ISLAMABAD: Pakistan has decided to challenge in the international court of arbitration a decision of the UN Framework Convention on Climate Change (UNFCCC) to grant carbon credits to India on a controversial hydropower project without mandatory clearance of its trans-boundary environmental impact assessment.

Simultaneously, the water and power ministry has sought the opinion from the establishment division if Pakistan’s former commissioner for Indus Waters (PCIW) could be proceeded against after his retirement for not vigorously pursuing cases to stop India from construction of the controversial project and getting carbon credits from the UN forum, a senior official told Dawn on Sunday.

Earlier, the law ministry had informed the establishment division and the water and power ministry that a former retired government official could only be proceeded against if his actions were found to be of criminal nature. The water and power ministry has now asked the establishment division to determine the nature of the case so that proceedings could be initiated if these were of criminal nature.

The government has stopped the payment of retirement benefits to Syed Jamaat Ali Shah, the former PCIW, pending an inquiry. An official said the pension and retirement benefits were now being released to the former official who had served as the PCIW for 18 years.

Officials said an enquiry conducted by Mohammad Imtiaz Tajwar, secretary of Wapda, as inquiry officer appointed by the ministry of water and power, confirmed a Dawn report of July 2010 that India had secured carbon credits for the controversial 45-MW Nimoo-Bazgo hydropower project from the UN agency without mandatory clearance from Pakistan. It was, however, strange how India could secure carbon credits when Pakistan had not seen, let alone clear, the cross-boundary environmental impact assessment report.

Therefore, Pakistan has now decided to challenge the UNFCC’s decision in the international court of arbitration because legal requirements were allegedly not fulfilled by the UN agency. These officials said either the Indian government misled the UN agency through fake and fictitious documents that might have shown Pakistan’s consent to the project because there was no such record available in Pakistan.

India applied for carbon credits for the project which was a “long-term process and must have spread over 4-5 years”, the inquiry officer wrote.

“It is still not established how India was able to get carbon credit benefits for the Nimoo-Bazgo project which is located on trans-boundary water and for which ratification of the parties concerned should have been procured before hand by it under clause 37(b) of UNFCC. Although it is too difficult to get carbon credits on a trans-boundary project such as Nimoo-Bazgo, due to lack of contest by PCIW, India was able to get carbon credits on this project,” he said.

The inquiry report available with Dawn suggests the former PCIW insisted that the matter relating to the carbon credits or environmental impact “was not covered under the Indus Waters Treaty 1960, therefore, the issue can be taken up with India by the ministry of environment”.

He is reported to have told the enquiry officer that he had been vigorously pursuing with his Indian counterpart Pakistan’s technical and engineering related objections and reporting its feedback to the government of Pakistan. The issue was discussed several times at various forums of the government without a major decision being taken to take the matter to the international court of arbitration.

The inquiry officer held that information about the project was received in Pakistan in 2002 and Pakistan’s PCIW had repeatedly sought information from his Indian counterpart and its inclusion in the agenda items, but it took several years till 2009 when the project was finally taken up by the Permanent Indus Commission (PIC) because India kept on dodging Islamabad through stereotype responses and delaying tactics. “These letters indicate that PCIW was in the knowledge of the issue and could have approached authorities to approach the court of arbitration/neutral expert at that stage, however, that initiative was not availed and opportunity was missed (sic).”

In December 2010, the ministry of foreign affairs said there were enough credible ground to refer the project to a neutral expert or court of arbitration, but it was obvious that the project was at the stage of fait-accompli, not due to the India’s design but careless attitude from Pakistan side and it was difficult to get a favourable outcome from the arbitration. It remained, however, unclear why ministries of law, foreign affairs and other related institutions failed to know about the Indian success at the UNFCC during 4-5 years of carbon credit approval process.

The inquiry officer, while suggesting strengthening of the PCIW office, concluded that it was astonishing that “disputes/differences on design/carbon credit benefits were handled in a casual manner” when the media and intelligence reports were carrying sufficient information to raise objection with India.

Attempts to contact Mr Jamaat Ali Shah, the former PCIW, could not materialise as informed sources said he had already travelled abroad to spend time with his family in Canada.

Officials said the issue was of an institutional lapse in raising objections over India’s aggression on the country’s water rights and securing international carbon credits on hydropower projects disputed by Pakistan and could not be shelved after completion of an inquiry against an individual.

They said the ministry of water and power had said it was not responsible for the lapse because it was the job of the Pakistan Environmental Protection Agency to conduct an environmental impact assessment. The ministry said it had no role in ratification of trans-boundary impact assessments, whose documents had not been shared with it.

On the other hand, the environment ministry washed its hand of the matter, too. It said that since the Indian projects were of a strategic nature, it could not have intervened unless its attention had been drawn to the issue and professional advice sought.

The project was approved by the UNFCCC in August 2008 and India had applied for it in March 2006.