Prior to the partition of India, the five tributaries of the Indus River flowing through undivided India, were North India’s lifeblood. Years after partition, in 1960, the Governments of India and Pakistan executed the Indus Water Treaty (“Treaty”), at the instance of the World Bank, to deal with the sharing of the resources for equitable distribution, and recourses for protection of the rights of the parties. Briefly, India had the exclusivity of the Eastern Rivers and Pakistan over the Western ones. The Treaty has survived three wars and other conflicts between the two nations.
The recent dispute relates to the Chenab river basin, where there are 15 hydro power projects at various stages of planning and operation. Among them is the Baglihar Dam, the construction of which had led to a dispute in 1999 on the issue of its design. A Neutral Expert was appointed by the World Bank to resolve the dispute, who in his final verdict upheld some minor objections raised by Pakistan, but most issues were resolved; Pakistan withdrew its objections and did not assail the verdict.
The Kishan Ganga River is a tributary of the Jhelum in the Baramulla district of Jammu & Kashmir. Pakistan’s current objection is against India’s proposed diversion of Kishan Ganga waters, alleging this to be a breach of India’s obligations to Pakistan under the Treaty, thereby creating a water crisis for Pakistan. The matter was referred to arbitration, with Pakistan invoking the Settlement of Differences & Resolution Clause in the Treaty, by way of a Request alleging India’s proposed diversion of the Kishan Ganga waters to another tributary, was a breach of India’s obligation of non intervention in the waters of the Western rivers. The other issue raised subsequently is that the construction of the dam would deplete the reservoir level of the river below Dead Storage Plant.
The matter was referred to a Court of Arbitration (‘Court’) as provided under clause (ix) and (5) of the Treaty and the parties appointed their arbitrators, but were unable to agree on the umpires, who were appointed by the Secretary General of the United Nations. There was a site visit to the pertinent facilities in the location, the hydro projects and surrounding areas, pursuant to certain interim measures sought by Pakistan.
Briefly, Pakistan demanded cessation of further work on the project, a requirement for India to update Pakistan and the Court on any adverse developments, and be subjected to the principles of what is regarded under the International law principle of the Passage through Green Belt (“Green Belt”), i.e. provide an undertaking to the Court and Pakistan for restoration of the status quo ante, in case of significant adverse effect being determined in the final award.
The Green Belt case between Finland and Denmark (1991) concerned a road and rail traffic project. Challenged by Finland as it impeded passage of its drill ships and oil rigs, the case is a landmark in establishing the own risk principle for any State engaged in works which may violate the rights of another State. India was not willing to volunteer such an undertaking which would involve dismantling of the dam, as in India’s assessment there was no imminent harm to Pakistan. Considerable submissions were exchanged on these issues, thus in the course of the hearing, Pakistan enlarged its claim from not to have the flow obstructed or diverted, to restraining the construction of the dam to meet the needs of the people in a different River Basin. India strongly contested the assertion of any right of veto or prior consent being envisaged under the Treaty. On balance of convenience, India’s Counsel argued forcefully on India’s right to construct the Project being plausible, the measures requested by Pakistan could inflict irreparable damage to India.
Pakistan’s arguments essentially portrayed itself as a victim, by references to 1948, and also the Baglihar dispute, and the deepening of the concerns arising from the site visit, even though there were no major hiccups for 63 years.
Yet at the close of hearing, India out of a sense of fairness or as a nation bound by the rule of law, agreed to be bound by the Green Belt case, conceded on non diversion of waters till 2015, in keeping the Tribunal and Pakistan intimated of any imminent developments, and assured unequivocal submission to the final outcome of the proceedings. Even then, the Tribunal has ordered the suspension of many key components of the construction activity, with temporary structures being permitted.
It is possible that the concessions were made as India is confident that the final award will be in its favour. Or to buy peace and settle with Pakistan as the final award will be communicated in the next year. Time is of the essence, especially as there are several stakeholders,domestic and foreign, whose investment and resources have been mobilised and therefore impacted by this position. Arbitration is expensive, and India has more to lose than Pakistan in the wait.
Kumkum Sen is a partner at Bharucha & Partners Delhi Office and can be reached at kumkum.sen@bharucha.in
