Arbitration On Kishenganga Project: Will End Up In Bitterness For Both Sides

By Dr. S.Chandrasekharan

Media reports indicate that under the auspices of Centre for Dialogue and Reconciliation ( CDR), a group of analysts, politicians, civil society members and retired military personnel from both sides met in New Delhi from May 5 to 7 as part of track II diplomacy to discuss on the water issues between India and Pakistan.

Pakistan sources believe that the two sides agreed on installing telemetry systems on rivers that originate from Kashmir and Himachal Pradesh and that the  “experts” from the Pakistani side convinced the Indian team of the need for a joint water shed management of the rivers that flow into Pakistan.

Easily said than done, though the Indus Water Treaty does envisage a joint management of Indus river system in the distant future.

For any joint management, cooperation should be the key word and not confrontation. This was the message given by the Pakistan Minister for Environment Ulla Jan Afridi in a March workshop organised by a voluntary organisation LEAD PAK sponsored by the British Government. He said that the problems relating to Indus water system can be solved only through cooperation and not confrontation.

It is surprising that the Track II meeting at Delhi in May did not recommend that the problem relating to the Krishen Ganga project should be solved by dialogue and not through an arbitration court.

The Kishenganga project envisages a dam to be built on the Kishenganga river, a tributary of Jhelum on the Indian side, divert a substantial quantity of water through a tunnel 22kms long to a hydro electric project near Bonar Nullah another tributary of the Jhelum in India and then return the water through the Wular lake to Jheelum.

This project was given to NHPC in 2005 at an estimated to cost Rs 3600 Crores to be completed by 2016. India’s position is that the treaty allows it the right of diversion of water for power generation provided it redirects the water back to Pakistan without affecting “the then existing ” usage of water in Pakistan and is well within the storage allowed for India under the treaty.

Pakistan’s position has been that diversion of water is not permissible under the treaty and is therefore a  violation. It is also the contention of Pakistan that Kishenganga project would adversely affect the 969 MW Neelum ( as Kishenganga is called in Pakistan)- Jhelum Project downstream. It is reported that the Neelum project has been awarded to CGGC-CMEC Consortium of China in 2007.

There are unofficial claims that the diversion of water from Kishenganga would result in a 21 percent shortfall in the flow in Neelum River downstream.

A detailed analysis of the pros and cons on arbitration on the Kishenganga project has been provided by Mr. Ramaswamy R.Iyer in the Hindu dated 25 June of this year. Mr. Iyer is a well-known and universally acknowledged expert on water disputes and his opinion needs to be taken and studied seriously. The points he made are- briefly:

• The dispute referred to for arbitration is on the issue whether the diversion of waters from one tributary to another is permissible under the treaty. Under Article III (2) India is to let flow all the western rivers to Pakistan without interference and Article IV (6) calls for maintenance of natural channels. By these provisions, diversion of waters from one channel to another is questionable. On the other hand, the provision under Annexure D para 15 (iii) specifically envisages water released from a hydro electric plant on tributary, delivered to another tributary is permissible.

• There will certainly be a reduction of flows in the downstream in the stretch of Kishenganga before it reaches Jhelum that would affect not merely usage of water however small it may be, but also the ecological system downstream.

• Arbitration will be an expensive process and will also take a long time. It is essentially an adversarial process and the final outcome is also uncertain.

• It should be possible, plausible and more sensible to try for an agreed settlement to arrive at a satisfactory negotiated settlement as also on the extent of agricultural use and the maintenance of the ecology flows.

I fully agree with the recommendations though it looks a little too late when the two sides have already nominated two members each. With the Pakistan delegation in New Delhi, a decision has been taken on 29th July, to seek the services of the UN chief, Rector Imperial College of Science and Technology, London and Lord Justice of England to decide on the three neutral umpires including the Chairman for the arbitration.

Water disputes can hardly be solved by court orders and would invariably end up in bitterness for both sides.

The recent meeting of the Indus Water Commission in New Delhi in the first week of June and the subsequent interview given by the Indus Water Commissioner of Pakistan Syed Jamat Ali Shah to the Hindu on 4th June gave the impression of a “positive turn” in the water politics relating to the Indus Water Treaty between the two countries.

For the first time in sixty years, in the history of the Indus Water treaty, an issue, now a dispute is being taken to an arbitration court.  This will certainly vitiate the atmosphere and both sides are likely to push for implementation by the letter and not by the spirit.

Both the Kishenganga and the Neelum Jhelum Projects will have to wait till the decision of the arbitration court.

The initiative for taking the case to the court was certainly that of Pakistan. It is not a question of who would lose more but the fact remains that both will lose in a dispute that will be long drawn and expensive as Mr. Iyer has rightly pointed out.