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Kishanganga : The new arbitration between India and Pakistan

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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.

KHEP (India) and NJHP (Pakistan)

KHEP (India) and NJHP (Pakistan) - Courtesy Briscoe

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

Ramaswamy Iyer response – http://www.indiawaterportal.org/sites/indiawaterportal.org/files/Briscoe%20on%20the%20Indus%20treaty_A%20response_Ramaswamy%20Iyer_EPW_2011.pdf

wiki – http://en.wikipedia.org/wiki/Kishanganga_Hydroelectric_Plant

Case update – http://www.pca-cpa.org/showpage.asp?pag_id=1392

Interim order – http://www.pca-cpa.org/upload/files/16.%20Order%20on%20Interim%20Measures%20dated%2023%20September%202011.pdf

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Written by Diganta

December 30, 2011 at 12:54 am

Indian Army or Pakistani?

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I few days back I happened to watch a video depicting Indian Army atrocities on Kashmiri children. In the video, 5 children were arranged in a row and were shot dead. Today, when I was browsing NYT, I came across the snapshots of a similar video with a different tag line. With a few more searches, I found a CNN news clip showing the same video under Pakistani Army killing Pashtuns in Swat. The twist in the tale is that the specialists are saying that the Arms and Uniforms suggests that it was a band of Pakistani soldiers.

A few more searches show that it has already been discussed in Pakistani news media and they report that Pakistan Army has already began an investigation on it.

As my point goes, the incident is one and it can not be depicting both. So one of these two has to be wrong. But, given the comments posted in both the videos, it appears that at least a few people watching either video have no doubts about the veracity of the video they watched. Some people supported it, some others did condemn and some others tried to create panic.

The highlights of my writing was that – people would believe what they want to believe. And conspiracy theorists would publish what people want to believe. In the world of conspiracy theory, understanding what people want to watch is the ultimate skill. Welcome to the world of conspiracy theories …

Update : Pakistan Army has denied charges and blamed Taliban to doctor this video. (source : Aljazeera)

Written by Diganta

November 30, 2010 at 9:25 pm

Kashmir & India – A new window of thought

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A few interesting Indian News media reporting on Kashmir. I think, people are starting to understand that Indian people are actually in favor of Kashmir to be separate from India. At least, the Kashmir valley should be put to a question whether they want to join India or Pakistan. I don’t personally support the Independence option since that will create more chaos and all powers will start their covert operations to install a puppet government in Kashmir.

Kashmiri Pandits will definitely be a looser out of this resolution, but we can afford them in Jammu or exchange population of Jammu with Valley.

The other part is that the development of Jammu and Ladakh are badly tied to Kashmir issue. We can’t afford to mistreat those people who want to join India. Also, we can’t really want them to go the same way Kashmir valley goes.

The strategic importance of Kashmir valley is also hyped. The valley doesn’t affect Indus river treaty. One perceived problem of Kashmir is that it would actually turn into hotbed of anti-India activities. However, all of the Pakistan has turned into the same for long. There won’t be any decrease of terrorism in India due to this. So, why should we care for it? We don’t lose anything out of this.If India wants to be a Super power, it should first fix problems at home. Also, I, as a tax-payer, don’t want to pay for all those military installation in Kashmir. It also is not a justice to the Kashmiris who are fighting non-violent war against India for last few years.

Another perceived problem is that many states will want to go out of India because of this. However, they are not backed by UN Resolutions. Also, only a fraction of Indian population are interested to get separated. If we put together the whole of separatist population in North-East, it won’t get more than 2% of Indian people. Given the multi-lingual, multi-ethnic structure of India, it is actually expected that some Indians will indeed want to get separate. French speaking Quebec has similar issue with Canada. It should be noted that Canada is indeed much more democratic than what India is. East Timor did not cause a collapse in multi-ethnic secular Indonesia.

