Asit K. Biswas
THE INDIAN EXPRESS | March 4, 2013
On February 18, the International Court of Arbitration in The Hague gave an interim judgment on the on the Kishanganga dispute between India and Pakistan. Indian plans to divert water from the Kishanganga had been held up by Islamabad’s objection that they violated the provisions of the Indus Waters Treaty (IWT). The treaty had worked reasonably well for four decades, even when the two countries went to war. However, the increase in population in the two countries, accelerating economic activities, advances in technology and poor water management on both sides of the border have put the treaty under considerable strain over the last decade.
Take India. In 1960, when the treaty was signed, it had a population of 435 million. Now, the population is almost 1.25 billion. In addition, water demands in both the countries have exploded, as have electricity requirements. Poor water management practices have meant that both the countries are using far more water than necessary, and water bodies within and around urban centres are heavily contaminated with known and unknown pollutants. Both countries are trying to get additional water and energy to meet their burgeoning needs.
This is the second major dispute between the two countries over the IWT. The first was over the Baglihar dam, and was adjudicated by a neutral expert appointed by the World Bank. On May 17, 2010, Pakistan initiated arbitration proceedings on the Kishanganga hydroelectric project. India has plans for a 330 MW project on the Kishanganga River, a tributary of the Jhelum. Work was started in 1992 by the National Hydroelectric Power Corporation. The Rs 3,600 crore project constitutes a dam on the river in the Gurez Valley, near Bandipur. The plan is to divert the winter flow of the Kishanganga to Bonar Madmati Nallah, another tributary of the Jhelum.
Pakistan has raised two legal issues. First, it claimed that the inter-tributary diversion violated the IWT, and that it would reduce its share of water by 15 per cent. Second, it questioned whether India could draw down the water level at run-of-the-river plants below the dead storage level to flush out sediments.
In June 2011, members of the court visited India and Pakistan. Both countries will find some aspects of the court’s interim judgment in their favour. India can proceed with the construction required for the project, but only through a temporary bypass tunnel. It has to refrain from building a permanent structure that could inhibit the full flow of the river. The final judgment will decide on the minimum river flow that must reach Pakistan. India will not be allowed to draw the water level down below the dead storage level to flush out sediments. The court felt that this does not fall within the purview of “unforeseen emergency”, as defined in the existing treaty. After all, this technique of desilting was not available when the treaty was signed in 1960.
The court further stipulated that this decision would be a precedent for future projects only and would not impact existing projects or those under implementation.It has asked both India and Pakistan to submit additional data by June 2013, so that it can decide on a minimum flow regime and diversion parameters. The final judgment will be given in December 2013.
From India’s side, the interim judgment poses three challenges. First, until the final judgment decides on the quantum of water that could be diverted for hydropower, the economic costs of generating hydropower from the Kishanganga remain uncertain. If the court stipulates a high minimum flow, the project may have to be abandoned or become a white elephant.
Second, what are the implications of the Baglihar interpretation for the present judgment? The Baglihar judgment allowed India to draw down water below the dead storage level under certain conditions. However, the international court did not treat Baglihar as a precedent. The Indus system carries a large amount of sediment. Unless this can be effectively flushed out at regular intervals, generating power will not be an economic proposition.
Third, as an upper riparian state in the Indus river system, India has certain advantages. Nevertheless, with reference to China and Nepal, India is the lower riparian state. Thus, it is essential that India maintains good relations with both its upstream and downstream neighbours on international rivers. All these countries need to develop cordial ties, and behave responsibly and fairly, so that all development decisions are acceptable to the countries concerned. Otherwise, there will be numerous disputes that drag on for years, hampering the process of development.
The writer is distinguished visiting professor, Lee Kuan Yew School of Public Policy, Singapore, and founder, Third World Centre for Water Management, Mexico.