While allowing India to build the Kishenganga project, the International Court of Arbitration has de facto ruled that the Baglihar decision was wrong and should not be applied to future projects

The Indus Waters Treaty (IWT), signed in 1960, took 10 years to negotiate, primarily because of the thorny issue of balancing, on the one hand, the reasonable expectation by India that it could use the hydroelectric potential of “Pakistan’s rivers” (the Chenab, Jhelum and Indus) before these rivers entered Pakistan and, on the other, the reasonable expectation by Pakistan that this would neither decrease the flow to Pakistan nor change the timing of the flow. This was dealt with in the IWT essentially by hardwiring into the Treaty limitations on the amount of manipulable (or “live”) storage which India could develop in its projects.

Stress point

As has often been recounted, the IWT worked well for decades, even through periods when India and Pakistan were at war. But the truth of the matter is that the Treaty was not really under stress until India started (quite appropriately, in my view) building hydropower plants across the Himalayas, and, in particular, on its side of the Line of Control (LoC) in Jammu and Kashmir. The first case, where the Indian and Pakistani Indus Water Commissioners were unable to resolve their differences, was the one of the Baglihar hydropower project on the Chenab. At Pakistan’s request, the World Bank appointed a Neutral Expert to evaluate the claims. After two years of work the Neutral Expert returned his verdict. The essence of the verdict was that the Treaty allowed for new knowledge to be taken into account, that new knowledge on sediment management meant that modern dams should be able to flush sediments through low-level gates and that this element of the design of the Baglihar dam was therefore acceptable. What the Neutral Expert completely ignored was that this change essentially meant eliminating the “limit live storage” provision of the IWT, a provision that was at the very heart of Pakistan’s acceptance of the Treaty in the first place. Since there are a large number of hydroprojects on the drawing board in Indian-held Kashmir, and since the cumulative storage on the Chenab alone has been estimated to be about 40 days, this essentially left Pakistan with no protection against unintentional or intentional harm from Indian manipulation of the live storage they were now allowed to build.

Which brings us to the Kishenganga case. The far-sighted Indian and Pakistani engineers who drew up the IWT had foreseen the Kishenganga case quite specifically and had dedicated a whole section to this specific case. Annexure D para 15 states “where a Plant is located on a tributary of the Jhelum on which Pakistan has any agricultural use or hydroelectric use, the water released below the plant may be delivered, if necessary, into another tributary but only to the extent that the then existing agricultural use or hydroelectric use by Pakistan on the former tributary would not be adversely affected.” While lawyers might, à la Bill Clinton, ponder the meaning of “has,” it is clear to most that since there was no “then existing use” by Pakistan, India was well within its rights to build Kishenganga.

In my opinion Pakistan should never have taken this case to the International Court of Arbitration (ICA), because there was, in my view, no chance that they would win the case. Another Pakistani loss after Baglihar would have several consequences, all negative for Pakistan. First, they would have wasted a lot of resources paying for high-priced lawyers. Second, they could be spending their scarce human resources on more productive areas, like improving the management of water in Pakistan. And third, as the press headlines in both India and Pakistan trumpet “India wins, again,” this would reinforce the Indian claim that “victories” over both Baglihar and Kishenganga showed that India was playing by the rules while Pakistan just wanted to harass India on these projects.

But, as the Christian Brothers told me when I was a boy growing up in South Africa, the Lord works in mysterious ways. In this case there is no doubt that India has won the battle, but I think that it has, in fact, lost a far more important war.

Live storage

What is my reasoning? The battle is about Kishenganga. The decision of the International Court of Arbitration will, indeed, mean a loss of somewhere between 10 per cent and 20 per cent of the generation capacity at Pakistan’s Neelum Jhelum project, an economic and electricity cost which Pakistan can hardly afford. But this is a one-off case — the war is about the large number of projects which India plans to build on the Chenab and Jhelum. And here it is the finding of the ICA on allowable manipulable storage which is the key issue. The Baglihar decision would appear to have provided India with a green light to build these projects with as much live storage as they chose (as long as they classified it as “for sediment flushing”). What is enormously important is that the ICA has, according to early press accounts, addressed this issue head-on and, de facto, concluded that the Baglihar finding in this regard undercut the central compromise of the Indus Waters Treaty, was wrong and should not be applied to future projects. The ICA has, apparently, specifically ruled that the design and operation of Indian hydropower projects on the Indus, Chenab and Jhelum cannot include more live storage than allowed under the IWT, even if the justification for such storage is silt management.

This finding is of far greater significance than the one-off (and correct, in my view) finding relating to Kishenganga. It restores the central protection — put into question by the Baglihar finding — which Pakistan had acquired when Nehru and Ayub Khan signed the IWT in 1960.

Joint benefits

A final word. While it is good — in the view of this observer — that the ICA has put humpty-dumpty back together again, this is not enough. It restores the status quo ante Baglihar, but that is an uneasy and unproductive status quo. Without a change, of course, Pakistan will continue to object to every project on the Indus, Jhelum or Chenab in Indian-held Kashmir (and now, armed with the ICA conclusion on dead storage, Pakistan is likely to win). This will discourage investors from investing in these vital plants on the Indian side, and will escalate the tit-for-tat response (already patent) of India trying to impede needed international support for the construction of hydropower plants in Gilgit Baltistan, which lies on the Pakistani side of the LoC. What is needed is to use the resetting of the terms by the ICA for India and Pakistan to start out in a new direction. This should be one in which there is a search for joint benefits (such as hydropower plants built in the best possible sites, with power sold both ways, and with operating rules which benefit both parties built into the project). As a long-time student of this dynamic in the subcontinent it remains my conviction that the first step in breaking the long-standing vicious cycle must come from sustained, high-level, political leadership from India. I am confident that Pakistan would respond positively to such an overture. And I am equally sure that if this great strategic issue is left in the hands of mid-level bureaucrats, the future is likely to be more of the bad-for-both-sides past.

(John Briscoe served as Senior Water Adviser for the World Bank in New Delhi. Now at Harvard University, he was recently the lead consultant for the Water Sector Task Force of the Friends of Democratic Pakistan. The opinions in this piece are his own. The photograph is of the Kishenganga hydroelectric project in north Kashmir.)

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