I have earlier suggested that we should try not to change borders too often so that the minorities do not suffer. However, under the current circumstances, I understand that India-Pakistan peace is not possible at least in next 50 years. So, an idea of a soft border is not going to get implemented till then. I still stick to a soft border option as first priority, but if the option is out of hand, we should concentrate on the second. we need to solve this for Indian interest.

Here I have a CNN-IBN debate on Indian media view on Kashmir. I also referred to a couple of editorials in Indian major newspapers supporting Kashmiri freedom.

Kashmir – Swaminathan Aiyar

Kashmir – Vir Sanghvi

A documentary by Pervez Hoodbhoy on Kashmir

Written by Diganta

December 26, 2008 at 6:09 am

Pakistan Armyman Arrested in India : The Damage Control

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The case that Kasav was indeed from Pakistan has been strengthened today by Indian Police forces when they captured three Pakistani residents one of whom happened to be a member of Pakistan Army. The saga continues. Pakistan Army has already denied that their person was involved. But the New York Times notes :

But a Pakistani military official, speaking on condition that he not be named, appeared to confirm that at least one of the suspects was Pakistani, saying the man identified as a soldier had in fact deserted his Pakistani unit in June 2006.

On his line, the J&K Police Chief notes :

“One of the three has been identified as Ghulam Farid alias Gulshan Kumar, a sepoy (foot soldier) in 10 Azad Kashmir regiment of Pakistan Army. His service number is 4319184,”

The motive of them is clear. They are doing the damage control job. The Mumbai massacre did one bad thing in particular – shifted the media interest from Kashmir. All the terrorist activities in Pakistan are basically because of Kashmir issue with India – this argument was weakened. An attack similar to the one in Mumbai, if launched in Jammu and Kashmir, would definitely shift the focus back to Kashmir and do increase Pakistan’s lost sympathy in International media. There would have been a lot of critical essays on Kashmir and those would have undermined the Indian claim that the terrorists in Pakistan would attack India even if Kashmir issue is resolved.

However, thanks to Police forces, this didn’t happen.

Written by Diganta

December 24, 2008 at 9:42 am

Posted in India, Kashmir, Pakistan, Terrorism, Thoughts

Tagged with , , ,

Lashkar-e-Toiba

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The funniest part of the above video is that General Mush forgot that he himself had banned the terror outfit.

A few more resources about Lashkar. The formation and the introduction is known to me.

“‘The army of the pure’ is a militant offshoot of Markaz Dawatul Irshad, an Islamic charity and educational organisation. Markaz Dawatul Irshad has since been renamed as Jamaat-ud-Dawa and was at the forefront of relief work after the 2005 earthquake killed 73,000 people in Pakistani Kashmir and the North West Frontier Province.”

The most interesting is the objective of Lashkar. From the Pakistan newspaper (link provided above), the Dawn, I can quote –

“The group’s objective is to introduce an Islamic state in South Asia and to ‘liberate’ Muslims residing in Indian administered Kashmir.”

I tried to find a map of Lashkar’s proposed new Subcontinent order. I got this one similar to what I have seen earlier from another fellow wordpress member.

Lashkars Aim

Lashkar's Aim

It is actually the Chaudry Rehmat Ali’s “Pakistan proposal” which was not supported before partition. And it also proves that the Kashmir conundrum is not the key issue between India and Pakistan. It goes well beyond it.

The Economist reports

“IF PAKISTAN’S leaders had ever united against Islamist militancy as they have against India over the past three weeks, their country would not be the violent mess that it is.”

“So, for now at least, the schools at Muridke remain free to teach what Mr Saeed has preached for two decades: jihad against Hindu India, especially to drive it from the contested region of Kashmir.”

The interesting addition to this –

“In the current spirit of nationalism, it is hard to avoid an impression that many Pakistanis are relieved to be unified against the one enemy they can all agree on, India. By contrast, many remain deeply sceptical about their need to tackle terrorism and a Taliban insurgency at home, despite over 50 suicide bomb blasts in Pakistan last year. To explain these conflicts—though it is a stretch—it has become increasingly fashionable in Pakistan to blame them on India. The army seems convinced that India is supporting the Taliban. This makes Pakistanis especially loth to crack down on LET, historically at least their trustiest weapon against India.”

