Arbitration & Kishenganga project

It should not be extremely difficult to arrive at a negotiated settlement on the reconciliation of the conflicting interests of the Kishenganga and Neelum-Jhelum projects, as also on the extent of agricultural use that needs to be provided for, and on the ‘ecological flows’ that must be maintained.

The Kishenganga Hydroelectric Project in Jammu & Kashmir is proceeding towards arbitration under the Indus Treaty 1960. This article is an attempt to explain the issues involved for the information of the general public, without expressing any personal opinions on the issues that are going before a judicial body.

While water-sharing in the Indus system stands settled by the Indus Treaty 1960, divergences are possible, and have occurred, over the question of the compliance of Indian projects on the western rivers with certain stringent provisions of the Treaty which were meant to take care of Pakistan’s concerns as a lower riparian.

The Treaty recognises three categories of such divergence: ‘questions’ to be discussed and resolved at the level of the Indus Commission, or at the level of the two governments; ‘differences’ (that is, unresolved ‘questions’) to be referred to a Neutral Expert (NE) if they are of certain kinds (that is, broadly speaking, differences of a technical nature); and ‘disputes’ (going beyond ‘differences,’ and perhaps involving interpretations of the Treaty) that are referable to a Court of Arbitration. In the Kishenganga case, both ‘difference’ and ‘dispute’ come into play. Pakistan has proposed the reference of certain technical issues to a Neutral Expert, and the submission of a couple of other issues to a Court of Arbitrators.

The Jhelum river in Srinagar. File photo: Nissar Ahmad

The Kishenganga is a tributary of the Jhelum. It originates in J&K, crosses the Line of Control, runs for some 150 km in Pakistan-occupied Kashmir, and joins the Jhelum (in PoK). India proposes to build a dam on the Kishenganga shortly before it crosses the LoC, divert a substantial part of the waters of the river through a tunnel to the hydroelectric project (330 MW, that is, 110 MW x 3) located near Bonar Nala, another tributary of the Jhelum, and then return the diverted waters, after they have passed through the turbines, to the Jhelum via the Wular Lake.

The ‘differences’ to be referred to a Neutral Expert will be regarding the compliance of the project features with the conditions and restrictions laid down in the Treaty (design of the project, quantum of pondage, need for gated spillways, placement of the gates, etc.). This reference, which will be somewhat similar to the reference to the NE in the Baglihar case, will not be discussed further in this article.

The main ‘dispute’ to be referred to a Court of Arbitration is on the issue of whether the diversion of waters from one tributary of Jhelum to another is permissible under the Treaty. Art. III (2) of the Treaty requires India to let flow all the western rivers to Pakistan and not permit any interference with those waters, and Art. IV (6) calls for the maintenance of natural channels. If we go by these provisions, the diversion of waters from one tributary to another seems questionable. On the other hand, there is another provision (Ann. D, paragraph 15 (iii)) which specifically envisages water released from a hydroelectric plant located on one tributary of the Jhelum being delivered to another tributary; this seems to permit inter-tributary diversion. The correct understanding of these provisions and the determination of the conformity of the Kishenganga Project to the Treaty is a matter for the two governments to agree upon, or for the Court of Arbitration to decide.

Any diversion of waters from a river is bound to reduce the flows downstream of the diversion point. It is true that the diverted waters will be returned to the Jhelum, but there will certainly be a reduction of flows in the stretch of the Kishenganga (some 150 km) before it joins the Jhelum. This will affect not merely certain uses of the waters but also the river regime itself and the ecological system. It may be true that only a small part of the waters (30 per cent or so) flows from the Indian part to the Pakistani part and that the rest (70 per cent) of the flows arise after the river crosses the LoC. However, the diversion of a substantial part of the former by India will undoubtedly have some impacts downstream.

Assuming that diversion from the Kishenganga to another tributary is found permissible, there is a condition attached: the existing agricultural use and use for hydro-electric power generation on the Kishenganga in Pakistan must be protected. There is indeed some existing agricultural use along the Kishenganga (Neelum) in PoK. Pakistan is also planning the Neelum-Jhelum hydroelectric project at a point on the Neelum before it joins the Jhelum. These claims of existing uses will probably be contentious issues between the two countries, with reference to (a) the crucial date for determining ‘existing use’ and (b) the quantum of existing use.

Arbitration is action under the Treaty and is therefore not a matter for concern. In this case, the arbitration process has already been initiated. However, it seems to this writer that even at this stage an effort should be made to reach an agreed settlement on this project. The reasons for saying so are as follows:

First, arbitration by a court of seven arbitrators of the highest international standing will be a very expensive process; it may also take a long time — possibly several years.

Secondly, arbitration is essentially an adversarial process. Each side will try to make the strongest possible presentation of its own case, and question the other’s. The media in both countries will keep reporting developments in the case, probably in a partisan manner. All this will definitely cause an accentuation of strained relations between the two countries.

Thirdly, the outcome of the process is uncertain. There are three possibilities: a clear negative finding (that is, the diversion of waters is impermissible under the Treaty), in which case the project will have to be abandoned; or a clear positive finding (that the diversion is permissible) in which case, the project can go ahead as planned; or a mixed finding that the diversion is permissible but must be such as to minimise adverse downstream impacts, in which case India may have to reduce the planned diversion and let a larger quantum of waters flow down. It would be very rash to predict the outcome of the process, but undertaking that rashness, the author would venture to suggest that a mixed finding seems more likely than a categorical one (positive or negative).

If that tentative forecast seems plausible, is it really necessary to go through a costly and time-consuming process of arbitration to arrive at that result? Is it not possible — and more sensible — for the two countries to try for an agreed settlement of the dispute even at this stage? It should not be extremely difficult to arrive at a satisfactory, negotiated settlement on the reconciliation of the conflicting interests of the Kishenganga and Neelum-Jhelum projects, as also on the extent of agricultural use that needs to be provided for, and on the ‘ecological flows’ that must be maintained.

A second issue that Pakistan proposes to refer to the Court of Arbitration is the legitimacy of drawdown flushing of the reservoir for sediment-control. This is not specific to the Kishenganga project but is a general issue applicable to all future projects. In the case of Baglihar, the Neutral Expert had strongly recommended periodical drawdown flushing of the reservoir as a means of sediment control, which (in his view) was part of proper maintenance, and had observed that while the dead storage could not be used for operational purposes, there was no objection to its use for maintenance purposes. Pakistan has been unhappy with that recommendation, but could not challenge it as the NE’s findings are final and binding. It is now raising this as a general issue before the Court of Arbitration. Three questions arise:

(i) Can an issue on which a NE has given a final and binding finding be raised again before another NE or a Court of Arbitration?

(ii) If the NE’s finding is applicable only to the particular project in question and not to others, should we accept the position that there can be substantially different (even contradictory) principles (laid down by different NEs) applying to different projects?

(iii) If drawdown flushing is ruled out, then must the corollary of heavy siltation and reduction of project life (as in the case of Salal) be accepted as inevitable? If so, does this not amount to ignoring the words “consistent with sound and economical design and satisfactory construction and operation” and again “unless sediment control or other technical considerations necessitate this” in the Treaty?

These questions will no doubt be argued before the Court by the two countries.

Ramaswamy R. Iyer – From THE HINDU


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