The Water Dis­pute

A re­view of the In­dus Water Dis­pute be­tween In­dia and Pak­istan and In­terim Or­der of In­ter­na­tional Court of Ar­bi­tra­tion (ICA) in Kis­hanganga case.

Southasia - - Indo-pak - By Ali Nawaz Chowhan

The In­dus Water Treaty was signed in Mur­ree on 19 Septem­ber, 1960 by Pres­i­dent Ayub Khan and Prime Min­is­ter Jawa­har­lal Nehru to set­tle the water dis­pute be­tween the two coun­tries.

In con­cise terms, Ar­ti­cle 2 of the 1960 Treaty pro­vides un­re­stricted avail­abil­ity of the wa­ters of the east­ern rivers to In­dia. The re­stric­tive use is enu­mer­ated in the later sub­para­graphs of the Ar­ti­cle. Like­wise Ar­ti­cle 3 pro­vides un­re­stricted avail­abil­ity of wa­ters of western rivers to Pak­istan while cre­at­ing an obli­ga­tion for In­dia to let flow of the wa­ters of these rivers with­out in­ter­fer­ence as men­tioned in para­graph 5 of the An­nex­ure C to the Treaty.

The present cause of ac­tion has arisen be­cause the par­ties failed to re­solve the dis­pute con­cern­ing the Kis­hanganga Hy­dro Project (KHEP) pur­suant to the terms of Ar­ti­cle IX (4) of the said Treaty. The mat­ter was taken for Ar­bi­tra­tion.

Pak­istan’s griev­ance:

It is Pak­istan’s case that the Kis­hanganga project is a run-of-river plant which will di­vert water from the Kis­hanganga or Nee­lam River through a tun­nel hav­ing a ca­pac­ity of 58.4 cumecs, whose ca­pac­ity is more than the en­tire flow of the river at the Gureg site for an av­er­age of six months in a year (Oc­to­ber to March). In­dia has al­ready made it pub­lic to use the en­tire ca­pac­ity. This will re­sult in in­ter­fer­ing with the en­tire flow of the river for about six months in a year. It will also ad­versely af­fect the flow of the river to Pak­istan at Nausery for the op­er­a­tion of the Nee­lam-jhelum plant. Ad­di­tion­ally, se­vere en­vi­ron­men­tal con­se­quences and dam­age to the river’s an­i­mal species are also ex­pected. An­other dis­pute is re­gard­ing the use of an ori­fice spill­way in the de­sign of the project al­low­ing In­dia the abil­ity to ma­nip­u­late the flow of water which would be detri­men­tal to the down­stream state of Pak­istan.

Pak­istan sought in its Ap­pli­ca­tion that the Court is­sue an or­der that In­dia “in­form the Court and Pak­istan of any ac­tual or im­mi­nent de­vel­op­ments or steps in re­la­tion to the Kis­hanganga project that may have sig­nif­i­cant ad­verse ef­fects upon restor­ing the sta­tus quo ante or that may in any other way se­ri­ously jeop­ar­dize Pak­istan’s rights and in­ter­ests un­der the Treaty.”

Is­sue be­fore ICA:

While rais­ing the dis­pute, two is­sues were for­mu­lated by the court of ar­bi­tra­tion: “i) Whether In­dia’s pro­posed di­ver­sion of the river Kis-

hanganga (Neelum) into an­other Trib­u­tary, i.e. the Bonar Mad­mati Nal­lah breaches In­dia’s le­gal obli­ga­tions un­der the Treaty, in­clud­ing In­dia’s obli­ga­tions to let flow all the wa­ters of the Western rivers and not per­mit any in­ter­fer­ence with those wa­ters and main­te­nance of nat­u­ral chan­nels; ii) Whether un­der the Treaty, In­dia may de­plete or bring the reser­voir level of a run-of-river plant be­low Dead Stor­age Level in any cir­cum­stances ex­cept in the case of an un­fore­seen emer­gency.”

Pak­istan re­quested for in­terim mea­sures pend­ing the fi­nal Award.

