Thursday, February 21, 2013

Kishenganga Dam: winning the battle but losing the war

Winning the battle but losing the war
John Briscoe
The Hindu, February 22, 2013

While allowing India to build the Kishenganga project, the International
Court of Arbitration has de facto ruled that the Baglihar decision was
wrong and should not be applied to future projects

The Indus Waters Treaty (IWT), signed in 1960, took 10 years to
negotiate, primarily because of the thorny issue of balancing, on the
one hand, the reasonable expectation by India that it could use the
hydroelectric potential of "Pakistan's rivers" (the Chenab, Jhelum and
Indus) before these rivers entered Pakistan and, on the other, the
reasonable expectation by Pakistan that this would neither decrease the
flow to Pakistan nor change the timing of the flow. This was dealt with
in the IWT essentially by hardwiring into the Treaty limitations on the
amount of manipulable (or "live") storage which India could develop in
its projects.

Stress point

As has often been recounted, the IWT worked well for decades, even
through periods when India and Pakistan were at war. But the truth of
the matter is that the Treaty was not really under stress until India
started (quite appropriately, in my view) building hydropower plants
across the Himalayas, and, in particular, on its side of the Line of
Control (LoC) in Jammu and Kashmir. The first case, where the Indian and
Pakistani Indus Water Commissioners were unable to resolve their
differences, was the one of the Baglihar hydropower project on the
Chenab. At Pakistan's request, the World Bank appointed a Neutral Expert
to evaluate the claims. After two years of work the Neutral Expert
returned his verdict. The essence of the verdict was that the Treaty
allowed for new knowledge to be taken into account, that new knowledge
on sediment management meant that modern dams should be able to flush
sediments through low-level gates and that this element of the design of
the Baglihar dam was therefore acceptable. What the Neutral Expert
completely ignored was that this change essentially meant eliminating
the "limit live storage" provision of the IWT, a provision that was at
the very heart of Pakistan's acceptance of the Treaty in the first
place. Since there are a large number of hydroprojects on the drawing
board in Indian-held Kashmir, and since the cumulative storage on the
Chenab alone has been estimated to be about 40 days, this essentially
left Pakistan with no protection against unintentional or intentional
harm from Indian manipulation of the dead storage they were now allowed
to build.

Which brings us to the Kishenganga case. The far-sighted Indian and
Pakistani engineers who drew up the IWT had foreseen the Kishenganga
case quite specifically and had dedicated a whole section to this
specific case. Annexure D para 15 states "where a Plant is located on a
tributary of the Jhelum on which Pakistan has any agricultural use or
hydroelectric use, the water released below the plant may be delivered,
if necessary, into another tributary but only to the extent that the
then existing agricultural use or hydroelectric use by Pakistan on the
former tributary would not be adversely affected." While lawyers might,
à la Bill Clinton, ponder the meaning of "has," it is clear to most that
since there was no "then existing use" by Pakistan, India was well
within its rights to build Kishenganga.

In my opinion Pakistan should never have taken this case to the
International Court of Arbitration (ICA), because there was, in my view,
no chance that they would win the case. Another Pakistani loss after
Baglihar would have several consequences, all negative for Pakistan.
First, they would have wasted a lot of resources paying for high-priced
lawyers. Second, they could be spending their scarce human resources on
more productive areas, like improving the management of water in
Pakistan. And third, as the press headlines in both India and Pakistan
trumpet "India wins, again," this would reinforce the Indian claim that
"victories" over both Baglihar and Kishenganga showed that India was
playing by the rules while Pakistan just wanted to harass India on these

But, as the Christian Brothers told me when I was a boy growing up in
South Africa, the Lord works in mysterious ways. In this case there is
no doubt that India has won the battle, but I think that it has, in
fact, lost a far more important war.

Live storage

What is my reasoning? The battle is about Kishenganga. The decision of
the International Court of Arbitration will, indeed, mean a loss of
somewhere between 10 per cent and 20 per cent of the generation capacity
at Pakistan's Neelum Jhelum project, an economic and electricity cost
which Pakistan can hardly afford. But this is a one-off case — the war
is about the large number of projects which India plans to build on the
Chenab and Jhelum. And here it is the finding of the ICA on allowable
manipulable storage which is the key issue. The Baglihar decision would
appear to have provided India with a green light to build these projects
with as much live storage as they chose (as long as they classified it
as "for sediment flushing"). What is enormously important is that the
ICA has, according to early press accounts, addressed this issue head-on
and, de facto, concluded that the Baglihar finding in this regard
undercut the central compromise of the Indus Waters Treaty, was wrong
and should not be applied to future projects. The ICA has, apparently,
specifically ruled that the design and operation of Indian hydropower
projects on the Indus, Chenab and Jhelum cannot include more live
storage than allowed under the IWT, even if the justification for such
storage is silt management.

This finding is of far greater significance than the one-off (and
correct, in my view) finding relating to Kishenganga. It restores the
central protection — put into question by the Baglihar finding — which
Pakistan had acquired when Nehru and Ayub Khan signed the IWT in 1960.

Joint benefits

A final word. While it is good — in the view of this observer — that the
ICA has put humpty-dumpty back together again, this is not enough. It
restores the status quo ante Baglihar, but that is an uneasy and
unproductive status quo. Without a change, of course, Pakistan will
continue to object to every project on the Indus, Jhelum or Chenab in
Indian-held Kashmir (and now, armed with the ICA conclusion on dead
storage, Pakistan is likely to win). This will discourage investors from
investing in these vital plants on the Indian side, and will escalate
the tit-for-tat response (already patent) of India trying to impede
needed international support for the construction of hydropower plants
in Gilgit Baltistan, which lies on the Pakistani side of the LoC. What
is needed is to use the resetting of the terms by the ICA for India and
Pakistan to start out in a new direction. This should be one in which
there is a search for joint benefits (such as hydropower plants built in
the best possible sites, with power sold both ways, and with operating
rules which benefit both parties built into the project). As a long-time
student of this dynamic in the subcontinent it remains my conviction
that the first step in breaking the long-standing vicious cycle must
come from sustained, high-level, political leadership from India. I am
confident that Pakistan would respond positively to such an overture.
And I am equally sure that if this great strategic issue is left in the
hands of mid-level bureaucrats, the future is likely to be more of the
bad-for-both-sides past.

(John Briscoe served as Senior Water Adviser for the World Bank in New
Delhi. Now at Harvard University, he was recently the lead consultant
for the Water Sector Task Force of the Friends of Democratic Pakistan.
The opinions in this piece are his own. The photograph is of the
Kishenganga hydroelectric project in north Kashmir.)

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