Pakistan And India-Water Disputes-News And Updates

[ajtr]

Water wars: Pak drags India to arbitration over Kishenganga​

TIMES NEWS NETWORK

New Delhi: India is bracing itself for a costly and cumbersome international arbitration case with Pakistan over the Kishenganga hydel project. After failing to persuade Pakistan to resolve the dispute at the government level, India on Wednesday named a judge of the Geneva-based International Court of Justice Peter Tomka and a Swiss international law expert Lucius Caflisch to represent it.
India’s initial choice for legal representative was the Baglihar neutral expert, Raymond Lafitte and Prof Boisson de Chazournes. Tomka, was formerly a legal advisor to the Slovak foreign ministry while Caflisch is a professor at the Graduate Institute of International Studies in Geneva.
But Baglihar was probably an easier verdict, according to internal assessments in the government. For one thing, the Kishenganga project is not as advanced as Baglihar was, and Pakistan’s Neelum-Jhelum project is already under construction. Most important, the unknown of an international legal verdict is disquieting to the Indian system, hence India’s greatest effort will go into ensuring that Pakistan should not get a veto on forthcoming water projects in India.
For Pakistan though, the legal recourse is more political — in a note verbale (diplomatic missive) to India on May 17, Pakistan’s primary complaint appears is the fundamental structure of the treaty itself — questioning India’s right to divert water. Here, India is on more solid ground, because the Indus Waters Treaty is fairly clear on the subject, because it shows that Pakistan is taking a more political stance on water disputes rather than a technical one, which was India’s objection from the start.
Pakistan’s main disputes are __ first that India’s proposed diversion of the Kishenganga (its called Neelum in Pakistan) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.”
Pakistan also objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. Its reason being that it says the treaty places strict limitations on drawdown of water.
What does Pakistan want?
First, to prevent India from proceeding on the project until the verdict. India doesn’t want to do this because it’s a financial liability and then the project could become threatened like the Tulbul project. Second, Pakistan wants a legal declaration that the diversion is a breach of the treaty. Third, that India should not draw down the water level of the reservoir. India says the treaty permits India to move water from one tributary to another after power generation. India will refute Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, by showing that there is very little agricultural activity there anyway. Indian government sources said the NHPC had also kept a provision of an extra 150 cusecs of water to be released downstream for Pakistani use, if necessary.
But ultimately, the dispute resolution is political, because for Pakistan, water is an emotive issue at present, including their belief that India was stealing their water. Apart from Kishenganga, Pakistan also objects to the Uri II project and the Chutak and Nimoo-Bazgo projects on the tributaries of the Inddus.
According to the 1960 treaty, India is allowed to create storage capacity of 3.6 million acre feet on the Indus, Jhelum and Chenab, the three western rivers. India is noweher close to this figure. India is also allowed to create 1.34 million acres of irrigation capacity but its still to be exploited.

 

[Sparten80]

There is another solution! Live within your means. stop breeding like rabbits (not my words! another Pakistani poster claimed that muslims are breeding like rabbits)

Excuse me? hmmm your saying that to Pakistan? that doesnt make any sense. Pakistan's population is now stabilizing, our growth has decreased after the peak of the 70's and early 80's. Two countries to our east have populations of over a billion, one has managed to control itself(China), the other is over populated, is depleting its resources and has an exodus of more than a million others are desperately leaving the country yearly for unskilled petty jobs and with nearly 400 million people living below the poverty line.

You should direct your comment towards india who's population is projected to cross the 1.5 billion mark despite Indira Gandhi's failed attempts at forced sterilizations in the 70's. If someone has a population issue, living beyond what the land can handle and is breeding like rabits, you know who that is, you need to direct your comments elsewhere.

 

[Ras]

Excuse me? hmmm your saying that to Pakistan? that doesnt make any sense. Pakistan's population is now stabilizing, our growth has decreased after the peak of the 70's and early 80's. Two countries to our east have populations of over a billion, one has managed to control itself(China), the other is over populated, is depleting its resources and has an exodus of more than a million others are desperately leaving the country yearly for unskilled petty jobs and with nearly 400 million people living below the poverty line.

You should direct your comment towards india who's population is projected to cross the 1.5 billion mark despite Indira Gandhi's failed attempts at forced sterilizations in the 70's. If someone has a population issue, living beyond what the land can handle and is breeding like rabits, you know who that is, you need to direct your comments elsewhere.

India's population growth is a lot lower than Pakistan's...but still too much.Certain religious sections of the Indian population are still having high birth rates though.

 

[ajtr]

The press in Pakistan reports that the US has consented to Pakistan’s request to be roped in to act as a mediator in the dispute manufactured by Pakistan against India on the matter of water:

US to mediate in Pak-India water row-The News​

Friday, June 18, 2010
By Khalid Mustafa

ISLAMABAD: Washington has extended assurance to take up Islamabad’s concerns on water issues with New Delhi. Secretary Ministry of Water and Power Shahid Rafi revealed this on Thursday while talking to a select group of mediapersons after the Pak-US strategic dialogue on water and power issues.

