THERE is little to feel optimistic about the fate of Kishanganga dam litigation filed by Pakistan in the UN-constituted International Court of Arbitration in The Hague if one looks at the way the case is being handled by Pakistan’s team of experts.

As the dates of hearing continue to be postponed, India is trying to benefit from the waste of precious time by accelerating the pace of construction work. About 43 per cent of the construction work has already been completed and Indians are trying hard to complete up to 50 per cent of work, so that they get benefit according to the law. The dam is scheduled to be completed by 2014 and it will be a fait accompli triumph for India if Pakistan fails to get the dam construction stalled before that.

Even a favourable decision will be of little value to Pakistan for what has been constructed may not be deconstructed.

It is the first time that a dispute under the Indus Water Treaty has gone to international court of arbitration. Pakistan had formally sought constitution of a COA in May last year after having exhausted all options with India at permanent Indus commission and political levels to address its objections over the controversial 330-MW storage project. The first meeting of the court was held on January 14 this year – seven months after ‘a request for arbitration’ was submitted. In this meeting the two sides only agreed to a schedule of proceedings. Pakistan did not raise the core issue of seeking a halt to the construction work until the case is decided.

It is depressing to note that so far no formal case (case memorial) explaining Pakistan’s objections over Kishanganga’s design and its impact on Pakistan’s water interests under the IWT has been submitted to the court.

This was to be submitted by April 15 but Pakistan did not. Now, media reports say, Pakistan has been asked by the COA to file its case by July 15 and then India will submit its reply within six months or by December. It means the court will start hearing Pakistan’s case, whose importance needs little emphasis, after a lapse of 18 months and in 2012.

According to Indian media, New Delhi’s priority endeavour, as the case proceeds, will be to prevent any attempt by Pakistan to get an interim order to stop the ongoing activities on Kishanganga project. It has hired a team of professional lawyers, mostly those who had contested Baglihar case successfully. Indians think that Pakistan would choose to drag the case and delay the project indefinitely once it gets a stay order.

Kishanganga dam is located about 160 km upstream Muzzafarabad, and involves diversion of Kishanganga (called Neelum in Pakistan) to a tributary, named Bunar Madumati Nullah, of Jhelum river through a 22 km tunnel. Its power house will be constructed near Bunkot and the water will be re-routed into the river Jhelum through Wullar Lake. This diversion will change the course of River Neelum by around 100 kms. At present, Neelam and Jhelum rivers join each other near Muzaffarabad at Domail.

Pakistan’s highly competent Indus Water Commissioner Jamaat Ali Shah, who was abruptly sacked by PM’s adviser on water issues, Kamal Mjidullah, in December had surprised many by expressing pessimism about the future of the Indus Waters Treaty. His removal came at a time when Pakistan has already moved the COA. His exclusion paved the way for Majidullah to select a team of lawyers. Shah, who had ably led Pakistan in negotiations with his Indian counterparts for several years, told the press on March 30, 2010: “We will now have to look beyond the treaty for solutions.”

Most Pakistani experts, however, warn against abandoning the IWT that turned 50 last year despite the difficult problems it confronts. According to them, there is nothing wrong with the IWT. The problem is with our present managers who don’t possess the kind of knowledge required to safeguard our rights. Pakistan should never go for re-negotiations on the IWT.

And there is no exit clause in the treaty.

A Congressional report in the US titled “Avoiding Water Wars” last February had warned that the Indus Water Treaty, which has so far maintained stability over water matters between Pakistan and India despite wars over Kashmir, is now losing its effectiveness in settling the disputes and may fail to avert water wars between the two countries. “A breakdown in the treaty’s utility … could have serious ramifications for regional stability,” the report cautioned.

The report looks at Pakistan’s concerns favourably. India has 33 projects, including Kishanganga, at various stages of completion. Although no single dam along the rivers controlled by the treaty may affect Pakistan’s access to water, “the cumulative effect of these projects could give India the ability to store enough water to limit the supply to Pakistan at crucial moments in the growing season,” says the report.

According to a study by Strategic Foresight Group of India, the IWT casts unilateral responsibility on India for compliance.

It is an obligation that necessarily falls on all upper riparian states. Abrogation of the treaty would not be defensible on any understanding of the international water laws or the international humanitarian laws.

A report published by The New York Times on July 20 last year said that Pakistan does have a legitimate cause for concern. The real issue is timing.

If India chooses to fill its dams at a crucial time for Pakistan, it has the potential to ruin a crop. If India builds all its planned projects, including Kishanganga, it could have the capacity of holding up about a month’s worth of river flow during Pakistan’s critical dry season, enough to wreck an entire planting season.

It said, Pakistanis have reason to be worried. In 1948, an administrator in India shut off the water supply to a number of canals in Pakistani Punjab. Indian authorities later said it was a bureaucratic mix-up, but in Pakistan, the memory lingers.