Water issues with India

President Asif Ali Zardari has reiterated his government's deep concern over the very heavy price exacted on Pakistan due to the construction of Baglihar dam by India on the Sutlej River in Jammu and Kashmir. Its construction has indeed led to serious economic consequences for Pakistan, ranging from lower hydel electricity output, already a serious concern in the country, and lower water supply available for irrigation, which, in turn, would affect major crop outputs.
President Zardari categorically stated that Indian Prime Minister Manmohan Singh had assured him on the sidelines of the sixty-third United Nations General Assembly meeting that India was committed to the World Bank brokered 1960 Indus Water Treaty and "we expect him to stand by his commitment."
Business Recorder fully supports the President's stand on the Baglihar dam whose construction was a violation of the intent behind the Indus Water Treaty which was essentially to protect Pakistan, as a lower riparian country, from being deprived of its due share of the Indus water system.
The Treaty awarded the Eastern Rivers to India and the Western Rivers to Pakistan; however, India was allowed restricted use of the Western Rivers and was strictly forbidden to interfere in the process with the flow of their waters towards Pakistan. Thus the very construction of the Baglihar dam is a violation of the intent and objective of the Treaty.
It is prudent, at this point, to take note of the new ground realities. The Treaty allowed arbitration by a neutral expert, whose award was to be considered final and binding, in case of its non-conformance by either of the two countries. The previous Pakistani government did take the issue of the Baglihar construction to the World Bank in 2005 and the 2007 award is already public knowledge with both India and Pakistan claiming victory. The award overruled all objections raised by Pakistan over the construction of the dam with the exception of a critical one: the Neutral Expert appointed by the World Bank and accepted by the two countries, Professor Lafitte, ruled that India must reduce the maximum permissible pondage from 37.50 million cubic meters (MCM) to 32.56 MCM. Pakistan, reportedly, had requested 6.22 MCM.
In this context when Indian Prime Minister Manmohan Singh promised President Zardari that India will abide by the Treaty he was, cleverly and diplomatically, referring to the arbitration award already in force. It is unfortunate that President Zardari was not briefed adequately on the issue, which, in all probability, led him to conclusions that were not supported by the new ground realities, foremost among them being the fact that the dam construction was in its final stages of completion and presented a fait accompli to the arbitrator.
The question is who is to blame for Pakistan's defeat in the arbitration in spite of tall claims made by the former minister concerned, Liaqat Jatoi? Why was the arbitration clause invoked so late and not in the initial stages of the dam's construction? Some analysts lay the blame on the architects of the Indus Water Treaty who failed to insist on an explicit provision barring India from constructing a submerged spillway.
The Treaty (Annexure D, section 8, para (e)) bars India from constructing a gated spillway as a rule but is allowed to do so in exceptional cases where it deems that "necessary". Others lay the blame on the Pakistani team that pleaded the case before the neutral expert, a team which obviously failed to convince Professor Lafitte to take into consideration the purpose and objective of the Treaty as mandated by the Vienna Convention (article 31) which stipulates that a judge is not entitled to construe a treaty purely on the basis of the text but must keep its object and purpose in mind as well.
Whoever is at fault, it is fairly evident that Pakistan must evolve a new strategy in order to deal with the consequences of the Baglihar dam and its consequent impact on Pakistan's economy! Threatening India with a worsening of bilateral relations, is unlikely to sway that country which has clearly emerged as an economic giant in the region reaping the benefits of a democracy dividend that Pakistan is only now trying to benefit from.
What is the solution? There are some jurists who maintain that Pakistan can challenge the award. The example of the World Court's judgement in the 1960 case concerning the Arbitral Award made by the King of Spain is pertinent, which is based on the assumption that in certain circumstances an award could be vitiated with nullity. At the same time the Pakistan government must attempt to internationalise the negative fallout of Baglihar and remain engaged with India in an effort to amicably resolve the issue.