However, Ms Maria Otero, Undersecretary for Democracy and Global Affairs at the Department of State on the occasion hesitantly confirmed that US had agreed to mediate between the two nuclear states in this regard, but strictly being within the framework of Indus Water Treaty of 1960. However, in the two-day meeting, water issues with India have not been discussed as the said issues were discussed at higher level.

This is the first meeting of the Water Working Group of the US-Pakistan Strategic Dialogue as the group plans to meet again in six months. .........................

PTI via TOI is reporting that the its Pakistan’s attempt to insinuate the US into the dispute manufactured by Pakistan against India on the matter of water has been spurned by the US:

US dismisses reports of offering mediation between India, Pak-PTI via TOI

PTI, Jun 18, 2010, 02.31pm IST

ISLAMABAD: The US on Friday described as "completely inaccurate" media reports that it had offered to mediate between India and Pakistan to resolve their differences over the sharing of river waters. ..........................

US embassy spokesman Rick Snelsire described the media reports as "completely inaccurate".

He told PTI: "The issue didn't even come up during the meeting of the Water Working Group."

"The consistent position of the US has been that there is a treaty in place and it has a mechanism to address disputes between India and Pakistan. The US will encourage both parties to use the mechanism in the treaty," he said.

Snelsire said that during a media interaction, Under-Secretary Otero too had pointed to the Indus Waters Treaty and the existing mechanism to resolve disputes without making any offer of US mediation.

Othero was asked about Pakistan's differences with India over the sharing of river waters during an interview with a TV news channel, and she replied: "Clearly we believe that is something that Pakistan and India have to do together and resolve together. Where the US comes in is in helping Pakistan, how it manages its water internally because there is a great deal of work that could be done." ..........................

 

[ajtr]

While the constitution of all seven members of the Arbitration Court is still some months away, India might need to take some steps to safeguard its interest.
Pakistan would be relying upon Para 28 of Annexure G which states that

" either party may request the Court at its first meeting to lay down, pending its award,such interim measures , as in the opinion of that party, are necessary to safeguard its interests, under the treaty with respect to the matter in dispute, or to avoid prejudice to the final solution or aggravation or extension of the dispute. The court shall, thereupon, after having afforded and adequate hearing to each party , decide , by a majority consisting of at least four members of the court, whether any interim measures are necessary for the reasons hereinafter stated and, if so, shall specify such measures : provided that
(a) the court shall lay down such interim measures only for such specified period as, in its opinion, will be necessary to render the Award; this period may , if necessary, be extended unless the delay in rendering the Award is due to any delay on the part of the Party which requested the interim measures in supplying such information as may be required by the other party or by the court in connection with the dispute; and
(b) the specification of such interim measures shall not be construed as an indication of any view of the Court on the merits of the disputes."

Pakistan has been going in steps testing limits of each procedure provided under IWT for dispute settlement. Initially it was negotiations, which resulted in In realising the futility of not having Gated Spillway for Salal project. Second was that of Baglihar which was settled with the help of NE. Now this is the last method being tried. India would , sooner or later, see the efficacy of this method for both the countries.

 

[ajtr]

The proposed Kishanganga Hydroelectric Project would be located on river Kishanganga, a tributary of river Jhelum, in Baramulla district of Jammu & Kashmir. The project involves construction of a 37m high concrete faced rockfill dam and a underground powerhouse. A maximum gross head of 697 m is proposed to be utilised to generate 1350 Million Units of energy, in a 90% dependable year with an installed capacity of 3x110 MW. An additional energy generation 312.62 MUs at Uri-I and Uri-II HE Projects would be available after completion of Kishanganga HE Project

• Location-- Village Kralpore near Bandipore in Baramulla District of Jammu & Kashmir
  Approach-- Nearest Rail Head - Jammu (370 Km.). Nearest Airport- Srinagar (70 Km.)
  Capacity-- 330 MW (3 x 110 MW)
  Annual Generation-- 1350 MUs (in a 90% dependable year)
  Project Cost-- Rs. 3642.04 Crores (September 07 Price Level)-(Including Interest free sub-debt of Rs. 469 Crores)
  Beneficiary States-- J&K, Himachal Pradesh, Punjab, Haryana, Uttar Pradesh, Uttaranchal, Rajasthan, Union Territory of Chandigarh & Delhi
  Year of Commissioning/Completion Schedule-- 7 years from date of Government Sanction i.e. by January 2016

TECHNICAL FEATURES

* 37m high, Concrete Face Rockfill Dam
* 5.4m dia, 8 km long Horse Shoe shaped followed by 5.2m dia 16 Km long, Circular shaped Head Race Tunnel
* 15m dia, 100m high Restricted Orifice type Shurge Shaft
3.5m dia, 998m long, trifurcating into 2.1m dia horizontal branches
* Underground, with 3 units of 110 MW each, Pelton Wheel Turbine
* 4.1m dia, 746m long D shaped Tail Race Tunnel followed by 120m cut and cover and 111m long open channel

Vis a Vis Line of Control

 

[foxbat]

Here's a hilareous incident. And take it as such without any sensitivities on nationalities.. Was at a friend's (Pakistani) house in USA recently. We work for the same company. His Uncle from Pakistan was also visiting and was living with him the day I was there. Like most people of his generation, had a strong opinion of India. During dinner the discussion diverted to the current water dispute and Pakistan's water and electricity problems, with a lot of arguments and counter arguments. After about 20 minutes of too and fro, he came up with a gem which truely belongs to the hall of fame in jokes. He actually said that its not only water that is being stolen by India but India is also responsible for the electricity woes of Pakistan because whatever water is allowed to reach Pakistan, the electricity has already been taken out of it and hence Pakistan is unable to harness the hydro electric potential of those rivers..


