Daily Times

The Indus Basin Water Treaty of 1960, between India  and Pakistan  brokered  by World Bank laid down a mechanism as to how to share and manage water what was then essentially a unitary network of  irrigation. In 1948 waters of Indus river were apportioned by ‘Inter-Dominion Accord’ requiring India to release sufficient water to Pakistani regions of Indus basin in return for annual payments from Pakistan. Pakistan’s security threatened by conflict over the source of water for its cultivable land compelled it to approach the World Bank in 1952 to settle the issue permanently. The Indus basin comprises three Western  Rivers,   Indus,  Jhelum and Chenab and three Eastern Rivers  namely Sutlej, Beas and  Ravi .Apart from minor exceptions the treaty allows India exclusive use of all of the waters of the Eastern Rivers and their tributaries prior to entering  Pakistan  (as per Article  II  of  the Treaty). On the other hand Pakistan retains exclusive use of the Western Rivers (Article III) with the treaty awarding one time financial compensation for loss of water from Eastern Rivers to Pakistan (Article V). The treaty incorporates exchange of data and created the Permanent Indus Commission with a commissioner appointed by each country (Article VIII). A significant provision of the treaty stipulated that either country must notify the other of plans to construct any engineering works and in case of disagreement for mediation/arbitration. If the Commission is unable to resolve the ‘difference’ it is referred to a Neutral Expert appointed by an agreement between the parties.

The arbitration clauses of the treaty were recently invoked when India initiated work on Kishanganga Hydroelectric Plant, a run-of-the-river scheme designed to divert water from Kishanganga River which upon entering Pakistani territory is recognized as Neelum River, to a power plant in Jhelum River basin. The plant is located in Jammu and Kashmir with a planned   installed capacity of 330 MW. Construction began in 2007 with a completion date in 2016 with the project designed as a 121 ft. high concrete-face- rock-fill dam diverting water south through a 24 km tunnel, a surge chamber, underground power house containing turbine generators, drop in elevation to the power station with a hydraulic head of 697 m and culminating into a discharge via a tail race channel into Wular Lake. Pakistan found the project as being in violation of Arbitration Article III (2) & (4) of the Treaty, which places an obligation on India not to construct any similar projects on western rivers nor developing human made impediments causing modification in the volume of natural flow of western rivers thus reducing the power generation capacity of Pakistan’s Neelum-Jhelum project. As negotiations stalled Pakistan was compelled to approach the International Court of Arbitration as a last resort.

As inter-tributary diversions are prohibited Kishanganga project will deprive Pakistan of 27 percent of river’s natural flow, thereby damaging its existing 133,000 of irrigation in the Neelum valley and a 900 MW Neelum-Jhelum hydropower project initiated downstream by Pakistan, nor were the design features in conformity with treaty. India revised the design of the dam in 2004 yet Pakistan’s objections on structure, height    size, level, diversion plan, storage capacity, power intact and free board remain. Completion of the feasibility study of Neelum-Jhelum project has vested Pakistan with an acquired right. India reverted in the Court that the Neelum and Jhelum rivers would converge in Indian occupied Kashmir.

For its own benefit India should withdraw from its aggressive posture and approach Pakistan with a request to renegotiate the treaty as despite its comprehensiveness it is a bilateral treaty confined to two of the four riparian states of the Indus basin

In 2005 Pakistan in the Baglihar dam case obtained relief from the arbitrator to the extent of certain modifications in project design. In the past dispute over the Salal dam project was resolved in 1970’s by foreign secretaries of both the countries. India’s position is that almost 40 percent of construction work has been completed scheduled for completion by 2014 whereas Neelum project is scheduled for completion by 2016. The treaties’ inherent limitation is that there is no limit on the   number of dams and only upon construction of a reservoir treaty provisions may be invoked yet restricted to technical specifications. Interestingly Article V “Financial Provisions” deals with India’s contribution to Pakistan of Pounds Sterling 62,060,000 for the replacement works which Pakistan would use as a result of the allocation of the Eastern rivers to India and the termination of Pakistan’s water rights on those rivers. The Indian contribution was credited to the Indus Basin Development Fund consisting of around 800 million dollars of grant funding from donors and World Bank loans. The replacement works included eight link canals nearly 400 mileslong for transferring water from the Western rivers to areas formerly irrigated from the Eastern rivers, Tarbela storage dam on the Indus and Mangla on Jhelum, power stations, 2,500 tube wells in order to integrate the entire river and canal system within Pakistan.

Debacles at the International Court of Arbitration are attributable to the reason that internationally recognized water experts do not plead our case instead Pakistan sends attorneys with no international credentials in water disputes. We fail to appreciate that legal provisions are to be debated in the context of water issues. The treaty stipulates that the Neutral Expert as well as the Members of the International Court of Arbitration would be eminent engineers and academics of renowned international technical institutes. Pakistan’s national security in the backdrop of water security hinges upon successful defense in a concerted and professional manner primarily by a team of international water experts.

For its own benefit India should withdraw from its aggressive posture and approach Pakistan with a request to renegotiate the treaty as despite its comprehensiveness it is a bilateral treaty confined to two of the four riparian states of the Indus basin. The Indus and the easternmost tributary, the Sutlej, both rise in the Tibetan plateau in China and the Kabul and Kuram being main tributaries of the Indus river, originate in Afghanistan before crossing into Pakistan and converging into Indus river. Around 13 percent of the catchment area of the Indus basin is situated in China and Afghanistan which may assert their water rights and seek tributaries of the Indus river system originating there. The Neutral Expert Raymond Lafitte, a professor at the Swiss Federal Institute of Technology, determined that the values for maximum pondage stipulated by India and as well as by Pakistan were not in conformity with the criteria laid down in the treaty posing major challenge to India, Pakistan, World Bank and the Indus Waters Treaty itself. This was the first instance that the Treaty’s provisions regarding settlement of disputes were tested reinforcing the proposition for India to approach Pakistan to renegotiate the Treaty.

The author Razeen Ahmed is involved in research in the areas of finance and energy. Nadir Mumtaz reviewed the article

Published in Daily Times, February 19^th 2019.