Featured WB says cannot mediate in Pakistan-India water dispute

[Shahzaz ud din]

WB says cannot mediate in Pakistan-India water dispute
Khaleeq KianiUpdated 08 Aug 2020
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Islamabad seeks a court of arbitration while Delhi wants a neutral expert. — Kohi Marri/File
ISLAMABAD: The World Bank has expressed its inability to take an independent decision on appointment of a neutral expert or court of arbitration for settlement of a long outstanding water dispute between Pakistan and India, saying the two countries will have to bilaterally choose one option.

“Both India and Pakistan should come together as to which option to take forward,” said Patchamuthu Illangovan, the World Bank’s former Country Director of Pakistan, on completion of his five-year term in Islamabad.

Talking to Dawn, Mr Illango said Pakistan had made a request for appointment of a Court of Arbitration (COA) while India had sought a neutral expert to resolve their dispute on two hydroelectric projects. Because of two conflicting positions under the 1960 Indus Waters Treaty, the World Bank was facilitating the two governments to find ways in resolving differences and move forward.

“There is no provision in the treaty for the World Bank to take an independent decision,” he said when asked if the bank was shying away from its role even though it was part of the 1960 treaty and had been sitting on Pakistan’s request for a COA for almost four years now.

Responding to a question that the World Bank had promised to be part of the development works on the Indus basin and yet it had declined funding the Diamer-Basha Dam, Mr Illango said that while the bank was supporting other projects on the Indus River like Dasu-1 & Dasu-II, India had raised objections over the Diamer-Basha’s location in a disputed area and that it was not the WB policy to finance disputed projects.

Islamabad seeks a court of arbitration while Delhi wants a neutral expert

Pakistan has been reminding the World Bank since then to recognise its responsibility under the Indus Waters Treaty of 1960 to address its concerns over two disputed projects — 330MW Kishanganga and 850MW Ratle Hydropower projects — and play its role to ensure that India abide by the provisions of the 1960 treaty while building the projects.

India had completed the 330MW Kishanganga project during the period the World Bank “paused” the process for constitution of a Court of Arbitration (COA) as requested by Pakistan in early 2016. The Pakistani request was countered by India by calling for a neutral expert.

Pakistan had called for resolution of disputes over Kishanganga project on the Neelum river and 850MW Ratle hydropower project on the Chenab.

In December 2016, the bank had announced that it had “paused” the process for either appointing a COA or a neutral expert and started mediation between the two countries on how to advance and develop consensus in the light of the treaty on the mechanism for resolution of faulty designs of the two projects.

The last round of bank-facilitated and secretary-level talks between India and Pakistan were held in Washington in September 2015 that ended in disappointment for the latter. Pakistan had raised a number of objections over the design of the two projects at the level of Permanent Indus Waters Commission almost a decade ago followed by secretary-level talks and then requests for arbitration through the World Bank.

Under the treaty, in case the parties fail to resolve disputes through bilateral means the aggrieved party has the option to invoke the jurisdiction of the International Court of Arbitration or the neutral expert under the auspices of the World Bank.

The jurisdiction of the court could be invoked either jointly by the two parties or by any party as envisaged under Article IX (5), (b) or (c) of the treaty for constitution of a seven-member arbitration panel.

Responding to a question, the WB official said that the Washington-based lending agency was actively supporting Pakistan’s plans for least cost of power generation through long-term integrated plan because Pakistan’s generation cost was about 25 per cent higher than other regional countries.

He said Pakistan’s power sector had become unsustainable due to untargeted subsidies, inefficient distribution companies and low recoveries and Pakistan needed to improve in all these areas and take full advantage of the clean and renewable resources to ensure affordable energy. He said the renewable policy would go a long way in replacing imported fuels by 2030.

Mr Illango agreed that the WB’s 2018 projections for Pakistan to be an upper middle income country by 2047 through its Pakistan@100 programme had been affected by Covid-19, locust attack and resultant impact on underlying reform programme.

