The Court of Arbitration at The Hague on 18 February 2013 allowed India to go ahead with the Construction of the Kishanganga hydro-electric project in Gurez valley near Bandipura in North Kashmir, the court rejected the plea of Pakistan that the construction was a violation of 1960 Indus Water Treaty.
The Court of Arbitration, chaired by Stephen M. Schwebel in its orders stated that India can move ahead with the diversion of water plans of Kishanganga that is a tributary of Jhelum, for generation of hydro-electric power. But it restrained India from adoption of the drawdown technique of flushing for clearing the sedimentation of the run-of-the river project that had been designed and asked it to adopt a different technique for generation of 330 MW power facilities. The Court had also demanded the environmental flows statistics of the project.
Bhaswati Mukherjee, Indian Ambassador and her Pakistani counterpart Fauzia Mazhar Sana received the Judgment of the Court at The Hague.
Pakistan initiated the arbitration against India with a charge that India violated the provisions of the Water Treaty between the two countries. But India denied the charges forced on to it by explain that the country reserved its rights to divert the water from one of the tributaries of Jhelum to another.
Issues for Pakistan from its Perspective:
Pakistan on 17 May 2010 raised objections on the making of the Kishanganga Hydro-power project for which it demanded setting up of the Court of Arbitration.
The issues raised by Pakistan in the Court of Arbitration:
• The project is being developed at the downstreams of Kishanganga River that is known by the name Neelam in Pakistan and is a tributary of Jhelum. India is diverting the waters of the river from the dam site to Bonar Madmati Nallah that is another tributary of Jhelum.
• India planned to use modern drawdown flushing technique for sedimentation management in the dam. The technique requires waters to be brought below the dead storage level (as per the treaty the water can be reduced below the dead storage level only in cases of unforeseen emergency) and was this plan was accepted by the neutral expert during the Bahlihar dispute with Pakistan.
In June 2011, the members from the Court of Arbitration, The Hague visited India as well as Pakistan for inspection of the site.
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 threes 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
(c) Agricultural use as specified
(d) Generation of hydro-electric power as specified
ix. The Commissioners of the Indus Waters 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.
Articles under Consideration:
• Article III (2): Let flow all waters of the Western Rivers and not permit any interference with the water
• Article IV (6): Both the countries require use of the best endeavors at each other’s end for maintenance of natural channels of the rivers and should avoid all the steps that may obstruct the flow of these rivers creating a material damage at the end of any of the two parties.
As per Pakistan, the diversion of the water of Kishanganga as well as implementation of the drawdown flushing technique at Kishanganga project as well as other hydro-electric plants were the violation of the Treat signed in 1960, named Indus Water Treaty.
Kishanganga hydro-electric power project is a 330 MW project under its construction phase on the Kishanganga River and is developed by the National Power Corporation in Gurez Valley, near Bandipura in North Kashmir. The work on the project started in the year 1992. The Kishanganga hydro-electric project is a 3600 crore project. Kishanganga is called Neelam in Pakistan.
Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) was established during the First Hague Peace Conference 1899 by a treaty. It is an intergovernmental organization (IGO) that provides a variety of dispute resolution services to the international community. It provides resolution to the disputes related to intergovernmental organizations, states, state entities and private parties. PCA is located in The Hague, Netherland.
PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organisations, and private parties. The PCA can assist in the selection of arbitrators, and may be called upon to designate or act as appointing authority.