Form the Frontpage Magazine

“Lashkar has a very specific pan-Islamic vision: the recovery of all Muslim lands once ruled by Muslims, including India, Central Asia and Spain. And they’ve gone after those countries that they believe were usurped from traditional Muslim rulers,” said Ashley J. Tellis, a senior associate at the Carnegie Endowment for International Peace who has been tracking Lashkar since 2001. “The goal is very apocalyptic and simple: attack these enemies and the symbols of those enemies,” he said.

To end with, I still don’t see any reason Kashmir to be placed as the center of conflict between India and Pakistan. It’s only a reason to show the world and reason’s will always arrive if they want.

Update

I have got more insight in Lashkar’s ideology. The yaleglobal magazine has published an article on Lashkar and it contains a few quotes from Hafeez Saeed, the Lashkar mastermind. It says –

““Our struggle will continue even if Kashmir is liberated. We still have to take revenge for East Pakistan.” … “jihad is not about Kashmir only. About fifteen years ago, people might have found it ridiculous if someone told them about the disintegration of the USSR. Today, I announce the break-up of India, Insha-Allah. We will not rest until the whole (of) India is dissolved into Pakistan.””

And to extend to –

““plant the flag of Islam in Washington, Tel Aviv and New Delhi.””

So, it again emphasizes the fact that LeT is not as deep as the Kashmir problem is, it goes beyond that.

Written by Diganta

December 17, 2008 at 10:35 pm

Posted in India, Kashmir, Pakistan, Terrorism, Thoughts

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Kashmir – A Documentary

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I have ultimately found one documentary that projects the real complexity of the Kashmir issue and proposes a solution that I have already wrote about. A new boundary will help us little to resolve disputes, but elimination of the existing boundaries would do so. All these and the history of Kashmir with persecution of all Kashmiris has been compiled in this documentary. I thank Pervez Hoodbhoy for his narration.

Anyone interested to know more about Kashmir should take time and watch it.

Part 1 –

Part 2 –

Part 3 –

Part 4 –

Part 5 –

Written by Diganta

December 10, 2008 at 8:00 am

The Plebiscite in Kashmir

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The History

UN had once recommended a plebiscite to be held in Indian State of Jammu and Kashmir to solve the dispute of accession. It was in response to the dispute between India and Pakistan over the state. The UN Security Council adopted resolution 47 and still sticks to it. The solution had a few prerequisites and a few methodologies to implement the plebiscite. Pakistan was asked (Refer to 1a) to withdraw the Army and the tribals who entered within the state in course of fighting (Indo-Pak Kashmir war 1947-48). India was asked to establish a Plebiscite commission and conduct the Plebiscite. Neither of the prerequisites did take place, nor the plebiscite. UN still recognises the entire state of Jammu and Kashmir as a disputed area and shows it accordingly in its’ map. Many of the states (including US) has changed their position since then to support 1972 Simla Agreement as a base of dispute resolution in Kashmir.

What is a Plebiscite?

A referendum (plurals: ‘referendums’ or ‘referenda’) or plebiscite (from plebiscita, originally a decree of the Concilium Plebis) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. In the topic, choice (or preferendum) was given to People residing in the state of Jammu and Kashmir, to join India or Pakistan. There were no option for a free Kashmir in the referendum proposal. An example of plebiscite could be the Quebec referendum in 1980, where the choice was between a free Quebec, against remaining as a state of Canada.

The Indian State of Jammu and Kashmir

The Indian State of Jammu and Kashmir was primarily consituted of five different areas. The areas are – 1) Kashmir Valley, 2) Jammu, 3) Northern Areas, 4) Ladakh and 5) Aksai Chin. Among these, the valley is administered by both India and Pakistan. Jammu and Ladakh are almost entirely administered by India, Northern Areas are administered by Pakistan and the Aksai Chin was administered by China.

