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Pakistan has finally despaired of settling the Baglihar dam issue with India through bilateral talks that have been continuing off and on since the project was started in 1999. The last meeting of the two sides in New Delhi yielded the usual deadlock because of the Indian side's failure to concede that the dam is in violation of the 1960 Indus Basin Treaty. Hence Pakistan was left with no choice except to invoke Article XI of the Treaty, which brings in an arbitration process under the aegis of the World Bank.
There have been fears voiced that the arbitration clause of the Treaty cannot be invoked without the consent of both contracting parties, ie Pakistan and India.
It was felt that given India's intransigence on the issue, it may try to abort the arbitration possibility by refusing its consent. Some reflection of India's concern at the arbitration clause being invoked by Pakistan could be detected in the response from New Delhi expressing disappointment that Islamabad had decided to activate the process rather than accept India's invitation for further talks on the issue.
It now remains to be seen what the Indian attitude will turn out to be, especially since the World Bank has publicly acknowledged having received Pakistan's request for arbitration.
The arbitration provisions of the Indus Treaty empower the World Bank to appoint a neutral expert to examine any contentious issue. The World Bank's choice of the neutral expert still has to have the approval of the contracting parties, ie Pakistan and India.
If India were to resort to filibustering on the appointment of a neutral expert by turning down the suggestions of the World Bank, this would yield New Delhi diminishing returns, especially since it seeks a bigger role on the world stage, including a permanent seat on the UN Security Council.
The fact that India has failed to implement the UN Security Council's resolutions of long standing on Kashmir may or may not stand in the way of its ambitions. But if it were to be also seen as intransigent or non-co-operative on the issue of arbitration on the Baglihar dam, it would show New Delhi in a poor light and prove detrimental to its larger diplomatic efforts to cast a bigger shadow on the world stage.
The next step of the arbitration process could involve the setting up by the World Bank of a Court of Arbitration, once the neutral expert has delivered his findings and if these are disputed by any contracting party. In the event of the issue not being settled even in the Court of Arbitration, it can be taken to the International Court of Justice.
It is necessary to recall all this because so far there is no sign that India has been persuaded to stop the day and night work going on at Baglihar, a demand Pakistan has made repeatedly during the long drawn out negotiations on the subject since 1999.
In fact the Held Kashmir Chief Minister, Mufti Mohammad Sayeed has stated categorically that the dam will be built. The perception has grown in Pakistan that the call for talks on the issue has been nothing but an Indian smokescreen to continue work on the project and present Pakistan and the world with a fait accompli.
The Indus Treaty divided the six rivers that originate from Kashmir between Pakistan and India. The waters of the three rivers that came to Pakistan's share -- Indus, Chenab and Jehlum - cannot be tampered with or stopped by the upper riparian India. At best, India is permitted to install power generation infrastructure on a run-of-the-river basis, but certainly not to create any storages on these rivers.
The underwater gates that the Baglihar dam design consists of will mean a loss of 7,000-8,000 cusecs per day for Pakistan. This will have a serious negative effect on Punjab's agriculture, particularly during the Rabi season. The storage at Baglihar could also cause floods downstream in Pakistan if the stored water is released during peak flows in the Kharif season.
Fears are being voiced that the invocation of the arbitration clause over Baglihar will have a bad effect on the peace of normalisation process between Pakistan and India.
Prime Minister Shaukat Aziz is confident that it will not, and that the composite dialogue will continue. In any case, Pakistan should not be afraid of the possibility that India may use the invocation of arbitration as an excuse to slow down or roll back the dialogue. Water availability for Pakistan's agriculture is too vital an issue to allow of any compromise or dissembling, particularly since Pakistan's case is unassailable under the provisions of the Indus Treaty.

Copyright Business Recorder, 2005

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