Misusing the Indus treaty

Asif H Kazi
Prof John Briscoe of Harvard University has identified India’s various unfair dealings with Pakistan in water-sharing. He has said that India must not interpret the treaty with the sole objective of punishing Pakistan.

There is growing feeling in Pakistan that while India is increasingly building dams on its western rivers, it is simultaneously engaged in activities aimed at stopping Pakistan, the lower riparian, from building storage dams on Pakistani rivers. In the case of its upper riparian neighbour, Nepal, India has even deployed heavy artillery to partially destroy dams which were being constructed by the Nepalese. India’s water strategy thus boils down to construction of more and more dams on cross-boundary rivers inside its own territory while obstructing dams in lower-riparian neighbours and destroying those in upper-riparian Nepal.

Pakistan’s farmlands have been deprived of the uses of the waters of three eastern rivers, Ravi, Beas and Sutlej. The flows of these rivers were allocated to India under the 1960 Indus Waters Treaty. Authorities on the subject accept that when rivers and canals in Pakistan’s demarcated area were classified as Pakistan’s assets under the Partition Act, 1947, it meant only one thing: that these rivers and canals were to continue to receive water in the same way as before. Under the treaty, Pakistan was to enjoy the unrestricted use of the Indus, the Jhelum and the Chenab. However, exceptions were inserted as annexures which allowed India to develop and use certain specified quantities of water of the three western rivers as well.

Annexure E established Indian storage limits on the western rivers, which add up to 3.6 MAF (million acre feet). If Indian dams under rapid construction since then were to impound this storage water during high flood periods, as specifically defined in the treaty, Pakistan could live with the situation. However, India deliberately followed a pattern of filling water behind Baglihar Dam constructed on the Chenab River by impounding flows in the low-flow month of September, a clear breach of the treaty which prescribes the filling period as being from June 21 to Aug 31.

Ironically, the 3.6 MAF of Indian storage share exceeds the sum total of the entire flow of the three remaining rivers entering Pakistan during the low-flow months of December, January and February. Thus the 3.6 MAF of storage creation, combined with its operational control over impounding and releases by India could mean completely drying up Pakistan’s three rivers for as long as three months. The consequences of this will be disastrous.

Obviously, the foregoing was not the intent of the Indus Waters Treaty. And it is precisely for this reason that Pakistan has been insisting that India adopt well-known dam design features, especially for the outlets, which can easily ensure that the reservoir operators would not be able to manipulate flows of the western rivers at their own sweet will. India is opposing this using as an excuse the need for the prolongation of the reservoirs’ lifespan through sediment flushing.

Prof Raymond Lafitte of Switzerland, the neutral expert on the Bhaglihar Dam dispute who gave his decision in favour of India, has acted as a pure professional engineer since he is trained to look at projects in the strictest sense of their operational efficacy and economic performance. Taking it for granted that the upper riparian would not resort to immoral or unethical practices, he failed to take into account the psyches and mindsets of the litigants in the context of their historic rivalry. Had he kept these factors in view, he might have concluded that, in the absence of spirit of cooperation, the only checks on an upper riparian to keep it from doing harm to the downstream country were constraints, as were proposed by Pakistan, in the shape of “minimum needed sizes of water outlets to be located at the highest levels” to prevent emptying and refilling of reservoirs at will.

In respect of India’s Kishenganga River (which takes the name of Neelum when it enters Pakistan), the treaty allows India to construct a hydroelectric project with storage within a certain limit, on a tributary of the Jhelum River. But it does not permit diversion of flows to either another tributary or to a storage such as Wullar Lake on the main Jhelum. Even when the permitted storage dam is constructed on the Kishenganga River, Paragraph 21(b) of Annex E makes it obligatory to deliver a quantity of water downstream of the hydropower station into the Kishenganga during any period of seven consecutive days, which shall not be less than the volume of water received in the river upstream of the project in that period. Such elaborate provisions have been embodied with the sole purpose of causing minimum changes in the natural river flow of these rivers to protect Pakistan’s interests.

In violation of these specific provisions, the proposed Kishenganga project violates the treaty in a most glaring way. Firstly, the hydroelectric plant is not located on the Kishenganga but way off the channel at the end of a long tunnel that discharges into another tributary. And, secondly, the recipient tributary ultimately outfalls upstream of the Wullar Lake, and this completely changes the patterns of the flows of both Kishenganga and Jhelum Rivers.

The position taken by the Pakistani government, as reported by Khalid Mustafa in The News of June 15, will not lead us anywhere. The news item says that whichever of the two countries completed their project first will be the winner in the eyes of the Court of Arbitration that recently visited Pakistan to verify, inter alia, our project status. Such a competitive race is a confusion being created which diverts attention from the real issue, that the treaty absolutely forbids India from undertaking their project.

As regards the Wullar Barrage Project, India again cannot undertake any construction under the treaty that would develop storage for whatever purpose, under Paragraphs 7 and 9 of Annexure E, on the Jhelum Main River. The very basic provision under the treaty is to restrain India from changing the river’s flow pattern (both quantity-wise and time-wise).

Several foreign experts have held the view that the highly sensitive and charged water issues between Pakistan and India have emerged out of the way the 1947 partition lines were drawn. A seemingly minor change, but one with far-reaching consequences, was introduced in the partition map, in violation of all principles laid down by the British government. It came about at the very last minute when, upon the insistence of the Indian leaders, the partition award turned over to India three vital districts that were originally allocated to Pakistan, with the sole objective of providing India with access to Kashmir. The three remaining western rivers on which Pakistan now relies upon all originate in or pass through Kashmir before entering Pakistan. In other words, India, after having obtained the waters of the three eastern rivers through Indus Waters Treaty, is now trying to take control of our three western rivers as well.