Pakistan and India are claiming victory on the partial decision taken by the Court of Arbitration Justice (CoJ) at The Hague with respect to the 330 MW Kishanganga hydroelectric project but facts indicate that the decision is a win-win for the two countries.
India claims the CoJ ruled in its favour on diversion of Kishanganga water and set aside objections by Pakistan that halted work on the project in Held Kashmir. On the other hand, Pakistani officials dealing with this issue told Business Recorder that though the CoJ has allowed diversion of water to India the issue of minimum flow regime is yet to be defined. Both countries have been asked to submit one year’s water data to the court by June this year and a final decision will be announced in December.
However, India would have to redesign Kishanganga project and the other six run of the river projects. The court decided that the design and operation of the project will be in accordance with the 1960 Indus Water Treaty and India has to give a date for filling the dam.
“It’s a huge achievement for Pakistan as India will not be allowed to drawdown flushing of water in future as was permitted by the neutral expert in case of Baglihar Dam,” said Shumaila Mehmood, a legal expert who also represented Pakistan at the CoA. Indian Ministry of External Affairs spokesman Syed Akbaruddin, in a statement said, “the award of CoA at The Hague reaffirms the validity of India’s position.”
In an interview with Business Recorder, Special Assistant to the Prime Minister on Water Resources and Agriculture Kamal Majidullah said the verdict of the CoA in Kishanganga dispute would help check violations of Indus Basin Treaty by India. India is building about 150 dams of different sizes on the Western rivers meant for Pakistan and the verdict of the CoA is a clear message that India cannot construct them as per its whim.
He said India has officially acknowledged construction of three more dams on Western rivers but there is information that India has plans to build 47 projects of more than 50 MW each. He said construction of 150 dams would mean depriving Pakistan of its share of water but the verdict in Kishanganga dispute has sent a clear signal to India that it cannot violate provisions of the Indus Basin Treaty.
Kamal Majidullah dispelled the impression created by a section of media that the verdict of the CoA was, in any way, in favour of India or against Pakistan. Instead, he said, this would compel India to change the design of the project. He explained that as per verdict India, in principle, can divert water but there is no decision as to the volume and timing. He said this would disturb Indian plan for construction of the power plant as they would not know the quantity and flow of the water and the quantity of water that it will have to be ensured down-stream.
The Special Assistant to the Prime Minister said India wanted annual draw down flushing which would have deprived Pakistan of its share of water. Pakistan argued before the court that if India was allowed diversion or flushing then Pakistan might not get water at all from Neelum River for about seven to nine months a year depending on rain and snow fall. The court acknowledged Pakistan’s point of view and it would give its final verdict about quantity of water that India will be allowed to divert by December this year after Pakistan and India submit data on flow of water, irrigation and drinking water requirements and needs of hydel power stations by June this year.
Asked how implementation of the verdict would be ensured, Senior Legal Counsel Shumaila Mahmood expressed the hope that the arbitration court would lay down clear mechanism for the purpose. She hoped that the final award would not only define and clarify different provisions of the Indus Basin Treaty but its interpretations would also serve as guideline for future.
Replying to a question, Kamal Majidullah said credit goes to President Asif Ali Zardari and the present Government for taking the issue of water to the CoA that would help safeguard rights of the country. He said that the verdict would send a message to India that it cannot go beyond the framework of the Indus Basin Treaty as it did in the past.
He said India, which has ambitions to become a major power, would stand exposed before the international community if it persisted with its plans in violations of the provisions of the Indus Basin Treaty and verdict of CoA. He said in the past India did not show seriousness in settling water disputes through dialogue and that is why Pakistan had to resort to the mechanism laid down in the Indus Basin Treaty.
According to a study, conducted by Sustainable Development Policy Institute (SDPI), the catchment area at Kishanganga dam site is roughly 1820 square kilometers, and annual average flow is 115,900 cusec. By diverting this flow towards a tributary, named Bunar Madumati Nullah, of Jhelum River, through a 22-km tunnel, would be a clear violation of the Article (clause) 1V-3-c of the Indus Waters Treaty. This diversion will increase the catchment area of the Jhelum River. The Article 1V (-C-) explicitly says that India shall not take any action to increase the catchment area, beyond the area on the effective date, of any natural or artificial drainage and drain which crosses into Pakistan, and shall not undertake such construction or re-modelling of any drainage or drain which so crosses as might cause material damages in Pakistan; and increase in catchment area is the violation of this article of the treaty.
The author of the study, Arshad H Abbasi, argued that by diverting the flow of Kishanganga river, upstream at Gurez, the catchment area of river Jhelum (tributary of main Jhelum) will be increased, which will cause enormous material damage in Neelum Valley due to adverse effects of non-availability/reduction of water.
On the other hand, increase in catchment area of river Jhelum tributary will increase the flow in tributary, that will cause material damage due to adverse effects arising from flood-like situation ie erosion of agriculture land along both sides of River Jhelum tributary. There is a little doubt that diverting Kishanganga under the proposed project will lead to drastically reduced flow in the Neelum river.
The Indian stance is that the reduction in flow would be 10 percent. It is totally wrong: the Indian calculation of flowing at Nauseri is based on annual average, the point/place, where the intake for NJHEP is designed, Abbasi added. The 60 percent to 70 percent of total flow is approximately 343100 cusec at Nauseri drained out during three to four months of the whole year. Thus, the average flow at this point would reduce by 33 percent after completion of KEHP and in May, June and July, to around 9 percent; but the financial impact of power generation would be around Rs 12.18 billion alone with the worst impact, minimal, almost reduced to zero at Toabutt, the place where Kishanganga becomes Neelum River. At this place, annul flow which is approximately 136000 cusecs would be totally diverted 8 months a year. The study further observed that other than worst impact on the Neelum valley, the Jhelum valley in Pakistan is stretched from Chakothi (entry point of river Jhelum) to Domel (Muzaffarabad) and will also become victim to abnormal excessive flow of the Jhelum River. The unnatural flow of water in the Jhelum river basin may be a flooding threat to road and built-up public/private infrastructures, in addition to agriculture losses.
The four bridges have to be relocated or their height from the bed would have to increase. All the built-up infrastructure along both banks of the Jhelum river ie public and private buildings, agriculture extension offices, agriculture and food stores, main roads and link road network, suspension bridges, hydroelectric units, power supply posts, telecommunication network, village shops etc would be under a threat of floods and would require to be relocated. The situation will disturb the farm families and would result in local and intra-country migration increasing pressure on the resource use. The surrounding mountains of the Jhelum valley, already lost their natural interlocking in earthquake-2005, would further become geologically fragile.
The additional flow would not only cause serious erosion of fragile slope lands along the river banks, but also affect the natural stability that would trigger massive landslides. Thus, there is great likelihood that geological instability would cause loss to agriculture farms, fruit bearing plants, grazing pastures, forest poultry and fish farms and water mills. Consequently, the livelihood of poor farm families will be negatively affected. The rough cost of relocation of these all in-built infrastructure will be around Rs 2.4 billion. These losses are conveyed to members of CoA. MOWP hired a contractor for environmental damage assessment who has failed to quantify the actual damage.