The International Court of Arbitration has directed India to stop construction of Kishanganga Hydropower Project which it says is in violation of the 1960 Indus Water Treaty.

The Pakistan government had sought the intervention of International Court of Arbitration as it was facing acute shortage of water to meet its energy and irrigation needs.

In 1960, Pakistan and India hammered out the Indus Water Treaty which governs the sharing of water on rivers heading downstream from India to Pakistan.

The decision to move to International Court of Arbitration is a belated effort to protect Pakistan’s water interests and now there should be no more delay.

India had been racing to complete the 330Mega Watt Kishanganga project which would have diverted the River Neelam to Wullar Lake, leaving very little water for the Pakistani project, which is a mere 70 kilometres downstream from Kishanganga thus reducing the power generation capacity of the 969 MW Neelum-Jhelum plant by about 11 per cent.

Governments in Pakistan neglected construction of hydropower projects by India on rivers where the treaty gives exclusive rights to Pakistan and today the country is facing acute shortage of water to meet its energy and irrigation needs.

Earlier this year, Pakistan engaged in extensive, though inconclusive talks regarding the Wullar barrage.

On May 17, 2010, the Pakistan had instituted arbitral proceedings against the India under the Indus Waters Treaty 1960. A Court of Arbitration composed of seven members has been constituted pursue the case.

analysis: Kishanganga Dam controversy
Pakistan claims that the Kishanganga project would reduce the power
generation capacity of the 969-megawatt Neelum-Jhelum plant by about
11 percent. It also contends that the diversion would result in an
ecological disaster for the area

When Pakistan and India signed the Indus Waters Treaty (IWT) in 1960,
it was thought that it would forever put to end water as an issue
between them. However, today it appears as if that promise was
unfounded.

This is borne out by the number of water-related disputes that keep
cropping up between the two countries every few years. First it was
Sallal Dam, then Wullar Barrage followed by Baglihar Dam.

Now it is the Kishanganga Dam that has embroiled the two countries in
a dispute. Their Indus Waters Commissioners have recently concluded a
second round of talks on the issue and are to meet again next month in
New Delhi for another round.

What is the nature of this controversy and what are the prospects of a
negotiated settlement?

The controversy owes its genesis to India’s plan to build a 330-
megawatt hydro-power plant in Indian-held Kashmir across the Jhelum
River. The dam site is located 160 km upstream from Muzaffarabad and
involves the diversion of Kishanganga River (called the Neelum River
in Pakistan) to a tributary named Bunar Madumati Nullah of Jhelum near
Bunkot. The diversion will change the course of the Neelum by about
100 km, which will then join the Jhelum through Wullar lake near the
town of Bandipur in Baramula district. As a result of this diversion,
the Neelum and Jhelum rivers, which at present join each other near
Muzaffarabad at Domail, will meet in Indian-held Kashmir.

Pakistan regards the project as a violation of the IWT. It raised a
number of objections in 2004 as a result of which India revised the
design of the dam in order to meet Pakistan’s objections. Pakistan,
however, was still not satisfied with the revised design and raised
fresh objections.

During the current round of negotiations these objections, which
relate to gate structure, height and size, level, diversion plan,
storage capacity, power intact and free board were discussed. However,
there was no agreement on any one of them because the two sides
refused to budge from their stated positions. Discussions could not be
completed on the technical and legal aspects of the issue because of
paucity of time.

Of all the objections that Pakistan has raised, diversion of the
Neelum is perhaps the core issue. Pakistan argues that India can store
water but cannot divert it because under the IWT, it is under
obligation to release as much water downstream as it stores. In its
opinion, the diversion would reduce the flow of water into Pakistan by
about 11 percent in summer and about 27 percent in winter, which would
be contrary to the IWT as the Western rivers that are in question
belong to Pakistan.