Never laughed so hard in my life

Was not sure whether to put it her or in the stupid and funny section..

 

[ajtr]

Here's a hilareous incident. And take it as such without any sensitivities on nationalities.. Was at a friend's (Pakistani) house in USA recently. We work for the same company. His Uncle from Pakistan was also visiting and was living with him the day I was there. Like most people of his generation, had a strong opinion of India. During dinner the discussion diverted to the current water dispute and Pakistan's water and electricity problems, with a lot of arguments and counter arguments. After about 20 minutes of too and fro, he came up with a gem which truely belongs to the hall of fame in jokes. He actually said that its not only water that is being stolen by India but India is also responsible for the electricity woes of Pakistan because whatever water is allowed to reach Pakistan, the electricity has already been taken out of it and hence Pakistan is unable to harness the hydro electric potential of those rivers..


Never laughed so hard in my life

Was not sure whether to put it her or in the stupid and funny section..

you are the one who is trying to be funny here by concocting some imaginary story and inserting the shool movie villain joke into it there by trying to act funny.....

 

[foxbat]

you are the one who is trying to be funny here by concocting some imaginary story and inserting the shool movie villain joke into it there by trying to act funny.....

>>>Have no idea what you are talking about. If this is from a movie, then probably the gentleman had seen the same and believed it...

 

[ajtr]

India and Pakistan to arbitrate water feud​

By Amy Kazmin in New Delhi
Published: June 18 2010 11:32 | Last updated: June 18 2010 11:32
India and Pakistan are establishing an arbitration panel to address an intensifying dispute over rival hydro-electric projects, highlighting the growing importance of water in the tensions between the dry but nuclear-armed neighbours.

Tensions have been rising as both countries face deepening water crises, the result of rampant over-use of water for agriculture and growing demand from industry.


The dispute centres on India’s plans to build the 330-megawatt Kishanganga hydro-electric project in Kashmir, the divided region at the centre of the decades-old animosity between the neighbours. Pakistan’s decision to seek arbitration over Kishanganga comes as New Delhi has accused Islamabad of deliberately ratcheting up tensions on the sensitive issue of water-sharing to mobilise popular anger against India.

Pakistan claims India’s project, which has been designed to divert water from one tributary of the Jhelum river to another, will adversely affect its own 969MW Neelum-Jhelum project, being built downstream on the Jhelum with Chinese backing.

Water-sharing between India and Pakistan is regulated by the Indus Water Treaty, a 1960 pact brokered by the World Bank which governs the use of six rivers that flow through India – three from the disputed Kashmir region and three from Indian Punjab – into Pakistan.

India says its plans for Kishanganga were drawn up long before the Neelum-Jhelum project was conceived and that it complies with the Indus Water Treaty as it will not affect the quantity of water eventually flowing into Pakistan.

The two countries are in the process of convening a seven-member Court of Arbitration, in accordance with the provisions of the 50-year-old treaty, to adjudicate the dispute.

Brahma Chellaney, a professor of strategic studies at the New Delhi-based Centre for Policy Research, says Pakistan’s reopening of the water-sharing agreement could backfire, as it may prompt India to rethink a treaty that he says is extremely generous to Pakistan.

“There is no treaty in the world which has been so generous on the part of the upper riparian to the lower riparian state,” he said. “The issue really is the fact that India is starving its own northern regions and reserving four-fifths of the water for Pakistan. If Pakistan plays this dangerous game, they will make India review its generosity.”

Earlier this year, a top Indian official told the Financial Times that Islamabad was using its domestic water shortages to “create another anti-India issue that can capture the popular imagination in Pakistan”.

 

[ajtr]

The Indus Water Treaty: Disputes, Debates & Concerns
The Indus Water Treaty was signed by India and Pakistan in 1960. Contrary to the fact that it was seen as one of the long lasting agreements, the issue of water distribution has become an unending dispute and tension between both the countries. Newsclick in an exclusive interview spoke to Farooq Tariq, General Secretary of Pakistan Labour Party.

