STORMY WATERS AHEAD
In early March, Pakistani minister Riaz Hussain Pirzada informed the National Assembly that Islamabad will take its objections on four Indian hydel power projects to the Permanent Indus Commission, reportedly scheduled to meet in April. The commission is the bilateral institution under the Indus Water Treaty of 1960 mandated to “settle questions” related to waters of the shared Indus basin. With this, the focus has again shifted to one of the most acrimonious issues in India-Pakistan relations in recent years, namely the division of Indus basin waters.
The forthcoming meeting of the commission comes on the heels of two arbitration awards handed out to India and Pakistan under the Indus Water Treaty by a court of arbitration at the Hague in 2013. Reportage on the awards, predictably, tended to be couched in terms of who ‘won’ and who ‘lost.’ Their careful appraisal, however, points not to winners and losers but implications that are likely to influence the forum where future negotiations on Indus waters will be conducted as also its content. This is, therefore, as good a time as any to recall some fundamental tenets of the treaty and the guidelines set by the awards.
Hailed as the longest-running agreement between two hostile neighbours, the Indus Water Treaty specifies how Indus basin rivers are to be used by India and Pakistan. It allows India primary use of the ‘eastern’ rivers—Ravi, Sutlej and Beas—and their tributaries while Pakistan gets primary rights over ‘western’ rivers—Indus, Jhelum and Chenab— and their tributaries. Though India is obliged to ‘let flow’ waters of the western rivers under the Indus Water Treaty, Annexure D gives it the right to generate hydel power from them, albeit within clearly specified restrictions on project design and operation. This provision has been at the heart of Pakistan’s anxieties in recent years as India’s hydel plants on western rivers have proliferated.
In May 2010, Pakistan started arbitral proceedings against India in the Kishenganga project case under the Indus Water Treaty. The dispute related to the 330-MW Kishenganga hydel power project on a tributary of the western river Jhelum in Jammu and Kashmir. The project was designed to generate electricity by diverting water from Kishenganga river to another tributary of Jhelum, Bonar Nallah. Pakistan raised two questions: One, whether India’s construction and operation of the project, which involved inter-tributary diversion of water, was legal under the Indus Water Treaty. Two, whether the treaty permitted India’s proposed use of a de-silting technology called draw down flushing, which involves significantly lowering the water level in reservoirs. The Hague court answered the first question in the affirmative and the second in the negative, going into great detail to explain how it had arrived at these decisions. This context-sensitive analysis written into the text of the two awards is where its future relevance lies.
The awards were important for the balancing act the court sought to provide between rights and responsibilities of two politically hostile co-riparian states and the significance it assigned to the bilateral framework of the treaty.
To begin with, the court moderated India’s right to build and operate the Kishenganga project under Annexure D with its contemporary obligation under customary international law to maintain a minimum flow of water, called environmental flow or e-flow, on the riverbed at all times. And in determining the quantum of this flow at nine cubic metres per second, it sought to reflect current concerns on ‘mitigating transboundary harm’. This ensures that in future negotiations, environmental concerns can’t be dismissed on the grounds that a treaty inked in 1960 did not underwrite them. Second, the court recognised Pakistan’s concern about the downstream impact of de-silting technologies that require reducing water in an upstream reservoir to a very low level. It, thereby, implicitly reminded India of ecofriendly alternatives that can help prevent transboundary impact downstream. Finally, by asserting that the Indus commission is the appropriate forum for resolving these issues in future cases, the court impressed upon Pakistan that this bilateral institution, enshrined in the text of the Indus Water Treaty, rather than arbitration, remains the most effective port of call for future conflict resolution.
Yet, in our triumphalist reportage on the Hague arbitration following the conditional go-ahead to one project, we have shown little inclination to reflect on how the court attempted to bring a treaty signed in 1960 in tune with the technologies and sensibilities of the 21st century. As the next round of negotiations on the Indus Water Treaty draws near, this reminder might well serve as a wake-up call.
The awards sought to balance the rights and responsibilities of two co-riparian states and assign significance to the Indus Water Treaty.