Kishanganga Project

The Court of Arbitration at The Hague has allowed India to go ahead with the construction of the Rs. 3600 crore Kishenganga hydro-electric project in North Kashmir, rejecting Pakistan's plea that this was a violation of the 1960 Indus Waters Treaty.

DISPUTE IS ALL ABOUT ...........

Construction of the Kishanganga project started in 2007 and is expected to complete by 2016.It is located on the river Kishanganga, a tributary of river Jhelum, in Baramulla district of Jammu & Kashmir.

Almost a year later, Pakistan started constructing the Neelum Jhelum project on the Neelum River, located in Pakistan Occupied Kashmir, with a capacity of 969 MW and presumed annual benefits of Rs 45 billion.

Both follow similar principle of design and operation i.e. to divert a portion of the water to the power station before it is discharged back into the river.

Pakistan fears that the Kishanganga Project will divert a portion of the Kishanganga (Neelum River in Pakistan) which will reduce power generation at the Neelum-Jhelum Hydropower Plant.

Therefore, in 2010, it appealed to the International Court of Justice for resolution of the conflict under the provisions of the Indus Waters Treaty (IWT).

THE ISSUE APPEARS TO BE MORE CRITICAL FOR PAKISTAN FOR TWO MAIN UNDERLINED REASONS.

First, Pakistan's power shortage has reached an average of 12-13%, according to an official source. The average energy consumption in Pakistan is around 2.5 barrels of oil equivalent, which is way below the world average, but not far from India at 2.8 barrels/ person. A recent research report by the Sustainable Development Policy Institute in Pakistan suggested that the only way out of this crisis is to aggressively invest in hydropower development, besides improving fuel efficiency and introducing smart girds. Federal government of Pakistan plans to build five new dams with a total capacity of 20,000 MW to meet the growing power demand. Therefore, the mega hydropower projects in Pakistan hold critical significance to meet the threshold developmental objectives.

Second, emotional overtones over the Indus Waters have been more of an existential issue than any other. Nothing arouses the sensitivities of India and Pakistan as the dispute over shared water. Kishanganga project is another case in point, besides Baglihar, Chutak and Nimoo Bazgo hydropower projects. According to the provisions in IWT, the country that completes its project first will secure priority rights to the river. Hence, Pakistan has been vying to complete the Neelum Jhelum project before its Indian counterpart

THERE HAVE BEEN MAJOR DELAYS IN THE CONSTRUCTION OF THE PROJECTS ON BOTH SIDES OF THE BORDER

In India, the environmental and social concerns raised over the project have spurted internal conflict over the Kishanganga project.

One the other hand, in Pakistan, Neelum Jhelum project is halted due to lack of financial assistance and other obstructions caused by technical and administrative issues. Interesting to note is the lack of environmental and social objections in Pakistan over the project. Lack of data on environmental and social assessments have left a blurred picture on the adverse impacts of the Neelum Jhelum project.

Environmental Aspect in India

A 3-member Legislative Committee on Environment headed by its chairman M Y Targami visited Gurez to assess the impact of the project on the environment. In its observations, the committee found

the constitution of the Conservation and Management Cell (CMC) under Environment Management Plan (EMP) for protection of the fragile environment of Gurez was shelved by the state government. The CMC was to focus on protection and conservation of wildlife, flora and fauna to be affected by setting up of the dam.

In 2000, the state government handed over the Kishanganga project to National Hydroelectric Power Corporation for construction which in turn awarded it to Hindustan Construction Company for execution. “The authorities were not complying with the environmental protection laws underlined in the Environmental Impact Assessment Report (EIAR),” the committee has observed.

“Threats of loss and disappearance of various species of flora may arise from inundation, habitat destruction and fragmentation apart from a severe impact on fauna,” the committee said.

Presently, the construction of 24-km long tunnel from Dawar in Gurez to Kralpora in Bandipora is going on the project. Water from Kishanganga would be stored at Gurez and diverted to the Bandipora power station which would then go into the Bonar Madhumati Nallah and eventually flow into the Wullar Lake after its exploitation for power generation.

The committee has stressed that the tunnel needs to be scientifically studied and ecological measures need to be adopted so that the sediments would not flow directly into the Wullar lake which was already facing a threat to its existence due to growing pollution.

