IPS Seminar reviews Kishanganga Award
Non-availability of national data complying international standards on usages of water resources was the most serious lacking on part of Pakistan while pursuing arbitration on the issues involved. Pakistan could have secured better share of water in the final award in case of Kishanganga hydro-electric project (KHEP) if its plea was duly supported by required data of international standards, particularly vis-à-vis environment, hydro-electric usages and agriculture. In that event, more than the awarded 9 cumecs (cubic meter per second) of flow could have been won by the country in its case in the Permanent Court of Arbitration (PCA).
This was a general consensus at a seminar at Institute of Policy Studies, Islamabad, titled “Analyzing Kishanganga Award”, which was organized to critically review the recent verdict announced by Permanent Court of Arbitration (PCA) on the Kishanganga Hydroelectric Project and its potential repercussions for Pakistan’s water security and interests.
The seminar was chaired by Mirza Hamid Hassan, member IPS-National Academic Council and former Secretary Water & Power. The speakers and panelists included Dr. Gregory L Morris, Pakistan’s technical expert in Kishanganga case, Ashfaq Mehmood, Former Federal Secretary, Water and Power, DG-IPS Khalid Rahman, Shamila Mahmood, Senior Consultant, Pakistan Trans-Boundary Water Organization, and Cdr. (R) Azhar Ahmad, Senior IPS Associate. It was attended by a number of experts, researchers, diplomats, journalists and concerned officials.
The experts were unanimous that as there was no further legal course available for next seven years – the period set by PCA when it can reconsider the Award on request of either Pakistan or India through Permanent Indus Commission and the mechanisms provided by the Indus Water Treaty (IWT) – the only way forward for the country was to build and plan water storage facilities on war footings and strengthen institutional capabilities, particularly in the field of world-class technical data collection on environment hydro-electric and agriculture usages, to establish its rightful share under the IWT.
Providing an historic overview of Kishenganga Hydro-Electric Project (KHEP) case earlier, Shamila Mahmood, informed the participants that Pakistan acquired evidence of India’s plans to divert the Kishenganga/Neelum River for purpose of power generation in late 80s. Pakistan Commissioner for Indus Water (PCIW) requested that India provide information on the project on December 14 1988. Correspondence between the two Commissioners began and on May 12, 1989, the Indian Commissioner requested the Pakistani Commissioner to provide information on Pakistan’s agricultural and hydro-electric uses as Annexure E of the Treaty requires such storage works to be designed so as not to adversely affect the then existing agricultural or hydroelectric use. The Indian Commissioner also provided details of KHEP under Paragraph 12 of Annexure E to the Treaty on June 2, 1994.
She further told that the correspondence continued between the Commissioners and tours of inspection of the Neelum Valley were conducted in 1991 and 1996 the basis upon which the Indian Commissioner contended that Neelum-Jehlum Hydro-Electric Project was not an existing use as it was a proposed project only and there was little if any agricultural use in the valley. The matter was discussed at meetings of the Commission in 2004 and 2005 without settlement. On February 7, 2006, the PCIW informed the Indian Commissioner that in his view a dispute had arisen and provided a draft report to ICIW on March 26 2006 to be submitted to the respective governments. On April 20, 2006, the Indian Commissioner informed PCIW that KHEP had been re-configured as run-of-river plant falling under Article III(2)(d) and Annexure D and that proposal for reference of dispute would no longer be relevant. The PCIW informed ICIW of his objections to the reconfigured project which were rejected by the Indian Commissioner. Pakistan’s objections discussed in four meetings of the Commission from 2007 to June 2009 without agreement. Hence, on July 10, 2009, Pakistan invited India to resolve dispute by agreement. The arbitration proceedings commenced by Pakistan on May 17 2010.
The two main legal questions in the arbitration, according to speakers, were whether India’s proposed diversion of the river Kishenganga (Neelum) into another tributary, i.e. the Bonar-Madhmati Nallah, being one central element of the Kishenganga Plant, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western Rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels); and whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river plant below dead storage level in any circumstances except in the case of an unforeseen emergency.
The court’s analysis covered the territorial scope of the Treaty, the first dispute of the permissibility of delivering the waters of Kishanganga or Neelum River into another tributary through KHEP, and the second dispute of the permissibility of reservoir depletion under the Treaty.
Regarding the territorial issue, the seminar participants were informed that India had introduced the question of sovereignty over Jammu and Kashmir contending that Pakistan had no right to invoke the Treaty for adverse impacts to power generation at the NJHEP as the project was not situated in Pakistan. The Court determined that the Treaty extended to uses of waters flowing through either Pakistan-administered or Indian-administered territory and Pakistan was entitled to invoke the Treaty to object to the KHEP.
The immediate benefit of this part of the judgment was that that earlier the international donor agencies were denying funding for projects in the disputed territory. This matter was taken up with the World Bank in the light of the Partial Award and the agency was now willing to extend funding for Diamer-Basha dam, which was previously refused.
On the first question, i.e. India’s planned diversion, the Court determined that “where a Plant is located on a tributary of the Jhelum on which Pakistan has any agricultural use or hydro-electric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent that the then existing agricultural use or hydro-electric use by Pakistan on the former tributary would not be adversely affected”.
Having taken into consideration a number of factors such as tenders, financing secured, government approvals, construction underway, etc, the Court found that India’s right to construct and operate the KHEP became vested during the period 2004-2006. Unfortunately, at that time Pakistan had no hydroelectric uses on the Neelum River. The Court also noted that India changed the design from a storage work under Annexure E to a run-of-river project under Annexure D on Pakistan’s objections.
On the second dispute, the judgment established that except in the case of an unforeseen emergency, the Treaty does not permit reduction below dead storage level of the water level in the reservoirs of run-of- river plants on the Western Rivers. The accumulation of sediment in the reservoir of a run-of-river plant on the Western Rivers does not constitute an unforeseen emergency that would permit the depletion of the reservoir below Dead Storage Level for drawdown flushing purposes. Accordingly, India may not employ drawdown flushing at the reservoir of the Kishanganga Hydro Electric Plant (KHEP) to an extent that would entail depletion of the reservoir below dead storage level.
Highlighting the significance of the determination of the second dispute, the experts said that it sets aside the Neutral Experts (NE) decision in the Baglihar case which had, in effect, rewritten the Treaty without opening it up for renegotiation between the Parties. It may be mentioned that the NE’s decision allowed India control of flows by eliminating the live storage limitation set by the Treaty.
The judgment restores a tenet that was fundamental to Pakistan; without which Pakistan would not have agreed to the Treaty, i.e. India does not have control or the ability to manipulate flows that were to be received by Pakistan. Stringent design and operational restrictions were delineated in the Treaty to ensure against the decrease of flow or change in timing of the flow, critical for agriculture uses.
The experts appreciated the international arbitration and hoped that both India and Pakistan will continue to solve their bilateral approach through dialogues and mediation in relevant international fora.