 

[atul0408]

The Indus Water Treaty (IWT) between India and Pakistan, which came into force in 1960, has frequently been in news over the recent past, and has even come to occupy the agenda of bilateral discussions between the two countries. The news flow has been driven by Pakistan’s objections to construction of dams and hydropower
projects in India, claiming that such projects are reducing water flow in rivers on which Pakistan has been granted rights of use under the IWT. The IWT allocates the six trans-boundary rivers between India and Pakistan equally. The treaty has, in general, effectively served its purpose even through the trough of bilateral
relations between the two countries. However, recent experiences of water scarcity by Pakistan have prompted
allegations of water use by India in contravention of what has been allocated to it, and hence, considered a violation of the treaty. India counter-alleges that it has implemented the treaty in letter as well as in spirit and
that Pakistan’s problems are the result of its own poor management of water resources. Irrespective of the political rhetoric, the IWT could potentially lead to extended timelines of hydropower development in India, especially if disputes arise between the two countries regarding any project. Moreover, any design change to a project following mutual negotiations or third party intervention (allowed under the treaty), could further delay the development cycle. Additionally, design changes, if made after commencement of construction, could also lead to cost overruns. While power developers would be directly affected by such cost
overruns, we do not expect E&C contractors to be impacted as any change in design or scope of work would get covered under the contract. We believe issues surrounding the IWT would need greater consideration going
forward as projects with a capacity of ~420MW are already a subject of dispute and ~5,700MW of new projects
are in different stages of development on rivers allocated to Pakistan. In this note, we discuss the IWT, its background and the key disputes between India and Pakistan regarding the same.
�� The Indus water system Some of the largest rivers in the Indian sub-continent originate in the Himalayas and flow through India into its neighbouring countries. One of the largest networks of such rivers is the Indus River System in northern India. The
system includes the river Indus and its five tributaries, which on the Indian side mainly include the Satluj, Beas, Ravi,
Jhelum and Chenab.
�� Trans-boundary river flows necessitated a water sharing system
As the Indus and its eastern tributaries mentioned above traverse the geographical boundaries of India and Pakistan, there are direct implications of upstream water use (in India) on downstream water flows (in Pakistan). The partition of India made it critical for the two countries to devise a methodology for sharing water from all tributaries of the Indus, in
order to ensure that no region is worse off (especially for drawing water for irrigation) and that water flows are maintained as far as possible at the pre-partition levels. After a number of discussions and long-drawn negotiations, India and Pakistan, with the mediation of the World Bank, agreed on the Indus Water Treaty (IWT) which became effective from April 1960.

---------- Post added at 02:35 AM ---------- Previous post was at 02:34 AM ----------

Exhibit 1: The Indus river system Source: IDFC-SSKI Research
�� India and Pakistan allocated specific rivers
The IWT emerged as a unique solution to the problem of water sharing between India and Pakistan as instead of
splitting water flows, the treaty split entire rivers between the two countries. The eastern rivers (Satluj, Ravi and Beas)
have been allocated to India and the three western rivers (Jhelum, Chenab and Indus) to Pakistan. Thus, India could not
utilise, store or divert any water from the western rivers except to a certain extent allowed under the treaty. Despite the specific allocation of rivers to the two countries, the treaty allows certain uses in the rivers allocated to the other country
subject to certain qualifications. Thus, the IWT allows India to draw water from the western rivers for irrigation of 642,000 acres that existed on the date of the treaty as well as an additional 701,000 acres. However, the treaty restricts the
quantum of water that can be stored by India by constructing reservoirs on the three western rivers. While the quantum
of water storage is fixed for each river and for specific purposes (general, power and flood control) separately, the limits are largely fungible across different uses.

---------- Post added at 02:36 AM ---------- Previous post was at 02:35 AM ----------

