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Issues in Kishanganga hydropower project

April 08, 2013

PAKISTAN has urged India to change the design of the Kishanganga hydroelectric plant in accordance with the spirit of the International Court of Arbitration’s interim award, which was announced on February 18.

The plea was made to Indian Water Commissioner Aranganathan, who was in Lahore last month, by his Pakistani counterpart during their talks, according to a report published in this newspaper. Technical objections were also raised on designs of three other hydropower projects that are being constructed by India on River Chenab, and they were termed a violation of the Indus Waters Treaty (IWT).

This seems to be an uninformed plea. According to the text of the International Court of Arbitration’s (ICA) interim award, the design of the run-of-river plants, which includes the Kishanganga hydroelectric plant (KHEP), that are already under construction on the date of issuance of this award, “having been duly communicated by India under the provisions of the Annexure D (of the IWT) had not been objected to by Pakistan”.

Hence, seeking any change in the design has become irrelevant. The only restriction the court has imposed on India is that it cannot employ ‘drawdown flushing’ at the KHEP reservoir to an extent that it would ‘entail depletion’ of the reservoir below the dead storage level.

Apart from this, the award says that there is no restriction on the construction and operation of the KHEP. Paragraph 413 of the ICA’s award says that “any interpretation of Paragraph 15, the logical result of which would be to allow Pakistan unilaterally to curtail the ability of such Indian plants to operate, would subvert an important element of the object and purpose of the Treaty.”

Pakistan’s predicament arises from the fact that the IWT contains no provision that may restrain India from constructing any number of dams or power projects as it deems necessary in its part of Kashmir. Such dams and reservoirs, Pakistan fears, can be used by India in times of hostility to deny it water. Even in normal times, India, whose water consumption is fast on the rise, can, whenever needed, reduce the flow of water into western rivers to meet its needs, and thus cause a serious crisis in Pakistan.

India does not consider it necessary to consult Pakistan, much less take it into confidence, and accommodate its genuine concerns while proceeding with its proposed projects. The only information it conveys to Pakistan is about technical details of the projects, as required by the IWT. Legally speaking, India is required to provide a notice about the design of a new run-of-river plant to Pakistan at least six months before construction is permitted.

So, Pakistan can routinely object to the technical aspects of the blueprints, and may also occasionally get relief, but it cannot question the decisions that, for India, are its policy and concern its political matters, and therefore cannot be shared with Pakistan.

Pakistan’s complaints that such projects may, in the long run, hurt its agriculture and economy are not heeded by tribunals, arbitrators and neutral experts simply because these matters fall outside their mandate and the scope of the treaty. While challenging the legality of the construction of the Kishanganga project at ICA, Pakistan chose to remain within the parameters of the IWT. This didn’t cause discomfort to India. But had Pakistan raised the issue at a diplomatic forum outside the scope of the IWT, India would have become uncomfortable.

The court, in its award, has allowed India to divert water from the Kishanganga/Neelum River for power generation at KHEP, and deliver the water released below the power station into the Bonar Nallah. India is, however, under an obligation to construct and operate the KHEP in such a way as to ‘maintain a minimum flow of water’ in the Kishanganga/Neelum River at a rate to be determined by the court in its final award.

IWT’s Article III says that Pakistan shall receive for ‘unrestricted use’ all those waters of the western rivers which India is under obligation to ‘let flow’. India shall be ‘under an obligation to let flow all the waters of the western rivers,’ and shall ‘not permit any interference’ with these waters, except for domestic use, non-consumptive use, agricultural use and generation of hydroelectric power.

During ICA proceedings, Pakistan took the position that KHEP’s proposed diversion of water from the Kishanganga/Neelum River into the Bonar Nallah tributary violates India’s obligation to ‘let flow’ the waters of the western rivers, and constitutes an ‘interference’ with those waters prohibited by Article III. It argued that India’s obligations to ‘let flow’ the waters of the western rivers limit the scope of the exceptions to these obligations.

Meanwhile, India argued that Pakistan’s interpretation of Article III nullifies the four exceptions to the ‘let flow’ obligation, the fourth of which permits the construction of the KHEP. Pakistan’s reading of the Article, it argued, would destroy India’s right to build and operate any hydroelectric project on the western rivers.

Paragraph 409 of the award endorses this by saying that it would make little sense if, on the one hand, the treaty permits the new run-of-the-river plants to be designed and built in a certain manner, and on the other, prohibit the operation of such a plant in the very manner for which it was designed.

Legal expert on water issues, Ahmer Bilal Soofi, observed in a recent op-ed article in this newspaper that it was time that Pakistan realised that the IWT did not provide any framework that would cater to its concerns that proliferation in the construction of dams or projects upstream on western rivers might be used against it by India in times of conflict.

Thus, if Pakistan wants to effectively challenge India over the number of upstream dams or projects that are being constructed, as opposed to their technical design, “it must not invoke the treaty’s dispute settlement mechanism, but rather bilaterally take up the matter with India or at any other international forum”.