The verdict (Part I) of the Court of Arbitration (CoA) on the Kishenganga dispute raised by Pakistan has gone in favour of India on the primary count of whether or not the project ab initio violates the Indus Waters Treaty (IWT). On a plain reading of the text of the Treaty, the project was clearly in order. Annexure D, Part 3, Section 15(iii) states, “Where a Plant is located on a tributary of the Jhelum on which Pakistan has any agricultural 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.”

The Kishenganga is a tributary of the Jhelum which takes the name Neelum on the Pakistan side of Kashmir. The project under construction by India on this stem was originally planned as a 900 MW storage project but was subsequently converted into a 330 MW run-of-the river scheme following environmental and displacement issues in the Indian catchment. The revised project would divert Kishenganga flows east, less ecological releases, through a tunnel to join the Madmati Nullah. This in turn flows into the Kashmir Valley to join the Wular Lake that is drained by the main Jhelum which flows into the Pakistani side of Kashmir where it is met by the Neelum river a little above Muzaffarabad.

Sufficient flows

The charge of illegality raised by Pakistan was thus clearly a red herring. The real issue was whether Pakistan would receive sufficient flows for its own 930 MW Neelum-Jhelum project with a vague and fluctuating irrigation component of up to 1,30,000 acres. India had agreed to let down some minimum releases and also argued that these flows would be augmented by other free flowing nullahs that join the river between the Indian and Pakistan dams.

The CoA, however, has ruled that India must maintain a minimum rate of flow below its Kishenganga dam and that it will determine this quantum in its final award to be announced by the year-end. While that award is awaited, what is not clear is whether the CoA satisfied itself about the nature and quantum of Pakistan’s “then existing uses”: when it first raised the issue with India. This a matter on which the Pakistan position has been dodgy from the very start, with varying claims but little to show by way of “then existing uses” on the ground. This issue needs to be clarified beyond doubt, else it will mean that while India is held to the letter and spirit of the Treaty, Pakistan is not and its water demand may be arbitrarily enhanced at will. The second ruling the CoA has given is on Pakistan’s argument that the Neutral Expert’s (NE) award on the Baglihar dispute is bad insofar as it permits India to deplete its dead storage in order to flush the reservoir of accumulating sediment. India earlier compromised on this issue in the case of the Sallal project, also on the Chenab. In the result the dam all but silted up within a single season, drastically reducing power production. The CoA has however stated the ruling would not apply to Indian projects currently under operation or construction whose designs have been communicated to Pakistan and have not been objected to by the latter.

The question now arises as to which view shall prevail on the issue of drawdown flushing in the case of future projects on silt-laded rivers, that of the NE or the CoA? Part 3, Section 8(d) of the Indus Treaty provides an answer. This states that “there shall be no outlets below the dead storage level unless necessary for sediment control or any other technical purpose; any such outlet shall be of minimum size and be located at the highest level consistent with sound and economical design and with satisfactory operation of the works.”

If however the difference or dispute persists, the matter shall be decided by reference to a NE or CoA. This might well need to happen to obtain absolute clarity on the subject.

John Briscoe, a Harvard Professor formerly of the World Bank, has weighed in on this very matter (See: editorial page, The Hindu, “Winning the battle but losing the war,” February 22, 2013). He pleads that the NE’s verdict on drawdown flushing undermines the Treaty by eliminating the limits to live storage on the three western rivers by India as specified under the Treaty. There is nothing in the text of the IWT that sustains any such inference. Nor is it clear from where Briscoe conjures up the statistic that India already has 40 days of “cumulative storage” on the Chenab.

The fact is that against a total storage of 3.60 million acre feet to which India is entitled on the three western rivers, the current storage is pretty near zero. All its major projects are run-of-river schemes that have strictly determined “pondages.” Section 2(g) of Annexure D, defines a “run-of-river” plant as “a hydroelectric plant that develops power without Live Storage as an integral part of the plant, except for pondage and surcharge storages.” Pondage, in turn, means “Live Storage of only sufficient magnitude to meet the fluctuations in the discharge of the turbines arising from variations in the daily and weekly loads of the plants.” The ponded water must be returned to the river within 24 hours, the system operating much like a circulating fountain.

I am not an engineer like my friend John Briscoe. But I believe he has inadvertently got it wrong. Few have read the text of the IWT and are easily confused by jargon and hence the need for clarity. The final CoA Award must now be awaited without further muddying the waters.

(B.G. Verghese is with the Centre for Policy Research. Visit: www.bgverghese.com)

John Briscoe responds

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