Troubled waters, by Ramaswamy R Iyer

The answer is a clear ‘No’. The Treaty provides for arbitration, and there is no reason why that article should not be used. That is also action under the Treaty. Arbitration within the four corners of the Treaty cannot change the Treaty dynamics.

(2) Why is Pakistan unhappy with the Neutral Expert’s findings in the Baglihar case?

Perhaps Pakistan had hoped that the NE’s findings would uphold its contention that there were serious deviations from the Treaty in the Baglihar case. That did not happen. The NE recommended only a few minor changes. Pakistan was disappointed with that outcome.

However, the major Pakistani criticism of the NE’s report is that he re-interpreted the Treaty and weakened some of the protection that the Treaty gave to Pakistan. When Pakistan talks about ‘reinterpretation’ it has three things in mind: (i) the NE’s view that the 1960 Treaty did not bind India to 1960 technology and that India could use state-of-the-art technology; (ii) the equal importance given by the NE to the restrictive conditions specified in the Treaty and to the positive proviso of techno-economic soundness and satisfactory operation; and (iii) his stressing the importance of periodical flushing of the reservoir to get rid of sediment. Points (i) and (ii) seem self-evident and cannot reasonably be objected to. Moreover, the Treaty itself repeatedly qualifies its restrictive conditions by the proviso “consistent with sound and economical design and satisfactory construction and operation”; ignoring that proviso and insisting on the restrictive provisions in an unqualified manner would amount to a rewriting of the Treaty.
It is the third point about drawdown flushing that has caused the greatest anxiety to Pakistan because it seemed to weaken the protection against possible flooding. There is no need to discuss this here, as the issue has been raised by Pakistan before the Court of Arbitration in the Kishenganga case, and we must wait for the Court’s decision.

(3) Was there a serious deviation from the Treaty by India at the time of the initial filling of the Baglihar reservoir?

No. During the initial filling of a reservoir on the Chenab, the Treaty requires (a) the filling to be done between 21 June and 31 August (the monsoon period); and (b) a minimum flow of 55,000 cusec to be maintained above Merala in Pakistan. There was no deviation in respect of the first condition; the filling was completed by 28 August 2008. As for the minimum flow condition, it is impossible to say whether there was any non-compliance, because the Treaty prescribes no compliance-monitoring mechanism. There is no joint observation of flows at Merala. A lapse from the Treaty cannot be unilaterally determined by one party.

There is in fact a conundrum in this regard in the Treaty. When the filling of the reservoir begins, there is bound to be a brief interruption of flows (ie, zero flows) to the other side until the waters rising against the dam wall reach the outlets, ie, the spillway gates. (If, as desired by Pakistan, the gates had been placed higher, the water would have taken still longer to reach them.) However, the Treaty requires a minimum flow to be maintained during the initial filling. How can this be done? Please note that the minimum flow stipulation is for flows above Merala in Pakistan and not for releases from Baglihar. Apart from flows through Baglihar, there are other stream flows beyond the dam. Based on its own calculations of those flows, India has to satisfy itself that the flow above Merala is likely to be 55,000 cusec or more, even if the flow from Baglihar is zero. It is clear that there can be no certainty in such calculations. If, during the initial filling, the flows from other streams beyond the Baglihar dam do not add up to 55,000 cusec, there is nothing that India can do – unless it is to stop the filling, reopen the closed diversion outlets and let the water flow through, in which case the reservoir cannot be filled at all. That is areductio ad absurdum. It follows that the two conditions laid down by the Treaty collapse into one, ie, that the reservoir should be filled in the period of high flow (21 June to 31 August) in the expectation that this wouldipso facto ensure good flows at Merala; but there can be only high probability but no guarantee in this regard. (This is further complicated by the fact that the Treaty does not enable India to observe firsthand the flows at Merala.) This is a basic defect in the Treaty itself.

(4) Assuming that there was indeed a shortfall at Merala with reference to the prescribed flow, what was the extent of the shortfall and for how long?

On the basis of its own calculations, India felt that the shortfall reported by Pakistan was highly exaggerated. (The Indian estimation was that the flow above Merala during the period of initial filling of the Baglihar reservoir could not have been less than 40000 cusec, but Pakistan reported a much lower figure.) Besides, as mentioned earlier, there is no way of ascertaining the precise shortfall, if any, in the absence of joint monitoring. Further, this kind of one-time shortfall at the time of initial filling – for less than a day- might indeed have caused some difficulty but can hardly be described as a disaster or as a major deviation from the Treaty.

(5) Was the shortfall, if any, deliberately timed by India to cause maximum distress to Pakistan?

This is a complete myth. India did not ‘time’ the filling; it complied with the timing prescribed in the Treaty, and completed the filling by 28 August 2008. Where then is the deviation? The intended implication could be that the filling could have been done a bit earlier, say, in July; but when the Treaty clearly specifies a period, what is the basis for suggesting that within that period the filling should have been done in the earlier part? Why then did the Treaty allow filling up to 31 August? On 21 June the project works were still going on. The filling was done as soon as it was possible to do so, and within the period prescribed by the Treaty.

(6) If so, why did Pakistan decide to raise a huge controversy over a relatively minor matter?

A speculative answer could be that nursing a disappointment over the NE’s report, Pakistan jumped at the opportunity presented by a seemingly real deviation from the Treaty provisions, however brief and minor, and decided to put India in the dock.

In any case, this is now a closed issue. At the 105th meeting of the Indus Commission, Pakistan is reported to have said that it would not pursue the Baglihar filling issue any further, and India is reported to have said that it would evolve a proper consultation procedure to obviate such controversies in the future.

