Legal Fumbles Continue On Baglihar
3 February 2005
Dr. Farooq Hassan
Lahore: As is customary in an authoritarian administration often run on sycophancy, it was announced with great enthusiasm over the state run electronic media on 17th January that Pakistan's case against India had been 'received' by the World Bank over the issue of Baglihar dam. Regrettably for the Musharraf regime, the World Bank on 19th January categorically rejected Pakistan's contention that the Bank is not the guarantor of Indus Waters Treaty 1960 nor could it appoint a neutral expert as prayed for in Pakistan's legal brief. This was the only ground on which this matter had been filed with the Bank. As such even without a 'hearing'; the Bank rejected the said filing as being without merit. Perhaps out of sheer courtesy it was added that a neutral expert could only be appointed in consultation with both the countries. Hypothetically, if this could be done bilaterally, there was presumably no need for Islamabad knocking on the judicial doors of international financial institutions! But practically speaking this act of 'courtesy' was essentially an insult to Pakistan's slipshod preparation of its legal brief and its gross misreading of the Indus Treaty. In its brief public communiqué to Pakistan's request for appointment of a neutral expert on Baglihar dam dispute, the World Bank maintained that it had no such authority as claimed or asserted by Islamabad. 'The World Bank is not a guarantor of the Treaty.' It was added that: 'A neutral expert can be appointed only if both parties to the dispute express confidence in him'. The World Bank further clarified that it was a signatory to the Treaty but only for certain specified purposes and was certainly not a guarantor as claimed by Islamabad. Most ominously for Pakistan's legal assertions it significantly added: 'Many of the purposes for which the World Bank signed the Treaty have been completed.' The World Bank communiqué went on to say for the benefit of the relevant legal circles of Pakistani administration that there remained relating to settlement of differences and disputes only three responsibilities for it under the treaty. 'Disagreements by the parties on the interpretation of the provisions of the Treaty are classified into three categories: questions are examined by the Permanent Indus Commission; differences by a Neutral Expert; and disputes by a Court of Arbitration.' The Bank communiqué concluded that the first step however, under the treaty is to resolve any question through Permanent Indus Commission itself. It may be useful to briefly see that under the Indus Basin Treaty there appears to be a scheme of resolution of disagreements between the two parties. As I see it, should a difference arise and no agreement is reached, it attains the juridical status of a 'difference'. If it becomes a 'difference', it can be referred to a neutral expert, to be appointed by the two countries, or by a third party agreed upon by the two countries. Alternatively, in absence of such an agreement, the appointment of the neutral expert would be made by the World Bank, but in consultation with the two countries. The decision of the neutral expert on all matters within his competence shall be final and binding. In other words the appointment of expert must be, a fortiori, on the basis of mutual consent. It is thus clear that such an expert neutral expert can only be appointed by the consent of both the parties. Once appointed the expenses of such an expert there does exit a trust fund managed by the World Bank. The bank has also a role in establishment of a court of arbitration if the difference does not fall within the mandate of the neutral expert. Legally, therefore Pakistan had to present a cogent case that (I) the concept of guarantor carries with it the power of appointing an expert, and that (ii) this could be done in the absence of mutuality of consent. I am afraid both apparently bad lawyering and simple misreading of necessary documents led to this national damage to the country's image in the relevant diplomatic and international legal circles. Soon after the news that the World Bank had outright rejected Islamabad's assertions it has been reported in the press that the government of Pakistan is preparing to file a case in the World Court. Before briefly examining this move, let it be said that Islamabad's performance in that forum as of late has been essentially fruitless. The last matter to be filed there also against India in respect of the downing of the plane Atlantic was dismissed in the in limine hearing at a cost of over there crores of rupees ostensibly paid to the two Pakistan's legal wizards conducting this matter. This information became available as two cases were filed against the State in public interest litigation for undertaking frivolous matters internationally to court. Even at that time I had predicted in a column the day it was known that brief had been lodged at The Hague that it was bound to fail on the grounds of jurisdiction alone. Regarding this move the newspapers have further reported that 'The Attorney General of Pakistan, Foreign Office and Ministry of Water and Power will coordinate to hire the services of a panel of lawyers, most likely a combination of local and foreign experts, to contest the case in the ICJ after World Bank categorically stated that it is not a guarantor to the Treaty'. It was further revealed in the national press that Islamabad is contemplating the spending of a million dollars on legal fees for this purpose. We still do not know on what jurisdictional basis this case will be filed and what relief will be sought. These are preliminary threshold questions before the World Court in any contested litigation. Since I know something about the law and practice of that court, perhaps more than any lawyer presently in Pakistan, I have a feeling that the required degree of sophistication or erudition is clearly lacking in the various state institutions ostensibly handling this matter. Why technicalities of this subject have been kept away from public scrutiny is incomprehensible. It is after all a legal matter and not one of the categories of atomic secrets! It is, however, obvious to me that Pakistan has itself weakened its case by engaging New Delhi in negotiations for the last three years, first through Permanent Commission on Indus Waters and then on the official level as well. Time, or laeches as it is known in jurisprudence, is after all key factors in all kinds of legal disputes. This factor is of vital importance for Pakistan as its case will further weaken under international laws if India completes construction on the project before a decision of the neutral expert or a court of arbitration. According to some scientific experts on which Pakistan according to press reports is relying, this dam will be of acute inconvenience and loss to Islamabad. Baglihar dam will cause a serious setback for wheat production in Pakistan's Punjab province with adverse impacts on 13 million acres irrigation lands at surrounding areas of Chenab and Ravi rivers. Pakistan will be receiving 7-8 thousand cusses per day less water during the Rabi season (Jan-Feb) once India completes the Baglihar dam. On the other hand, the Indian state of occupied Kashmir government, which is apparently in charge of various logistics of this matter announced on the 19th January to forge ahead with construction of the hydroelectric dam despite Pakistan's call for international arbitration in a bid to halt the project. Occupied Kashmir Chief Minister Mohammed Sayeed said neutral technical experts were 'welcome to inspect' the one-billion-dollar plant in south Kashmir, saying it in no way breaches a water-sharing treaty with Pakistan. 'We're on a sound footing,' he said in reply to Pakistan's move this week to seek international mediation over the 450-megawatt Baglihar hydro project. 'For our future power generation, Baglihar is the flagship,' said Sayeed, urging Pakistan not to stall construction of the plant. Work on the project began in April 1999, and the first phase is due be completed later this year. Held Kashmir government plans to start work on a second 450-megawatt phase and has taken loans from nine financial institutions to fund the project. Before concluding it may be further mentioned that there area number of technical cum legal aspects of this controversy which still require deep examination by any lawyer who has to present this case from Pakistan's perspective. Amongst such issues is the point that ostensibly the treaty bars India from interfering with the flow of the three rivers feeding Pakistan - the Indus, the Chenab and the Jhelum - but allows it to generate electricity from them. Then the incidental matter of difference between storing water, which is not apparently allowed to channeling it, which is apparently permissible. Thus the Baglihar dam matter is likely to create newer problems for Pakistan which the current legal com technical institutions of the state seem ill prepared to adequately deal with. Public knows little of what is going on which is itself indicative of the lack of transparency in Islamabad's administrative practices while even handling issues of importance and that of professional expertise.