Kishanganga: Violation of IWT By Malik Ashraf

INDIAN Prime Minister Narendra Modi inaugurated 330 MW Kishanganga Hydropower Power Station on Saturday which Pakistan believes is tantamount to violation of the Indus Water Treaty (IWT) as India had completed the project during the period the World Bank ‘paused’ the process for constitution of a Court of Arbitration as requested by Pakistan in early 2016. The Pakistani request was opposed by India by calling for a neutral expert. Pakistan has been insisting on the resolution of dispute over the Kishanganga Project on Neelum River and 850 MW Ratle Hydropower Project on Chenab. It is pertinent to point out that in spite of number of rounds of bilateral parleys as well as mediation by the World Bank India continued with the construction of the Kishanganga Project started in 2009. The intransigence shown by India and her defiance of international commitments is highly regrettable and proves her unending enmity towards Pakistan. Modi is on record to have threatened to stop the flow of waters of the rivers allotted to Pakistan under the Indus Water Treaty sponsored and guaranteed by the World Bank. Pakistan and India had been involved in intractable discussions to resolve the dispute regarding construction the two projects by the latter in violation of the provisions of the Indus Water Treaty. So in view of the stalemate on the issue Pakistan requested the World Bank in April 2016 to establish a court of Arbitration to resolve the differences between the two countries. India simultaneously requested the World Bank for the appointment of a neutral expert.
The World Bank initially agreed to set up both the Arbitration Court and the appointment of the neutral expert. However in response to the Indian objection on two parallel processes which it maintained was not legally tenable, the World Bank decided to announce a ‘pause’ and asked both the parties to resolve the issue through bilateral avenues. Giving reasons for this action the President of the Bank in a letter written to finance ministers of both the countries said “We are announcing this pause to protect the IWT and to help India and Pakistan to consider alternative approaches to resolving conflicting interests under the treaty and its application to two hydro electric power plants. This is an opportunity for the two countries to begin to resolve the issue in an amicable manner and in line with the spirit of the treaty rather than pursuing concurrent processes that could make the treaty unworkable over time. I would hope that the two countries will come to an agreement by the end of January.” The position taken by the World Bank regrettably was akin to what India had argued. It was ostensibly an attempt to shirk the responsibility as a guarantor of the accord charged with the responsibility to ensure that both parties stuck to the provisions of the Treaty. In case of failure of the two sides to sort out their differences on any issue related to the treaty it was under obligation to appoint a court of Arbitration. India welcomed the announcement of ‘pause’ by the World Bank. Reacting to the World Bank decision, Pakistani Finance Minister in his letter to the President of the World Bank rightly maintained that under the Treaty no party could ‘pause’ the performance of the obligations under the Treaty and the position taken by the Bank would only prevent Pakistan from approaching a competent forum and having its grievances addressed.
As these exchanges were in progress the Indian government tasked the inter-ministerial committee to enhance storage of western rivers waters, which was a very alarming development. Under the circumstances, the avoidance by the World Bank to take a position in line with its obligations as per the Treaty amounted to almost giving up on its own brokered agreement. The hope expressed by the World Bank that both sides would be able to resolve their differences, represented lack of understanding of the prevailing situation. India was actually trying to build pressure on Pakistan to back off from the position taken by her on the Kashmir issue, particularly in regards to current uprising in the valley. It was not a technical issue. India had been threatening to review the IWT in the backdrop of Uri attack which it blamed on Pakistan. In an atmosphere loaded with tensions between the two countries, expecting them to show goodwill in resolving the issue was hoping against hope. The World Bank had a role to play as per the Treaty. Under the Indus Water Treaty, the waters of the Eastern rivers Sutlej, Beas, and Ravi had been allocated to India and the Western rivers Indus, Jhelum and Chenab to Pakistan except for certain uses allowed to India including power generation without altering the water flows.
It is pertinent to point out that the case of Kishanganga has already been considered by the Permanent Court of Arbitration at Hague which in its final award on the dispute while recognizing the Indian right to build the Dam did address Pakistan’s concerns about India keeping the level of reservoirs below the Dead Storage Level and also recognised the concept of environmental flows in rivers to ensure that the power generating projects were operated in an environmentally sustainable manner. The Award announced on 20 December 2013 specified that 9m3/s of natural flow of water must be maintained in Kishanganga river at all times to maintain environment downstream. But India was not even abiding by the award of the Permanent Arbitration Commission. Pakistan was not asking for something beyond the treaty obligations of the World Bank. The World Bank needs to revisit its decision and set up a court of arbitration as requested by Pakistan, because there is no hope of resolving of this issue through bilateral arrangement. Pakistan is seeking redress of its grievances over non-adherence to the already announced decision of the Arbitration Court on the issue and stands justified in asking the World Bank to again constitute a Court of Arbitration to look into the matter. The credibility of the World Bank as guarantor of the IWT is also at stake.
— The writer is freelance columnist based in Islamabad.

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