By: Zofeen T. Ebrahim, Joydeep Gupta
India has asked the World Bank not to rush in to resolve a dispute with Pakistan over the Kishanganga and Ratle hydropower projects.
Indian officials told a World Bank representative in New Delhi on January 5 that any differences over the projects can be resolved bilaterally or through a neutral expert.
Pakistan has objected to the projects – being built by India in Jammu and Kashmir – on the grounds that they violate the 1960 Indus Waters Treaty (IWT) between the two countries.
After India rejected the charge, Pakistan has gone to the World Bank – the designated IWT mediator.
Islamabad has also asked the United States (US) government to intervene, and has added the component of water security to the China-Pakistan Economic Corridor (CPEC) agreement.
Of the rivers in the Indus basin, the Indus and the Sutlej start in China and flow through India before reaching Pakistan. The other four rivers – Jhelum, Chenab, Ravi and Beas – start in India and flow to Pakistan.
The Kishanganga project is on a tributary of the Jhelum, while the Ratle project is on the Chenab.
The State Department in Washington has already said it wants India and Pakistan to resolve all outstanding issues bilaterally, a route favoured by India.
As the dispute flared up, the World Bank had recently suspended all proceedings – the setting up of a court of arbitration or the appointment of a neutral expert.
On January 5, World Bank representative Ian H Solomon met officials of India’s External Affairs and Water Resources ministries in New Delhi in an effort to break the deadlock.
The Indian delegation, led by Gopal Baglay, Joint secretary in the Ministry of External Affairs, made a detailed a presentation on the two projects to support their argument that neither project violated the IWT.
After the meeting, a government official told journalists that the Indian side had described the objections raised by Pakistan as "technical", and therefore they would be best resolved by a neutral expert.
Pakistan has dismissed this suggestion earlier, and is seeking a full court of arbitration.
The World Bank had agreed to a court of arbitration and then to the appointment of a neutral expert, leading to objections by both countries.
That was when both processes were suspended.
At the January 5 meeting, Solomon did not raise any question on the designs of the two projects, according to the Press Trust of India news agency.
Instead, he explored ways to resolve the dispute.
With nothing decided, the World Bank official is going from New Delhi to Islamabad to continue this effort.
The official added that India is fully conscious of its international obligations and is ready to engage in further consultations to resolve the differences regarding the two projects.
Under the IWT, India is allowed only non-consumptive use of water from the three western rivers in the Indus basin – Indus, Jhelum and Chenab.
The Kishanganga and Ratle projects are on the western rivers.
They are run-of-the-river hydropower projects that do not hold back any water, though Pakistan’s objection is about the height of the gates in the dams from which water is allowed to flow downstream.
The three eastern rivers – Ravi, Beas and Sutlej – are reserved for the use of India.
The Pakistani government approached the World Bank last September, saying the design of the Kishanganga project was not in line with the criteria laid down under IWT, and sought the appointment of a court of arbitration.
Since the Kishanganga project has been going on for years, the "inordinate" delay by Islamabad to approach the World Bank would give India more time to complete its projects, Jamait Ali Shah, former Indus Water Commissioner on behalf of the Pakistani government, told thethirdpole.net.
However, Pakistan’s Finance Minister Ishaq Dar wrote to the World Bank on December 23, stressing that it was not withdrawing its request to set up a court of arbitration.
This was followed by a call from the outgoing US Secretary of State John Kerry to Dar, saying that the US would like to see an amicable solution to the transboundary water row.
Karachi-based newspaper Dawn quoted diplomatic observers in Washington to say, "… seriousness of this dispute, particularly the fear that it may harm the treaty, forced Mr. Kerry to make this call."
For a while now Pakistan has also wanted to bring China into the picture.
At the sixth meeting of the Joint Cooperation Committee (JCC) of the CPEC which was held in Beijing on December 29, a special group on water storage was formed to pre-empt any "severe water crisis" impacting economic and food security of Pakistan, an official statement said.
After a Chinese delegation visits Pakistan later this month, the JCC – the highest policy-making forum of the CPEC – may consider including the Diamer-Bhasha dam into the CPEC agreement.
Planned at an estimated cost of around USD 15 billion, if Pakistan succeeds in getting the dam financed under CPEC, planning and development minister Ahsan Iqbal would consider it a "landmark achievement".
Both the World Bank and the Asian Development Bank have refused to lend money to Pakistan for this hydropower project.
Leading lawyer and former federal law minister, Ahmer Bilal Soofi termed the inclusion of water security into CPEC essentially a "political choice for Pakistan and China" though the issue does not "squarely fall within the otherwise commercial mandate of CPEC".
Speaking to thethirdpole.net, Soofi said Pakistan and China need to exchange notes on a "contradicting state practice of India as an upper riparian to Pakistan and a lower riparian to China, that will help both the states to confront India."
He further added that Pakistan should raise its voice at an international level that "India’s building of reservoir and fully utilising the water storage capacity under the treaty poses a serious threat to Pakistan in particular backdrop of India’s present posturing as it improves India’s capability to manipulate water flows into Pakistan."
