The Indus waters
Source: By Salman Haidar: The Statesman
Uniquely among Indo-Pak agreements, the Indus Waters Treaty (IWT) of 1960 contains an arbitration clause that entitles either party to approach an International Court of Arbitration (ICA) in case differences between them pertaining to the treaty cannot be reconciled bilaterally. Under the IWT, a Commission of officials of the two countries exists and meets regularly; it is the forum in which differences can be taken up: arbitration by the ICA, though provided for in the treaty, has not often been sought. Recently, however, there have been two important exceptions: one is the Baglihar project on the Chenab, where arbitration was invoked by Pakistan, and the other is the hydro-power project on the Kishenganga River, a tributary to the Jhelum, which has been under ICA consideration, again at Pakistani request and on which the final judgment has just been delivered.
These two projects are located on rivers allocated in totality to Pakistan in the division of the Punjab waters under the IWT. The rivers flow through India before reaching Pakistan but India is not free to divert any part of the waters, though it can make non-consumptive use of them. A large number of technical requirements are built into the IWT, to give it body and substance and as far as possible to remove ambiguity. When India decided to go ahead with the run-of-the-river Baglihar scheme on the Chenab, it had to meet Pakistani objections which, despite bilateral effort through the Commission, eventually had to be referred to arbitration. This has also been the case with the project on the Kishenganga. The IWT establishes that the arbitration award once made cannot be reopened, so both sides have been obliged to accept what was decided on Baglihar though each may have hoped for stronger endorsement of its case; the Kishenganga award, where the issues are no fewer complexes will no doubt be similarly respected.
It can be noted in passing that the IWT, including the arbitration procedure embodied within it, has proved to be a durable arrangement in what is an inherently difficult process of sharing a natural resource between two rival claimants. Regular discussions within the Commission have continued even at times of discord and stress, and when arbitration has been necessary the authority of the ICA has been respected by both sides. As a result, arbitration decisions on contested issues have had the effect of bringing such matters to a conclusion and helped ensure that they should not spiral out of control.
The recent finding on the Kishenganga project should now bring to an end a dispute that has for years held up a hydro-power scheme that offers many benefits to J&K. In conformity with the prohibitions imposed by the IWT, this is a non-consumptive scheme that would divert the Kishenganga river flow from the present course, take it through tunnels in the mountains in order to generate hydro-power, and then put it back into the river. This would provide some 330 MW of badly needed electric power, and as it would not deplete the waters, it falls within the accepted parameters of the IWT. However, Pakistan had argued that the scheme is violative of the IWT, both for technical reasons related to the diversion structure, and also because it would have an adverse effect on the ecology of the river. It seems from initial reactions to the arbitration award that the technical issues relating to engineering design were not much of an impediment but dealing with the ecological considerations will have a measurable though limited impact on the scheme. It needs to be borne in mind that at the time when the IWT was framed, ecological issues barely figured in the calculations of the experts. This was so not only in India and Pakistan but across the globe, and there was little international awareness of the need to protect the environment. That has changed, of course, and today safeguarding the environment is an ever stronger global concern, so that more than one river project in different parts of the world has had to be shelved for environmental reasons. In arriving at its judgment on Kishenganga, the ICA may have been aware of prevailing sentiment on the environment when it decreed that a certain level of flow in the river should be maintained at all times for conservation purposes. It is not clear whether this finding falls strictly within the provisions of the IWT, and in any case it is believed to be of relatively minor practical significance, but it merits notice as a beneficial environmental measure and as a reminder that the requirements of conservation should not be ignored in major river projects.
It can now be expected that with the ICA judgment of a few days ago, Indo-Pak differences on the Kishenganga would have been put out of the way. However, the broad issue of sharing waters between the two countries has become increasingly troubled as part of an ever-more challenging story of water management affecting both of them. As the population grows in South Asia, and with what now looks like profligate uses of water in both rural and urban areas, the overall availability of water has become a growing concern. The uncertainties of climate change and global warming have added a fresh and threatening dimension to the situation. The IWT is a key instrument and it continues to be highly relevant to present-day concerns. However, something more may be needed to respond adequately to the challenges of the time. In the Indus basin, which is shared by the two countries, improved methods of dealing with the water issue will need to be sought. Groups of experts have long discussed these matters among themselves and come up with several ideas that could help both sides. The IWT was made at a time when contest and strife over this precious resource was dominant, hence the decision on completely separate use by India and Pakistan respectively of the eastern and western Punjab rivers. The global changes referred to above now seem to demand a measure of joint activity if there is to be a coherent response that can benefit the entire region. The availability of water is likely to remain more or less what it is: there are no new rivers or other sources awaiting development. What are needed, as at least a partial response to a growing challenge, are better water management and more active exchange of information through regular meetings of experts from the two sides. This would serve to strengthen cooperation in a variety of water-related fields where both sides face similar problems and can benefit from access to each other’s situation and experience.
