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Experts believe WB option is safe but delayed

ISLAMABAD Jan 09 : Although the appointment of neutral experts is a safe option, yet the experts agree that Pakistan has not played its cards smartly on the Baglihar Dam issue and has already delayed the move.

Leading legal experts and practitioners such as Professor Dr Ijaz Hussain and Barrister Munawar Akhtar believe the move should have been made two weeks after failure to agree on a joint statement by the Pak-India water officials in 1999.

And within the next four weeks, the aggrieved party should have moved the World Bank for appointment of neutral experts.

"Pakistan should have written to the World Bank about this dispute a few years earlier because I believe the financial institution acts as underwriter of this treaty," said Barrister Munawar Akhtar of Amhurst Brown who has successfully pleaded a number cases for Pakistan in international arbitration.

India had notified Pakistan of its plan in 1992 for the first time. The project was undertaken in 1999. After the objection surfaced, the two countries’ official met to deal with the issue of Baglihar as given in the treaty a special meeting of the Indus Waters Commissioners of but the talks remained inconclusive.

The Pakistan then served another notice on India to meet the three conditions, namely, a) stoppage of work on the project; b) on-site inspection by the Pakistan Indus Waters Commission; and c) resolution of the dispute by September 30, 2003, failing which it reserved the right to approach the World Bank for the appointment of a neutral expert.

The International law expert and former dean, Social Science, Quaid-i-Azam University, Dr Ijaz Hussain, believes there is no such thing as final notice and Pakistan could have sufficed after issuing one. Now Islamabad has decided to move the World Bank neutral experts’ appointment. Undoubtedly the position is in line with the spirit of the Indus Water Treaty’s Article IX titled ‘Settlement of Differences and Disputes’.

However, Dr Ijaz observes the World Bank does not have implementation powers in this case and is only a guarantor. "The neutral experts can only determine whether there is a violation of the agreement or otherwise but this up to the government to find out a solution," he told The News.

The veteran professor point out that Pakistan Indus Waters Commission, on the other hand, advocates the World Bank route on the ground that Pakistan has a very good case and that the Indian goodwill cannot be relied upon for conflict resolution.

Asked if the verdict gives no relief to Pakistan, Dr Ijaz said you have the negotiated settlement attempt, as expected India is "trying to involve us in the rigmarole of talks as it did in the past."

An associate lawyer at Cornelius, Lane and Mufti law firm, Dr Ijaz said: "If we follow the World Bank route, the chances are that India would show flexibility in the matter as it did when Pakistan served the first notice in May last year. India, which was not amenable to on-site inspection, readily agreed to it then. The World Bank route appears to be the Hobson’s choice for us."

Another distinguished expert, requesting anonymity, said that right now there are less legal question involved in the case and more related with engineering. He was referring to the six areas where Pakistan objects to the design of the dam.

He also agrees with his other colleagues that the World Bank neutral expert opinion would not be binding on India but still it would damage its international reputation. On the other side, Indian commentators are seeing the Pakistani decision to move the World bank as yet another attempt to internationalize the Kashmir dispute.

If Pakistan felt unsatisfied or Indian showed indifference to the World Bank findings, the experts agree, the case may go to the arbitration court who verdict would be a binding on both the parties, the distinguished expert believed.

Barrister Munawar said that "as arbitration of a dispute has been agreed by India, an award by a sole arbitrator or an arbitral tribunal shall be binding on India as well as on Pakistan". However, he believes the treaty only has a provision that a court of arbitration shall be established.

This means that parties will have to (a) agree to the place of arbitration, (b) what rules should govern such arbitration, (c) should it be by a sole arbitrator or an arbitral tribunal of three or more persons, (d) what law will govern, and (e) help of professionals experienced in international arbitration should be obtained to advise on these and other crucial matters of strategy. He, however, observed that "the losing party will have the right of appeal."

Appeal lies generally to the High Court of the country where arbitration is held or the parties can expressly agree a different forum for appeal, the leading law practitioner explained. Barrister Munawar has recently won a crucial legal battle for Pakistan against a Malaysian power company, in the International Court of Arbitration of the International Chamber of Commerce (ICC) and for successfully defended a hefty claim of $510 million. In an earlier case, Amhurst Brown senior partner had successfully defended WAPDA in London during 1983-84 in another ICC arbitration against a large Belgium Company. Still, if Islamabad loses the cases and fails to prove any violation of the treaty, the last forum left is political i.e. UN General Assembly or Security Council.

He observes that it would be difficult for Islamabad to make India amend the designs after repeated set back on previous platforms. Asked if there was any room for World Court, Dr Ijaz and the other expert agree that unlike Pakistan, India has laid a number of objections with regard to its jurisdiction.

"Purposely, India has objected to the world court jurisdiction in cases filed against her by the Commonwealth countries or formers members of the Commonwealth," Dr Ijaz explained. The other expert gave the example of Bangladesh, which has six of seven river water disputes with India but could not move the world court due to India’s smart use of legal space.

On the Indian side, various news reports in their newspapers confirm that the foreign ministry has directed the water resource ministry not to comment on the issue while talking journalists. The issue needs to be dealt with greater articulation as after the dam is completed, it will cut off water to downstream farmers in Punjab province, considered to be the country’s food basket.