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View from Pakistan
Ijaz Hussain
When Pakistan and India signed the Indus Waters Treaty (IWT) in 1960, it was thought that it would forever put to end water as an issue between them. However, today it appears as if that promise was unfounded.
This is borne out by the number of water-related disputes that keep cropping up between the two countries every few years. First it was Sallal Dam, then Wullar Barrage followed by Baglihar Dam.
Now it is the Kishanganga Dam that has embroiled the two countries in a dispute. Their Indus Waters Commissioners have recently concluded a second round of talks on the issue and are to meet again next month in New Delhi for another round. What is the nature of this controversy and what are the prospects of a negotiated settlement?
The controversy owes its genesis to India’s plan to build a 330-megawatt hydro-power plant in Indian-administered Kashmir across the Jhelum River. The dam site is located 160 km upstream from Muzaffarabad and involves the diversion of Kishanganga River (called the Neelum River in Pakistan) to a tributary named Bunar Madumati Nullah of Jhelum near Bunkot. The diversion will change the course of the Neelum by about 100 km, which will then join the Jhelum through Wullar lake near the town of Bandipur in Baramulla district. As a result of this diversion, the Neelum and Jhelum rivers, which at present join each other near Muzaffarabad at Domail, will meet in Indian-administered Kashmir.
Pakistan regards the project as a violation of the IWT. It raised a number of objections in 2004 as a result of which India revised the design of the dam in order to meet Pakistan’s objections. Pakistan, however, was still not satisfied with the revised design and raised fresh objections. During the current round of negotiations these objections, which relate to gate structure, height and size, level, diversion plan, storage capacity, power intact and free board were discussed. However, there was no agreement on any one of them because the two sides refused to budge from their stated positions. Discussions could not be completed on the technical and legal aspects of the issue because of paucity of time. Of all the objections that Pakistan has raised, diversion of the Neelum is perhaps the core issue. Pakistan argues that India can store water but cannot divert it because under the IWT, it is under obligation to release as much water downstream as it stores. In its opinion, the diversion would reduce the flow of water into Pakistan by about 11 percent in summer and about 27 percent in winter, which would be contrary to the IWT as the Western rivers that are in question belong to Pakistan.
Similarly, Pakistan claims that the project would reduce the power generation capacity of the 969-megawatt Neelum-Jhelum plant by about 11 percent. It also contends that the diversion would result in an ecological disaster for the area. It has no exact data at present but has commissioned an international firm to prepare an environmental damage assessment report. Pakistan also objects to the construction of the Kishanganga project on the ground that it would affect power generation capacity of the plant that it is building on the Neelum-Jhelum confluence.
Besides, it argues that the feasibility study of the Neelum-Jhelum project that it has completed entitles it to stop India from building a storage facility for diverting water. In its view, the planned use of the river Jhelum by it is as good as the term “use of water” in the IWT. India categorically rejects Pakistan’s line of argument. To begin with, it disputes the contention that the diversion would reduce the flow of water into Pakistan. In its view, the quantum of water would remain the same as before. The only difference that the diversion, in its opinion, would make would be that instead of meeting in Pakistan-administered Kashmir as is the case at present, the Neelum and Jhelum rivers would meet in the Indian-administered Kashmir. India also rejects Pakistan’s contention that the completion of the feasibility study of the Neelum-Jhelum project has created an acquired right in favour of Pakistan. On the contrary, it asserts that commencement of work on the Kishanganga project gives an edge to India’s claim.
Examining the claims of the two countries regarding the superiority of their right on the ground of “existing use”, we note that it is the Helsinki Rules on the Uses of the Waters of International Rivers which cover the matter. Article 8(2a) defines “existing use” as “a use that is in fact operational...from the time of the initiation of construction directly related to the use.” Given the fact that we do not dispose of the requisite information on the Kishanganga and Neelum-Jhelum projects based on the definition of the “existing use”, it is not possible to pronounce in the matter. One thing is, however, clear.
If Pakistan is to successfully challenge India on the issue it would have to show that the diversion of the Neelum would significantly reduce the flow of water into its territory and cause appreciable damage to the environment of the area. This brings us to the question of the possibility of a negotiated settlement. India always advocates the bilateral approach as the best and the only way for conflict resolution of IWT-related issues. It claims that bilateralism rather than third party arbitration has emerged as the norm between the two countries. Pakistan disagrees with the Indian contention and insists on the continuing validity of the IWT. However, it is ready to give the bilateral approach a try on the condition that India spell out a timeframe for a negotiated settlement. This is what it did during the negotiations on the Baglihar issue and also during the recently concluded round of talks. However, going by newspaper reports, India’s response to the matter is unclear, though the latter has apparently agreed to resolve the issue during the next round of negotiations.
This is the lesson from the Baglihar negotiations where India used all kinds of tactics to present Pakistan with a fait accompli. For example, it did not let a Pakistani team make an on-site inspection of the dam for quite some time on the ground of security. Then on two occasions, when Pakistan was ready to seize the World Bank for arbitration, it made requests for more efforts at bilateral settlement while all along it was proceeding with mala fide intentions by continuing the work on the dam. Finally, even after the appointment of a neutral expert, the Indian PM termed it as “premature’ and the Indian Water Resources Minister asked the World Bank to leave the two parties alone to settle the matter bilaterally.India seems to be employing the same tactics of procrastination in the present case. For example, when, during the recently concluded session, Jamaat Ali Shah, Pakistan’s Indus Waters Commissioner, asked that his six objections be treated as questions, which is a condition sine qua non for invoking article 9 of the IWT relating to third party arbitration, his Indian counterpart reportedly requested him to desist from it and let them remain as objections. This is just the start of the merry-go-round of dilatory tactics by India. We will certainly see more of them in the months and years to come. Will the Pakistani side be able to checkmate them this time? Only time will tell.
[The writer is a former dean of social sciences at Pakistan’s Quaid-i-Azam University. He can be reached at hussain_ijaz@hotmail.com]

etalaat.com 19 June, 2009