Indus Waters Treaty: An Analysis Through The Lens of Kishenganga Arbitration

Nihar Chitre


Student Editor - Varshinee Appulav | Junior Editor - Rahul Mahajan | Senior Editor - Kajori Bhatnagar

Introduction

On 19th September 2020, the historic ‘Indus Water Treaty’ between India and Pakistan has marked its successful sixtieth year since execution. This World Bank brokered treaty is considered as one of the successful waters sharing agreement, surviving three wars and incessant hostility between the two neighbours. In recent years, the treaty has been in the news in the wake of rising cold relations between the two countries.


In this article, the author makes a feeble attempt to analyse the Indus Waters Treaty through the lens of Kishenganga Arbitration and its relevance.


To analyse its relevance, it is pertinent to dwell into the historical background of the treaty.


Historical Background

With the partition of British India into dominions- India and Pakistan, the Province of Punjab and Bengal were partitioned. The division of Punjab meant the irrigation system stood divided into two countries. It resulted in disputes as the headworks were in India while the canals were in downstream Pakistan. The Inter-Dominions Agreement was signed in 1948 but there were differences in its interpretation. Due to the rising conflicts and failure of the bilateral talks between the two countries, in 1952, the World Bank stepped in to negotiate on the Treaty. After several rounds of negotiation, the Treaty was signed in 1960 and was ratified by the countries in 1961. It, however, entered into force retrospectively from 1st April 1960. The Treaty accorded the exclusive control of the three eastern rivers–Ravi, Beas and Sutlej to India, while Pakistan was accorded the control over the three western rivers of Indus, Jhelum and Chenab.[1] The treaty charts out the usage and distribution of river water, periodical exchange of data, as well as establishment and resolution of dispute arising from interpretation and application of the Treaty.


Dispute and Contentions Raised

The dispute arose due to the construction of a dam by India on the Kishenganaga River (a tributary of Jhelum). Under Article IX (5) (b) of the Treaty, Pakistan submitted a request for arbitration. Pakistan’s case was that the project would divert the river’s flow through a 22 km long tunnel, across the Line of Control to a different direction, past the Neelum-Jhelum Hydropower Plant, thereby restricting its ability to use the water of Kishanganga River. It alleged that the diversion of the river is violative of India's obligation under Art. III (2) and Art. IV (6). Another issue was whether India is permitted to bring down the reservoir level below the dead storage mark in circumstances except during an unforeseen emergency. [2]


Court’s Award

On the appointment of arbitrators and inspection of the site, the Court passed an interim measure prohibiting India from constructing permanent channels over the Kishanganga /Neelum riverbed that might inhibit the restoration of the river’s flow towards its natural channel. It interpreted that the phrase “then existing use” of Pakistan refers to the hydro-electric purposes, particularly the Neelum-Jhelum Hydro-Electric Project.


Based on the contentions, the Court issued a partial award[3] by concluding that India is permitted under the Treaty to divert water for the Kishenganga Hydro-Electric Project. The Court interpreted Article XV (3) which permitted India to divert water “to the extent that the then existing agricultural use or hydro-electric use by Pakistan on the former Tributary would not be adversely affected”. It further interpreted that the phrase "then existing" uses of Pakistan to be essentially its hydro-electric uses and particularly the Neelum-Jhelum Hydro-Electric Project ("NJHEP") in the Neelum Valley. The Court also found that the KHEP preceded the NJHEP, and therefore that the NJHEP was not an “existing use” that India was required to take into account at the time when KHEP crystallized. India, therefore, had priority in right concerning the use of the waters of the Kishenganga/Neelum River for hydro-electric power generation. Therefore, it was settled that India’s right to divert was not absolute.[4]


The final award allowed India to construct the Kishenaganga project while preserving a minimum flow of nine cubic meters per second for the river under the project for Pakistan’s hydropower generation along with the maintenance of the river ecosystem downstream. The court further held that there was no single correct method to assess the environmental impact but it did agree that Pakistan's approach on data collection regarding the environmental impact was better.


The critical lens

Though both parties claimed that the final award favoured them, it seems that the final award did favour India. Pakistan's attempt to stop the construction of Kishenganaga dam foiled. It claims that the award reversed the Baglihar decision.[5] This award applies to all future projects and hence it can be concluded that it is a win-win situation. Ecologically speaking, construction of dams has a severe environmental impact in the region but in place of economic development, it takes a back seat. The current Treaty talks only about the periodical exchange of data and notifying of any engineering works. However, it fails to talk about the ‘Environmental Impact Assessment’. If we look at the Treaty from Kishengnaga Arbitration award, the award silences the critiques of the Treaty for its relevance. This clearly shows the high regard that both the states have for the treaty.


Although, the relations between the two countries have been hostile since the inception of both the states, the reason for the hostility is largely different. The conflicts are based on the ideological foundations of both states. In absence of the Treaty, there would have been another bone of contention between the two with the prevailing ideological conflicts and the ever-burning Kashmir issue. Therefore, if not for the Treaty, the South Asian neighbourhood would have seen incessant hostility and aggression. Although with the changing circumstances and needs of the states, there is a demand for reviewing the Treaty, such as review is still subject to the decision of the political leadership.


Conclusion

It is important to note that the Treaty was indeed a “watershed” moment of 20th Century, with the two states negotiating on a shared water resource. Its continued relevance to date is certainly commendable. Although several issues have been raised over the western rivers, the Treaty still holds good for both the states. Indeed, it is a major success for the former government of both states.


[1] Art II, Indus Water Treaty [2]PCA Press Note 77603, 1 [3] A partial award is an award of only part of the claims or cross-claims which are brought or a determination of only certain issues between the parties. Importantly, this leaves it open to the parties to either resolve or to continue to arbitrate (or litigate) the remaining issues. [4] Partial Award, Para 436. [5] In the Baglihar decision, the neutral expert permitted India to exploit the water in the dam below dead storage. For more details on the decision, See Mohanty, Tapan R., and Adii Hasan Khan, 'Dam of Division: Understanding the Baglihar Dispute', Economic and Political Weekly Vol. 40, No. 29 July 2005, pp. 3155-3158; See also: Gazdar, Haris, 'Baglihar and Politics of Water: A Historical Perspective from Pakistan', Economic and Political Weekly, Vol. 40, No. 9, 2005, pp. 813-817; See also: Sinha, Rajesh, Two Neighbours and a Treaty: Baglihar Project in Hot Waters', Economic and Political Weekly, Vol. 41, No. 7, February 2006, pp. 606-608; Seema Sridhar, op.cit., pp.26-29

The views presented in the article are of the author's and do not necessarily reflect the views of the publisher.

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