War on Indus waters?

The Indus Waters Treaty was not unfair to India, and the belligerence over it under the present regime is harmful for peace between the two nations.

FL7 BK INDUS

THIS book not only makes a timely appearance but does so with a bang. It is 50 years since Aloys Arthur Michel’s definitive work The Indus Rivers: A Study of the Effects of Partition was published. In 1973, the leader of India’s negotiating team, Niranjan D. Gulhati, published his able work Indus Water Treaty: An Exercise in International Mediation . One hoped for a comparable work by a Pakistani scholar. Dr Ijaz Hussain has provided such a work, eminently. His work covers the period from 1947, beginning with Sir Cyril Radcliffe’s dishonest award, to 2016. It has detailed analyses of issues from the perspective of international law besides the politics of the affair.

New issues have arisen since the Indus Waters Treaty (IWT) was signed at Karachi on September 19, 1960, by Prime Minister Jawaharlal Nehru and President Mohammad Ayub Khan. The book covers them all. 1. The dispute over the Salal Dam on the Chenab, which was resolved by an agreement in 1978 (pages 215-221). 2. The Wullar Barrage on the Jhelum River (India obstinately calls it the Tulbul Navigation Project; it sounds better), which is part of the agenda of the charter of July 31, 1987. It now falls under the Comprehensive Bilateral Dialogue (pages 202-229). The author believes “there are indications that India is ready to make adjustments to the design of the barrage which may facilitate an agreement” (page 229). 3. The Baglihar Dam on the Chenab River in Doda district of Jammu (pages 229-272). A neutral expert was appointed under the treaty, whose decision on February 12, 2007, the author angrily contests. “Why did Pakistan lose the case?” he asks and proceeds to provide a myriad of causes. First, an engineer’s “strong bias” and “secondly Pakistan lost because its delegation, including the legal counsel, mishandled the case. Thirdly, it did so because its delegation behaved impolitely towards the neutral expert who reacted by deciding against it.” This is a typical comment the like of which one does not find in works of scholarship. Such questions abound. The patriot’s subtext is—Pakistan should never lose a case; it is always right. Ijaz Hussain’s Indian counterparts held similar views. As for the dispute, it seems to have run its course.

4. The Kishenganga Dam on the Kishenganga, a major tributary of the Jhelum River in Kashmir (pages 281-301). It involves diversion of water from a dam site of Kishenganga through a 22-kilometre tunnel to another tributary of the Jhelum, the Bonar Nallah. This diversion will change the course of the river by about 100 kilometres before it joins it through the Wullar Lake near Bandipore in the Baramulla district. The Kishenganga is known as Neelum after it enters Azad Kashmir. The dispute was referred to the International Court of Arbitration (ICA) under the treaty.

India sought to build the dam in furtherance of its Kishenganga Hydroelectric Project (KHEP). Pakistan contended that the diversion would inter alia adversely affect the operation of the Neelum-Jhelum Hydroelectric Project (NJHEP), which it sought to build on the Neelum river downstream of the KHEP. Involved were two distinct issues—the diversion and the depletion, which would bring the reservoir level of run-of-river hydroelectric plants below dead storage level. This is permissible only in an emergency.

On December 21, 2013, the court gave its final award. (A partial one was given on February 18, 2013.) The diversion was upheld. On the second issue, depletion, Pakistan’s objection was upheld. This is of greater consequence. Professor John Biscoe of Harvard, a former World Bank adviser, opined: “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 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 Kishanganga. 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.”

He also said: “The cumulative storage of these dams will be large, giving India an unquestioned capacity to have major impact on the timing of flows into Pakistan. Using Baglihar as a reference, simple back-of-the-envelope calculations suggest that once it has constructed all of the planned hydropower plants on the Chenab, India will have the ability to effect major damage on Pakistan.”

The United States Senate Foreign Relations Committee’s report issued in 2011 endorsed this assessment: “The number of dams under construction and their management is a source of significant bilateral tension. … While studies show that no single dam along the waters controlled by the Indus Waters Treaty will affect Pakistan’s access to water, the cumulative effect of these projects could give India the ability to store enough water to limit the supply to Pakistan at crucial moments in the growing season.” The Modi government is well aware of this opportunity.

5. The Nimoo Bazgo Dam on the Indus in Leh and the Chutak Dam on its tributary Sunn in Kargil. Both projects were completed (pages 311-312).

6. India intends also to build four hydroelectric projects on the western rivers, which the treaty assigned to Pakistan—Ratle, Miyar, Lower Kalnai, and Pukal Dam. The Ratle Dam is located on the Chenab in Kishtwar between Dul Hasti and Baglihar (pages 315-316). It bids fair to become a sore issue.

