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Islamabad urges World Bank to restart arbitration

Updated January 09, 2017

WASHINGTON: Pakistan has asked the World Bank to restart the process of arbitration in its water dispute with India despite New Delhi’s objections.

In its communications with the bank, Pakistan argued that only arbitration can save the Indus Waters Treaty (IWT), which has successfully resolved water disputes between India and Pakistan for more than half a century.

That’s why Pakistan wants the bank to restart arbitration, even if India disagrees with the suggestion, as “much precious time has already been lost”.

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Pakistan first asked for arbitration on Aug 19, 2016.

Last month, the World Bank paused the arbitration process, asking India and Pakistan to decide by the end of this month how they want this dispute resolved. The bank said it was doing so to protect the treaty.

The 1960 IWT gives Pakistan the right to demand the formation of the court of arbitration 60 days after submitting a formal request. That deadline expired on Oct 29, 2016.

The current dispute concerns two hydroelectric plants — Kishanganga and Ratle — that India is building on the rivers whose waters were given to Pakistan under the IWT.

The treaty recognises the World Bank as a guarantor and arbitrator and gives both India and Pakistan the right to seek arbitration if they fail to resolve a dispute bilaterally.

On Thursday, a World Bank representative, Ian H. Solomon, visited India to hold discussion on the dispute. Indian officials told Mr Solomon that Pakistan’s request for setting up a court of arbitration was not acceptable to New Delhi. Instead, they urged the bank to appoint a neutral expert.

Pakistan demands a court of arbitration because it believes the dispute involves both legal and technical issues and while a neutral expert can consider the technical aspects, only a court can deal with legal problems.

Pakistan has also completed the formality of directly inviting India to appoint three umpires.

India’s refusal gives Pakistan the right to demand the drawing of lots for the appointment of these umpires, as provided for in the IWT.

Refusal by one party to participate in the drawing of lots authorises the other to request the president of the World Bank to nominate a person to draw lots. The requesting party, however, is required to provide the World Bank with a copy of its submission to enable the bank’s president to fulfil his responsibilities. Pakistan has completed these formalities.

Pakistan also has conveyed its willingness to accept the three appointing authorities identified in the treaty for nominating members of the court of arbitration. These are the secretary general of the United Nations, the rector of the Imperial College of S and T, London and the Lord Chief Justice of England.

Pakistan told the bank that after a series of negotiations with India, it concluded that the disputes could not be resolved by bilateral negotiations.

And that’s why it decided to institute arbitration proceedings.

Inconclusive talks

In March 2016, Pakistan asked India to settle the dispute amicably and named four negotiators for the talks.

India responded on April 28, accepting Pakistan’s offer of negotiation and named four of its own negotiators.

The negotiators met in New Delhi on July 14-15, 2016 and presented their respective arguments but there were no significant changes in positions on either side. No compromise was reached on any of the disputes. This was followed by more meetings but all remained inconclusive.

Pakistan told the World Bank that it could not verify the precise status of construction because, until the July 14-15 meeting, India had refused to permit its representatives to visit the sites of the projects despite repeated requests.

Pakistan also shared with the bank the concern that despite its objections, India has continued to build the two plants.

Published in Dawn, January 9th, 2017