By S. M. Hali

On 27 October 1947, Indian forces occupied Kashmir, denying the Kashmiris the option of accession in accordance with the Independence Act of 1947. The illegal occupation resulted in the 1947-1948 Kashmir War and later the 1965 and 1971 Pak-India Wars; however the accession of Kashmir remains unresolved. The method in the madness dawned on Pakistan much later. Kashmir happens to be the source of most of the rivers flowing through Pakistan, which can be choked at India’s whims. Ultimately good sense prevailed and Pakistan and India evolved the Indus Waters Treaty (IWT) of 1960 to deal with their water disputes, awarding the control of the western rivers flowing through it to Pakistan while the eastern rivers were allocated to India. IWT also stipulated the modus operandi to deal with disagreements in future. Since then Pakistan has referred a number of water related issues to the guarantor of the IWT, the World Bank. The latest water issue between the two neighbours relates to the Kishanganga Hydro Electric Project (KHEP). The KHEP is designed to generate power by diverting water from a dam site on the Kishanganga/Neelum to another tributary through a system of tunnels, with the moving water powering turbines having a capacity of 330 megawatts. For the management of sedimentation in the reservoir, India intends to employ drawdown flushing, a technique requiring the depletion of the level in the KHEP reservoir below Dead Storage Level.

Last month, Permanent Court of Arbitration at The Hague concluded its two-week hearing on the merits of Pakistan’s complaint and India’s defence of the case titled: Indus Waters Kishanganga Arbitration (Pakistan v. India). Pakistan initiated two disputes for arbitration with India under Article IX and Annexure G of the IWT:

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1. Whether India’s proposed diversion of the river Kishanganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishanganga 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)?

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 seven-member Court of Arbitration chaired by Judge Stephen M. Schwebel (United States), former President of the International Court of Justice, met at Peace Palace in The Hague. Pakistan argued the potential hydrological impact of the KHEP on the reach of the Kishanganga/Neelum River downstream, as well as the anticipated impact of the KHEP on the production of electricity by the Neelum-Jhelum Hydro-Electric Project (the “N-JHEP”) Pakistan is constructing downstream on the same river as well as the expected environmental impact downstream of the KHEP. India stressed the crucial role of hydroelectric projects in alleviating poverty and improving quality of life across India, emphasizing that under the IWT both Pakistan and India have rights to the use of all the rivers of the Indus system for certain purposes, even when particular rivers are in principle allocated to the other State. These rights include India’s right to hydro-electric uses on the Kishanganga/Neelum River. India also argued that prior to the Treaty’s signature; it was already contemplating the construction of a hydro-electric project at the current location of the KHEP that would include an inter-tributary transfer.

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Pakistan’s main reasoning was that scarcity of water (even for domestic use) will result if Indian KHEP (Kishanganga Hydro Electric Project) is allowed to be implemented. This    may even force migration/displacement of population in AJ&K. Additionally, the effect on NJHEP (Neelam Jhelum Hydro Electric Project) project and resultant effect on lives of people as the project will become unsustainable (especially during winter season).

Effect on agricultural output of the area, as KHEP is likely to make a large acreage of land untillable.

The verdict of the arbitration will be released in five months. Prima facie India's   argument of Contemplating Construction of Hydro-electrical Projects' at the time of signing of treaty happens to be malafide while the siphoning off waters also appears to be in violation of the IWT. In light of the revived bonhomie between the erstwhile hostile neighbours, it would be in the interest of peace to shed mistrust and arrive at a resolution in the spirit of the IWT, so that the flashpoint of the Kashmir issue is diffused.