Last February, the Court of Arbitration set up under the Indus Waters Treaty (IWT), 1960, had given an interim award on the Kishenganga dispute, allowing the diversion of waters from one tributary of the Jhelum to another. It has now given the final award indicating the extent of permissible diversion. In order to understand this fully, it is necessary to go back to the Baglihar arbitration because some of the issues that arose in that case find a sequel in the present one.
(Before getting into the subject at hand, let me say that I have serious reservations about the so-called run-of-the-river hydroelectric projects. However, setting aside my own concerns, I am writing this article strictly from the perspective of the IWT.)
In the Baglihar Project, Pakistan had posed certain points of difference on design and engineering matters, and the Neutral Expert (NE) had given his findings on them. We need not go into those issues here but must take note of two points on which Pakistan felt acute concern. First, the NE had observed that the fact that the IWT was signed in 1960 did not freeze all future projects to 1960 technology, and that state-of-the-art technology can be adopted (that is a paraphrase, not an exact quotation). Secondly, he had stressed the importance of proper maintenance of the facilities built and advocated the periodical ‘drawdown’ flushing of the reservoir to get rid of sediment.
The first statement that the IWT did not preclude the use of post-IWT technological advances seemed eminently sensible and could not easily be questioned, but Pakistani experts and scholars felt (rightly) that on the same count it would also be justifiable to take into account other new and emerging concerns. On the second point, namely the advocacy of ‘drawdown flushing’ of the reservoir, Pakistan felt that this amounted to a major re-interpretation of the Indus Treaty and seriously compromised the protection against being flooding provided to Pakistan by the IWT.
They felt so strongly on this point that they referred it to the Permanent Court of Arbitration (PCA) on the Kishenganga project as a second issue along with the primary one of diversion of waters from one tributary of the Jhelum to another. The PCA accepted the Pakistani position on drawdown flushing; it observed that India must find other answers to the sediment problem. A request from India for a reconsideration or reinterpretation of that decision has now been rejected by the PCA.
On the issue of how much ‘minimum’ or ‘environmental’ flow should be maintained in the Kishenganga, both India and Pakistan had made detailed submissions to the PCA. India had proposed the maintenance of a minimum flow of 4.25 cumec (cubic metres per second). Pakistan had argued that 20 to 40 cumec would be needed. The PCA felt that the Indian analysis was inadequate and that Pakistan’s study was much fuller and more elaborate. It made its own calculations and tentatively arrived at a figure of 12 cumec. Finally, it has mandated a minimum flow of 9 cumec.
A detailed analysis of the decision by Himanshu Thakkar from SANDRP (South Asian Network on Dams, Rivers and People) faults the PCA for its flawed determination of the environmental flow (e-flow). That criticism is entirely valid, but it must be remembered that the PCA was not a body set up to determine environmental flows; it was an arbitral body set up under the 1960 treaty to adjudicate a dispute between India and Pakistan on the Kishenganga project in terms of the provisions of that IWT.
Its decision on the permissible extent of diversion of waters and the maintenance of a certain flow in the river was, therefore, not a scientific determination of environmental flows but an arbitral, dispute-settling decision: it accepts neither the Indian position nor the Pakistani one but mandates an intermediate position. In arriving at its compromise position, the PCA seems to have been influenced by the consideration that hydroelectric power was important; that the IWT permits run-of-the-river hydroelectric projects; and that the viability of the 330-MW Indian project should not be unduly disturbed.
A new variableHowever, an interesting question arises here. Determining e-flows was not within the remit of the PCA as an arbitrator under the IWT or in terms of the treaty; the concept was unknown in 1960 and does not figure in it. What the IWT says is that if there is a diversion of waters from one tributary of the Jhelum to another, existing uses on the former tributary must be protected. Pakistan’s Neelum-Jhelum hydroeletric project could not be treated as ‘existing use’ because work on it started after India had commenced work on the Kishenganga project (as determined by the PCA). Pakistan could have argued for existing agricultural use but the PCA says that no data on this was submitted by Pakistan. Evidently, Pakistan was unwilling to talk too much about ‘existing use’ for fear of appearing to accept implicitly the inter-tributary diversion of waters. Instead, it argued for environmental flows as this idea is now widely accepted.
Indeed it is. No one will argue today against the proposition that a river must flow and that interventions in flows should be minimal. However, this issue cannot be argued on the basis of the 1960 treaty; it can only be argued on the basis of current concerns. The PCA was fully justified in taking note of those concerns, but this meant that it was going beyond the treaty and dealing with issues not explicitly recognised in it. But was this not precisely what the NE in the Baglihar arbitration was doing when he advocated (a) state-of-the-art technology and (b) drawdown flushing of the reservoir? (As a matter of fact, the IWT had qualified its prohibition of outlets below the dead storage level by allowing an exception where sediment control required this.) It was by using the door partly opened by the NE that Pakistan was able to bring in ideas of environmental flows, etc.
Now the wheel has come full circle. The NE’s recommendation of drawdown flushing has been overturned, but Pakistan’s argument for environmental flows has been accepted.
Reinterpretating IWTLet me not be misunderstood. I am not questioning the need for e-flows. They should be maintained not only on the Kishenganga but on all rivers, including the eastern rivers that stand allocated to India. I am only pointing out that the NEs in both the Baglihar case and the PCA in the Kishenganga dispute were ‘reinterpreting’ the IWT, albeit in different ways.
The decisions of the PCA are final and binding and not appealable. The PCA has, however, provided for a review of the e-flow determination by the Permanent Indus Commission after 7 years.
What does this verdict mean for India and Pakistan? India can go ahead with the Kishenganga project with some modifications to accommodate a minimum flow of 9 cumec. Pakistan invoked the arbitration clause twice, but in neither case was India obliged to abandon the project (Baglihar, Kishenganga); it had to make only some minor changes. Pakistan might have been disappointed at that outcome. However, Pakistan’s concern about drawdown flushing has found an answer. Thus, both countries have reason to be satisfied.
Let me conclude by returning to my own concerns. Quite apart from Pakistani worries, may I ask as an Indian: how many such projects is India going to build on the Jhelum and the Chenab, and what will they do to those rivers and to the mountainous areas? That is perhaps a naïve question, as a much larger number of hydroelectric projects are being built or are proposed to be built on other rivers (the Sutlej, the Ganga, and the Brahmaputra system). Recent political developments clearly indicate that the government (I do not distinguish between the UPA and NDA here) shares the industry view that environmental concerns are a nuisance (I avoid the adjective that usually accompanies that noun). However, why should the government accept that nuisance and try to mitigate it by changing the Minister? The better answer would be to blaze a trail internationally by repealing the Environment Protection Act, 1986.
(The writer is a former Secretary, Water Resources, Government of India.)