The author discusses each of these cases in detail, setting out the arguments of both sides, Pakistan and India, with full references, maps and graphs. His comment at the end of his survey is that “there are indications of corruption” (page 115). Such comments and worse mar a scholarly work.

For good measure, the book covers in useful detail India’s river disputes with Nepal (the Kosi, Gandak and Tanakpur agreements and the Mahakali treaty) and with Bangladesh (the Farakka Barrage). It did Nehru no credit when he denounced, on March 26, 1956, the Barcelona Convention and Statute concerning the Regime of Navigable Waterways of International Concern, 1921. The Teesta River Dispute is unresolved. The Sir Creek Dispute between India and Pakistan, overripe for solution, is also discussed (page 412). So is Afghanistan, on which Ijaz Hussain flies off at a tangent to level charges against India.

He rightly complains of conformism in the Indian media (pages 414-415). But is the media in Pakistan any different? It is clear that in his scholarly pursuits, objectivity never figured and, worse still, maturity eluded him. The comments quoted earlier reveal that. This quote reveals his mentality. It is the U.S. Secretary of State Dean Acheson’s remarks on Nehru, whom he called “slippery” and “a monumental snob”, in addition to observing that he “[l]ikes to be surrounded by beautiful and dumb women, the more beautiful and the less intelligent, the happier”. The relevance of this cheap remark in a work on the Indus Waters Treaty could be evident only to one like Ijaz Hussain.

He goes to some length to establish deficiencies in other books on the subject. Political comments reveal ignorance, besides partisanship. Sample this gem: “The Muslim League apparently accepted the ‘other factors’ formulation in the hope of getting Calcutta without ever suspecting that the British and the Congress leadership would reach a secret understanding to award the famed city to India.”

Calcutta had a mere 23 per cent of Muslims. The entire district had 32.5 per cent. The author is obsessed with conspiracies by others and lapses by Pakistan’s representatives.

None of this is reason for neglecting the book. It is a work of solid scholarship. The author went to great pains. He toiled hard in the Library of Congress and the archives of the World Bank, which mediated in the dispute since 1952 and is a party to a couple of key provisions of the treaty. The bibliography lists the documents he consulted. To appreciate this work of labour, the reader must separate the chaff from the wheat. He will find the wheat well-grown and nutritious.

The narrative begins from the 19th century and picks up speed with Radcliffe—boundary by award. “The genesis of the water dispute over the Indus Basin is found in the award that the Punjab Boundary Commission rendered. The Congress party and the Muslim League leadership had instructed the latter ‘…to demarcate the boundaries of the two parts of the Punjab on the basis of ascertaining the contiguous majority areas of Muslims and non-Muslims. In doing so, it will also take into account other factors’. The division of the Punjab was a very tedious affair because the province had been developed as a single unit which included the common irrigation and hydroelectric system. There were large tracts of land in the Punjab that the rivers Ravi and Sutlej irrigated. The headworks of the Ravi River was located at Madhopur in the district Gurdaspur, whereas that of Sutlej was situated at a place called Ferozpur in an area known by the same name. According to the 1941 census, district Gurdaspur was a Muslim majority area as three out of its four tehsils had a Muslim majority (Gurdaspur 51.1 per cent, Batala 55.06 per cent, and Shakargarh 51.3) and only Pathankot had a non-Muslim majority (77 per cent). However, Gurdaspur, Batala, and Pathankot were allocated to India and only Shakargarh came to Pakistan. Similarly, the headworks of Sutlej were also located in the Muslim majority area as its tehsils had Muslim majorities (Ferozpur 55.2 per cent, Zira 65.2 per cent, and Fazilka 75.12 per cent). However, the award, in violation of the partition principle outlined above, allocated Ferozpur and Zira tehsils to India.” There is a thorough and excellently documented discussion of the origin and course of the World Bank’s mediation.

The treaty divides “the Indus rivers” and allocates three rivers called the “western rivers” to Pakistan (the Indus, the Chenab and the Jhelum) and three called the “eastern rivers” to India (the Sutlej, the Beas and the Ravi). It allocates all the waters of the eastern rivers “for unrestricted use” to India. Pakistan is under obligation not to interfere with the waters of the Sutlej Main and Ravi Main or their tributaries when they flow through Pakistani territory except for domestic, non-consumptive, and certain limited agricultural uses. Similarly, it allocates all the waters of the western rivers “for unrestricted use” to Pakistan. India is under obligation not to interfere with them while they flow on Indian territory except for domestic, non-consumptive, and certain limited agricultural uses as well as generation of hydroelectric power. The treaty allows India to build a maximum of 3.6 MAF storage on the western rivers within specified parameters whose details are laid down in Annexures C, D and E. It provides a detailed procedure for conflict resolution.

