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Beyond the IWT

March 04, 2013

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