IWT: Let The Treaty Survive, Updated

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Amid demands of its abrogation and claims of massive losses to the state economy, J&K government has appointed a consultant to quantify the impact of the skewed water sharing Indus Water Treaty between India and Pakistan. An agreement that has survived wars may not be done away with, but is open to new interpretation in changed eco-technological environment, a Kashmir Life analysis

Neutral expert Dr Raymond Lafitte wit Indian and Pakistan delegation after he decided the Baglihar dispute

During Operation Parakaram following an attack on Parliament in December 2001, amongst other punitive measures, New Delhi had weighed the option of abrogating the Indus Water Treaty (IWT). But, the Legal Entity Division put its foot down arguing that IWT cannot be abrogated unilaterally as it was guaranteed by the World Bank and other world powers.

The water sharing Indus Water Treaty that survived almost three armed conflicts between India and Pakistan and decades of cold war cannot be abrogated altogether. This is exactly what the Swiss Federal Institute of Technology expert Prof Raymond Lafitte, who arbitrated between the two countries on the Baglihar project, said. While arbitrating on the issue, he became the first person to interpret the World Bank brokered an agreement after the treaty was signed in September 1960 at the peak of a cold war.

“It appears that the Treaty is not particularly well developed with regard to its provisions on sediment transport. This is not a criticism: the treaty reflects the status of technology on reservoir sedimentation in the 1950s…”, observers Prof Lafitte in his 116-page report.

Lafitte points out in Statement S 3 relating to the level of spillway gates – the single most important “difference” that Pakistan referred to the Neutral Expert but lost: “In 1960 the phenomenon of reservoir sedimentation was not recognized everywhere to its full degree of significance. Moreover, it was only 20 years later, in 1980, that the concept of an integrated reservoir sedimentation management began to be clear and coherent…”.

Assisted by Professor Laurence Boisson de Chazournes on legal issues arising out of the “differences” referred to him, Lafitte has in fact written a 7-page chapter on the interpretation of the Treaty that interestingly is the agreement first third-party interpretation. “New technical norms may have to be taken into consideration and new standards given proper weight when interpreting the Treaty. In order to clarify the meaning of words agreed upon in 1960, there is nothing that prevents the NE from taking into account the present day status of scientific and technical knowledge”, the report says.

Invoking Annexure D of the Treaty, Pakistan – in its three “points of difference” – had termed design of the 450 MW Baglihar as based on incorrect, irrational and unrealistic estimates of Chenab’s maximum flood discharge at the site. Apart from upholding the Indian stand (that maximum flood discharge was 16,500 cubic meters per second), the NE quoted from Treaty implying that “new technical developments relating to the building and the operation of the Baglihar plant may be taken into account”. This is to say, the report says, that both India and Pakistan can use new technologies and new standards and practices of design when exercising their rights under Annexure D of the Treaty. “However the use of such new technologies and standards and practices should remain within the confines of the Treaty and be in conformity with its ordinary meaning”. The expert balanced his overemphasis on present-day technology: “Recourse to new technical norms and standards is not intended to rewrite the Treaty but to clarify its scope as well as the content of the rights and obligations under the Treaty”.

The interpretation of the Treaty will help J&K to harvest the remaining potential of three Western rivers – Chenab, Indus and Jhelum – by getting advanced technology to have more run-of-the-river plants having “satisfactory construction and operation of the works”, “sound and economic design” and “customary and accepted practice of design” as was interpreted by Prof Lafitte in the backdrop of existing technologies available for the first time.

Interestingly, J&K has not been able to harvest the water potential for irrigation and energy generation to the tune the Treaty has permitted. In 2007, the Union Water Ministry said J&K can still increase its Irrigated Cropped Area (ICA) by 425000 acres. Based on the investigation carried out by the Central Water Commission, the ministry said on Jhelum basin that includes Poonch also, ICA by the end of 2004-05 was 651500 acres which is 16359 acres less than the optimum usage for irrigation that IWT permits. On the three basins in J&K, the report said against the permissible limit of 13 43477 acres of ICA the total achieved ICA is 819607 acres leaving room for 523870 acres.

This is not very different from what Pakistan’s erstwhile Permanent Indus Commission Jamat Ali Shah was claiming. “There were no limitations on the usage of the rivers to generate electricity provided the designs were in consonance with the treaty”, Shah told reporters in Delhi, in June 2007 apparently responding to a statement from J&K chief minister that the treaty limits usage of water resource by the state.

“In 1960 when the treaty was signed J&K was consuming barely 0.8 million acre-feet of water for agriculture. Right now the level of usage is to the tune of 0.9 million acre-feet as the Treaty permits use of 1.3 million acre feet in J&K,” Shah was quoted as saying. “The balance 1.3 million acre feet are enough not only to irrigate but to inundate most of the state.” The Treaty does impose limits on J&K’s storage capacity. It can store 0.40 million acre feet (MAF) on the Indus in Ladakh, 1.50 MAF on the Jhelum in Kashmir and 1.70 MAF on the Chenab basins in Jammu. And, in Kashmir, this can be only on the tributaries and not on the Jhelum. On power projects, Shah stated that engineers need to put in extra effort. “The designs have to be in consonance with the Treaty”, he said. “Engineers (in J&K) try to replicate designs meant for setting up of hydro-electric projects in other parts (of India), where no riparian principles apply.”

As the two countries are locked in a dispute resolution over 330 MW Kishanganga at the Hague, indications suggest that the Treaty is gradually being interpreted in a way that it encompasses area not hitherto talked about. A year ahead of being replaced, Shah had talked in detail in Delhi that in coming days the two countries will be talking about the level of pollution and the impact of climatic change on the rivers that are feeding Pakistan. Dispute and differences apart, so next time India’s Permanent Indus Commission head will have to keep the J&K State Pollution Control Board report with him when he takes a flight to Islamabad to meet his counterpart.

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