The familiar pattern is that while World Bank is still busy putting on its boots, India completes its marathon of constructing controversial dams, one by one, on the rivers allotted to Pakistan under the Indus Waters Treaty (IWT). While World Bank drags its feet, it allows India to continue building the dams. One wonders whether it is wilful connivance or (dys) functional inertia. Either way a course correction is needed to keep the World Bank relevant to the ITW. As of now, one may categorize World Bank too slow to be effective.
The IWT is a profoundly important international agreement that provides an essential cooperative framework for India and Pakistan to address current and future challenges of effective water management to meet human needs and achieve development goals. Treaty evolved in 1960, ever since, it has managed to endure, and Pakistan and India have not fought a war over water.
Senior World Bank officials met on May 21-22 with a delegation from the Government of Pakistan to discuss issues regarding the Indus Waters Treaty and opportunities within the Treaty to seek an amicable resolution. Pakistan’s delegation shared with the Bank its concerns about the recent inauguration of the Kishenganga hydroelectric plant.
A Pakistani official who attended the meetings claimed that the World Bank has assured to bring resolution to the issue. He added that Pakistan had lodged the protest in the strongest possible words. The Kishanganga project has the potential to disrupt flows, which will also adversely affect the recently constructed 969MW Neelum-Jhelum hydropower project. Kishanganga dam violates the World Bank-mediated treaty on the sharing of the Indus River and its tributaries.
Several procedural options for resolving the disagreement over the interpretation of the Treaty’s provisions were discussed. “While an agreement on the way forward was not reached at the conclusion of the meetings, the World Bank will continue to work with both the countries to resolve the issues in an amicable manner and in line with the treaty provisions,” stated the World Bank.
Kishanganga project was started in 2007. On May 17, same year, Pakistan moved for international arbitration. The Court of Arbitration, found in its first interim order that the dam component would “eventually enable India to exercise a certain degree of control over the volume of water that will reach Pakistan” and ordered a temporary halt to construction. A second interim order in 2013 allowed construction to resume because entitlement to prevent such diversions was based on a demonstrated utilisation of the waters in Pakistan’s territory. Since Pakistan’s own Neelum Jhelum Hydropower Project was conceived and initiated after Kishanganga project, the Court of Arbitration found that Pakistan did not have any demonstrated requirements for utilisation of the water of the tributary at the time when the dispute began.
In 2013, the court ruled that the Kishanganga was “a run-of-the-river plant within the meaning of the Indus Waters Treaty and that India may accordingly divert water from the Kishanganga (Neelum River) for power generation”. The court also ruled that India was under an obligation to “construct and operate” the Kishanganga dam in such a way that it “maintains a minimum flow of water in the river”. The minimum flow was fixed at 9cumecs. India declared that it was lowering the height of the dam from the planned 98m to 37m and resumed construction at full swing. Pakistan, has however, collected ample evidence to prove that India was violating the treaty as well as the court’s verdict.
In 2016, Pakistan had filed a complaint with World Bank, saying India had contravened the pause placed in 2016 for completion of the Kishanganga Dam. In August 2016, Pakistan asked the World Bank to appoint a court of arbitration to review the designs of Kishanganga and another project on the Chenab, named Ratle. India rejected the suggestion, saying that Pakistan’s objections were technical in nature and that the matter should be decided by a neutral expert. Pakistan disagreed, arguing that a decision by a technical expert was non-binding and India would be under no obligation to implement the expert’s recommendation. The World Bank set in motion both processes but paused them when India and Pakistan refused to withdraw their proposals. After the pause, the bank held several rounds of talks but failed to resolve the dispute.
Dam violates IWT “Pakistan is seriously concerned about the inauguration (of the Kishanganga plant),” the Foreign Office said in a statement on May18.
“Pakistan believes that the inauguration of the project without the resolution of the dispute is tantamount to violation of the IWT.” Earlier Indian minister for transport and water resources had stated on March 26 that India is proposing to dam the three Western rivers in order to curb the flow into Pakistan. The Indian argument is that it has a right to dam these rivers on the grounds that it is imperative for national development. It had not hitherto been able to utilise water from the three rivers for its own needs and that Pakistan was ‘benefitting’ from the ‘extra’ water contrary to the spirit of the IWT.
India describes this dam as a storage work for power generation purposes only, whereas Pakistan maintains that because its design, it actually diverts water from the Neelum river into the Bonar Madmati Nullah, thus it violates Article III (2) of the Treaty. It also contravenes Article IV (6) of the IWT with regard to safeguarding the natural flows of all water channels under the treaty.
World Bank has disappointed Pakistan during recent talks. It has stated that “as a signatory to the Treaty, the World Bank’s role is limited and procedural”. In particular, the role in relation to ‘differences’ and ‘disputes’ is limited to the designation of people to fulfil certain roles when requested by either or both parties, it added. World Bank must take this action in a timely manner, because delay in doing so has enabled India to complete most of its projects.
However, the silver lining is that the “The World Bank remains committed to act in good faith and with complete impartiality and transparency in fulfilling its responsibilities under the Treaty, while continuing to assist the countries”.