Expropriation of water rights

Asghar Khan

Pakistan and India held meetings in Washington recently for the resolution of disputes pertaining to Kishenganga (330MW) and Ratle) (850MW) hydroelectric power plants (power projects) being constructed by India in held Jammu and Kashmir. The talks remained inconclusive and the parties have agreed to continue discussions and reconvene in September in Washington. Earlier, Pakistan had proposed setting up of Court of Arbitration (COA) whereas India had invoked the jurisdiction of Neutral Expert under the provisions of the Indus Water Treaty 1960 (IWT).
The disagreement arises over the technical design of the power projects and whether it contravenes the IWT. Pakistan under the IWT has a primary right to unhindered flow of all water in western rivers whereas India has an exceptional user rights limited to particularized purposes.
The mechanisms provided under the IWT state in Article IX that any question which might constitute a breach of IWT will be resolved by permanent commissions of India and Pakistan which if cannot be resolved by agreement shall constitute a difference between the parties.
This difference shall be resolved by the Neutral Expert or in case of dispute then COA shall be constituted. The Governments of Pakistan and India may agree to resolve the dispute by agreement through negotiations and mediations. Pakistan treated the disagreement as a dispute while India considers the disagreement as a difference under the IWT. Hence parallel proceedings of COA and Neural Expert were initiated by the parties. The factsheet released by the World Bank on 1st August 2017 (Fact Sheet) concedes that the Treaty does not empower the World Bank to choose whether one procedure should take precedence over the other; rather it vests the determination of jurisdictional competence on each of the two mechanisms. The World Bank has overstepped its jurisdiction by pausing treaty provisions and working with India and Pakistan to agree amicably on a mechanism to address the issues.
This role is neither envisaged nor was requested by either party as the IWT does not provide or confer such role or jurisdiction on the World Bank. Moreover, the two mechanisms of the Neutral Expert and the COA are different with Neutral Expert vested with exclusive jurisdiction on factual issues whereas the COA is conferred wide ranging jurisdiction pertaining to the legal issues under the IWT.
The IWT should have been allowed to take its own course and Pakistan had a prima facie strong argument that a dispute has arisen with legal issues involved that requires determination by the COA with right to relief through interim measures.
The on-going talks being without any enforceability mechanism or powers of interim measures depend on the goodwill of negotiating parties. Accordingly, there is no bar on India not to construct the said power projects. This has been acknowledged by the World Bank in the Fact Sheet which states as follows:
"Among other uses, under the Treaty, India is permitted to construct hydroelectric power facilities on these rivers subject to constraints specified in Annexures to the Treaty."
This reflection of a provision of the IWT in the Fact Sheet with regards to conferment of right on India during ongoing talks has been construed by section of press in India and Pakistan as a go-ahead to India for the construction of power projects which is incorrect. Incidentally, the language used in the IWT under Article III thereof is a positive obligation upon and covenant on behalf of India to let flow all the waters of the western rivers except for inter alia hydroelectric power which exception has been converted through the Fact Sheet into a positive right for India to construct hydroelectric power facilities subject to certain constraints. Thus the Fact Sheet has changed an exceptional right of India to generate electric power into mainstream right of construction of hydroelectric power facilities which should be unacceptable to Pakistan. India's attempt would be to prolong the negotiations in order to gain time and render the power projects as fait accompli. The World Bank should measure upto and gauge the sensitivity of the matter and refrain from inclusion of such matters in the Fact Sheet which can potentially undermine the position of a party or be construed as such.
Hence while talks may continue, Pakistan should pursue its legal and treaty options to restrain India from constructing the dams or in case of Kishenganga to seek modifications of technical design through directions and interim measures. This is possible under Article IX (5) (b) & (c) of the IWT whereby Pakistan has the right to invoke the provisions relating to setting up of COA if it forms an opinion that the dispute is not likely to be resolved by negotiation or mediation or that the Government of India is unduly delaying the negotiations.
(The Author is a practicing Barrister in the power sector and has advanced degrees in fields of engineering, business management and law)