The Permanent Court of Arbitration, on December 20, 2013, issued a judgment, on the construction of Kishanganga Hydro-electric Project (KHEP) by India, which restructures and modernises the Indus Water Treaty (IWT) between India and Pakistan and, again makes it an effective instrument in avoiding conflicts on use of the rivers of the Indus Basin. In fact, the verdict offers a lot more than just a ray of hope; it indicates that complex conflicts such as these can always be peacefully resolved.
The Kishanganga river, rising near Gurez, is a tributary of the Jhelum. Flowing through J&K it crosses the Line of Control to enter POK as the Neelum river before merging with the Jhelum near Muzaffarabad. Since 2009, a hydro-electric project is being constructed by India with a planned capacity of 330 MW by diverting the waters of the Kishanganga/Neelum river through a 23-km-long tunnel. Being executed at a cost of Rs 3,642 crore, the project is expected to be completed by 2016.
In the early '90s, India had informed Pakistan of its intentions to construct the KHEP. Since then, Pakistan has been raising objections to the project. The main objections are that inter-tributary diversions are barred as per the IWT and that existing Pakistani uses must be protected as execution of this project would deprive Pakistan of the river's natural flows, thereby adversely affecting irrigated area in the Neelum valley. Pakistan has also raised objections relating to certain design features, especially the draw-down technology to flush sediments. Simultaneously, Pakistan with assistance from the Chinese consortium planned to construct a 969 MW Neelum-Jhelum hydro-electric project (NJHEP) at Nowshera, for which the blueprints and technical stipulations were finalised in 1997.
The Kishanganga issue has been on the agenda of the Permanent Indus Commission for more than eight years. India had been highlighting its point of view but it had not been appreciated/accepted by Pakistan. The IWT recognises three categories of divergence for conflict resolution. The highest category of the objections is classified as 'disputes' where both sides differ on the legal obligation of either country being violated by any project as is the case with the Kishanganga project, which involves differences over the legal interpretation of the treaty itself.
In 2010, Pakistan approached the Permanent Court of Arbitration (PCA) for arbitration under IWT raising two major observations: one, whether or not inter-tributary diversion was permitted by the IWT; and second, whether or not India was allowed to use draw-down flushing to tackle sedimentation. These observations, rather objections, by Pakistan were based on the argument that the KHEP will significantly reduce the power generation capacity of the NJHEP being constructed further downstream on the Neelum river. Further, it was argued that the draw-down flushing to tackle sedimentation would allow India to reduce the reservoir level of the dam below dead storage level. Therefore, the dam with this design would allow India to control the volume and timing of the water flow downstream, which, according to Pakistan's official stance, was a clear violation of the IWT. It was the first instance in the history of the IWT when a Court of Arbitration was constituted.
The PCA on February 18, 2013 issued a partial award stating that since the KHEP was a run-of-river dam, India may divert water from the Kishanganga/Neelum river for power generation. According to the court, India demonstrated a high degree of certainty when it started work on the dam between 2004 and 2006; while Pakistan lagged behind in implementation and planning of the NJHEP. Consequently, the PCA found India had a priority over Pakistan on the use of Kishanganga/Neelum river for hydroelectric power. The PCA, however, decided that India was obligated to construct and operate the KHEP in a manner that maintains a minimum flow of water in the river (at a rate to be determined subsequently).
In its final award, the PCA unanimously decided on the question of minimum flow that was left unresolved by the partial award, a decision to be binding upon both countries and not open to appeal. The court decided that India shall release a minimum flow of 318 cusecs into the Kishanganga/Neelum river below the KHEP at all times. However, the court also decided that either India or Pakistan may seek reconsideration of this decision through the Permanent Indus Commission and the mechanisms of the IWT after a period of seven years from the first diversion of water from the Kishanganga/Neelum river.
The court also decided on the issue of environmental flows (e-flows) which had not been covered by the treaty. The final award, thus, is a landmark for legal governance of shared trans-boundary water resources as this dispute had raised important questions on the relevance of the IWT; model of development adopted by building large dams and reservoirs for hydro-electric power with environmental consequences; application of international environmental obligations and adequacy of existing international courts; and tribunals to settle complex water disputes. Therefore, there is a serious requirement to understand the implications of this judgment.
The decision means that India can, as laid out by the IWT, continue to develop much-needed hydropower projects on the Chenab and the Jhelum, but it must strictly respect the IWT-defined limits on storage, and must use methods other than the construction of low gates to flush silt. This decision will apply to all other run-of-river plants to be built in future on the western rivers, as well as to the KHEP. Moreover, in specific, release of minimum quantity of water (318 cusecs), as directed by the court, would on an average, reduce electricity generation capacity at the KHEP by 19.5 GWh per month from October to March which would result in an annual reduction of capacity by 5.7%.
|For Pakistan, construction of the KHEP would result in decrease in the flow of water for the NJHEP. This would reduce annual energy generation from expected 5,238 million units to 4,536 million units. Thus the PCA decision would cause a loss of more than $145 million to Pakistan in the wake of reduction in water flows. Moreover, in drought conditions as happened in 2001, Pakistan is likely to face a loss of more than $544 million every year.
Experts on water disputes are, therefore, of the view that diplomatically and economically, the award by the PCA is a major setback for Pakistan for internationalising a bilateral issue for the second time; the first one being at the time of construction of Baglihar for which a neutral expert had been appointed.
The verdict incorporates into the IWT certain effective instruments in avoiding conflicts between India and Pakistan on use of the rivers of the Indus Basin. It also establishes that India could develop hydro-power potential on the western rivers, but only under a set of well-defined constraints on the amount of storage as permitted in the treaty.
The writer is an expert on the Indus Water Treaty