The balanced work of the Permanent Court of Arbitration means a new dawn for 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)

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