculation of pondage (water reservoir), the placement of the power intakes, and the design and height of both the sediment outlets and spillways remained unresolved.

These disputes have been the subject of subsequent discussions between the parties since 2013.

India first disclosed its design for the Ratle project to Pakistan in 2012, and Pakistan promptly objected to the various aspects of the design discussed herein. As with Pakistan’s objections to the Kishanganga design, the parties have discussed these points of dispute at multiple meetings and in extensive correspondence without reaching a resolution.

Although there are differences in the designs for the two hydro-electric power projects owing to site-specific conditions, the two designs raise conceptually similar legal and technical questions under the Treaty.

Both present questions concerning the method for calculating the maximum pondage (water reservoir) and for determining the design and placement of the power intakes, sediment outlets, and spillways for passage of floods. Additionally, in the case of the Ratle project, the parties disagree about the permissible scale of freeboard.

Pakistan raised questions regarding these issues in at a meeting in March 2013, soon after the issuance of the partial award by the Kishanganga dispute court, which clarified relevant aspects of treaty interpretation and reiterated certain design and operational

Pakistan reminded the World Bank that the treaty requires the party instituting the proceedings to appoint two arbitrators at the time it makes a request to the other party. Within 30 days of the receipt of this request, the other party shall notify the names of the arbitrators appointed by it.

Pakistan fulfilled these obligations and held a series of meetings with India and only after the two parties (India and Pakistan) were unable to reach any agreement, it decided to seek arbitration.

Pakistan also submitted to the bank copies of a series of written communications with India over this dispute. Despite extensive written communications, in-person PIC meetings, and inter-governmental discussions, the parties have been unable to resolve the disputes, Pakistan added.

Pakistan informed the bank that India was taking advantage of the daily and all indications are that significant construction work has been undertaken on both projects. The Kishanganga project either has been completed or is nearing completion. In fact, India notified Pakistan on Aug 12 that India intends to fill the plant’s dead Storage by Aug 20.

Pakistan argued that “any works completed in violation of the treaty have been undertaken by India at its own risk” and could not be presented as fait accompli in any negotiations.

Published in Dawn December 27th, 2016