Published in Dawn, August 8th, 2020


LL COMMENTS

 

[Pan-Islamic-Pakistan]

The World Bank has expressed its inability to take an independent decision on appointment of a neutral expert or court of arbitration for settlement of a long outstanding water dispute between Pakistan and India, saying the two countries will have to bilaterally choose one option.

Basically, they don't want to uphold international law.

So we will have to fight it out with Indians to get our rights back.

Alhamdulilah, Pakistan is used to it, we will fight then.

 

[manga]

IWT was always hanging by a week thread and at the mercy of indian law makers.

 

[qamar1990]

IWT was always hanging by a week thread and at the mercy of indian law makers.

i wonder what would happen if they revoked it... what do you think?

 

[maithil]

India will get nothing other than negative PR right now if it comes out of IWT. Infrastructural capacity is simply not there to harness extra water out of this move. Situation will be different however 15 years down the line.

 

[saiyan0321]

“There is no provision in the treaty for the World Bank to take an independent decision,” he said when asked if the bank was shying away from its role even though it was part of the 1960 treaty and had been sitting on Pakistan’s request for a COA for almost four years now.

I think at this point the World Bank is about to start cursing. The question to ask does the world bank have to power to set aside any single party and order for any of the two mechanisms mentioned in the treaty i.e.

A neutral expert

A court of Arbitration


These two options come to play when the Permanent Indus Commission, composed in the manner as described in the Article VIII section 1 of the treaty and section 3 of the treaty. If there exists any problem that the commission cannot solve between the two nations then the next option are the above and they are covered in Article IX settlement of differences and disputes.

Now its section 1 states that if there exists any action, interpretation or fact that amounts to a breach of the treaty, the commission, composed of the commissioner appointed by each side, shall look into this matter and if they cannot find common ground then it shall give rise to a Difference which shall be settled through the above methods. The commissioners themselves cannot declare a dispute. That is the job of the neutral expert as it says in Section 2

(2) If the Commission does not reach agreement on any of the questions mention
ed in Paragraph (1), then a difference will be deemed to have arisen, which shall
be dealt with as follows :
(a) Any difference which, in the opinion of either Commissioner, falls within the
provisions of Part 1 of Annexure F1 shall, at the request of either Commissioner,
be dealt with by a Neutral Expert in accordance with the provisions of Part 2
of Annexure F ;
(b) If the difference does not come within the provisions of Paragraph (2) (a), or if
a Neutral Expert, in accordance with the provisions of Paragraph 7 of Annexure F,
has informed the Commission that, in his opinion, the difference, or a part thereof,
should be treated as a dispute, then a dispute will be deemed to have arisen which
shall be settled in accordance with the provisions of Paragraphs (3), (4) and (5) :
Provided that, at the discretion of the Commission, any difference may either bt-,
dealt with by a Neutral Expert in accordance with the provisions of Part 2 of Annexure
F or be deemed to be a dispute to be settled in accordance with the provisions of
Paragraphs (3), (4) and (5), or may be settled in any other way agreed upon by the
Commission.

Now Annexure F deals with Neutral Expert and highlights when he can sought after and under what cases. The most important thing we need to understand is whether the Neutral Expert is the pre-requirement for COA or not? India has recently focused alot on neutral expert whereas the 2013 judgment of the Court of Arbitration on the dispute stated that

Article IX(2)(a) ensures the appointment of a neutral expert where a Party actually requests the appointment of the same. It does not serve to impose—for its own sake—an additional procedural hurdle to access to a court of arbitration.

Nor can the Court accept that India’s current position in these proceedings, to the effect that the Second Dispute is a matter for a neutral expert, would be relevant under Article IX(2)(a)—even if India were now to request the appointment of such an expert.

