NEW DELHI, Nov 13:
After categorically rejecting World Bank’s decision of appointing two simultaneous mechanism for resolving differences with Pakistan, India was now considering various options, including challenging the order on other available international fora.
On this issue of differences between India and Pakistan on Kishanganga and Ratle Hydroelectric Projects under the Indus Waters Treaty, India had asked the World Bank to appoint a Neutral Expert to resolve the differences of a technical nature which are within the domain of a neutral technical expert.
On the other hand, Pakistan had sought the establishment of a Court of Arbitration, which is normally the logical next step in the process of resolution in the Treaty. The Neutral Expert can also determine that there are issues beyond mere technical differences.
The World Bank has decided to proceed with both steps simultaneously, a move completely rejected by India.
It was pointed by the Government to the World Bank that the pursuit of two parallel difference/ dispute resolution mechanisms – appointment of a Neutral Expert and establishment of a Court of Arbitration at the same time is legally untenable.
Under the Indus Waters Treaty, signed between India and Pakistan and also the World Bank in 1960, the WB has a specified role in the process of resolution of differences and disputes.
“Inexplicably, the World Bank has decided to continue to proceed with these two parallel mechanisms simultaneously. India cannot be party to actions which are not in accordance with the Indus Waters Treaty,” the MEA officials said.
Indus Waters Treaty provides for a hierarchy to resolve differences and disputes vide Article IX.
First, the bilateral Permanent Indus Commission (PIC) addresses technical ‘questions’. If PIC can’t resolve the matter, the question becomes a ‘difference’, which is addressed by a Neutral Expert (NE) appointed on request by either Party.
If the Neutral Expert decides so, he can refer a part of a difference or the whole of it for resolution by a Court of Arbitration (COA).
The COA has 7 members, 2 arbitrators to be appointed by India and Pakistan, and 3 ‘Umpires’ nominated by certain global dignitaries. If parties can’t agree on who will nominate the ‘umpires’, a draw of lots decides which of these 3 global dignitaries will nominate one umpire each.
Pakistan had lost its case in a COA in 2013 when its objection that Kishanganga project can’t be built in a tributary diversion, was overruled.
Nevertheless, Pakistan persisted in its flawed and obstructive approach to object in technical design parameters such as pondage (volume of water used for running turbines).
Islamabad first itself suggested as Neutral Expert even in 2015, which it rescinded later. It notified its intention to India to move for COA. India didn’t agree to this because there are design matters, preferably addressed by PIC, or at the most by NE. In violation of Treaty provision and procedure, Pakistan approached the World Bank in August 2016 for COA.
Since PIC was unable to agree on resolving these differences, India notified Pakistan in August 2016 at the Commission level that the differences should be addressed by NE.
This was after a meeting of water secretaries of the two countries, which India offered out of good will, in July did not address the matter due to Pakistan’s intransigence as it had already decided to go for Court of Arbitration.
The World Bank, faced with two requests — one for NE by India and another for COA by Pakistan — decided to go ahead with both, despite clear advice not to do so.
“The Treaty at Art IX (6) expressly states that while NE is dealing with a difference, other mechanisms for settlement of differences and disputes will not address the same matter,” the officials pointed out. (UNI)
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