By Dr. S.Chandrasekharan
Ever since the Prime Minister of India inaugurated the Kishenganga Project in Jammu and Kashmir, the Pakistan media has been coming out with a spate of articles accusing India of violating the Indus Water Treaty of 1960. On Pakistan’s insistence, the issue had gone for arbitration twice in 2010 and 2013. Pakistani officialdom and the media have once again begun the demand for arbitration though the issue was once before settled. Strangely, the country which has been the nursery of terrorists is accusing India of “Water Terrorism”
The Project:
The Kishenganga Hydro electric project is a run of the river scheme on Kishenganga River, known as Neelam downstream in Pakistan with an installed capacity of 330 MW of a power plant located 5 Kms north of Bandipore in J&K.
Construction began in 2007 and was temporarily halted by the Hague Permanent Court on a complaint from Pakistan. It was revived again in 2013 after a ruling by the Court of Arbitration in favour of India and completed in May 2018.
Pakistan had since then begun the construction of a 969-MW project downstream on the Neelam River and it is yet to be completed. Pakistan did not inform India of its intention to build a major Hydro electric project downstream on the same river when the Kishenganga project was started.
In the second order of the Court of Arbitration of 2013, the Court ruled that at the time the Kishenganga project was initiated, Pakistan did not have a domestic requirement downstream and also specifically pointed out that the Neelam Hydro electric Project was initiated after the Kishenganga hydro electric project.
History:
In 2010, the Court of Arbitration (COA) on a complaint from Pakistan mentioned that the dam component would eventually enable India to exercise a certain degree of control over the volume of water that will reach Pakistan and hence ordered a temporary halt to the construction. It could be argued that India being the upper riparian will have, subject to the treaties, control over the waters flowing downstream. Yet India obeyed the orders and suspended the Project.
In the second order of 2013, the COA in a review, allowed the construction of Kishenganga Project to be resumed. Significantly the Court ruled that India could divert the water that is necessary for power generation after leaving a minimum flow for downstream.
The Court had also ordered that India was under obligation to “construct and operate” the dam in such a way that it “maintains a minimum flow of water downstream.” The minimum was fixed as 9 cumecs.
In 2016, Pakistan raised the issue once again and objected to the design of the dam which in its view actually diverts the water from the Neelum (Kishenganga) river into the Madkati nullah and is therefore a breach of Article 111(2).
Pakistan insisted on arbitration while India maintained that the issue can be resolved by a neutral expert as the differences are only in the design of the dam meant for power generation. The issue of the diversion of waters alleged to be a violation of the Treaty had already been settled by the COA in the review order that India could divert the water after leaving a minimum flow downstream.
In the same year, strangely, the World Bank accepted the position of both India and Pakistan to have a court of arbitration and also a neutral expert to examine the issue. In fact the World Bank had already formed the three judge arbitration Court. India objected to the simultaneous setting up of both the arbitration court and a neutral expert. The Indian position was accepted and no further action was taken. Instead the World Bank wanted both countries to have bilateral talks to settle the issue. Four rounds of talks took place between Indian and Pakistan in 2017 but the issue could not be resolved.
Current Position:
The Kishenganga dam in India was inaugurated on 19th May 2018 by the Prime Minister of India. Soon after Pakistan sent a high-powered delegation to World Bank to explain its stand and insisted once again for a court of arbitration.
On 5th of June 2018, the World Bank asked Pakistan to stand down from referring the Kishenganga dam dispute to the ICA and instead accept India’s offer of appointing a neutral expert.
As of now this is the position of the issue of Kishenganga project as the World Bank has not accepted the demand of Pakistan to have a Court of Arbitration and instead go for the neutral expert to examine the technical issue of the design of the dam. Pakistan’s media reports indicate that the World Bank has offered other alternatives but has not withdrawn from the position it has taken that Pakistan should agree to a neutral expert. There are wild allegations in Pakistan that the “Indian Lobby” has bought over the World Bank!
The issue as it stands is very simple. The design of the Kishenganga dam is such that it is not providing sufficient water to the Neelam river downstream and nothing else. This can be best resolved by a neutral expert who may suggest some alterations in the design. The question of diversion of water for power generation has also been settled and is not violative of the Indus Treaty provisions.
Responses from Pakistan Side are very interesting.
*A three-member bench headed by the Chief Justice of Pakistan is now involved with the issue. It has directed the federal Government of Pakistan to furnish a comprehensive report on the reduced flow on Neelam River because of the dam.
* Dr. Pervaiz Amir, an expert on Water resources, pointed out that taking the dispute to the ICA could “result in abolition of the Indus Water Treaty” that has survived conflicts and wars between the two nuclear armed States.
*One Analyst had suggested that for Pakistan,if the boundary had been along the Chenab river, these problems faced on the Neelam River project could not have occurred at all!
* Most critical was the view of Abit Hasan, a former Adviser to World Bank published under ‘Opinion’ Column in the News of 8 June. The points amongst many mentioned here are very valid. These were
1. The present water crisis in Pakistan is due to decades of neglect and mismanagement of water resources.
2. The per capita availability is slowly dwindling and is already in a critical stage of 1200 cubic metres and may go to 500 cubic metres in another thirty years.
3. Uncontrolled population explosion, generous use of water that is free and unregulated has led to a critical situation in availability of water.
4. Leaders indecisions, incompetence of institutions, corrupt and outdated agricultural practices are responsible for the shortages.
5. Legal rights for more water to Neelam Project could have been claimed but for the failure to complete the dam in time.
6. Both countries Pakistan and India should resolve the issue bilaterally.
Conclusion:
I had already discussed many of the issues relating to the Indus Water Treaty in Paper nos 3676 and 5415. I had noticed that while India was going by the spirit of the Indus Water Treaty, Pakistan was more intent on following the letter of the treaty.
What is needed is for India to continue to stand firm on following the Indus Water Treaty both in letter and spirit as had been hinted after the attack on the Uri Army Post by Pakistan-sponsored terrorists. Surely, blood and water cannot mix!.
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