Business Recorder editorial Nov 13, 2016

IWT arbitration The World Bank (WB) has begun the process under the provisions of the Indus Waters Treaty (IWT) for formation of a court of arbitration and the appointment of a neutral expert on requests received from Pakistan and India respectively for resolution of the dispute between the two countries over dams on the Chenab and Neelum rivers. The run-of-the-river 330 MW Kishanganga and 850 MW Ratle hydropower projects being constructed by the upper riparian India on these rivers have been the subject of a dispute for some years. Pakistan, after years of stop-go efforts to resolve the dispute bilaterally with India, has invoked the IWT arbitration process through a petition filed with the WB. India, on the other hand, had requested the appointment of a neutral expert for the purpose. The WB has acceded to both requests simultaneously. It is hoping for the completion of the entire procedure by November 28 this year, the date of the next hearing of Pakistan’s petition. According to Pakistan’s Commissioner for the IWT, Mirza Asif Baig, the Chief Justice of the US Supreme Court and the Rector of the Imperial College London have been chosen to select the legal and engineering members respectively for the court of arbitration, while the WB president has been assigned the task of selecting the chairperson of the court. The court comprises seven members, of whom two each are to be nominated by Pakistan and India. Pakistan has already nominated its two members, but India has yet to despite various requests. Hardly has the arbitration process got off the ground, however, that it is mired in fresh controversy. Indian officials have rejected the WB’s decision of simultaneously setting up a court of arbitration as well as appointing a neutral expert. They consider this legally untenable. Pakistan on the other hand has welcomed the initiation of the arbitration process. Baig says the Indian response is totally unfounded as both parties had been informed repeatedly of the WB’s decision to initiate both processes simultaneously. To add to the maze of arguments, the WB urges both Pakistan and India to accept mediation on the issue/s, which the WB can help set up. The mediation, according to the WB, can proceed with the two countries agreeing to suspend the two processes during the mediation or at any time until the processes are concluded. The WB has clarified that it has a strictly procedural role. The IWT does not allow it to choose one procedure to take precedence over the other. Anne-Marie Leroy, senior vice president of the WB, has further clarified in a statement that this WB role and the limitations placed upon it by the IWT is why they drew lots and proposed three potential candidates for the neutral expert. She goes on, “What is clear, though, is that pursuing two concurrent processes under the treaty could make it unworkable over time and we, therefore, urge both the parties to agree to mediation that the World Bank Group can help arrange.” We therefore have a situation of three seemingly mutually exclusive paths. Pakistan desires the setting up of a court of arbitration, India wants the appointment of a neutral expert, and the WB, having accepted both requests, suggests a way out of the impasse through mediation. Which of these three, or even possibly the first two simultaneously, will be adopted finally is subject to further consultations. The IWT 1960 remains one of the few, if not the only agreement between Pakistan and India that has withstood the vicissitudes of time, wars, and bilateral tensions. Despite the procedural impasse, it has not lost its utility as a forum to resolve water disputes with the help and facilitation of the WB. Here international law too protects the right of lower riparians to their due share of the waters of rivers. Pakistan should not despair at this hitch at the initial stages of the arbitration process. It should pursue the process bilaterally with India if possible, trilaterally with the inclusion of the WB if necessary. Pakistan and India have locked horns of late because of cross-border tensions. They must not allow these tensions, hopefully temporary, to stand in the way of a lawful, peaceful and civilised resolution of their shared river waters dispute.