Kishanganga : The new arbitration between India and Pakistan
India and Pakistan has yet another dispute to resolve. This time it is on a water project known as KHEP or Kishanganga Hydro-Electric Project. It is a run-of-the-river project involving a 37m tall dam to divert water through a tunnel and eventually into Wular Lake which is fed by the Jhelum River. It is similar to another project in Pakistan, known as Neelum–Jhelum Hydropower Project that Pakistan is working on.
In 2010, Pakistan appealed to the Hague’s Permanent Court of Arbitration (CoA), complaining that the Kishanganga Hydroelectric Plant violates the Indus River Treaty by increasing the catchment of the Jhelum River and depriving Pakistan of its water rights. Therefore, a commission was established and the arbitration went underway. In an interim order, the court asked India late September to stop constructing any permanent works that would inhibit restoration of the river. While India cannot construct the dam, they can continue on the tunnel and power plant in hopes that the court will allow the project.
The complaints of Pakistan –
1. Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, 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)?
2. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency?
The related treaty articles as mentioned by Pakistan –
Article III(2) : India shall be under an obligation to let flow all the waters of the Western Rivers, and shall not permit any interference with these waters, except for the following uses, restricted in the case of each of the rivers, The Indus, The Jhelum and The Chenab, to the drainage basin thereof: (a) Domestic Use; (b) Non-Consumptive Use; (c) Agricultural Use, as set out in Annexure C; and (d) Generation of hydro-electric power, as set out in Annexure D.
Article IV(6) : Each Party will use its best endeavors to maintain the natural channels of the Rivers, as on the Effective Date, in such condition as will avoid, as far as practicable, any obstruction to the flow in these channels likely to cause material damage to the other Party.
Comments – the first one above is very generic and clearly comes with exception clauses attached with it. Hence, in case India mentions something from those exception areas Annexure C and D, this article won’t be of any use. However the second one is interesting because it talks about natural channels of the rivers – something that India is not willing to maintain wholly. Interestingly, the downstream project in Pakistan is also guilty of the same offence – it’s also avoiding the natural channel. However, Pakistan’s obstruction won’t cause material damage to India but the reverse is not true. This asymmetry puts this article in the favor of Pakistan. India may still argue that Indian obstruction won’t have “significant” damage downstream and this is a “best effort” clause (i.e. asks the “as far as practicable”), but Pakistan can battle that vigorously. A couple of more significant factors determining the outcome of this verdict are whether Pakistan started their project first and if so, how large was it proposed initially. Pakistan can not upscale it after knowing about Indian project and then claim damages. The second one is what percent of river water is actually diverted – various reports suggest it to be between 10 to 33%. The court would probably have a cap on % water usage in its final verdict.
The treaty articles mentioned by India –
Annexure D, para 15 :
15 . Subject to the provisions of Paragraph 17, the works connected with a Plant shall be so operated that (a) the volume of water received in the river upstream of the Plant, during any period of seven consecutive days, shall be delivered into the river below the Plant during the same seven-day period, and (b) in any one period of 24 hours within that seven-day period, the volume delivered into the river below the Plant shall be not less than 30%, and not more than 130%, of the volume received in the river above the Plant during the same 24-hour period : Provided however that :
(i) where a Plant is located at a site on the Chenab Main below Ramban, the volume of water received in the river upstream of the Plant in any one period of 24 hours shall be delivered into the river below the Plant within the same period of 24 hours ;
(ii) where a Plant is located at a site on the Chenab Main above Ramban, the volume of water delivered into the river below the Plant in any one period of 24 hours shall not be less than 50% and not more than 130%, of the volume received above the Plant during the same 24-hour period ; and
(iii) 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 an – other 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.
Comments – Annexure D clearly supports water diversion using tunnels but with restrictions. As I discussed earlier, this will be enough to negate the first article proposed by Pakistan. Interestingly, the treaty specifically mentions about Agro and Hydro uses, i.e. environmental impacts won’t probably affect the outcome of the case, unless the treaty is re-interpreted. Furthermore, the article (iii) scopes down to “existing” use and excludes “planned” use, favoring India. However, these are minor clauses and could be reinterpreted to maintain consistency in the treaty.
The other part of the arbitration has reference to same old dead storage level related issue that was deemed to be the core one in Baghlihar case. The World Bank expert actually supported Indian view on that and allowed India to go ahead with sediment control spillways. This theoretically provides India with more control over the water, but also makes the dam operation consistent with current knowhow.
Related cases –
I could only find one similar case between France and Spain. The summary of the case history and judgement goes like this –
“Lake Lanoux is situated in southern France near the border of Spain. The lake is fed by several streams that all originate in France. Water flows out of the lake in a single stream that joins the Carol River before crossing into Spain. In the 1950’s, France began developing a plan to divert water from Lake Lanoux over a 789 meter drop to generate hydroelectric energy. Even though France promised to return the diverted water to the Carol River, Spain pressed France to arbitrate the dispute because Spain believed the plan would violate its water rights under a series of treaties signed in 1866. The arbitration tribunal issued an award in 1957, which rejected Spain’s arguments because the French plan promised not to alter the volume of water entering Spain through the Carol River. Although France would not have been allowed to unilaterally promote its legitimate interests at the expense or injury of neighboring states, the tribunal did not identify a foreseeable injury to Spain. Further, the Tribunal stated that the 1866 treaties did not constitute a reason to subjugate the general rule that standing and flowing waters are subject to the sovereignty of the state where they are located.”
This supports Indian position, although the treaty between India and Pakistan is different from the same between Spain and France. The facts related to injury to Spain, not altering volume of water delivered to Spain and run-of-the-river plants – all similar logic can be reapplied in this case.
Possible Outcomes –
I personally think this arbitration judgement would go the same way as that of its earlier counterpart. As Baghlihar suggested, making compromises on a few technical parameters (dam height, pondage and in this case water diverted) would make India happy to settle the case with Pakistan. A less likely verdict will provide upper hand for Pakistan and will call for an injunction on KHEP. India have to deal with a set back and prepare more thoroughly going forward.
Some more reads :
Briscoe presentation – http://www.acus.org/files/SAC/Briscoe_ACUS_Presentation.PDF
Case update – http://www.pca-cpa.org/showpage.asp?pag_id=1392