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Pakistan seeks arbitration court as water talks fail

Updated September 17, 2017

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WASHINGTON: Pakistan has asked the World Bank to constitute a court of arbitration to settle its water dispute with India after the latest round of talks ended without an agreement.

Dawn has learned that India and Pakistan failed to break the impasse on choice of a forum for settling the dispute. “India not only refused to accept any of the amendments proposed by Pakistan but also refused to agree to any of the dispute settlement options proposed by the World Bank,” an official source told Dawn.

“While acknowledging the Bank’s continued efforts, Pakistan has now requested the World Bank to fulfil its duties under the (Indus Waters) Treaty by empanelling the Court of Arbitra­tion,” the source added.

The World Bank, which was hosting the talks, issued a statement on Saturday, which underlines its commitment to help find a solution.

“While an agreement has not been reached at the conclusion of the meetings, the bank will continue to work with both countries to resolve the issue in an amicable manner and in line with the Treaty provisions,” the bank said.

The World Bank noted that both countries “reconfirmed their commitment to the preservation of the Treaty”.

The bank “remains committed to act in good faith and with complete impartiality and transparency in fulfilling its responsibilities under the Treaty, while continuing to assist the countries”, the statement added.

The secretary-level talks took place on Sept 14-15 at the World Bank headquarters in Washington, within the framework of the Indus Waters Treaty (IWT). Concluded in 1960 with the World Bank’s support, the treaty recognises the bank as a mediator.

In the last two months, the World Bank hosted two rounds of IWT talks. In the first round, which concluded on Aug 1, India and Pakistan exchanged proposals.

They returned to Washington this week for the second round, which focused on the technical issues of two hydroelectric plants — Kishanganga and Ratle — that India is building on the tributaries of the Jhelum and Chenab rivers.

Pakistan believes the construction violates the Indus Waters Treaty which gives Islamabad right of “unrestricted use” of the waters of these two western rivers in the Indus system.

India, however, argues that the Treaty also allows “other uses”, including the construction of hydroelectric plants. India interprets “other uses” as meaning that it can not only construct the Kishanganga and Ratle dams, but also several other projects.

Pakistan disagrees with the Indian interpretation and has asked the World Bank to set up a court of arbitration; saying that India was not fulfilling its obligations as an upper riparian state.

India opposes the court of arbitration and has instead asked the World Bank to appoint a neutral expert to look into the matter.

In the latest talks, the two sides were expected to present proposals that could lead to a mutually acceptable definition of the “other uses” clause in the Treaty but they failed to do so.

Both sides then urged the World Bank to play its role in ending the impasse. But they further complicated the issue by telling the bank how they expect it to resolve this dispute: Pakistan demanding a court of arbitration and India insisting on a neutral expert.

The Treaty also has a mechanism – the Permanent Indus Commission – for resolving such disputes and Pakistan went to the commission more than 10 years ago, underlining its objections to India’s plans.

After the process failed to produce any results, on Aug 19, 2016, Pakistan asked the World Bank to set up a court of arbitration as provided in Treaty.

On Oct 4, 2016, India asked for a neutral expert to adjudicate the same dispute.

The World Bank initially agreed to setting up both fora but later ‘paused’ both processes, saying that two forums carry the potential for conflicting rulings.

The World Bank then invited the secretaries for ministries of water resources of both countries to consultations for resolution of the impasse. In the first round of consultations, Pakistan proposed amendments to Indian designs that would make the project IWT-compliant. India agreed to study those designs and the parties decided to meet again in September 2017.

But the second meeting also ended without an agreement.

Published in Dawn, September 17th, 2017