Kishenganga project: Two questions

1. Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III (2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV (6) (maintenance of natural channels)? [the “First Dispute”]

2. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency? [the “Second Dispute”]Pakistan: Contended that the KHEP’s planned diversion of the waters of the Kishenganga/Neelum, as well as the use of the drawdown flushing technique, both at the KHEP or at other Indian hydroelectric projects that the Treaty regulates, are impermissible under the Indus Waters Treaty.India: Maintained that both the design and planned mode of operation of the KHEP are fully in conformity with the Treaty.

(Source: Press release of the Permanent Court of Arbitration, September 1, 2012)

BRIEF PROVISIONS OF INDUS WATERS TREATY 1960

i. The Indus system of rivers comprises three Eastern Rivers (Ravi, Beas and

Sutlej and their tributaries) and three Western Rivers (Indus, Jhelum and
Chenab and their tributaries).
ii. The Indus Waters Treaty 1960 was signed on 19.09.1960 between India and Pakistan. It is however effective from 01.04.1960.

iii. Under the Treaty, the waters of Eastern Rivers are allocated to India. India is under obligation to let flow the waters of the Western Rivers except for the following uses:

(a) Domestic Use,

(b) Non-consumptive use,

(d) Generation of hydro-electric power as specified

iv. India has been permitted to construct storage of water on Western Rivers

upto 3.6 MAF for various purposes. No storage has been developed so far.

v. India has been permitted Agricultural Use of 7,01,000 acres over and above

the Irrigated Cropped Area (ICA) as on 1.4.60. Out of this additional ICA of

7,01,000 acres, only 2,70,000 can be developed (i.e. a total ICA of 9,12,477

acres including that on 1.4.1960) till storages are constructed and 0.5 MAF of

water is released there from every year. ICA during 2008-09 was 7,92,496 Acres.

vi. Under the Treaty, India and Pakistan have each created a permanent post of Commissioner for Indus Waters. They together constitute the Permanent Indus Commission (PIC), which is entrusted with the implementation of the

Treaty. The PIC is required to hold meetings and tours and submit report on

its work to the two Governments every year. It has held 111 tours and 106

meetings so far.

vii. Both sides are required to exchange information related to river flows

observed by them, not later than three months of their observation and to

exchange specified information on Agricultural Use every year.

viii. India is under obligation to supply information of its storage and hydroelectric projects as specified.

viii. India communicates as a gesture of goodwill, flood data to Pakistan from 1st July to 10th October every year, to enable them to undertake advance flood relief measures. The arrangement is reviewed every year.

ix. The Commissioners may discuss the questions arising under the Treaty under Article IX of the Treaty related to Settlement of Differences and Disputes and in the case of non-resolution, take further action under this Article for resolution through a Neutral Expert, negotiators or Court of Arbitration.
(A Neutral Expert appointed by World Bank on Pakistan’s request delivered Expert Determination on Baglihar Hydroelectric Project in Feb. 2007. To resolve the issues of Kishenganga H.E. Project, Pakistan has initiated proceedings for setting up a Court of Arbitration)

Water Treaty with Foreign Countries

The names of the rivers on which treaties/ agreements have been signed with neighbouring countries and the nature of the treaty / agreement are as under:

River for which treaty/ agreement has been signed	Neighbouringcountry with which signed	Nature of the Treaty / Agreement
Sharda (Mahakali)	Nepal	Mahakali Treaty of 1996 which includes PancheshwarMulti-purpose project
Kosi	Nepal	Agreement of 1954 (revised in 1966) regarding construction of Kosi Barrage in Nepal.
Gandak	Nepal	Agreement of 1959 regarding construction ofGandak Barrage in Nepal
Ganga	Bangladesh	Indo-Bangladesh Treaty of 1996 regarding sharing ofGanga water at Farakka
Indus system of rivers comprising the rivers Indus, Jhelum,Chenab, Ravi, Beas,Sutlej and their tributaries	Pakistan	Indus Waters Treaty 1960 for the most complete and satisfactory utilization of the waters of the Indus system of rivers

The Mahakali Treaty of 1996 is valid for 75 years. It shall be reviewed by both the parties at 10 year interval or earlier as required by either party and make amendments, thereto, if necessary.

The Indo-Bangladesh Treaty of 1996 is valid for 30 years. There is a provision to review the Treaty after five years

The provisions of the Indus Waters Treaty 1960 can be modified or terminated by another duly ratified treaty concluded for the purpose between the two Governments.