WATER POLITICS

While Pakistan has taken the issue to the Permanent Court of Arbitration, objecting to the designs of two hydroelectric projects in India’s Union Territory of Jammu and Kashmir, India is boycotting the proceedings there, insisting on solving the matter without involving any third party.

Responding to media queries on the notice, India’s External Affairs Minister S. Jaishankar said, “In this (Indus Water) treaty, there are commissioners from both countries. It is a technical matter and Indus commissioners will talk to each other and after that, we can see what would be the next step.”

The Permanent Indus Commission is a bilateral mechanism between the countries. Its 116th meeting was held in 2021, and the 117th and 118th meetings in 2022. The next meeting is scheduled to be held in Pakistan this year.

Pakistan’s attorney general issued a statement calling news reports regarding India’s notice “misleading” and stated that the Treaty could not be modified unilaterally. However, India’s stress on bilateral negotiations is being seen as another step toward leveraging its upstream position with Pakistan, a process that India’s Prime Minister Narendra Modi hinted at in 2016 in the aftermath of the terror attack on the Indian army at Uri in Kashmir.

India’s hydropower push in its Kashmir region underlies its call for the modification of the water-sharing treaty.

The Treaty, to which the World Bank is a signatory, allows India unrestricted use of the waters in the eastern rivers – Sutlej, Beas, Ravi, and their tributaries. The western rivers, Indus, Jhelum, Chenab, and their tributaries, can be used by India with certain restrictions.

India rejects Pakistan’s allegations that the design of the 330-MW Kishanganga hydroelectric project on the River Jhelum and the 850-MW Ratle project on the Chenab violate the terms of the Treaty and would deny Pakistan of its rightful share of waters. The Kishanganga project was fully commissioned in 2018 and the Ratle project got the final nod of approval in 2021. Its construction is about to begin.

The India-Pakistan conflict over projects on the western rivers is not new. Conflict over the Balighar dam started over Pakistan’s objections in 1999 and continued for over a decade. The Kishanganga project was stranded for several years, as Pakistan had taken the matter to the Permanent Court of Arbitration, which in 2013 allowed India to divert water for the power generation on the condition that “India shall release a minimum flow of 9 cumecs into the Kishanganga/Neelum River” below the hydel project at all times.”

In July 2016, Pakistan again took the matter of the Kishanganga and Ratle projects – with the former project already under construction – to arbitration. In October 2016, after India asked for the appointment of a neutral expert, the World Bank paused the mediation initiatives. The original treaty gave options for both a neutral expert and a court of arbitration, but they were not supposed to run concurrently.

The mediation initiatives resumed in April 2022, as the World Bank realized “the lack of success in finding an acceptable solution over the past five years is also a risk to the Treaty itself.”

“The two countries disagree over whether the technical design features of these two hydroelectric plants contravene the Treaty,” the World Bank said in an October 2022 statement, while announcing two appointments to resolve the dispute between India and Pakistan – a court of arbitration at Pakistan’s insistence and a neutral expert at India’s request.

It, however, said that the institution “continues to share the concerns of the parties that carrying out the two processes concurrently poses practical and legal challenges” but was acting in good faith. India’s ministry of external affairs had promptly issued a statement, saying it would “assess the matter” of “carrying out two processes concurrently.”

By that time, India had progressed significantly on its own plan for Indus Valley water usage. “Blood and water cannot flow together,” Modi said during a meeting with India’s water ministry officials in September 2016, in the aftermath of the Uri terror attack. A series of hydropower projects were fast-tracked by early 2017. After the state of Jammu and Kashmir was divided into the two Union Territories of Jammu and Kashmir and Ladakh in August 2019, the work of turning the Chenab River valley into a valley of dams sped up.

Modi had in 2016 vowed to ensure that not a drop of water flowing out of Sutlej, Beas, and Ravi reaches Pakistan. India enjoys the total allocation of these rivers but lacked the infrastructure to keep the water from flowing down to Pakistan. Updating on this, Minister for Road Transport and Highways Nitin Gadkari wrote in a 2019 tweet, “We will divert water from Eastern rivers and supply it to our people in Jammu and Kashmir and Punjab.”

While what India does with the waters of the eastern rivers is at India’s discretion, India’s planned projects on the western rivers have remained a constant matter of conflict – and India has a whole lot of them in the pipeline. Pakistan has been raising objections against the 1,000 MW Pakal Dul project and Lower Kulnai projects since 2018, but India has justified both. In 2021, India cleared eight hydropower projects in Ladakh, of which Pakistan has objected to Durbuk Shyok and Nimu Chilling. The country has also objected to India’s 624 MW Kiru project.

Speaking to The Diplomat on condition of anonymity, a senior official of India’s state-owned National Hydroelectric Power Corporation said that India had to step up the matter after foreseeing more conflicts in the future.

“The country has a massive hydropower expansion plan in the Kashmir and Ladakh regions, and Pakistan is likely to object to several of these. Pakistan’s objections and taking matters to ‘third parties’ like the World Bank or court of arbitration delays India’s plans, causes cost overrun, and can jeopardize the prospects of these projects,” the official said. “We had to try something different and push the envelope.”

India’s hydropower push in this region, especially on the Chenab River in the Kishtwar district, has triggered environmental and livelihood concerns expressed by local residents. But, perhaps, getting an upper hand over the neighboring country has found greater importance in India’s policy for Indus water utilization.

“For now, India has fired the first shot on the IWT,” wrote Sushant Sareen, a senior fellow at the New Delhi-based think tank Observer Research Foundation, speaking on India’s notice seeking modification of the Treaty.  However, he also cautioned against setting any precedent that could encourage China to intensify “water aggression” and a Himalayan dam-building spree.