Court of Arbitration in The Hague to decide on minimum flows by year-end

Though the Court of Arbitration at The Hague has upheld Indian’s right under the 1960 Indus Waters Treaty to divert waters from the Rs. 3,600-crore hydro-electric project in the Kishenganga, the battle is not yet over.

In its ‘partial award’ delivered on Monday in the dispute between India and Pakistan over the 330 MW project, the Court ruled that India would have to maintain a minimum flow in the river, known as Neelum in Pakistan. The rate will be determined by the Court in its final award, which is likely to be delivered by year-end. The ‘partial award’ has “no appeal” and is “binding” on both countries.

Pakistan apprehends that the depletion of the run-of-the-river reservoir under the “dead storage level” for removal of sedimentation will allow India to regulate waters upstream.

The former Water Resources Secretary, Dhruv Vijay Singh, who led the Indian delegation through the two year legal process, said there could be no appeal as the Court was not an appellate authority. “However, Paragraph 27 of Annexure D of the Treaty says that at the request of either party, within three months of the date of the award, the Court shall re-assemble to clarify or interpret the Award. Pending such clarification…..it can grant a stay in the execution of the award.”

He said India — and even Pakistan — had given available data on downstream water flows as determined by the Ministry of Environment and Forests. “However, the Court found it insufficient and has asked for more.”

Mr. Singh said it was too early to say whether India would feel it necessary to seek any clarification.

The seven-member Court, chaired by Judge Stephen M. Schwebel of the United States, considered two points: if the Treaty allowed India to construct and operate a hydroelectric project located in the “India-administered Jammu and Kashmir;” and the permissibility of depletion of hydro-electric reservoirs below the “dead storage level” for flushing.

Forbidding India from depletion below the “dead storage level,” the Court said the ruling did not apply to Indian projects already in operation or under construction, whose designs have been communicated to Pakistan by India and not objected to by Islamabad.

This is the first-ever Court of Arbitration set up to settle a dispute between India and Pakistan on a hydro-electric project. Pakistan took the matter to the Court after bi-lateral talks failed.

The project is designed to generate power by diverting water from a higher elevation damsite in the Gurez valley to the Bonar Nallah, another tributary of the Jhelum, through a tunnel system.

Pakistan argued that the diversion would adversely affect the operation of its Neelam-Jhelum hydro-electric project downstream the Kishenganga project. Furthermore, the lowering of the water level to the bare minimum for flushing out the run-of-the- river reservoir would enable India to manage the quantum of water allocated to Pakistan.

India maintained that the design and mode of operation of the project complied with the provisions of the treaty.

Sources said the ‘partial award’ removed the stay on India building constructions of permanent nature as part of the project.

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