In his article in The Hindu, John Briscoe makes some valid points about the Kishenganga Award (editorial page, “Winning the battle, but losing the war,” February 22, 2013) but we need to note certain complexities, and a central dilemma arising from the Treaty. Yes, India wins on point (1) [Whether India’s proposed diversion of the Kishenganga (Neelum) into the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III (2) and Article IV (6)? — the “First Dispute”], as was to be expected, and yes, Pakistan has won on point (2) [Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below Dead Storage Level in any circumstances except in the case of an unforeseen emergency? — the “Second Dispute”], but this needs to be gone into further.

At the outset it must be mentioned that the Award is an interim or partial one; the final award will come later. Jubilation at having won on the issue of diversion of waters is premature. We have to wait and see what stipulations the final award makes, and what implications they may have for the extent of diversion and the capacity of the power plant. However, the decision that there is no violation of the Treaty and that the project may proceed is certainly a matter for satisfaction to India.

Pakistan must have known that with a specific provision in the Treaty envisaging inter-tributary transfers on the Jhelum, their contention that Kishenganga was a violation of the Treaty was unlikely to be upheld. Why then did they take this project to arbitration? The answer is that the second issue, i.e., drawdown flushing (arising from the Baglihar case), was much more important to them. They were dismayed by the Neutral Expert’s (NE) recommendation on this matter, but the Treaty provided for no appeal against the NE’s findings, and they could not ask for a Court of Arbitration (CoA) on that issue in the Baglihar case; they therefore used the Kishenganga case to mount an indirect appeal against the idea of drawdown flushing. They have succeeded.

Drawdown flushing

Let us now get to the complexities. First, a purely technical point: the arbitration in each case is sui generis. The finding or award in one case applies only to the difference or dispute in that case. However, as it would be absurd to adopt divergent principles in different cases, the decision in one case will tend to become a precedent for others. At the same time, while the Kishenganga decision on drawdown flushing will need to be kept in mind in all future cases, does it retrospectively nullify the NE’s finding in the Baglihar case, though the Treaty does not provide for an appeal against that finding? Strictly speaking, it cannot, but it seems a bit odd to adopt a certain practice in Baglihar and refrain from it in future cases. I leave the conundrum to legal experts.

What are the implications of ruling out drawdown flushing? To answer this, we must go back to the Salal Project. That case did not go to arbitration but was settled by mutual agreement between the two governments. The condition stipulated by Pakistan for agreeing to the project was that the low-level sluices should be permanently blocked. India accepted this, and this has meant the trapping of the silt in the reservoir, leading to severe turbine maintenance problems, and a reduction of generation capacity and of project life. India was therefore happy that the NE in the Baglihar case recognised the importance of proper maintenance of the project, including the flushing of the reservoir to get rid of sediment. This seemed to go against the Treaty provision that forbids outlets below the dead storage level, but the NE observed that while the dead storage could not be used for operational purposes, it could be used for maintenance purposes. This caused dismay in Pakistan and they referred the issue to the CoA. Now the CoA has given a ruling which means that the problems that crippled Salal will cripple all future projects, unless alternative methods of sediment-removal are found. This is what the CoA has said, and Indian engineers will have to find answers. One hopes that there are indeed answers.

It is difficult to believe that the Treaty envisaged that a project would be constructed at great cost and then allowed to silt up rapidly and suffer a drastic reduction in project life. It must be noted that the Treaty makes its prescription of “no outlets below the dead storage level” subject to the proviso “unless sediment control or other technical considerations necessitate this.” One wonders whether the CoA gave due weight to that proviso. I referred to a dilemma arising from the Treaty. It is the following. While allowing India limited use of the waters of the western rivers, including the construction of run-of-the river hydroelectric projects, the Treaty imposes stringent engineering and operational conditions on such use for the purpose of protecting Pakistan from possible harm. Each such condition and restriction in the Treaty is accompanied by the proviso “consistent with sound and economical design and satisfactory construction and operation.” That kind of balancing act is easy enough to write into a Treaty but problematic in practice. This leads to a permanent tug of war in the Indus Commission, with India stressing the permissive provisions and the proviso mentioned above, and Pakistan taking its stand on the restrictive provisions and ignoring that proviso.

Here then is the dilemma. If the proviso is read too liberally, then the protection to Pakistan might get compromised; if the stringent provisions are insisted upon in an absolute manner, ignoring the proviso, then the permission given to India to build hydroelectric projects gets virtually nullified. If we say “go ahead and build projects but don’t flush the reservoir; accept the possibility of unsatisfactory operation” we are virtually saying “Don’t build projects,” which is a departure from the Treaty.

Briscoe’s suggestion of joint and collaborative undertakings is welcome, but given the state of relations between the two countries, they seem highly improbable. If that sort of cooperation is possible, what prevents the existing Treaty itself from being operated in a constructive, harmonious spirit? I have myself been making more modest proposals of joint studies to take care of certain concerns of Pakistan, but I wonder whether they will happen. We must of course keep trying.

(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

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