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Troubled waters

The Indo-Pak row over the 330 MW Kishanganga hydroelectric project is getting more serious than New Delhi had earlier anticipated...

Written by Ravish Tiwari | New Delhi |
June 18, 2010 3:53:24 am

The Indo-Pak row over the 330 MW Kishanganga hydroelectric project is getting more serious than New Delhi had earlier anticipated. Buoyed by the success in the Baglihar project,where the Indian position was largely upheld,New Delhi did not quite think matters would go this far when Islamabad first threatened to invoke arbitration proceedings.

The 1960 Indus Waters treaty has three tiers of dispute resolution (see box) and arbitration is the last step when both parties have divergent interpretations of the treaty provisions. In the case of Baglihar,Pakistan raised technical differences and hence,a neutral observer was appointed. This time,it has raised differences in interpretation.

Underlying the legal battle over the violation of the Indus Water Treaty,which has survived three wars since 1960,is the race between the two countries to complete their respective projects on River Kishanganga (known as Neelum in Pakistan),a tributary of Jhelum.

Pakistan claims that the Kishanganga project in India would adversely impact its 969 MW Neelum-Jhelum Hydroelectric project in Pak-occupied Kashmir being built downstream by diverting waters from the Neelum river. India,on its part,has claimed that the Neelum-Jhelum project came up much after it had first intimated Pakistan about plans on the Kishanganga in 1994.

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However,Pakistan has remained steadfast on its position claiming that it had also envisaged this project in late 80s. And while it invokes arbitration proceedings with a view to get a stay on work until the legal process is over,Islamabad has handed over the construction of the Neelum-Jhelum project to China to speed up its efforts.

The Kishanganga project,on the other hand,was given to NHPC only in 2005. It is estimated to be completed by 2016 at a cost of over Rs 3600 crore. The Neelum-Jhelum project,estimated to cost about Pakistani Rs 90.90 billion,has been awarded to CGGC-CMEC Consortium of China in 2007. As on date,Pakistan claims to have completed about 12 percent of its work. India,on its part,has claimed that Pakistan has been difficult when it comes to sharing details on the Neelum Jhelum project.

As for the Kishanganga dispute,sources said,the Pakistan side had indeed indicated a need for taking up the matter beyond the technical level by senior government officials or even politically. But given that India has “paused” dialogue with Pakistan after the Mumbai attacks,the message from New Delhi was cold. This was driven by a sense of confidence that any further escalation of the dispute would only benefit India’s case.

While this assumption may still hold as India does have a strong case,the problem is that arbitration may involve suspending construction. For power-starved J&K,this project is a vital symbol of the Centre’s commitment,especially when the existing Salal project is already facing siltation problems.

The details regarding the 330 MW hydroelectric project situated in Kralpore village near Bandipore in Baramulla district of Jammu and Kashmir (first conceived in the mid 1980s) were communicated to Pakistan in 1994 under the 1960 Indus Water Treaty.

The project,which was initially conceived as a storage project with 77 meter high concrete dam providing a live storage of about 173.5 million cubic meter,attracted Pakistan’s objections soon after Pakistan was officially under the Treaty. The project envisaged diversion of water (with about 59 cumec discharge) from Kishanganga through 5.4 meter diameter tunnel of about 24 km to an underground powerhouse in Kralpore.

The project envisaged the water to be transferred into Bonar Madmati Nallah,which joins Jhelum river to Wular lake. In all,the water diverted from Kishanganga,a tributary of Jhelum,for power generation has been envisaged to be diverted back to Jhelum main again.

However,soon after the details of project were shared with Pakistan in 1994,it said the Treaty did not allow diversion of water from one tributary (Kishanganga) to another tributary (Bonar Nallah).

Subsequent to Pakistan’s objections and also keeping in mind the submergence in Gurez valley because of the height of dam (proposed at 77 m initially) coupled with environmental concerns,the project was reviewed and converted to a run of the river project with a height of 37 meters only. This change would ensure that the live storage capacity would reduce drastically from initial about 174 million cubic meter to under 8 million cubic meters,which is less than maximum pondage of 8.87 million cubic meter permissible under the Treaty. There were several other design changes incorporated into the project.

While the design changes took the sting out of Pakistan’s technical objections to the project,Pakistan remained firm on its objection that the the proposed diversion (from Kishanganga into Bonar-Madmati Nallah) was illegal under the Treaty. It claimed that the proposed diversion would violate India’s obligations under Article III to “let flow” the waters of Western Rivers (Jhelum,Chenab and Indus) to Pakistan under the Treaty.

Pakistan has also claimed that the diversion is violative of Paragraph 6 of article IV which provides that “Each party will use its best endeavours to maintain the natural channels of the Rivers.”

India has maintained that the Treaty allowed it the right for diversion of water for power generation purposes provided it redirects the water back to Pakistan without affecting ‘the then existing’ usage of water in Pakistan.

Any stay by the court of arbitration on the construction activity pending the resolution of the legal battle on Kishanganga would go against Indian interests,say sources. Given its past experience over Tulbul project —- where India suspended work in 1987 but the project has since not taken off —- India can ill-afford to do the same for Kishanganga. All this while the Chinese consortium in Pakistan works full steam on the Neelum-Jhelum project.


WHAT THE TREATY SAYS

The Indus Water Treaty of 1960 envisage a Permanent Indus Commission,which comprises the Indus Commissioners of both countries,for the monitoring of the implementation of the Indus Water Treaty.

The first category of conflict over the sharing of Indus basin rivers under the treaty is classified as ‘questions’ ,where either side has the right to question the details of the projects on the Indus basin rivers. This kind of issues are raised the the Permanent Indus Commission level itself. Most of the issues regarding small power projects have been resolved at this level itself. The most recent example being the Uri-II and Chutak projects where Pakistan’s objections on these projects in India were resolved at the meeting of Commission last month.

The second category of objections is classified as “differences” where both sides fail to resolve the differences over the projects at the Permanent Indus Commission level and the issue is referred to a neutral expert appointed by the World Bank under the treaty.The verdict of the neutral expert is binding. The Baglihar project in India went through this mechanism and the neutral expert had passed the verdict in favour of India in 2007 with certain design changes. The third category of the objections are classified as “disputes” where both sides differ on the legal obligation of either country being violated by any project. The court of arbitration route is taken only when the issue does not pertain to technicality and concerns the legal disputes that require differences over the legal interpretation of the Treaty itself. The issue is referred to an International Court of Arbitration where two members each are nominated by both countries and three neutral umpires are appointed to adjudicate the matter. The Kishanganga project is the first example of this kind.

Pakistan is learnt to have sought legal interpretation through the court of arbitration on two major parameters. It has sought the legal interpretation of India’s obligations under the treaty that mandates that India let the water of Western flowing Indus Basin Rivers (Chenab,Jhelum and Indus) flow to Pakistan and whether the Kishanganga project meet those obligations. It has also sought legal clarity on the Baglihar verdict o which had permitted the draw down flushing of silt under the project.

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