This was echoed by former commissioner Shah who said the international community should be duly briefed about the “dilution of the violation of the provisions of the treaty” by India.
At the same time, he said both countries should continue to work closely and quietly to resolve the grievances and find a middle ground.
The recent stance by India where it “lobbied aggressively and influenced” the World Bank, he feared, had further undermined the already “fragile” treaty.
"The WB needs to take the right action – which is to act as arbitrator in this matter, as it has done before," pointed out water expert Simi Kamal.
The reason why the IWT, 74 pages long with 12 articles and 8 annexures and has no expiry date, has worked so far, she said was partly because the Bank acted as a third party.
"The Bank needs to maintain this role and not back off now, when its arbitration role is most required in the face of a belligerent Indian government."
Kamal further said the solution lay not in the pause by the Bank "or for hawks to call for dismantling the treaty", but for both governments to act responsibly and for the Bank to play its role in "containing adventurism by either government – in this matter the Indian government".
Shah also felt when Pakistan plans to proceed with such cases, it never does its homework thoroughly and therefore always appears the weaker party.
The same was endorsed by noted economist Kaiser Bengali when he told thethirdpole.net that he found “the intellectually deficient and politically inane manner in which Pakistan has been pursuing the matter”, criminal.
Bengali had little confidence in the Pakistan IWT team.
He said, “It has no strategy on dealing with water issues with India. Pakistan’s chief negotiator for more than a decade and a half had limited intellectual capacity to lead on such a strategically life and death issue," he said.
He said Pakistan keeps harping on the "spirit" of the agreement.
"Four decades after a treaty is signed, what matters is the letter of the print, not the spirit of the time when the document was signed."
Bengali believed India was not violating the letter of the agreement. "India has been building power plants on western rivers, but not diverting any water."
Nor, he said, were Pakistan’s contentions on the design "substantive enough to warrant a full scale confrontation".
He also observed, like Shah, that differences can and should be resolved in a more "low key" manner.
He feared that since India was not violating the treaty per se, if Pakistan does take the latter to court, it will meet the same fate as the Baglihar Dam case of 2007.
While Indian officials maintain that they are sticking to the IWT, the government has hardened its stand in recent months after attacks on Indian Army camps in Kashmir by suspected militants.
New Delhi had earlier said it was setting up a task force to examine what projects it could undertake in the three western rivers of the Indus basin under the ambit of the IWT.
In the last week of 2016, the government announced that the task force would be headed by Nripendra Mishra, principal secretary to Indian Prime Minister Narendra Modi.
This article originally appeared on The Third Pole and has been reproduced with permission.
Click on the tab to the right to read about what Pakistan should do, according to Pakistan's former Indus Water Commissioner.
By: Zofeen T. Ebrahim
The 1960 Indus Waters Treaty (IWT) is once again in the news, especially the role being played by the designated mediator, the World Bank.
As a Bank representative starts to shuttle between New Delhi and Islamabad in an effort to resolve the disputes over Kishanganga and Ratle hydroelectric projects, Pakistan’s former Indus Water Commissioner Jamait Ali Shah speaks to thethirdpole.net.
Zofeen T. Ebrahim (ZTE): What is your view of the IWT situation now, especially in light of the ongoing dispute?
Jamait Ali Shah (JAH): In my view the World Bank has bowed to Indian pressure which in turn is stalling on the process of resolution by a Court of Arbitration (CoA).
Only after having failed to resolve the issue bilaterally with India had Pakistan approached the Bank to set up the CoA. This was a last resort.
So the Bank’s request to restart start bilateral negotiations at the level of the Indus Commission is going to be an exercise in futility.
To my mind, this dilly dallying on the part of the Bank only reinforces the latter’s intention to give impetus to Prime Minister of India’s threat of scrapping the treaty.
This is indeed very alarming for Pakistan and there is suspicion that India is pushing Pakistan for a Treaty II only on the western rivers, the waters of which had been allocated to Pakistan in 1960.
That is why the Bank and the US are seen debating it and dictating Pakistan for an amicable resolution (revision in the treaty) bilaterally or with the involvement of a third party.
Or at least India wants to get out of the restriction laid down on them in the IWT regarding western rivers, as India cannot liberally utilise these waters as per its will and demand.
ZTE: So what should Pakistan do?
JAH: The disinterest in the matter of the ministry of water and power in Pakistan has also added to the damage.
Pakistan first notified India for resolution of the questions (on Kishanganga and Ratle projects) by a NE (neutral expert) and then withdrew it, then approached the Bank for a CoA.
I feel it was an issue to be resolved by the NE being technical/design in nature.
Therefore, processing it through CoA was not required. But the question that comes to mind is to look deeper in the vested interest in the deadlock.
Who is guiding Pakistan to go round in circles? Most importantly, who engaged the two law firms in Washington DC which decided to process the case for CoA through the Bank?
Many people aim to benefit from the case being taken from one authority to another.
I have learnt that the expenses incurred are PKR 300 million of which PKR 190 million has already been paid.
This interview originally appeared on The Third Pole and has been reproduced with permission.