The balanced work of the Permanent Court of Arbitration means a new dawnfor water management in the Indus
The Indus Waters Treaty (IWT), signed by India and
Pakistan in 1960, has recently been seen both as the one agreement that
has worked between India and Pakistan and as an anachronism which should
be dissolved or renegotiated. On December 20, 2013, the Permanent Court
of Arbitration (PCA) has issued a judgment which re-calibrates and
modernises the IWT and, again makes it a critical and effective
instrument in avoiding conflicts between India and Pakistan on use of
the rivers of the Indus Basin.
It is first useful to
reiterate the central elements of the treaty and the long-standing areas
of contention. The IWT assigns use of the eastern rivers (Ravi, Beas
and Sutlej) to India and use of the western rivers (Chenab, Jhelum and
Indus) to Pakistan. The biggest sticking point in negotiating the treaty
in the 1950s was the conditions under which India could use the
hydro-electric potential of the Chenab and the Jhelum before the rivers
reached Pakistan.
The principle incorporated into the
IWT was that, indeed, India could develop this potential, but only
under a set of well-defined limitations on the amount of manipulable
storage which could be created by India in the process, thus assuring
Pakistan that India would not have the ability to manipulate either the
timing or the quantities of the flows reaching Pakistan.
In
the 1990s, a difference arose about the Baglihar Dam being built by
India on the Chenab. Pakistan claimed that low gates installed for
flushing sediments violated the specifications of the treaty and
endangered Pakistan’s water security because it gave India a capacity to
manipulate the timing of flows into Pakistan.
Recipe for conflict
In
2005, a Neutral Expert was appointed to hear the case. His finding
essentially said that new knowledge of sediment management technology
meant that India had to be allowed to install low gates. His finding
ignored the central balance — between India’s right to generate
hydropower and Pakistan’s right to unmanipulated flows — in the IWT.
Since India plans to build many other projects on the Chenab and Jhelum,
if the Baglihar ruling established new ground rules, this would,
essentially, give India a free hand to do whatever it liked, leaving
Pakistan vulnerable in both perception and practice. This was a recipe
for growing conflict and, eventually, even war over the Indus.
In
2010, Pakistan took a new case, that of the Kishenganga hydro-electric
project on the Jhelum river, to the International Court of Arbitration.
On December 20, 2013, the court issued its final judgment. The
Kishenganga case comprised two elements — was India within its rights to
build the project and was India able to insert low gates? On the first,
limited and specific issue, the court interpreted the treaty literally
and accurately and allowed India to proceed. This will somewhat limit
the yield of a Pakistani hydropower project being built downstream, but
it is not a systemic issue. The big and systemic issue was the second.
Here, the court reinforced the hard constraints built into the IWT
regarding the ability of India to embed manipulable storage into this
and all future projects.
Convenience vs water security
The
court pointed out that while it might be convenient for India to build
low gates and practise sediment flushing, this was not the only way to
manage sediments, and that convenience for India had to be balanced
against the threat this would pose to Pakistan’s water security. The
court explicitly stated that the Baglihar ruling did not constitute a
precedent and implied that the Baglihar Neutral Expert had erred by not
balancing engineering concerns with the diplomatic and security factors
which were at the heart of the IWT.
The decision by
the PCA means that India can, as laid out by the IWT, continue to
develop much-needed hydropower projects on the Chenab and the Jhelum,
but it must strictly respect the IWT-defined limits on manipulable
storage, and must use methods other than the construction of low gates
to flush silt.
The court also played close attention
to an area which had been neglected in the original IWT, namely
environmental flows (e-flows). The court mandated a small, constant
release which was less than 10% of what Pakistan claimed to be
necessary. Again, the court underlined the importance of balance.
“Although the court considered this approach (to defining the e-flow) to
be somewhat severe in environmental terms, the court concluded that
[….] such an approach represents an appropriate balance between the
needs of the environment and India’s right to power generation”. This
principle of balance and reasonableness is particularly important
because it is inevitable that Pakistan will ask that India release
e-flows from the eastern rivers (especially the Ravi and the Sutlej)
into areas of Pakistan which have suffered major environmental damage as
India has diverted all flows to the east.
The bottom
line is that the brilliant and balanced work of the PCA means a new
dawn for water management in the Indus. Rumblings over “water wars on
the Indus” should now dissipate, and, once again, relationships between
India and Pakistan on the Indus should become stable and perhaps have a
positive ripple effect on relatioins between the two countries.
(The writer has served as Senior Water Adviser for the World Bank in New Delhi)
The verdict may have a positive ripple effect on relations between India and Pakistan
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