May 2005 News

Significance Of Appointment Of Neutral Expert

25 May 2005
The Daily Times
Ijaz Hussain

Islamabad: A possible explanation for the Indian umbrage at Pakistan's reference of the matter to the World Bank is its aversion to the idea of the third party involvement in Pakistan-India disputes. India insists that the only valid method of conflict resolution is the bilateral approach History was made on May 9, 2005 when the World Bank announced the appointment of a neutral expert on the Baglihar dam issue. Pakistan and India had been embroiled in issues resulting from Indus Waters Treaty (IWT) on two previous occasions but they handled them bilaterally. The first issue concerned the Salal Dam. It was settled in the 1980s. The second one, relating to the Wuller barrage, is awaiting settlement and is one of the eight items in the ongoing composite dialogue. This is the first time since the conclusion of the IWT some 45 years ago that the bilateral attempts at conflict resolution have failed and the World Bank has been called upon to help in the matter. The neutral expert named is Professor Raymond Lafitte from Switzerland. From the list submitted by the World Bank, his is the name the two countries agreed on. Despite concurring with the appointment of Prof Lafitte, the Indian government has been most unhappy with Pakistan for referring the matter to the World Bank. Thus, following the appointment of neutral expert by the World Bank, the Indian prime minister expressed his disapproval by arguing that, 'it was premature to appoint an expert since Indian and Pakistani technical experts could still resolve their differences'. When Pakistan approached the World Bank early this year, India did all it could to stop the latter from proceeding in the matter. The Indian water resources minister disclosed in the Indian Lok Sabha for example, that he had asked the World Bank to leave the two parties to settle the remaining issues pertaining to the Baglihar dam through dialogue. At one point, India proposed to the World Bank to convene a meeting of Indian and Pakistani experts to sort the matter out rather than appoint a neutral expert. At another, it tried to keep the latter from dealing with the matter by propagating that Pakistan's objections were of political rather than of technical nature. The appointment of the neutral expert shows the existence of 'differences' between the two countries in terms of the IWT, something India had denied. If we go back to the time when the two countries were engaged in bilateral negotiations on the Baglihar dam, India rejected Pakistan's threats to refer the matter to the World Bank in case of failure of negotiations. It justified its opposition on the ground that the conflict resolution provisions in Article 9 of the IWT had become inoperative because of non-use during the last four decades. It insisted that the bilateral approach was the only valid method of conflict resolution since that had been the general practice between the two states. It conveniently forgot that in international law the non-use of a provision over a period of time could not be a ground per se for rendering it inoperative; and that bilateralism may have validity under the Simla Agreement but not under the IWT as it has its own conflict resolution mechanism. How do we explain India's aversion to any reference of the issue to the World Bank? Two factors seem to motivate India in its stance. First, it is interested in gaining time in order to present the dam as a fait accompli. This is evident in its negotiating behaviour since 1999. For quite some time it did not allow Pakistan's IWT commissioner to visit the site - which it was under obligation to do under the IWT - while the construction work continued. The excuse mostly advanced was the security concern. Then when Pakistan was about to move the World Bank following the disregard of the two notices that it had sent to India to resolve the issue by December 31, 2003, it pleaded for bilateral resolution of the issue. Pakistan agreed to the proposal [naively?] believing that a bilateral resolution would be a net dividend of the peace process. However no such thing happened. Another abortive round of talks followed. Pakistan decided to approach the World Bank. India again requested Pakistan for another attempt at bilateral settlement. Pakistan took the bait again and the two countries decided to resolve the issue by November 2004. Leave alone settling it, India, despite repeated reminders, did not even provide the required data by the agreed date. It was successful thus in prolonging the talks till the end of 2004 when following the failure of secretary-level talks, Pakistan, finally moved the World Bank. In the light of the foregoing, the present Indian proposal for bilateral settlement - without stopping work on the dam - amounts to another attempt to gain time. Another possible explanation for the Indian umbrage at Pakistan's reference of the matter to the World Bank is its aversion, indeed paranoia, to the idea of the third party involvement in Pakistan-India disputes. India insists that the only valid method of conflict resolution in Pakistan-India relations is the bilateral approach enshrined in the Simla Agreement. The IWT conflict resolution mechanism in its view constitutes an aberration against this norm, which it is keen to see disappear. Reference to a third party at once takes away the advantage India enjoys in a bilateral arrangement against a weaker Pakistan. Also, in the eyes of the international community, this could have relevance for the Kashmir dispute. The Indian concurrence with a name from the first list proposed by the World Bank has come as a surprise to some observers. Tribune, a Chandigarh-based daily, for example, believed that India would reject the names to gain time. How do we explain India's prompt agreement to the neutral expert? There are apparently two reasons for this. First, India could not have gained much time by stalling the appointment of a neutral expert. The Bank would have issued a second list. Had India rejected the second list as well, the Bank would have proceeded to appoint a neutral expert without its concurrence. The entire exercise would not have taken more than a few weeks. Secondly, such obvious dilatory tactic would have cost India the public relations battle. Pakistan's Indus Waters Commissioner, Jamaat Ali Shah, is certain that Pakistan has a winnable case. So do apparently international irrigation experts. According to Sheraz Jamil Memon of the Indus Waters Commission, three out of the four international experts that Pakistan consulted regarding its objections to the design of the Baglihar dam supported its viewpoint. The fourth had a minor objection to it. A bilateral settlement can still not be ruled out. Following the 'cricket summit' between Musharraf and Manmohan Singh there were press reports suggesting India could stop work on the site and in return Pakistan would withdraw the case. A Pakistan-India joint committee would then sort out the issue. There is no harm in this approach provided there are foolproof guarantees of a fair and prompt bilateral settlement. It would not be possible to go back to the World Bank if such talks are again inconclusive.

 

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