Blocking of Kishanganga Project
Muhammad Amjad Khan


WITH the acceptance of Pakistan’s appeal for `interim measures` against the Kishanganga Hydroelectric Project (KHEP) by Hague-based International Court of Arbitration (ICA), Pakistan’s claim that the Indian project would obstruct the flow of water of Neelum River in Pakistan-administered Kashmir has been substantiated on international level.

The seven-member Court of Arbitration, chaired by Judge Stephen M. Schwebel, has stopped India from constructing any permanent works on or above the Kishanganga/Neelum River bed at the Gurez site and also ordered that Pakistan and India arrange for periodic joint inspections of the dam site at Gurez in order to monitor the implementation of the Court's Order. The decision is appreciated by poor farmers’ community in Pakistan, hoping to get enough water to toil their lands.
Before analyzing the scenario that will emerge out of the ICA decision, it is important to understand the dispute and its implications – legal and ecological. According to Indus Water Treaty of 1960, India got the exclusive control over the waters of the Ravi, the Beas and the Sutlej, whereas Pakistan controls the waters of the Indus, the Jhelum and the Chenab. The IWT-60 bars India from interfering "with the water of these rivers except for domestic use and non-consumptive use, limited agriculture use and limited utilization for generation of hydro-electric power." Differences over the construction of Kishanganga Project by India, has emerged as a major irritant between the two neighboring countries where water is used as a “collective resource” over the past few years. The problem between the two countries arose when India decided to build a dam on the Kishanganga River that originates in Indian Occupied Kashmir, the Kishanganga River upon entering the Pakistani territory is recognized as the Neelum River, and flows through the Gurez Valley to join Jhelum River near Muzzaffarabad, at Domail in Azad Kashmir. India planned to build the barrage on the River Neelum (Kishanganga River) at the mouth of Wullar Lake, near Sopore town in Kashmir Valley. The Indian plans include storing water and then tunneling it to the Wuller Lake where it is constructing a 330MW power house. India has interpreted the clauses of IWT-60 to her advantage in such as way that shows that Kishanganga project along the waters controlled by the Indus Waters Treaty-1960 will affect not Pakistan’s access to water.
Pakistan has been opposing the construction of the Kishanganga hydropower project. Pakistan believes that the diversion of waters of Neelum is not allowed under the 1960 Indus Waters Treaty, and it would face a 27 per cent water deficit, when the project gets completed in 2014. The reduced water flow in the Neelum would not yield the required results of the proposed 2.16 billion dollars Neelum-Jehlum hydropower project (NJHP) on the same river that has been designed to generate 969 MW of electricity. Pakistan believes Kishanganga project can: (a) badly affect the Neelum-Jehlum hydro-power project, (d) affect agriculture in Azad Kashmir (e) dry million acres of Pakistan’s cultivable land, in case Kishanganga water is blocked and the excess is diverted to Wuller barrage, (f) result in load shedding, if Pakistan do not get enough water to run its turbines, (g) reduce water flow in Mangla dam.
Unfortunately, Indians were doing little to allay Islamabad’s concerns regarding their plans to build Kishanganga dam on the Neelum River, pushing Pakistan to seek international arbitration against the construction of the Kishanganga Hydropower Project in violation of the IWT-1960. The decision to seek international arbitration has been taken after due deliberation and consideration, so as to give the bilateral dispute-resolution mechanism a chance. Despite repeated warnings to Indian water authorities, India proceeded with the construction of the 22-KM tunnel to Bonar-Madmati Nullah and a powerhouse located near Bunkot. “at its own risk”. The ICA upheld Pakistan’s stance on the dam building controversy, as the stay order granted Pakistan’s appeal of halting India’s construction activities on the western river allocated vide Article III(4) of the Indus Water Treaty–1960.
The ICA’s stay order is absolutely critical for the reason that it is likely to determine which of the two projects KHEP or NHJEP, should be allowed “priority rights based on early completion” – a method derived from the IWT-60 itself. The Indian dam is scheduled for completion in 2014, whereas the Pakistani dam is not scheduled to be finished until 2016. The stay order alters those timelines, particularly since it affects only the Indian dam (KHEP) and not the Pakistani one (NHJEP). As such, the stay order brightens Pakistan’s chances of winning the overall case against the Indian Kishanganga dam – a legal and moral victory of Pakistan’s principled stand.
The water issues can be addressed by sharing the water as a “collective resource” for our future generations. The two neighbouring countries using water as a common resource should co-operate and open up a range of possibilities through “optimum development of the rivers” by “mutual agreement to the fullest possible extent.” India, being the upper riparian, should be more accommodating and considerate to the lower riparian nation - Pakistan. Upholding the thesis of “collective use of Hydrology”, India should avoid taking any step in respect of the KHEP at its own risk without prejudice to the possibility that the court may order that the works may not be continued, be modified or dismantled.
Although, Pakistan has a strong case to field, yet stay order is not enough to resolve the issue on permanent basis. The differences on the Baglihar dam were resolved on February 12, 2007 through the courtesy of World Bank appointed neutral expert, Professor Raymond Lafitte from Switzerland. Then, in a Permanent Indus Commissioners meeting held on June 1, 2010,. India and Pakistan resolved the issue of ‘initial filling of Baglihar dam’ through a spirit of cooperation and goodwill by both the neighbouring countries. And then, as Salal Dam issue was also resolved through talks in 1978, given the will, the Krishanganga issue can also be settled in the light of the Indus Water Treaty-1960. However, there is a dire need to plead the case in a more professional way by a team of experts in international water Laws that can convince ICA on the rights of Lower riparian.