�� The IWT provides a mechanism for dispute resolution
Under the treaty, India and Pakistan have agreed to share, on a regular basis, data on the water flows in each river, water withdrawn from each reservoir, etc. Moreover, if either of the two countries plans to construct any ‘engineering work’ on any of the rivers which causes interference in the water flow, they are required to inform each other with relevant data of such projects. The treaty has established the Permanent Indus Commission (PIC), with members of both governments meeting regularly to exchange data, information and address disputes, if any. In case of a dispute, provisions have been made to appoint a "neutral expert." If the neutral expert fails to resolve the dispute, negotiators can be appointed by each side to meet with one or more mutually agreed upon mediators. If either side (or the mediator) is of the opinion that they are unlikely to reach a mediated agreement, provisions are included for the convening of a
Court of Arbitration. �� Disputes relating to hydropower projects by India
Since the IWT came into force, both India and Pakistan have pursued various projects on the Indus rivers – as allowed by the treaty. Disputes arising out of such projects have largely been settled by the two countries in meetings of the PIC. However, certain disputes have had required the mediation of neutral third parties too.
Baglihar dispute
The 450MW (3*150) run-of-the-river Baglihar hydropower project is built over the Chenab river and was commissioned between October 2008 and April 2009 by Jammu & Kashmir State Power Development Corporation (JKSPDC). After
finalising its plans of building the Baglihar project, India informed Pakistan and shared the project designs, as required by the IWT. Pakistan raised objections to the dam on the grounds that the design of the dam violated the provisions of the IWT, especially the technical norms specified in the treaty with regard to pondage levels and placement of gated
spillways which would obstruct the flow of the Chenab – a western river allocated to Pakistan under the treaty. After
India signed the EPC contract for construction of the Baglihar project in mid-1999, Pakistan formally raised its objections in a meeting of the PIC in May 2000. After failing to resolve the issue at the PIC level, Pakistan gave notice in May 2003 to move the World Bank for appointment of a ‘neutral expert’, as provided by the IWT, for resolving the differences. India responded to Pakistan’s notice with a request for bilateral discussions. Pakistan put forward three pre-conditions in August 2003 for doing this: (a) stoppage of work at Baglihar, (b) facilitate a site inspection, and (c) a time-bound resolution of the differences between the two sides. However, with further discussions not bearing fruit, Pakistan
formally moved the World Bank in January 2005 and a neutral expert was appointed in May 2005. The neutral expert
gave a final decision in February 2007, largely accepting India’s design of the project and recommending certain changes in conformity with the treaty.
Kishanganga dispute
NHPC is developing a 330MW hydropower project in Jammu & Kashmir, over the Kishanganga – a tributary of Jhelum. The Kishanganga river originates in Dras, in the Kargil district of J&K, runs north-west, enters Pakistan occupied Kashmir (***) where it is called Neelum, and then meets the Jhelum river north of Muzafarrabad. The Kishanganga hydropower project involves construction of a 37m-high dam across River Kishanganga in Gurez and an underground powerhouse in Bandipora, both connected by a 23.5km long head race tunnel (HRT). Water from the Kishanganga river
will be transferred through this HRT to the powerhouse and after producing power, the water will be released into the Bonar nallah, which flows into the Wular Lake in J&K, formed by the river Jhelum on its way to Pakistan.

---------- Post added at 02:36 AM ---------- Previous post was at 02:36 AM ----------

Exhibit 2: Kishanganga project layout
Source: NHPC
Pakistan has objected to the Kishanganga hydropower project claiming that it is a violation of the IWT. Pakistan’s
primary objection is regarding the diversion of the river and the release of water after generation of power into the
Wular lake and not back into the Kishanganga river. According to Pakistan, while India has a right under the IWT to store water for power generation, India does not have a right to divert waters. Pakistan claims that diversion of the river will not only lead to reduced water flows downstream but will also impact power generation from the 969MW Neelum-
Jhelum hydropower project in *** on the Neelum river, downstream from the Kishanganga site. On the other hand,
India’s claim is that there is no violation of the IWT as the diverted water ultimately reaches Jhelum, though not through the Neelum (Kishanganga).
The Kishanganga project was conceptualized by India way back in 1996 but after taking into account objections of the
environmentalists and the Ministry of Defence, the Central Electricity Authority (CEA) finally cleared the project in June
2004. Later, responding to Pakistan’s objections, extensive negotiations took place between the two countries, with India finally agreeing to change the design to minimise water diversion by reducing the dam height from 107m to 87m and ultimately to 37m (as it stands today). The EPC contract for the project was finally awarded in January 2009, a full five years after the CEA’s clearance. Reports claim that Pakistan is still objecting to diversion of the river and is considering
approaching the World Bank for appointment of a neutral expert to address its objections.
Recent discussions over Nimmo Bazgo and Chutak
In the 104th meeting of the Indus Water Commission in March 2010, Pakistan is reported to have raised objections to the 45MW Nimmo Bazgo and the 44MW Chutak hydro power projects in Jammu & Kashmir. Both projects are proposed to
be built over the Indus basin and Pakistan is said to have objected to the design of both projects. According to Pakistani
authorities, the design would alter and reduce the flow of river to Pakistan, violating the provisions of the IWT. Reports claim that while talks between India and Pakistan have been inconclusive, India has agreed to respond to Pakistan’s reservations on the project.

---------- Post added at 02:37 AM ---------- Previous post was at 02:36 AM ----------