(7) What are the issues in the Kishenganga case? Why did Pakistan insist on referring the case to a Court of Arbitration?
The main ‘dispute’ referred to the Court of Arbitration in this case is on the issue of whether the diversion of waters from one tributary of Jhelum to another is permissible under the Treaty. Pakistan and India hold different views on this question, each basing itself on particular provisions of the Treaty. The Court will have to pronounce on this issue.

Assuming that diversion from the Kishenganga to another tributary is found permissible, there is a condition of protection of existing uses attached to this. There are differences between India and Pakistan on the nature and quantum of existing uses that must be protected, and here again we must await the decision of the court.

A second issue that Pakistan has referred to the Court of Arbitration is the legitimacy of drawdown flushing of the reservoir for sediment-control. As mentioned earlier, Pakistan was unhappy with the NE’s recommendation on this matter in the Baglihar case. It has now raised this issue before the Court of Arbitration. This must in fact have been the main reason for Pakistan’s decision to invoke a court of arbitration.

II. Water in General

(1) Turning from the specifics to the general, is there a water issue between India and Pakistan?

Water-sharing on the Indus system stands settled by the Indus Waters Treaty 1960. Given the growing pressure on a finite resource, water is indeed a major issue for Pakistan today, and an equally major issue for India, but it is not an issue between Pakistan and India.

(2) If so, why has water been put forward by Pakistan as a major issue and elevated to a very high rank?
We can only guess. Whatever the explanation, the raising of water as an issue seems to have worked. It seems to be a widely held view in Pakistan – and held by all classes and categories of people – that if Pakistan faces a present or imminent water crisis, India is an important factor in that development. That is not true, but unfortunately the ’cause’ has been picked up by the jihadists. This could have a serious impact on India-Pakistan relations even at the people-to-people level. One must hope that steps to correct such misapprehensions will be taken by the Pakistani authorities, as also by the intelligentsia.

(3) If water is not an issue, then why are there intractable and interminable wrangles between the two countries in the Indus Commission?

The Treaty permits Indian Projects on the western rivers, but imposes stringent restrictions on their design, engineering and operation. That careful balancing act between permissive and restrictive provisions was perhaps easy enough to write into the Treaty, but is enormously difficult to operate in practice. The result is that there is a permanent tug of war in the Indus Commission, with Pakistan objecting to every Indian project as deviating from the Treaty, and India accusing Pakistan of blocking all projects. Thus, while the Treaty settled the water-sharing, it unwittingly created an adversarial situation between the two countries through the combination of permissive and restrictive provisions. Only a constructive, cooperative spirit on both sides can make the Treaty work; and that depends on the state of political relations between the two countries at any given time.

(4) Isn’t lower riparian anxiety understandable?
Lower riparian anxiety is indeed a common phenomenon and very understandable, but under the Indus Waters Treaty Pakistan has a degree of protection which few other lower riparians enjoy.
(5) Isn’t there an article VII on cooperation in the Treaty?
Despite the presence of article VII, the Treaty is essentially a partitioning Treaty. The land was partitioned in 1947, and the waters were partitioned in 1960. However, given goodwill, there is nothing to prevent the two countries from conducting themselves as if they were operating a Treaty of cooperation.
(6) Why is there a sense of grievance in J&K?
The people in Jammu & Kashmir believe that the Treaty ignores their interests. This writer believes that the grievance is not well-founded, but it exists and must be taken note of by the two Governments.
(7) Leaving aside popular misconceptions in Pakistan, what are the concerns of the thoughtful, well-informed members of Pakistani civil society and academia?

(i) Reduced flows in the western rivers:
Popular perceptions or misperceptions of diversions of waters by India seem to receive unwitting corroboration in reported findings by Pakistani scholars of a trend of reduction in the flows in the western rivers. The only answer to this is to institute a joint study by experts of both countries to determine whether in fact there is a trend of reduced flows in the western rivers, and if so, to identify the factors responsible.

(ii) Is the Treaty being stretched by India?
The popular belief that in undertaking several major projects on the western rivers India is stretching the Treaty unduly, arises from a misreading of the Treaty. The Treaty clearly envisages major Indian projects on the western rivers; how else can one explain the massive Annexures D and E? So long as India conforms to the stringent restrictive provisions of the Treaty, it cannot be charged with stretching the Treaty.

(iii) What would be the cumulative impact of a large number of projects?

India might argue that if each project conforms to the Treaty, there can be no such thing as the ‘cumulative impact’ of a large number of projects. However, the Pakistani apprehensions on this score cannot be lightly dismissed. The issue needs to be carefully considered. Here again, a joint study by experts of both countries seems desirable.

(8) Finally, what should or can we do about new and emerging concerns that go beyond the Indus Treaty?
Pleas are being made for a holistic, integrated management of the entire system, joint watershed management, etc. These are unexceptionable ideas, but it was because this kind of approach was not found possible that the system was partitioned into two in 1960. Even today, it cannot be said that the ideal approach has become possible. A completely different ‘holistic’ Treaty will have to wait for better times. For the present, what one can ask for is the operation of the existing Treaty in a constructive, cooperative spirit.

However, newer concerns not envisaged in 1960, such as environmental impacts, minimum or ecological flows, etc, are as applicable to the Indus system as to other systems, and need to be taken on board. In particular, climate change and its impact on water are matters of vital concern, and the two countries must begin immediately to work together on these. There is already a measure of cooperation between them in the international negotiations, but this must go beyond the limited issue of emission reductions. This cannot be brought within the ambit of the Treaty but must be a separate exercise.

Ramaswamy R Iyer is a former civil servant based in New Delhi, India