Similarly, Pakistan claims that the project would reduce the power
generation capacity of the 969-megawatt Neelum-Jhelum plant by about
11 percent. It also contends that the diversion would result in an
ecological disaster for the area. It has no exact data at present but
has commissioned an international firm to prepare an environmental
damage assessment report.

Pakistan also objects to the construction of the Kishanganga project
on the ground that it would affect power generation capacity of the
plant that it is building on the Neelum-Jhelum confluence. Besides, it
argues that the feasibility study of the Neelum-Jhelum project that it
has completed entitles it to stop India from building a storage
facility for diverting water. In its view, the planned use of the
river Jhelum by it is as good as the term “use of water” in the IWT.

India categorically rejects Pakistan’s line of argument. To begin
with, it disputes the contention that the diversion would reduce the
flow of water into Pakistan. In its view, the quantum of water would
remain the same as before. The only difference that the diversion, in
its opinion, would make would be that instead of meeting in Azad
Kashmir as is the case at present, the Neelum and Jhelum rivers would
meet in the Indian-held Kashmir.

India also rejects Pakistan’s contention that the completion of the
feasibility study of the Neelum-Jhelum project has created an acquired
right in favour of Pakistan. On the contrary, it asserts that
commencement of work on the Kishanganga project gives an edge to
India’s claim.

Examining the claims of the two countries regarding the superiority of
their right on the ground of “existing use”, we note that it is the
Helsinki Rules on the Uses of the Waters of International Rivers which
cover the matter. Article 8(2a) defines “existing use” as “a use that
is in fact operational...from the time of the initiation of
construction directly related to the use.” Given the fact that we do
not dispose of the requisite information on the Kishanganga and Neelum-
Jhelum projects based on the definition of the “existing use”, it is
not possible to pronounce in the matter.

One thing is, however, clear. If Pakistan is to successfully challenge
India on the issue it would have to show that the diversion of the
Neelum would significantly reduce the flow of water into its territory
and cause appreciable damage to the environment of the area.

This brings us to the question of the possibility of a negotiated
settlement. India always advocates the bilateral approach as the best
and the only way for conflict resolution of IWT-related issues. It
claims that bilateralism rather than third party arbitration has
emerged as the norm between the two countries.

Pakistan disagrees with the Indian contention and insists on the
continuing validity of the IWT. However, it is ready to give the
bilateral approach a try on the condition that India spell out a
timeframe for a negotiated settlement. This is what it did during the
negotiations on the Baglihar issue and also during the recently
concluded round of talks.

However, going by newspaper reports, India’s response to the matter is
unclear, though the latter has apparently agreed to resolve the issue
during the next round of negotiations.

We should take the Indian promise with a pinch of salt because it is
an old Indian tactic to keep Pakistan embroiled in an interminable
rigmarole of negotiations while continuing with the work at hand.

This is the lesson from the Baglihar negotiations where India used all
kinds of tactics to present Pakistan with a fait accompli. For
example, it did not let a Pakistani team make an on-site inspection of
the dam for quite some time on the ground of security. Then on two
occasions, when Pakistan was ready to seize the World Bank for
arbitration, it made requests for more efforts at bilateral settlement
while all along it was proceeding with mala fide intentions by
continuing the work on the dam. Finally, even after the appointment of
a neutral expert, the Indian PM termed it as “premature’ and the
Indian Water Resources Minister asked the World Bank to leave the two
parties alone to settle the matter bilaterally.

India seems to be employing the same tactics of procrastination in the
present case. For example, when, during the recently concluded
session, Jamaat Ali Shah, Pakistan’s Indus Waters Commissioner, asked
that his six objections be treated as questions, which is a condition
sine qua non for invoking article 9 of the IWT relating to third party
arbitration, his Indian counterpart reportedly requested him to desist
from it and let them remain as objections.

This is just the start of the merry-go-round of dilatory tactics by
India. We will certainly see more of them in the months and years to
come. Will the Pakistani side be able to checkmate them this time?
Only time will tell.