In conclusion While the IWT in itself is not an impediment to hydropower development in India, it does add to the development timeline of projects – especially in case of differences between India and Pakistan on matters related to such projects. For
example, the dam height of the Kishanganga hydropower project had to be changed twice before construction could commence. Moreover, if design changes to the project are required on the recommendations of a neutral expert or mediator, there could be significant time and cost overruns. Power developers are especially vulnerable to such overruns, as they directly impact project economics and return on investment.
While design changes would tend to impact contractors (especially civil contractors) also, they are unlikely to suffer a
financial loss. Changes in the scope of work typically lead to a revision in contract terms, and escalations are allowed
and paid to contractors. Although contractors may face payment delays to the extent of the time taken for making claims
and processing payments by developers, we do not expect these to be significant.
While the IWT has so far not directly impacted hydropower development, the government (central and state), government agencies (CEA, etc) and developers need to plan projects carefully, keeping in mind the challenges posed by
the provisions of the IWT. Careful planning would become especially important as a number of projects are proposed to be developed through the IPP route and private developers would seek comfort on mitigation of political risks. Going forward, we believe the IWT would assume greater significance as India is gearing up to exploit ~5,700MW of hydropower capacity on the three western rivers – Indus, Jhelum and Chenab.
Exhibit 3: Hydropower projects by India on the western rivers (Indus, Jhelum and Chenab)
Project State River MW Developer Key contractors Status
Baglihar-II J&K Chenab 450 JKSPDC JPA (Civil) Under construction
Chutak J&K Suru (Indus tributary) 44 NHPC HCC (Civil); BHEL
(E&M) Under construction
Kishanganga J&K Kishanganga (Jhelum tributary) 330 NHPC HCC (EPC) Under construction
Nimmo Bazgo J&K Indus 45 NHPC HCC (Civil); BHEL
(E&M) Under construction
Uri-II J&K Jhelum 240 NHPC HCC (Civil) Under construction
Bursar J&K Marusudar (Chenab tributary) 1,020 NHPC - Under development
Kawar J&K Chenab 520 NHPC-JKSPDC - Under development
Kirthai-I J&K Chenab 240 JKSPDC - Under development
Kiru J&K Chenab 600 NHPC-JKSPDC - Under development
Lower Kalnai J&K Chenab 50 JKSPDC - Under development
New Ganderbal J&K Jehlum 93 JKSPDC - Pakul Dul J&K Marusudar (Chenab tributary) 1,000 NHPC-JKSPDC - Under development
Parnai J&K Jehlum 37.5 JKSPDC - RFQ for EPC floated
Ratle J&K Chenab 690 GVK - Awarded on BOOT
basis
Sawalkote I & II J&K Chenab 1,200 JKSPDC - Plans finalized;
under litigation
Source: Developers, IDFC-SSKI Research
Exhibit 4: Hydropower projects under development by India on the eastern rivers (limited list)
Project State River MW Developer Key contractors Status
Chamera I-III HP Ravi 1,071 NHPC HCC (Civil) Chamera I & II operational;
Chamera-III under construction
Rampur HP Satluj 412 SJVN Gammon-Patel (Civil) Under construction
Kol Dam HP Satluj 800 NTPC BHEL (E&M) ITD (Civil) Under construction
BHEL (E&M)
Parbati-II HP Beas Patel-L&T and Gammon- Under construction
Jager (Civil); BHEL (E&M)
Allain Duhagan HP Beas 192 LNJ Bhilwara Group BHEL (E&M) Under construction
Ujh J&K Ravi 280 JKSPDC - Under development

 

[ajtr]

Kishenganga water dispute: Pakistan on strong wicket​

But Baglihar was probably an easier verdict, according to internal assessments in the government. For one thing, the Kishenganga project is not as advanced as Baglihar was, and Pakistan’s Neelum-Jhelum project is already under construction. Most important, the unknown of an international legal verdict is disquieting to the Indian system, hence India’s greatest effort will go into ensuring that Pakistan should not get a veto on forthcoming water projects in India.

For Pakistan though, the legal recourse is more political — in a note verbale (diplomatic missive) to India on May 17, Pakistan’s primary complaint appears is the fundamental structure of the treaty itself — questioning India’s right to divert water. Here, India is on more solid ground, because the Indus Waters Treaty is fairly clear on the subject, because it shows that Pakistan is taking a more political stance on water disputes rather than a technical one, which was India’s objection from the start.

Pakistan’s main disputes are __ first that India’s proposed diversion of the Kishenganga (its called Neelum in Pakistan) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.” (Legal position of India and Pakistan would be tested here)

Pakistan also objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. (this issue is settled in Baglihar Award) Its reason being that it says the treaty places strict limitations on drawdown of water.

What does Pakistan want?
First, to prevent India from proceeding on the project until the verdict.( Must not be allowed ) India doesn’t want to do this because it’s a financial liability and then the project could become threatened like the Tulbul project. Second, Pakistan wants a legal declaration that the diversion is a breach of the treaty.( relates to main dispute) Third, that India should not draw down the water level of the reservoir. India says the treaty permits India to move water from one tributary to another after power generation. India will refute Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, by showing that there is very little agricultural activity there anyway. Indian government sources said the NHPC had also kept a provision of an extra 150 cusecs of water to be released downstream for Pakistani use, if necessary.

ANNEXURE D—GENERATION OF HYDRO-ELECTRIC POWER BY INDIA ON THE WESTERN RIVERS
(ARTICLE III (2) (d) )
1. The provisions of this Annexure shall apply with respect to the use by India of the waters of the Western
rivers for the generation of hydro-electric power under the provisions of Article III (2) (d) and, subject to the provisions of this Annexure, such use shall be unrestricted : Provided that the design, construction and operation of new hydro-electric plants which are incorporated in a Storage Work (as defined in Annexure E) shall be governed by the relevant provisions of Annexure E .


