But Arbitration Court imposes conditions

In a major decision, the Court of Arbitration at The Hague has allowed India to go ahead with the construction of the Rs. 3600 crore Kishenganga hydro-electric project in North Kashmir, rejecting Pakistan's plea that this was a violation of the 1960 Indus Waters Treaty.

In its award delivered at The Hague on Monday, the Court chaired by Stephen M. Schwebel, said India can go ahead with the diversion of the waters of Kishanganga, a tributary of Jhelum, for hydro-electric power generation.

However, the court restrained India from adopting the drawdown flushing technique for clearing sedimentation in the run-of-the river project designed for generation of 330 MW power. India may have to adopt a different technique for flushing.

In the initial reports received by The Hindu it is learnt that the court also sought statistics on the environmental flows into the river downstream of the project.

Pakistan had objected to the drawdown flushing apprehending that it will affect flows at its downstream Neelam project.

The judgment was received by Indian Ambassador Bhaswati Mukherjee and her Pakistani counterpart Fauzia Mazhar Sana at The Hague.

“The award of the Court of Arbitration at the Hague today reaffirms the validity of India’s position regarding the Kishenganga Hydro-electric project (KHEP) by allowing diversion of water from the KHEP as envisaged by India. It highlights once again that India is adhering to all the provisions of the Indus Waters Treaty,” the Ministry of External Affairs said, adding, “The details of the award are being studied.”

Reacting to the award, former Water Resources Secretary Dhruv Vijay Singh, who had led the Indian delegation through all hearings, told The Hindu that India had three months to “apply for interpretation and clarifications.”

This was the second water dispute on which Pakistan dragged India to an international arena charging New Delhi with violation of the IWT. Earlier a neutral expert was appointed by the World Bank to adjudicate on the Baglihar dam, also located in Jammu and Kashmir.

The 330 MW run-of-the-river Kishenganga power project is under construction by the National Hydro Power Corporation in Gurez valley near Bandipura in north Kashmir. Pakistan had sought a stay on the project while the dispute was being heard. However, the Court had disallowed a stay but restrained India from constructing any permanent works on or above Kishenganga at Gurez that may inhibit the restoration of the full flow of the river. It allowed India to construct a temporary by-pass tunnel for diversion of waters.

The arbitration was initiated by Pakistan against India on the charge that it had violated the provisions of the treaty that regulates the use of Indus rivers by both. India had denied the charge and said it was well within its rights to divert the waters from one tributary of the Jhelum to another.

The run-of-the-river project is under construction on Kishenganga (called Neelam in Pakistan), a tributary of the Jhelum river, by diverting waters from a dam site to Bonar Madmati Nallah, another tributary of Jhelum.

For management of sedimentation in the dam, India planned to use the modern drawdown flushing technique that requires waters to be brought below the Dead Storage Level. This technique was accepted by the neutral expert in the Baglihar dispute with Pakistan but has been disallowed by the Court of Arbitration.

Pakistan had raised objections to both, saying it will affect its water availability downstream and sought setting up of a Court of Arbitration on May 17, 2010.

The members of the Court visited India and Pakistan for site inspection in June, 2011.

Kishenganga project: two questions

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)? [the “First Dispute”]

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 “Second Dispute”]

Pakistan: Contended that the KHEP’s planned diversion of the waters of the Kishenganga/Neelum, as well as the use of the drawdown flushing technique, both at the KHEP or at other Indian hydroelectric projects that the Treaty regulates, are impermissible under the Indus Waters Treaty.

India: Maintained that both the design and planned mode of operation of the KHEP are fully in conformity with the Treaty.

Source: Press release of the Permanent Court of Arbitration, September 1, 2012