Court of Arbitration upholds India’s right to divert water

‘Delhi Bound To Maintain Minimum Flow To Pak’

KISHENGANGA HYDROELECTRIC PROJECT

ANIL ANAND

New Delhi, Feb 19: An international court of arbitration on Indo-Pak dispute on Kishenganga hydroelectric project has upheld India’s right to divert water for the power plant, but said New Delhi is bound to maintain a minimum flow of water to protect the agricultural interests of Pakistan.
The Rs 3600 crore power project is located in Gurez valley in Jammu and Kashmir. Pakistan has claimed that the 330 MW project would rob it of 15 percent of its share of river waters. It also accused India of trying to divert the river in order to harm Pakistan’s Neelum-Jhelum hydro-electric project.
On May 17, 2010, Pakistan had moved for arbitration against India under the provisions of the Indus Waters Treaty 1960.
In its ‘partial award’ announced yesterday, the International Court of Arbitration at The Hague said the Kishenganga hydro-electric project (KHEP) constitutes a “run-of-river” plant under the Treaty, and India may accordingly divert water from the Kishenganga/Neelum river for power generation by the project.
It, however, pointed that while operating KHEP, India is under an obligation to maintain a minimum flow of water in the Kishenganga/Neelum river. It said rate of minimum flow will be determined by the court in a ‘final award’ to be issued by year end after the two countries provide it with fresh hydrological data.
Reacting to the development, the Ministry of External Affairs spokesperson Syed Akbaruddin said that the Court award on the project has allowed diversion of Kishanganga water as envisaged by India.
The court also said that except in the case of an unforeseen emergency, the Treaty does not permit India reduction of water level in the reservoirs below ‘dead storage level’ located on the rivers allocated to Pakistan under the Treaty.
The award does not appear to be heavily tilted to any side with the seven-member court in its unanimous judgement giving favourable verdict on a variety of issues for both the countries.
As defined in the Treaty, “dead storage” is that portion of storage which is not used for operational purposes.
The Court of Arbitration said the partial award is “final” with respect to the matters decided by it. The award is binding on the two countries.
It clarified that the ruling does not apply to plants already in operation or under construction, whose designs have been communicated by India and not objected to by Pakistan.
The award is regarding the legality of construction and operation of the hydro-electric project by India and the permissibility under the treaty of the depletion of the reservoirs of certain Indian hydro-electric plants below “dead storage level”.
On Pakistan’s demand to direct India to stop diverting water, the court observed that the treaty expressly permits the transfer of water by India from one tributary of the Jhelum to another for the purpose of generating hydro-electric power, subject to certain conditions.
It found that KHEP’s inter-tributary transfer is “necessary”, as required by the treaty, for the generation of hydroelectric power.
It said power can be generated on the scale contemplated by India in this location only by using the 665 m difference in elevation between the dam site on the Kishenganga/Neelum and the place where water is released into the Bonar Nallah.
However, the court also decided that India’s right to divert the Kishenganga/Neelum water is not absolute and Pakistan retains the right to receive a minimum flow of water from India in Kishenganga/Neelum riverbed at all times.
The court noted that this right also stems from customary international environmental law, and that it considered that the Treaty must be applied in light of contemporary international environmental law principles.
The court made it clear that the award will not have any bearing on any territorial claims or rights of countries over Jammu and Kashmir.
“The court’s findings pertain solely to the parties’ rights and obligations with respect to the use of the waters of the Indus system of rivers,” it said.
Bhaswati Mukherjee, Indian Ambassador and her Pakistani counterpart Fauzia Mazhar Sana received the Judgment of the Court at The Hague on Monday.
The seven-member Court of Arbitration is chaired by judge Stephen M Schwebel of the US who is former president of the International Court of Justice. The other members of the court are Franklin Berman and Howard S Wheater (UK), Lucius Caflisch (Switzerland), Jan Paulsson (Sweden) and judges Bruno Simma (Germany) and Peter Tomka (Slovakia).
The arbitration proceedings were initiated by Pakistan after failure of bilateral talks between experts on the two sides.
It may be recalled that Pakistan had on 17 May 2010 raised objections on the construction of the Kishanganga Hydro-power project and had subsequently demanded setting up of the Court of Arbitration.
The members from the Court of Arbitration, The Hague, had visited India and Pakistan in June 2011 for inspection of the site. WITH INPUTS FROM PTI

Lastupdate on : Tue, 19 Feb 2013 21:30:00 Makkah time
Lastupdate on : Tue, 19 Feb 2013 18:30:00 GMT
Lastupdate on : Wed, 20 Feb 2013 00:00:00 IST




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