October 24, 2020
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The Water Dispute

Joining issue with Aparna Pande’s article ‘Remember Radcliffe?' and placing the arbitration process involving the Kishenganga project in proper pers

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The Water Dispute
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I have seen Aparna Pande’s article ‘Remember Radcliffe?’ of 23 June 2010. I agree that the two countries should reach a negotiated settlement on the Kishenganga Project rather than proceed further on the arbitration route. I have said so in my recent leader-page article in The Hindu, which I would request her to see.  However, there are some errors and failures of understanding in Aparna Pande’s article, which I shall cite and comment on.

(1)  “Of these three rivers, Indus, Jhelum and Chenab flow through Indian Kashmir and then into Pakistani Punjab.” 

Not quite accurate. For instance, the Kishenganga, a tributary of the Jhelum, passes from J&K in India to Pakistan-occupied Kashmir. However, this is not a very important point.

(2) “However, both India and Pakistan accepted international arbitration on the waters issue and referred the matter to the World Bank.” 

Not correct. The World Bank was a mediator and facilitator, not an arbitrator, in the Indus waters negotiations.

(3) “…the three eastern rivers (Ravi, Beas,Sutlej) would fall exclusively to India’s share and the three western rivers (Indus, Jhelum, Chenab) exclusively to Pakistan’s.” 

Broadly correct, but the word ‘exclusively’ is misleading. India is allowed some limited use of the waters of the western rivers, subject to certain conditions and restrictions. That is how differences and disputes arise. If the allocations to the two countries had been exclusive, there could not have been any differences or disputes.

(4) “Since 1960, Pakistan has routinely pointed to instances when it believes India has broken the Indus Waters Treaty by either stopping or slowing down the water supply to Pakistan.” 

The fact that Pakistan has been saying so repeatedly does not necessarily make it true. India rejects the Pakistani contention in every such case. The author should have qualified her statement to distance herself from one party’s allegation. We need to be very wary of echoing official positions on either side.

(5) “The current disputes pertain to two projects - Baglihar and Kishenganga.” 

There is no current dispute about Baglihar. The differences in that case were settled by a Neutral expert’s findings in February 2007. (Incidentally, ‘differences’ and ‘disputes’ are not the same. The former go to a Neutral Expert whereas the latter go to a Court of Arbitrators.)

(6) “Pakistan did protest about the larger Baglihar project. Pakistan’s argument was that the design parameters would provide India a greater ability to accelerate, decelerate or block the flow of river water and thus may give India strategic leverage in times of tension or war.” 

These objections were not upheld by the NE. Why mention issues which have been settled?

(7) “In 2007, an adjudicator appointed by the World Bank upheld some of the objections of Pakistan and asked for reduction in height of the dam.” 

This shows a poor understanding of what the NE did in the Baglihar case. He upheld none of the fundamental or basic objections of Pakistan. Pakistan objected to the very basis of the design, namely, the maximum probable flood; questioned the need for gated spillways; and said that the spillway gates were not placed high enough and should be raised. The NE accepted the Indian figure for the flood; said that for that order of flood and for the terrain, gated spillways were necessary and current standard practice; and did not recommend the higher placement of the spillway gates. (In fact he felt that they should have been lower, but did not recommend a change.) The changes that he recommended were small and of a minor nature. India was planning a pondage of 37.7 mcm, Pakistan wanted this reduced to 6 mcm, the NE recommended 32.5 mcm. Pakistan objected to the freeboard (the difference between the maximum water level and the height of the dam, a safety provision) of 4.5m and wanted it reduced to 1m, the NE recommended 3m. (This reduced the height of the dam from 844.5 m to 843 m – hardly a significant reduction!) He did recommend that the water-intake for the turbines be raised by 3m. The fact that the NE’s findings were much closer to the Indian position is shown by the satisfaction with which they were received in India and the disappointment they caused in official circles in Pakistan.

(8) As a matter of fact, one of the things that Pakistan is trying to do through the reference to the Court of Arbitration in the Kishenganga case is to get one of the NE’s recommendations in the Baglihar case - drawdown sluicing - overturned at least for future cases. This issue, unlike the diversion issue, is not specific to the Kishenganga Project, but raised for the purpose of obtaining a general decision for the future.

(9) “In end-2008, Pakistan once again insisted that India broke the Indus agreement and demanded compensation for shortage of 0.2 million acre-feet of water in September 2008 when the Chenab river was blocked by India to fill the Baglihar reservoir. Discussions continued throughout 2009 without any solution. However, in June 2010 India provided an 'assurance' that it would be careful in the future when using Chenab waters to fill the Baglihar dam and Pakistan 'accepted' India's promise in a 'spirit of cooperation and goodwill'.” 

Again, a completely wrong understanding of what in fact happened in August 2008. There was indeed a minor (and very temporary) lapse on the part of the Indian project managers, but Pakistan deliberately blew it up into a huge controversy. I do not want to burden this comment with an explanation of that episode, because I have written about this in detail elsewhere (also in an article currently under publication in the South Asian Journal, Lahore.)

(10) “This reminds one of the Radcliffe commission..” 

The analogy is not apt. What Radcliffe did is not likely to be repeated now. The Neutral Expert in the Baglihar case was an internationally respected engineer and he did a first-rate job. The countries presented their cases very thoroughly and he gave carefully considered findings. In fact he circulated a draft report and took the comments of both sides into account. In the end, one side may be more pleased than the other, but that is the nature of arbitration; it does not necessarily show any deficiency or lack of neutrality in the proceedings. In the Court of Arbitration the fact that India and Pakistan will nominate two arbitrators each may not necessarily make them partisan; all four are persons of the highest standing and will not readily lay themselves open to the charge of a lack of a judicial approach. The three umpires again, however quaint and colonial the process of selection, will be persons of the highest standing. There is no reason to expect that the highest judicial standards will not be maintained. Besides, both countries will be represented by the most eminent counsel that they can find. Having said all this, I still think that mutual agreement is preferable to going to court, and in this I am in agreement with Aparna Pande.


Ramaswamy R. Iyer is former secretary, water resources, and is currently at the Centre for Policy Research, New Delhi.

 


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