The first part clearly points that the Court of Arbitration is not unreachable in the event of non expert opinion and the court defined the treaty that any dispute could be brought forth to the Court of Arbitration without any hurdle and the Annexuture F simply pointed to the conditions where the Neutral expert can be deemed fit. The reason the court used this was because the decision of the neutral expert is binding in accordance to Annexure F section shall be binding on all parties and even the Court of Arbitration thus if the neutral expert was sought for first as a court procedure then there would be no need for the Court of Arbitration and yet the Award of the COA also holds the same relevance that it cannot be appealed and is final and binding on both parties. So it can be clearly concluded that both methods are different paths the two parties can take.

Now the question is who can create such methods. Who can go to neutral experts and who can go to arbitration and whether the world bank has final authority.

It has been repeatedly concluded Both in Article IX and Annexure F, where it states in section 1

Subject to the provisions of Paragraph 2, either Commissioner may, under the
provisions of Article IX (2)(a), refer to a Neutral Expert any of the following questions :

Now here we see that the commissioner, either of them can refer to a Neutral Expert for any of the 23 questions mentioned in the Treaty and refer does not mean that he is appointed. The Commissioner has the power to bring the suggestion forward whereas its appointment can only be done in accordance to Article 4 of Annexure F which states that
Provided that every appointment made in accordance with (a) or (6)(ii) above shall be
made after consultation with each of the Parties.
The Bank shall be notified of every appointment, except when the Bank is itself the
appointing authority.

So bank can be an appointing authority but can it be an appointing authority where it can ignore the objections of the other part and appoint an expert? No it cannot and this is highlighted in Section 4 subsection 8 Clause II which highlights where the appointing authority is the bank.

(a) During the Transition Period, by the Bank.
(b) After the expiration of the Transition Period,
(i) jointly by the Government of India and the Government of Pakistan, or
(ii) if no appointment is made in accordance with (i) above within one month after the
date of the request, then by such person or body as may have been agreed upon be
tween the two Governments in advance, on an annual basis, or, in the absence of
such agreement, by the Bank.

So the above shows that the role of the bank can only come when both are disagreed about the Neutral Expert however the above highlights that an expert cannot be appointed without the consent of the other party like in this case where Pakistan wants COA and India neutral expert. Bank can only intervene when the Neutral expert dispute resolution, agreed by both parties is not appointed.

Now the COA is governed by Annexure G and it states that the COA can be instituted in the following

2. The arbitration proceeding may be instituted
(a) by the two Parties entering into a special agreement (compromis) specifying the issues
in dispute, the composition of the Court and instructions to the Court concerning its
procedures and any other matters agreed upon between the Parties ; or
(b) at the request of either Party to the other in accordance with the provisions of Ar
ticle IX (5) (b) or (c). Such request shall contain a statement setting forth the nature
of the dispute or claim to be submitted to arbitration, the nature of the relief sought
and the names of the arbitrators appointed under Paragraph 6 by the Party instituting
the proceeding.

Nowhere does it say the bank can initiate and the arbitrators are also appointed by parties. at least 4/7 of them

Now The world bank has repeatedly highlighted that they are not the authority in the treaty and are merely procedural and are mediators. The bank has stated this again and again on repeated fact sheet and the bank is right here. The treaty nowhere gives bank the power to pass awards or judgments or pass through disputes of both parties. The title of the article is also wrong. The bank didnt say it cannot mediate. It said that it was not the authority here. The bank is procedural and can mediate but its role is not of a sovereign but of a third party trying to get two parties to find common ground. It can only do so much. The Indus treaty is very bilateral in its dispute resolution aspects.

So rather than berate the bank, we need to prepare our case better and try to find solid ground so that whether we go the Neutral Expert route or COA, our grounds must be solid

 

[saiyan0321]

Oh as for Indians saying that India can leave whenever it wished. It cant. Indians need to read the Law of treaty and why India has never internationally stated that its leaving the treaty or will stop all water of Pakistan. It has repeatedly both in its inner circle and international level, always stated that they respect the IWT and are only trying to hold the water as allotted to them. Indian media has allowed people to believe that India can walk out of a treaty whenever it wished. It cannot unless India wants to declare itself a rogue state and this one will be an absolute rogue state move.