The court did not grant full re­lief to Pak­istan but did hold in para­graph 140 of the in­terim or­der as fol­lows:

“140. …the Court is sat­is­fied that Pak­istan has pre­sented a plau­si­ble, pro­vi­sion­ally ten­able ar­gu­ment un­der the Treaty in sup­port of its case...”

What ICA has granted:

The Court did ap­pre­ci­ate the fac­tual po­si­tion and made the fol­low­ing ob­ser­va­tions in para­graph 151 of the in­terim or­der dated Septem­ber 23, 2011:

“151. The Court con­sid­ers that while this ar­bi­tra­tion is pend­ing, and sub­ject to any agree­ment be­tween the Par­ties as to the im­ple­men­ta­tion of the present Or­der, In­dia may: (i) erect tem­po­rary cof­fer­dams and oper­ate the by­pass tun­nel it has said to have com­pleted; (ii) tem­po­rar­ily dry out the riverbed of the Kis­hanganga/neelum at the Gurez val­ley; (iii) ex­ca­vate the riverbed; and (iv) pro­ceed with the con­struc­tion of the sub-sur­face foun­da­tions of the dam. How­ever, as spec­i­fied above, un­til the Court ren­ders its Award, In­dia may not con­struct any other per­ma­nent works on or above the riverbed that may in­hibit the restora­tion of the full flow of that river to its nat­u­ral chan­nel.”

In­dia has, in re­sponse, ac­cepted in al­most ver­ba­tim terms Pak­istan’s re­quest that it will pro­vide the re­quested in­for­ma­tion. In­dia has also as­sured both, Pak­istan and the Court, that the planned date of di­ver­sion is not be­fore 2015 and has given an un­equiv­o­cal as­sur­ance that, re­gard­less of the out­come, it will com­ply with the Court’s Award.

Ob­vi­ously the Court’s ob­ser­va­tions do not give a carte blanche to In­dia but al­low it to “pro­ceed at own risk,” con­di­tions pro­posed by Pak­istan, which will of course be with­out prej­u­dice to the ul­ti­mate de­ci­sion. Ad­di­tion­ally, none of the par­ties are pre­cluded from re­quest­ing for fur­ther pro­vi­sional mea­sures even at a later stage. The in­terim or­der will re­quire in­ter­pre­ta­tions and clar­i­fi­ca­tions for the fu­ture.

In my view the con­struc­tion of the sub-sur­face foun­da­tions of the dam at­tracts the same prin­ci­ple which was ap­plied in the case of “Per­ma­nent Con­struc­tion” while grant­ing the re­strain­ing or­der. The past con­duct of In­dia in the case of Kash­mir, which con­tin­ues to bit­terly sour re­la­tions be­tween the two coun­tries and has led to nu­mer­ous wars, makes me be­lieve that once these foun­da­tions are built and In­dia con­tin­ues to oper­ate the by-pass tun­nel it may try to con­fuse and make a jum­bled cro­chet of the is­sue to wrig­gle out of its as­sur­ances to ul­ti­mately de­feat the case of Pak­istan. Pak­istan will have to there­fore keep a keen vigil and re­port breaches of the in­terim or­der to the ICA apart from con­sid­er­ing whether to re-ap­proach the ICA for ex­pan­sion of the sweep of the or­der.

An­other dis­pute is re­gard­ing the use of an ori­fice spill­way in the de­sign of the project al­low­ing In­dia the abil­ity to ma­nip­u­late the flow of water which would be detri­men­tal to the down­stream state of Pak­istan.

The writer is a former In­ter­na­tional Judge of the United Na­tions at The Hague, Per­ma­nent Judge of the La­hore High Court and is presently Co-chair­man of the UNESCO Ap­peal (Ju­di­cial) Board in France.

Prime Min­is­ter Nehru and Pres­i­dent Ayub Khan sign­ing

the In­dus Water Treaty, 1960.

The con­tro­ver­sial Kis­hanganga Hy­dropower Plant.

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