The Diversity

The State of J&K is a diverse geographical region, having people from different ethnicity and religious background. There is a little in similarity between and person living in Northern Area, a Valley resident, a Ladakhi and a resident in Jammu. It might worth noting that the dissatisfaction is mainly centered in Valley, because it is divided between India and Pakistan. Also, the valley dominates over all four regions, because of the higher population it has. The Northern Areas is governed directly by Pakistan yet they don’t have any representation in Pakistani Parliament and understandably they are moving towards freedom struggle. The role of religion in the diversity can not be undermined. The Jammu region is predominantly Hindu and hence they would be happy to get annexed to India as a state. The Ladakh is mainly inhabited by the Buddhists and Shia Muslims (there are some settlers from valley as well) and so far did not wanted freedom from India. Similarly, the people of Northern Areas are mainly Shia and might not be comfortable within Pakistan.

The Solutions to Kashmir Problem

There are many proposals to solve the Kashmir dispute. Some of them contains region give-away, where some other are only some confidence building measures. A very good guide to these possible solutions is presented in this BBC document. It showed that all possible combination of solutions are in fact difficult to achieve and would make grounds for further damage in the region.

Plebiscite as a solution

The traditional proposal of plebiscite raises a lot of questions. The main question would be against linking the fate and aspiration of a Buddhist Ladakhi tied to a Sunni Muslim living in Sialkot. They live complete different lives. Moreover, after 60 years of independence, a lot of Kashmiris, who are legitimate stakeholders of the plebiscite, are living outside the region. A lot of people has also entered these regions (for example – people from Tibet entered Ladakh and people from NWFP entered Northern areas). It is difficult to conduct a plebiscite without bias – whoever conducts it. A role might be played by the vote with force. And at the end, whoever gets defeated, will perceive a loss and threaten to withdraw complaining a foul played by the other party. If, by any chance a lands do change ownership, it might result in a huge list of murdered and displaced people as the victor would in turn engage in routing out the anti-sentiments of the newly gained land.

A Modified Plebiscite

The plebiscite proposal can be modified to be used. The granularity of the decision-making process could be down to district or sub-division level, to minimize the displacements. This would in effect result in a partition of the state among Indian and Pakistani regions. For the continuity purpose, if the minority-pockets are exchanged, minorities could get slaughtered or displaced on either side, something that happened after 1947 Indian partition.

The recent view of India and Pakistan towards Plebiscite

Indians generally refer to Hari Singh treaty of accession and J&K State assembly decision in 1951 to annex the state with India. The claim for plebiscite is mainly raised by Kashmiri (valley) groups and Pakistanis. However, Pakistan is shifting their stance recently. Kofi Annan also said that the plebiscite proposal is irrelevant now. Pakistan President Musharraf even said that they would give up the claim for Kashmir if Indians implement a few peace-proposals.

Conclusions

I would suggest that any further change in boundary should be avoided at any cost. A change in boundary has done a lot of damage in 1947 and in 1971. We should not repeat it. While the advanced countries in Europe are looking ahead to reduce the burden of the boundaries, we should put our best efforts to minimize the impediments of the Indo-Pak boundary, rather than installing a new one. I also added one documentary that is narrated by Pervez Hoodbhoy and talks in similar lines.

References :

1) Kashmiris Reject War In Favour Of Democratic Means – A survey by MORI. The five point solution voted for by the people of Indian part of Kashmir are –

* Economic development of the region to provide more job opportunities and reduction of poverty – 93%
* The holding of free and fair elections to elect the people’s representatives – 86%
* Direct consultation between the Indian government and the people of Kashmir – 87%
* An end to militant violence in the region – 86%
* Stopping the infiltration of militants across the Line of Control – 88%

2) Kashmir’s forgotten plebiscite – BBC.

3) Documents related to J&K. It includes Article 370 of Indian Constitution and the speech of Sheikh Abdulla in J&K Assembly in 1951.

4) The EU report on Kashmir.

Kashmir India Terrorism

Written by Diganta

March 22, 2007 at 2:14 pm

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