 

[-blitzkrieg-]

their billion dollar dams are like glass castles. nuff said..

 

[Smarana Mitra]

India will get nothing other than negative PR right now if it comes out of IWT. Infrastructural capacity is simply not there to harness extra water out of this move. Situation will be different however 15 years down the line.

India can only take water from Chenab. Indus is fully in Pakistan. Jhelum is mostly in Pakistan and gets most of waters from Azad Kashmir himalayas. So, there is not much scope for cutting water even now

 

[Smarana Mitra]

Oh as for Indians saying that India can leave whenever it wished. It cant. Indians need to read the Law of treaty and why India has never internationally stated that its leaving the treaty or will stop all water of Pakistan. It has repeatedly both in its inner circle and international level, always stated that they respect the IWT and are only trying to hold the water as allotted to them. Indian media has allowed people to believe that India can walk out of a treaty whenever it wished. It cannot unless India wants to declare itself a rogue state and this one will be an absolute rogue state move.

Pakistan has also went out of Shimla treaty. Why do you think India has any reason to stay true to IWT? India will be considered rogue state by those who don't like India and won't be considered so by others.

 

[saiyan0321]

Pakistan has also went out of Shimla treaty. Why do you think India has any reason to stay true to IWT? India will be considered rogue state by those who don't like India and won't be considered so by others.

International law of treaty on both points. Pakistan has never announced that it is exterminating the treaty. You leave a treaty when its not a bilateral treaty but multi-party treaty but when its bilateral, you rescind or revoke the treaty and has pakistan ever stated that the Shimla agreement has been revoked. Did it send a formal diplomatic note to India, declaring the agreement void or revoked? If not then Pakistan never left the treaty and your government repeatedly highlights the Shimla agreement whenever Pakistan brings up Kashmir in UN and the UN also highlights bilateral because of the treaty. Did both revoke it? No they did not and frankly if Pakistan had done that then the law of treaty would apply to pakistan just as it would apply to India, if it ever tried to revoke a treaty.

Law of treaty and the ICJ judgments are important when discussing treat laws

 

[Tumba]

IWT is a stupid treaty... no other nation gives more that 50% of water and IWT gives 80% I dont know what these congress mofos has done earlier but new generation in India wont take this shit going forward in case of hostilities going forward the IWT should be cancelled ...

 

[waz]

IWT is a stupid treaty... no other nation gives more that 50% of water and IWT gives 80% I dont know what these congress mofos has done earlier but new generation in India wont take this shit going forward in case of hostilities going forward the IWT should be cancelled ...

Yes ok lol, watch what China does with your water, or what's left of it.....

 

[waz]

India will get nothing other than negative PR right now if it comes out of IWT. Infrastructural capacity is simply not there to harness extra water out of this move. Situation will be different however 15 years down the line.

And what exactly are you going to do? You are a lower riparian state yourself. Everything from the Ganges to the brahmaputra to the Sutlej will be under threat.
Your Sanghi government was told by the Chinese through back channels as just what will happen if you dare pull of such a move.

 

[Tumba]

And what exactly are you going to do? You are a lower riparian state yourself. Everything from the Ganges to the brahmaputra to the Sutlej will be under threat.
Your Sanghi government was told by the Chinese through back channels as just what will happen if you dare pull of such a move.

Ganga originates in India only, Brahmputra will impact Bangladesh and rest Satluj most of the tributaries comes with in India, come again and good luck to China diverting these rivers in Tibet, India will just give less water to its lower riparian state.. hahah
china sanghi lol ... India Sanghi also told China back channels that pak chin dosti bahut acha haha