Annexure D Para 15(iii) says that
"
Subject to the provisions of Paragraph 17, the works connected with a Plant shall be so operated that (a) the volume of water received in the river upstream of the Plant, during any period of seven consecutive days, shall be delivered into the river below the Plant during the same seven-day period, and (b) in any one period of 24 hours within that seven-day period, the volume delivered into
the river below the Plant shall be not less than 30%, and not more than 130%, of the volume received in the river above the Plant during the same 24-hour period : Provided however that :

When a Plant is located on a Tributary of the Jhelum on which pakistan has any Agricultural Use of hydroelectric use, the water released below the plant may be delivered, if necessary, into another Tributary but only to the extent that the then existing Agricultural Use of hydroelectric use by Pakistan on the former Tributary would not be adversely affected."

ANNEXURE E—STORAGE OF WATERS BY INDIA ON THE WESTERN RIVERS (Article III (4) )

1. The provisions of this Annexure shall apply with respect to the storage of water on the Western Rivers , and to the construction and operation of Storage Works thereon, by India under the provisions of Article III (4) .



10. Notwithstanding the provisions of Paragraph 7, any Storage Work to be constructed on a Tributary of The Jhelum on which Pakistan has any Agricultural Use or hydro-electric use shall be so designed and operated as not to adversely affect the then existing Agricultural Use or hydro-electric use on that Tributary .
"

Clearly, the treaty provides that the only EXISTING USE ( either hydro or agricultural) would not be affected. It does not talk about use which might come into existence after the notification of new work or alteration of existing works have been made by India. As pointed out in earlier posts by S Sridhar, several visits by Indian Team , facilitated by PIC , had failed to yield any evidence of existing agricultural use. Further when Kishanganga project was notified to PIC, Pakistan did not have any existing hydroelectric use on Kishanganga(aka Neelum).

The onus of proving existing usage would lie on pakistan and until this is done COA should be prevailed upon not to give any interim orders stopping the work.

Since four members ( two from each side has been nominated) now a panel of Umpires has to be drawn for selecting remaining three members.

ANNEXURE G--COURT OF ARBITRATION (ARTICLE IX(5) )

4. Unless otherwise agreed between the Parties, a Court of Arbitration shall consist of seven arbitrators appointed as follows :
(a) Two arbitrators to be appointed by each Party in accordance with Paragraph 6 ; and
(b) Three arbitrators (hereinafter sometimes called the umpires) to be appointed in accordance with Paragraph 7, one from each of the following categories :
(i) Persons qualified by status and reputation to be Chairman of the Court of Arbitration who may, but need not, be engineers or lawyers.
(ii) Highly qualified engineers.
(iii) Persons well versed in international law.
The Chairman of the Court shall be a person from category (b) (i) above.

5. The Parties shall endeavour to nominate and maintain a Standing Panel of umpires (hereinafter called the Panel) in the following manner :
(a) The Panel shall consist of four persons in each of the three categories specified in Paragraph 4(b) .
(b) The Panel will be selected, as soon as possible after the Effective Date, by agreement between the Parties
and with the consent of the persons whose names are included in the Panel .
(c) A person may at any time be retired from the Panel at the request of either Party : Provided however that he may not be so retired
(i) during the period after arbitration proceedings have been instituted under Paragraph 2(b) and before the process described i n
Paragraph 7(a) has been completed ; or
(ii) during the period after he has been appointed to a Court and before the proceedings are completed.
(d) If a member of the Panel should die, resign or be retired, his successor shall be selected by agreement between the Parties .

The arbitrators referred to in Paragraph 4(a) shall be appointed as follows :
The Party instituting the proceeding shall appoint two arbitrators at the time it makes a request to the other Party under Paragraph 2(b) . Within 30 days of the receipt of this request, the other Party shall notify the names of the arbitrators appointed by it .

7. The umpires shall be appointed as follows :
(a) If a Panel has been nominated in accordance with the provisions of Paragraph 5, each umpire shall be selected as follows from the Panel, from his appropriate category, provided that the category has, at that time, at least three names on the Panel :
The Parties shall endeavour to agree to place the names of the persons in each category in the order in which they shall be invited to serve on the Court. If such agreement cannot be reached within 30 days of the date on which the proceeding is instituted, the Parties shall promptly establish such an order by drawing lots . If, in any category , the person whose name is placed first in the order so established, on receipt of an invitation to serve on the Court, declines to do so, the person whose name is next on the list shall be invited . The process shall be repeated until the invitation is accepted or all names in the category are exhausted.

(b) If a Panel has not been nominated in accordance with Paragraph 5, or if there should be less than three names on the Panel in any category or if n o person in a category accepts the invitation referred to in Paragraph 7(a), the umpires, or the remaining umpires or umpire, as the case may be, shall be appointed as follows :

(i) By agreement between the Parties .

(ii) Should the Parties be unable to agree on the selection of any or all of the three umpires, they shall agree on one or more persons to help them in making the necessary selection by agreement ; but if one or more umpires remain to be appointed 60 days after the date on which the proceeding is instituted,or 30 days after the completion of the process described in sub-paragraph (a) above, as the case may be, then the Parties shall determine by lot for each umpire remaining to be appointed, a person from the appropriate list set out in the Appendix to this Annexure, who shall then be requested to make the necessary selection.

