Troubled Waters

India opens a new dangerous front against Pakistan

Islamabad: Anticipating its weak position in the Permanent Court of Arbitration in The Hague, which started hearing Islamabad’s objections to the design of India’s two run-of-the-river projects called Kishanganga and Ratle, New Delhi has proposed to amend the Indus Water Treaty so as to pull the dispute down to the bilateral level.

Reacting to media reports of the Indian proposal, Foreign Office spokesperson, Mumtaz Zahra Baloch, in a statement said that the Court of Arbitration in The Hague conducted its first hearing of Pakistan’s objections to the controversial designs of the two hydroelectric projects on 27 January.

But instead of deputing two members to the Court of Arbitration from its side, as required under the rules, India has served a notice to Pakistan to modify the treaty and resolve the long-running dispute in a bilateral meeting, according to a Reuters report.

Drafted under Article IX of the Indus Water Treaty (IWT), these proposals were also sent to the Pakistani Commissioner at the bilateral Permanent Indus Commission, Mehar Ali Shah, for consideration by his Indian counterpart.

Officials believe that India not only wants to proceed with the Kishenganga and Ratle hydropower projects, but also wants to commission some half a dozen more run-of-the-river projects on Chenab river, which is one of three rivers given to Pakistan under the IWT.

India and Pakistan signed Indus Water Treaty in 1960, after nine years of negotiations brokered by the World Bank. The treaty was aimed at distributing between the two neighbours the waters of several rivers flowing into the Indus basin. President of Pakistan, Gen Ayub Khan, and Indian Prime Minister, Jawaharlal Nehru, inked the historic agreement.

Under the treaty, India was given control over the waters of three eastern rivers, namely Beas, Ravi and Sutlej, while western rivers, namely Indus, Chenab and Jhelum were assigned to Pakistan. Since these western rivers flowed across Indian territory before entering Pakistan, the treaty allowed India a limited use of waters of these rivers for irrigation, in addition to non-consumptive use such as power generation, navigation and fishing etc.

The treaty lays down detailed regulations for building run-of-river projects on western rivers for power generation.

Pakistan first raised objections to the design of the 330-megawatt Kishanganga hydroelectric project, built on a tributary of Jhleum river, as far back as 2006, when the project was in its inception phase. Soon afterwards, it also raised objections on Indian plans to build the 850 MW Ratle hyderoelectric project on Chenab river.

Indian and Pakistani experts have since differed on the technical details of both these projects. Pakistani experts believe that both projects have developed beyond the scope of just a run-of-the-river power generation facility.

They say that the Kishanganga project was built on River Neelum (called Kishenganga on the Indian side), one of the main tributaries of Jhelum River. And that India, in violation of IWT, has been diverting the river’s water into streams flowing into the Indian-occupied Kashmir instead of re-channeling them back into the Neelum river. This, they say, is a negation to the spirit of the treaty which allows India only non-consumptive use of surface water.

However, India denies the Pakistani charge, claiming that it is channeling the Kishanganga waters back into the Jhelum River through another tributary.

Similarly, in case of the Ratle hydroelectric project, Pakistan has raised questions over the design of the reservoir which it says will reduce waterflow in the Chenab river and thereby adversely affect agriculture in areas irrigated by the river.

In 2010, Pakistan took the matter to the Permanent Court of Arbitration at The Hague, which ordered a three-year stay on the project, pending resolution of the matter. In 2013, the court ruled that Kishanganga was “a run-of-the-river plant within the meaning of the Indus Water Treaty, and that India may accordingly divert water from the Kishanganga (Neelum) River for power generation”.

However, according to the ruling, India was obliged under the IWT to “construct and operate” the Kishanganga dam in such a way that it “maintains a minimum flow of water in the river.” The minimum flow was fixed by the court at 9 cubic meters per second.

Subsequent to the ruling, India declared that it was lowering the height of the dam from the planned 98 meters to 37 meters, and resumed construction. Pakistan, however, continued to collected evidence to prove that the water being allowed to flow downstream from Kishanganga did not match the minimum volume guaranteed under the treaty.

In August 2016, Pakistan asked the World Bank to appoint a court of arbitration to review the designs of Kishanganga and Ratle. India rejected the suggestion, saying that Pakistan’s objections were technical in nature and that the matter should be decided by a neutral expert.

This continues to be the Indian demand, and is seen by many as an attempt by India to revisit the Indus Water Treaty with an aim to drag the matter down from a multilateral to a bilateral status.

Technical expert, Sheraz Memon, who also remained part of he Indus Water Commission from the Pakistani side, told Bol News that the Indian proposal to revisit the IWT is aimed at bringing the treaty to bilateral level and to remove the role of the World Bank as an arbitrator.

Pakistan is not in favour of making such amendments to the decades-old treaty despite the fact that Islamabad, too, has reservations over certain aspects of it, he said.

India is also reported to have threatened to revoke the treaty in case its proposal of amending it is not entertained, but experts say India cannot do that unilaterally. They say that this is not the first time India has demanded changes in the treaty; it has made such proposals several times during the past couple of decades, but Islamabad has resisted these moves.

According to Sheraz Memon, demands of India not to involve the Court of Arbitration in the dispute was aimed at avoiding further delays in the execution of its projects. That is why it was demanding appointment of neutral experts to look into the matter, which it thought it could manipulate, as it had done in the case of the Baghliar Dam where neutral expert had “greatly favoued India.”

Explaining the complaint redressing mechanism under the IWT, Shehraz Memon explained that Article IX of the treaty provides three possible steps. First, any objections raised by either side would be settled by the Permanent Indus Commission, which comprises experts from both sides who hold regular meetings. In case the Commission fails to resolve the issue, both sides will take the matter to the guarantor of the treaty – the World Bank – to appoint a team of neutral experts to look into the matter. If that also fails, then the matter will land in the Court of Arbitration at The Hague.

Water experts say that Pakistan has to respond to the Indian proposals for amending the treaty in three months’ time. The fact remains, however, that Islamabad has continued to reject such proposals from Delhi in the past.

The question is, will India indeed revoke the six decades old IWT in case Pakistan continues to adopt a defiant posture?

Experts are of the view that India can’t go to that extreme because revocation will not be in its best interest. Besides increasing tensions between India and Pakistan, both nuclear-armed, it could also drag into the conflict a country like China, which is an upper riparian with a number of rivers flowing across its territory into India.

Secondly, by taking such an extreme step, India will be offending the World Bank, which is the guarantor of the treaty, as well as other international organisations – something which India would be loath to do.