During the massive military build-up by India on the Line of Control in Kashmir and on the international border with Pakistan, the then National Security Adviser, Brajesh Mishra, covertly instigated a media campaign for the abrogation of the IWT. First, one editor splashed this demand as news on his paper’s front page. Two bogus defence “experts” and two former High Commissioners to Pakistan constituted the pack. The author recalls that “a former Indian High Commissioner to Pakistan warned: ‘Should we not consider measures to deprive Pakistanis of the water they need to quench their thirst and grow their crops? Should we not seriously consider whether it is necessary for us to adhere to the provisions of the Indus Waters treaty?’” He was one G. Parthasarathi. His views reflected more than lack of professionalism, for, the treaty cannot be abrogated legally or politically. The advocacy of use of water as a weapon reflects a barbaric outlook.

The treaty is not one bit unfair to India as Michel pointed out at page 8 of his book in 1967. “In agreeing to recognise Pakistan’s right in perpetuity to virtually all the waters of the three western rivers (Indus, Jhelum, and Chenab), India was really giving away only one stream, the Chenab, that she could really use herself (by diversion into the Ravi or Beas). She was gaining undisputed possession of the waters of the three eastern rivers (Ravi, Beas, and Sutlej) in perpetuity after the transition period ends in 1970 or at the latest in 1973. These are the rivers that are really useful to India, and the Indus Waters Treaty gives her the right to dry them up entirely if she so chooses.”

Ijaz Hussain does a service in pointing out the new factor of climate change and environment, devoting the whole of chapter 7 on the subject; the discussion is based on good research.

With Modi as Prime Minister, the belligerence of 2001-02 acquired a menacing colour. He has publicly declared that India will make the maximum use of those treaty provisions that give it some rights on the western rivers for the construction of the run-of-river hydropower plants—that is, eat away the treaty. The author cites one “secret cable sent by Mulford, the U.S. Ambassador in New Delhi on 5 February 2005, which stated that ‘there are several hydrological dams planned for Indian Kashmir that might be questioned under the IWT’, he expressed the fear that ‘India’s dams in Jammu and Kashmir have the potential to destroy the peace process and even lead to war . Again, the Intelligence Community Assessment report issued in 2012 has put on notice that ‘[p]hysical infrastructure, including dams has been used as convenient and high publicity targets by extremists, terrorists, and rogue states threatening substantial harm and will become more likely beyond the next 10 years . Finally, a group of more than twenty U.N. bodies in March 2009 warned that given the rising tension over the water issue between Pakistan and India the world would be perilously close to its water war ” (pages 427-428).

Ayub Khan’s account of the internal debate in Pakistan on signing the IWT provides a textbook lesson for statesmen in all such situations. It deserves to be quoted in full: “But before I write of the negotiations with Eugene Black, I should like to describe the confrontation that I had with our own technical experts and administrators. I sensed that they did not fully realise the gravity of the situation and were asking for [the] moon when we were in a position of weakness all along the line. They were also trying to dictate policy and were trying to take up extreme positions. Some thirty or forty of them were assembled in Government House, Lahore, where I addressed them. I said: Gentlemen, this is of far reaching consequences to us. Let me tell you that every factor is against Pakistan. I am not saying that we should surrender our rights but, at the same time, I will say this: that if we can get a solution which we can live with, we shall be very foolish not to accept it. Now when I say that, I am in fact saying to myself because I shall have to take the responsibility for the solution. The responsibility does not lie on any one of you, so let me tell you very plainly that the policy is going to be mine. I shall consult you whenever I am in doubt regarding technical details, but if any one of you interferes with policy, I shall deal with him myself. This problem, if not tackled properly, may mean the end of the country. I mean every word of it. So, don’t let any one make any mistake about it….

“When one is dealing with a sensitive problem of this nature, one has to be realistic and judge the situation dispassionately in order to formulate a rational approach. Very often the best is the enemy of the good. We abandoned the chase of the ideal and accepted what was good after a careful and realistic appreciation of the overall situation. Had we not done that, we might have drifted into a conflict at a time when many factors were against us. The basis of the agreement, therefore, as far as we were concerned, was realism and pragmatism. Emotions had no place in it, nor could they be allowed to have any place where the future and safety of millions of people depended on a solution.” (Ayub Khan; Friends, Not Masters ; pages 109-110 and 112.) These words should be inscribed on the table of every leader who makes policy.