Uniquely among Indo-Pak agreements, the Indus Waters Treaty (IWT) of 1960 contains an arbitration clause that entitles either party to approach an International Court of Arbitration (ICA) in case differences between them pertaining to the treaty cannot be reconciled bilaterally. Under the IWT, a Commission of officials of the two countries exists and meets regularly; it is the forum in which differences can be taken up: arbitration by the ICA, though provided for in the treaty, has not often been sought. Recently, however, there have been two important exceptions: one is the Baglihar project on the Chenab, where arbitration was invoked by Pakistan, and the other is the hydro-power project on the Kishenganga River, a tributary to the Jhelum, which has been under ICA consideration, again at Pakistani request and on which the final judgment has just been delivered.
These two projects are located on rivers allocated in totality to Pakistan in the division of the Punjab waters under the IWT. The rivers flow through India before reaching Pakistan but India is not free to divert any part of the waters, though it can make non-consumptive use of them. A large number of technical requirements are built into the IWT, to give it body and substance and as far as possible to remove ambiguity. When India decided to go ahead with the run-of-the-river Baglihar scheme on the Chenab, it had to meet Pakistani objections which, despite bilateral effort through the Commission, eventually had to be referred to arbitration. This has also been the case with the project on the Kishenganga. The IWT establishes that the arbitration award once made cannot be reopened, so both sides have been obliged to accept what was decided on Baglihar though each may have hoped for stronger endorsement of its case; the Kishenganga award, where the issues are no fewer complexes will no doubt be similarly respected.
It can be noted in passing that the IWT, including the arbitration procedure embodied within it, has proved to be a durable arrangement in what is an inherently difficult process of sharing a natural resource between two rival claimants. Regular discussions within the Commission have continued even at times of discord and stress, and when arbitration has been necessary the authority of the ICA has been respected by both sides. As a result, arbitration decisions on contested issues have had the effect of bringing such matters to a conclusion and helped ensure that they should not spiral out of control.
The recent finding on the Kishenganga project should now bring to an end a dispute that has for years held up a hydro-power scheme that offers many benefits to J&K. In conformity with the prohibitions imposed by the IWT, this is a non-consumptive scheme that would divert the Kishenganga river flow from the present course, take it through tunnels in the mountains in order to generate hydro-power, and then put it back into the river. This would provide some 330 MW of badly needed electric power, and as it would not deplete the waters, it falls within the accepted parameters of the IWT. However, Pakistan had argued that the scheme is violative of the IWT, both for technical reasons related to the diversion structure, and also because it would have an adverse effect on the ecology of the river. It seems from initial reactions to the arbitration award that the technical issues relating to engineering design were not much of an impediment but dealing with the ecological considerations will have a measurable though limited impact on the scheme. It needs to be borne in mind that at the time when the IWT was framed, ecological issues barely figured in the calculations of the experts. This was so not only in India and Pakistan but across the globe, and there was little international awareness of the need to protect the environment. That has changed, of course, and today safeguarding the environment is an ever stronger global concern, so that more than one river project in different parts of the world has had to be shelved for environmental reasons. In arriving at its judgment on Kishenganga, the ICA may have been aware of prevailing sentiment on the environment when it decreed that a certain level of flow in the river should be maintained at all times for conservation purposes. It is not clear whether this finding falls strictly within the provisions of the IWT, and in any case it is believed to be of relatively minor practical significance, but it merits notice as a beneficial environmental measure and as a reminder that the requirements of conservation should not be ignored in major river projects.
It can now be expected that with the ICA judgment of a few days ago, Indo-Pak differences on the Kishenganga would have been put out of the way. However, the broad issue of sharing waters between the two countries has become increasingly troubled as part of an ever-more challenging story of water management affecting both of them. As the population grows in South Asia, and with what now looks like profligate uses of water in both rural and urban areas, the overall availability of water has become a growing concern. The uncertainties of climate change and global warming have added a fresh and threatening dimension to the situation. The IWT is a key instrument and it continues to be highly relevant to present-day concerns. However, something more may be needed to respond adequately to the challenges of the time. In the Indus basin, which is shared by the two countries, improved methods of dealing with the water issue will need to be sought. Groups of experts have long discussed these matters among themselves and come up with several ideas that could help both sides. The IWT was made at a time when contest and strife over this precious resource was dominant, hence the decision on completely separate use by India and Pakistan respectively of the eastern and western Punjab rivers. The global changes referred to above now seem to demand a measure of joint activity if there is to be a coherent response that can benefit the entire region. The availability of water is likely to remain more or less what it is: there are no new rivers or other sources awaiting development. What are needed, as at least a partial response to a growing challenge, are better water management and more active exchange of information through regular meetings of experts from the two sides. This would serve to strengthen cooperation in a variety of water-related fields where both sides face similar problems and can benefit from access to each other’s situation and experience.
No comments:
Post a Comment