Adjudicating infrastructure: Treaties, territories, hydropolitics

Abstract

In 2013, an international Court of Arbitration delivered a two-part decision on the legality of the Kishenganga Hydro-Electric Plant, located in the internationally disputed territory of Kashmir. The court was convened under procedures detailed in the Indus Waters Treaty of 1960, a landmark international water treaty between Pakistan and India mediated by the World Bank in the 1950s. The Kishenganga case is part of the ongoing hydropolitical competition between Pakistan and India over the use of Indus waters and the development of new infrastructures on the river system. This paper draws on critical water geography and geopolitical theory to guide a close, critical, and contextual reading of competing interpretations of the purpose and objective of the Indus Waters Treaty made during the Kishenganga case. It argues that two specific geopolitical imperatives powerfully shaped the legal strategies of state elites: downstream territorialism and basin developmentalism. Pakistani lawyers drew on the treaty negotiation archives to argue that its primary objective and purpose was the protection of vulnerable downstream territories. Indian lawyers, however, drew on the text of the treaty and the archives to argue the primary objective was the maximum economic development of the Indus Basin. I also discuss the relationship of these imperatives with David Harvey’s influential understanding of capitalist states acting under the dual pressures of the “territorial” and “capitalist” imperatives. By analyzing how geopolitical imperatives shape strategies of treaty interpretation, the paper develops a legal and geopolitical contribution to critical water geography. The paper also makes a methodological contribution by demonstrating how treaty negotiation archives represent a rich and underutilized resource for hydropolitical analysis.