The Permanent Court of Arbitration (PCA) at The Hague has given its final award in the Kishenganga water dispute on Dec 20th, 2013. The outcome of this award is as follows:
- India has right to divert water from Kishenganga River to the Kishenganga hydroelectric project for power generation, but it will have to maintain minimum environmental flows of 9 m3/sec in the river.
- India has also been barred from using the drawdown technique for flushing sediments in the reservoir behind the dam. This drawdown flushing technique can only be used in case of emergency.
Here we revisit the issue.
It is a tributary of Jhelum river which it joins in Pakistan occupied Kashmir. In India, it flows through Jammu & Kashmir. It is known by the name of River Neelum in Pakistan.
Kishenganga Hydroelectric Project (KHEP)
It is a hydroelectric project being constructed by India in J&K. As a part of this project, a dam is being constructed on Kishenganga river within Gurez valley at a high elevation and then the water from this dam will be diverted through a system of tunnels to the hydroelectric plant of 330 MW capacity, with power being generated here by the moving water. The water from this hydroelectric plant will then flow to Bonar Nullah, another tributary of Jhelum (at a lower height). India started construction on this project in 2007 and is expected to be completed in 2016. Given below is a rough map of the various parts of the project.
After construction on this project was started by India in 2007, Pakistan objected to it but India still continued with its construction. Finally in 2010, Pakistan appealed to the Hague’s Permanent Court of Arbitration (PCA), complaining that the Kishanganga Hydroelectric Plant violates the Indus River Treaty by depriving Pakistan of its water rights.
Pakistan contested that it was building Neelum Jhelum Hydroelectric Project (NJHEP) on the Neelum river with a capacity of 1000 MW. The diversion of water due to KHEP will reduce the flow of water in Neelum which will lead to a reduction in capacity of 150 MW in NJHEP. Pakistan also argued that it will receive 15% lesser water than its share from Jhelum river as per Indus Waters Treaty, 1960.
The PCA had given its interim award in Feb, 2013 in which it ruled that India had the right to divert a minimum amount of water of Kishenganga river for the KHEP project. In this partial award, the court upheld India’s main contention that it has the right to divert waters of western rivers, in a non-consumptive manner, for optimal generation of power.
Indus Waters Treaty, 1960 (IWT)
Indus Waters Treaty is a water-sharing treaty signed between India and Pakistan in 1960. The treaty was born out of Pakistan’s fear that since all rivers of the Indus river system had their source in India or at least flowed from India to Pakistan, India could stop their flow during times of war and thus cause droughts and famines in Pakistan.
The Indus river system comprises of 3 western rivers i.e. Jhelum, Chenab and Indus and three eastern rivers – Ravi, Beas and Sutlej. As per the terms of the Treaty, the 3 eastern rivers are allocated to India for exclusive use before they enter Pakistan while the 3 western rivers are allocated for exclusive use by Pakistan. However, India can use the waters of western rivers for some developmental needs like hydroelectric project under certain conditions. Thus, the treaty actually provided for dividing the 6 rivers between both countries rather than sharing of all 6 rivers.
The fact that parties have turned, time and again, to the IWT mechanisms and not the use of force speaks volumes about the existing legal governance of Indus waters under the treaty. However, complaints by Pakistan that India is violating the IWT and its efforts to drag the matter to an international forum emanates from deeply entrenched distrust and compulsions of domestic politics.
Many voices from both sides demand renegotiation of the IWT to update certain technical specifications and also to include provisions pertaining to possible effects of climate change.
Permanent Indus Commission
The Treaty provides for exchange of data and co-operation in matters related to its provisions. For this, it establishes a Permanent Indus Commission (PIC) with each country having one commissioner in it. The PIC meets regularly and inspects various projects being constructed by each side to ensure that no violation of the treaty is done. If either country is making projects or canals on a river, they should share data with other party. At the same time, PIC also acts as a dispute settlement mechanism through talks and negotiations. However, if talks or negotiations fail, both countries can approach neutral expert.