Kishanganga Dam.. Verdict favours Pakistan

ByHoor Asrar Rauf

A national swimming champion and recently Graduated from UCF-USA in Hospitality and Event Management


July 28, 2023

Kishanganga Dam

Hoor Asrar talks about an important litigation going
Pakistan’s way

Kishanganga Dam – The litigation about the distribution of Indus Waters has proved to be long drawn and has been a matter of intense worry for Pakistan simply because it is the lower riparian as far as the distribution and sharing of the water flowing down from the Indus River and is subjected to the ever-present risk of India, being the upper riparian, holding the water supplies to Pakistan that would seriously disrupt agricultural production in the country as well as provision of drinking water to the people. India has tried hard to make the distribution of Indus water a bilateral issue but Pakistan was convinced that the nature of the matter requires multilateral attention. Pakistan’s contention is justified because the long-functional Indus Water Treaty was arrived at through the good offices of the World Bank and Pakistan places tremendous trust in multilateral arbitration as it has been deeply apprehensive about Indian attitude and policies towards Pakistan that has remained hostile since many the last many decades with the incumbent Bharatiya Janata Party (BJP) regime in India bent upon exacerbating the situation. It is pointed out in this connection Pakistan did not waste time in bilateral discussions with India. It was quite clear that India had every incentive to delay and no incentive to compromise. Pakistan’s consistent aim has always been to have its disputes with India adjudicated by a neutral and independent third party. India’s aim has consistently been the opposite.

Pakistani policy makers were closely watching Indian actions in this respect and moved the Permanent Court of Arbitration (PCA) in Hague regarding the one-sided intentions of assuming jurisdiction over the Kishanganga and Ratle Hydroelectric projects. In a significant verdict the PCA rejected India’s objections to its assumption of jurisdiction in a dispute between the neighbouring coun¬tries over the said projects pursuant to the Indus Waters Treaty. Deciding in favour of Pakistan, the PCA ruled that it was indeed the competent authority to determine the Kishanganga dispute bet-ween Pakistan and India thereby vindicating Pakistan’s principled position. PCA is a reputable body established to facilitate arbitration and other forms of dispute resolution between states and is a non-UN inter-governmental institution that serves as a forum to address the dispute resolution needs of the international community. It was reported that PCA delivered a unanimous decision binding on the Parties and without appeal. It simply rejected each of the objections raised by India and determined that the Court is competent to consider and determine the disputes set forth in Pakistan’s Request for Arbitration.

In this context it is pointed out that the dispute pertained to concerns raised by Pakistan over India’s construction of the 330-megawatt Kishanganga hydroelectric project on the River Jhelum and plans to construct the 850MW Ratle hydroelectric project on the Chenab in Indian-held Jammu & Kashmir. Islamabad initiated legal proceedings on 19 August, 2016 by requesting the establishment of an ad hoc Court of Arbitration, pursuant to Article IX of the Indus Waters Treaty. The step was taken after its concerns were raised before the Permanent Indus Commission in 2006 for the Kishanganga project and 2012 for the Ratle project. Pakistan then sought a resolution through government-level talks, held in New Delhi in July 2015. The decision to initiate proceedings came in response to India’s persistent refusal to address the concerns being raised.

The Indus Waters Treaty provides for two forums for settlement of disputes — the Court of Arbitration, which addresses legal, technical and systemic issues, or the Neutral Expert, which can address only technical issues. Pakistan requested the establishment of a Court of Arbitration because it had systemic questions requiring legal interpretation. India responded to Pakistan’s initiation of the formal dispute settlement process with its own belated request for the appointment of a neutral expert, which Islamabad maintained was a demonstration of New Delhi’s characteristic bad faith. Fearing conflicting outcomes from two parallel processes, the World Bank in December 2016 suspended the processes for the establishment of a court of arbitration or the appointment of a neutral expert and invited both countries to negotiate and agree on one forum.

Pakistan and India could not, however, agree and the World Bank, after six years — during which India completed the construction of the Kishanganga project — finally lifted the suspension and created a court of arbitration and appointed a neutral expert. Pakistan believes that any risk of conflicting outcomes can be arrested through coordination and cooperation between the two forums. Pakistan is engaging with both forums in contrast, and in characteristic bad faith, India has boycotted the Court of Arbitration. In such a scenario, the court can proceed ex parte and is doing so. Though the decision has been awarded but the court gave no details on when and how the case will continue, however, adding that it will address the interpretation and application of the bilateral Indus Waters Treaty, notably the provisions on hydro-electric projects, as well as the legal effect of past decisions of dispute resolution bodies under the treaty itself.

Kishanganga project is located on a tributary of the Jhelum and because the water it diverts for the purpose of power generation is not returned to the Kishanganga but to the Bonar-Madmati Nullah which is a different tributary of the Jhelum. The Bonar-Madmati Nullah, in turn, flows into Wullar Lake and, thence, into the Jhelum which rejoins the Kishanganga River at Muzaffarabad where it is known as the Neelum. Pakistan’s challenge to the diversionary aspect of the Kishanganga project focused on the argument that it would adversely affect the Neelum-Jhelum Project being constructed by Pakistan near Muzaffarabad. In this regard, it was not seriously disputed by India that the construction of the Kishanganga Project would adversely affect the Neelum-Jhelum Project. However, India instead argued that the Neelum-Jhelum project could not be considered as the then existing … hydro-electric use by Pakistan not only because it was still under construction by Pakistan but because Pakistan had committed to the Neelum-Jhelum Project after India had committed to the Kishanganga project.

In December 2013, the Court of Arbitration decided the drawdown question in favour of Pakistan and held that India was not entitled to drawdown the water level of a reservoir for maintenance purposes. The Court further specifically held that sediment control could not be construed as an unforeseen emergency. The Court of Arbitration held that even though Pakistan had a superior right to the flows of the Kishanganga/Neelum river, it had waited too long to exercise those rights. It therefore declared that India was indeed entitled to divert water for the Kishanganga Project. This decision was however mitigated to a certain extent by the Court of Arbitration’s conclusion that notwithstanding the absence of environmental provisions in the Treaty, India was required on the basis of environmental concerns to release certain minimum flows. As a consequence of the release of these minimum flows, the average annual energy loss at the Neelum-Jhelum Project will be reduced from 16% to 10%. The diversion question is unique to the Kishanganga project and there is no other possible location where Para 15(iii) could come into play. Even if it did, such diversion would likely be blocked by virtue of the now operational Neelum-Jhelum Project. The Weekender


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