January 8, 2005 ☼ Foreign Affairs
This is an archived blog post from The Acorn.
As a rule, Pakistani negotiators never concede that their many disputes with India can be solved purely through bilateral negotiations. Indeed, the main plank of Pakistani foreign policy has been to seek international mediation as it finds itself on the unhappy side of an unequal footing on most of its disputes with India. So when Pakistani negotiators announced that negotiations with India over the Baglihar hydro-electric project are not going anywhere, very few people, especially in India, would have been surprised.
Swinging Sixties
The Indus Waters Treaty of 1960, which governs the sharing of the Himalayan rivers that are common to the two countries is a singular achievement in the area of India-Pakistan relations. Brokered by the World Bank in the 1950s, it took almost nine years before negotiators could agree on a deal. That both India and Pakistan needed development assistance from the World Bank created powerful incentives for a deal to be concluded. Pakistan won the exclusive use of the Indus and its eastern tributaries, while India retained the use of the western tributaries, and — this is where it gets interesting — restricted use of the eastern tributaries. Pakistan received a huge dollop of funding from the international community, including a not inconsequential sum from India, to develop its own irrigation system.
Besides helping lubricate and broker the deal, the World Bank signed a subset of the treaty and resolved to provide neutral umpiring when the treaty’s institutional bilateral mechanism failed to resolve disputes. In the sort of language that international diplomats use, the escalation process started with a question, to be discussed by the bilateral Permanent Indus Commission; which became a difference if the bilateral process failed, requiring the appointment of a ‘neutral expert’; and ultimately became a dispute to be resolved by a ‘court of arbitration’.
Cut to the present
After the latest round of talks in New Delhi, the Pakistani negotiators have signalled that they would, for the first time in the treaty’s history, consider calling in the ‘neutral experts’. India (cleverly) contends that there is room yet for bilateral negotiations. Thanks to the lack of precedent, it is uncertain whether one party throwing up its hands is sufficient to engage the ‘neutral expert’. Even so, India should not grudge Pakistan on seeking legal recourse; for that’s a lot better than the jihadi recourse, as is its wont.
First, find the motive
One of the reasons cited for the successful conclusion of the Indus Waters Treaty is its isolation from other bilateral disputes between the two countries, most notably Kashmir. But a lot of water has flowed under the bridge since then — Pakistan knows that the hydro-electric power projects built on the eastern rivers will go a long way in addressing the acute power shortage in India’s Jammu & Kashmir state. For that reason it has systematically objected to Indian attempts to harness the developmental potential from these rivers — either for irrigation or for electricity. India, being the upper riparian state, had not had reason to stir up any trouble on the issue, except in 2001 when India publicly contemplated abrogating the treaty to punish Pakistan for sponsoring the December 13th attack on the Indian Parliament.
Some sabres are for rattling
Talk of cutting off Pakistan’s water supply (and there is debate on whether this is actually possible), like talk of nuclear strikes, is a meaningful tool when foreign policy imperatives demand sabre-rattling. Carrying it out in practice destroys the deterrent value. So, while it is quite all right for India to retain the option of abrogating the treaty it would be extremely unwise to raise the bogey of cutting off Pakistan’s water supply. Significantly, regardless of what ‘neutral experts’ or ‘courts of arbitration’ decide, India’s position as the upper riparian state will not change; it will continue to retain all options.
Enriching the lawyers
For the moment, the ball remains in Pakistan’s court. It can, and probably will, decide to call in the ‘neutral experts’. India should prepare for the legal challenge and fight its case every step of the way. The construction of the Baglihar dam, for its part, should proceed as per schedule. And should the arbitrators decide in favour of Pakistan and the lights have to go out in Kashmir, the Kashmiri people will know who it was that pulled the plug.
Related Links: A presentation (video) by the World Bank’s legal expert; A case study from Colgate University.
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