Winners are losers, and vice versa, in Indus water battle

Many in Pakistan have failed to read the small print in a recent international ruling on Indus Basin water. The decision is much better for Pakistan than it may appear to be.

News media in India and Pakistan almost all reported February's International Court of Arbitration decision on the Kishanganga Dam issue the same way: Pakistan had "lost" another case over the 1960 Indus Waters Treaty (IWT), and India had "won".

In the Pakistan-India context everything, from cricket to arbitration to war, is a defeat or a victory for the two nations to mourn or celebrate. Still, this seemed like a body blow to Pakistan, following as it did a 2007 decision in India's favour by a World Bank arbitrator on another IWT case, involving the Baglihar Dam.

But was this year's ruling really so bad?

At independence, the boundary left the sources of the six rivers of the Indus Basin in India. Pakistan was downstream and therefore vulnerable. The IWT was supposed to assure Pakistan of a reasonable flow of water. But now, and especially since the Baglihar Dam decision, the IWT has seemed to many in Pakistan to be one-sided in India's favour.

Kishanganga is an Indian dam project, started in 2007 to be completed in 2016. It will divert water from the Kishanganga River into the Jehlum River basin. Pakistan objects because in 2008 it began building its own dam downstream, where the Kishanganga is called the Neelam. This dam too is due for completion in 2016.

Pakistan's claim to the International Court of Arbitration was based on the fact that the Indian dam will cut the flow to the Pakistani one, and thus reduce power potential there.

On the face of it, Pakistan's "loss" on Kishanganga was a foregone conclusion. An annexe to the 1960 treaty authorises actions such as India's provided that "then-existing agricultural or hydroelectric use by Pakistan … would not be adversely effected".

Since construction on the Neelam-Jehlum project began after work on the Kishanganga one, many observers saw no point in Pakistan going to the international court.

Worse, a "loss" for Pakistan threatened further negative consequences. Another Indian victory, critics suggested, would only reinforce the view that India is playing by the IWT rules, while Pakistan is raising spurious objections. That view has been confirmed by much of the media reporting on the decision.

I shared that view - but only until I read the decision. That's when I learnt the underreported fact that this ruling in fact works in Pakistan's favour.

In dam jargon, "dead storage" is a reservoir where water is left for sediment to settle. In the Baglihar Dam case of 2007, Pakistan had claimed that excessive dead storage behind that Indian dam would give India too much control over the water flow in time of tension or war.

In taking the Kishanganga case to the court, Pakistan revived the dead storage issue as part of its case. Needless to add, India objected to Pakistan's inclusion of an already-settled issue. But India agreed to binding arbitration on Kishanganga, probably because it was confident of winning at arbitration and assumed that the dead storage issue was already dead.

Indian officials must be regretting those assumptions now, because the ICA not only addressed the Baglihar Dam dead storage issue, but effectively reversed the decision of the World Bank-appointed arbitrator.

In the decision on Baglihar in 2007 by the international arbitrator, it appeared that India could, on the plea of "sediment flushing", raise the "live storage" (the level of water in operational use) to any level it wanted. This latest ruling reverses this, declaring that India must not increase the "live" or "dead" storage level of water beyond the level permitted by the treaty, including sediment flushing.

In the words of South African water expert John Briscoe, who appointed the original World Bank arbitrator, it now appears that with the court's Kishanganga ruling, India may have "won another battle, but lost the war".

The Kishanganga ruling will have a negative effect on power production from Pakistan's Neelam Jehlum project. But the reduction from planned power production is not likely to exceed 25 per cent.

However, the de facto reversal of the Baglihar Dam ruling is much more important, and will go a long way towards addressing Pakistan's concerns about water security under the Indus Waters Treaty.

It is hard to believe that the Pakistani government has the subtlety required to discern in advance that it had a chance to win this reversal.

And it is surprising that so far the media have mainly ignored the implications of the arbitration court's most recent ruling. It is perhaps understandable that Indian officials should shy away from making their discomfiture public. But why isn't Pakistan's government making a point of this, particularly if this was an intended ploy?

Perhaps the answer is that this is an unexpected result that Pakistan's leadership does not yet quite comprehend.

That seems more likely, given the nature of Pakistani leadership.

Brig Shaukat Qadir is a retired Pakistani infantry officer