Business Recorder Editorial June 8, 2018

World Bank’s ‘advice’

The World Bank has advised Pakistan to forego its demand of referring the Kishanganga Dam dispute to the International Court of Arbitration and accept India’s offer of appointing a neutral expert. The issue has been hanging fire off and on since 1993, when the Kishanganga Dam project was started. Pakistan rejected the design of the project as in violation of the provisions of the Indus Waters Treaty, as it would not only change the course of the river, but also reduce the water flow south of the dam. The Indus Waters Treaty divided the six rivers feeding the Indus basin (which largely falls in Pakistan) to give Pakistan exclusive rights over the waters of the three western rivers, the Indus, Jhelum and Chenab, while allowing India the right to use the waters of these rivers to set up hydroelectric projects that would not include reservoirs or restrict the flow of their waters into Pakistan. Pakistan has been consistently voicing concerns about the design of the Kishanganga (and Ratle) projects as it argues they violate these conditions. India interpreted the Indus Waters Treaty as allowing it to construct run-of-the river projects for hydroelectric power, but Pakistan argues the design of these two projects is not according to the provisions of the Treaty. Given the lingering gulf between the positions of the two sides – International Court of Arbitration vs. neutral expert –World Bank President Jim Yong Kim had informed Pakistan on December 12, 2016 through a letter to then finance minister Ishaq Dar that he had decided to ‘pause’ the process of appointing the International Court of Arbitration chairman as well as the neutral expert. Unfortunately, the continuing ‘pause’ has not stopped construction of the Kishanganga Dam, despite Pakistani protests and even evidence including satellite images provided to the World Bank showing construction proceeding. In other words, while the World Bank paused the process to allow the two countries to thrash out the matter, India continued merrily to change and create new facts on the ground. As to the four rounds of secretary-level talks between Pakistan and India in February, April, July and September 2017 in Washington, no conclusion was forthcoming despite the World Bank being willing to appoint an international court to determine which forum under the Treaty was proper – International Court of Arbitration or neutral expert. India did not accept this either. To add salt to the wounds, the World Bank declined Pakistan’s forceful plea on May 22, 2018 asking it to express concern at the inauguration of the Kishanganga Dam by Indian Prime Minister Narendra Modi.

A consistent pattern is thus revealed over the years of Pakistan appealing to the Treaty arbiter, the World Bank, to compel the upper riparian India to adhere to the provisions of the Indus Waters Treaty and the arbiter seemingly turning a blind eye to Pakistan’s concerns in the face of Indian stubbornness. The Indus Waters Treaty is one of the rare agreements between Pakistan and India that has by and large met the challenges of the ups and downs in relations (including wars) between the two countries and is therefore often touted as a success story. However, India’s tactics of hiding behind technicalities while merrily going on building controversial projects smacks of a cynical approach. Conspiracy-minded observers in Pakistan argue the US is using its clout with the World Bank to favour India, given the state of fraught relations between Washington and Islamabad, although they fail to produce any evidence to clinch their argument. It could also be argued that Pakistan has not consistently and in timely fashion pursued its case, allowing India wriggle room to create ever new facts on the ground. Pakistan is currently going through a general election, with a caretaker government in the process of being installed. That may prove a further obstacle in Pakistan’s efforts to pursue its case, which is more than likely going to be left to the new elected government to take up in right earnest. However, caretaker Prime Minister former Chief Justice of Pakistan Nasirul Mulk could, and indeed should, examine the issue and the state of negotiations and plan a course for doing all that is possible even in his caretaker government’s short tenure of two months to ensure that India is denied even this much further breathing space.