(iii) A national of India or Pakistan, or a person who is, or has been, employed or retained by either of the Parties shall be disqualified
from selection under sub-paragraph (ii) above :

Provided that (1) the person making the selection shall be entitled to rely on a declaration from the appointee, before his selection, that he is not disqualified on any of the above grounds ; and

(2) the Parties may by agreement waive any or all of the above disqualifications in the case of any individual appointee .

(iv) The lists in the Appendix to this Annexure may, from time to time, be modified or enlarged by agreement between the Parties .

8. In selecting umpires pursuant to Paragraph 7, the Chairman shall be selected first, unless the Parties otherwise agree.

9. Should either Party fail to participate in the drawing of lots as provided in Paragraphs 7 and 10, the other Party may request the President of the Bank to nominate a person to draw the lots, and the person so nominated shall do so after giving due notice to the Parties and inviting them to be represented at the drawing of the lots .

10. In the case of death, retirement or disability from any cause of one of the arbitrators or umpires his place shall be filled as follows :
(a) In the case of one of the arbitrators appointed under Paragraph 6, his place shall be filled by the Party which appointed him. The Court shall, on request , suspend the proceedings but for not longer than 1 5 days pending such replacement .
(b) In the case of an umpire, a new appointment shall be made by agreement between the Parties or, failing such agreement, by a person determined by lo t from the appropriate list set out in the Appendix to this Annexure, who shall then be requested t o make the necessary selection subject to the provisions of Paragraph 7(b) (iii) . Unless the Parties otherwise agree, the Court shall suspend the proceedings pending such replacement.

11. As soon as the three umpires have accepted appointment, they together with such arbitrators as have been appointed by the two Parties under Paragraph 6 shall for m the Court of Arbitration. Unless the Parties otherwise agree, the Court shall be competent to transact business only when all the three umpires and at least two arbitrators are present.

12. Each Party shall be represented before the Court by an Agent and may have the assistance of Counsel .

13. Within 15 days of the date of institution of a proceeding, each Party shall place sufficient funds at the disposal of its Commissioner to meet in equal shares the initial expenses of the umpires to enable them to attend the first meeting of the Court . If either Party should fail to do so, the other Party may initially meet the whole o f such expenses.

14. The Court of Arbitration shall convene, for its firs t meeting, on such date and at such place as shall be fixed by the Chairman.

15. At its first meeting the Court shall

(a) establish its secretariat and appoint a Treasurer ;
(b) make an estimate of the likely expenses of the Court and call upon each Party to pay to the Treasurer half of the expenses so estimated : Provided that ,
if either Party should fail to make such payment , the other Party may initially pay the whole of the estimated expenses ;
(c) specify the issues in dispute ;
(d) lay down a programme for submission by each side of legal pleadings and rejoinders ; and
(e) determine the time and place of reconvening the Court.

Unless special circumstances arise, the Court shall not reconvene until the pleadings and rejoinders have bee n closed. During the intervening period, at the request of either Party, the Chairman of the Court may, for sufficient reason, make changes in the arrangements made under (d) and (e) above .

16. Subject to the provisions of this Treaty and except as the Parties may otherwise agree, the Court shall decide all questions relating to its competence and shall determine its procedure, including the time within which each Part y must present and conclude its arguments . All such decisions of the Court shall be by a majority of those present and voting. Each arbitrator, including the Chairman, shall have one vote. In the event of an equality of votes, the Chairman shall have a casting vote .

17. The proceedings of the Court shall be in English .

18. Two or more certified copies of every document produced before the Court by one Party shall be communicate d by the Court to the other Party ; the Court shall not take cognizance of any document or paper or fact presented by a Party unless so communicated.

19. The Chairman of the Court shall control the discussions . The discussions shall not be open to the public unless it is so decided by the Court with the consent of the Parties. The discussions shall be recorded in minutes drawn up by the Secretaries appointed by the Chairman . These minutes shall be signed by the Chairman and shall alone have an authentic character .

20. The Court shall have the right to require from the Agents of the Parties the production of all papers and other evidence it considers necessary and to demand all necessary explanations . In case of refusal, the Court shall take formal note of it .

21. The members of the Court shall be entitled to put questions to the Agents and Counsel of the Parties and to demand explanations from them on doubtful points. Neither the questions put nor the remarks made by the members of the Court during the discussions shall be regarded as an expression of an opinion of the Court or any of its members.

22. When the Agents and Counsel of the Parties have , within the time allotted by the Court, submitted all explanations and evidence in support of their case, the Court shall pronounce the discussions closed . The Court may, however, at its discretion re-open the discussions at any time before making its Award . The deliberations of the Court shall be in private and shall remain secret.

23. The Court shall render its Award, in writing, on the issues in dispute and on such relief, including financial compensation, as may have been claimed. The Award shall be accompanied by a statement of reasons. An Award signed by four or more members of the Court shall constitute the Award of the Court . A signed counterpart of the Award shall be delivered by the Court to each Party . Any such Award rendered in accordance with the provisions of this Annexure in regard to a particular dispute shall b e final and binding upon the Parties with respect to that dispute .

24. The salaries and allowances of the arbitrators appointed pursuant to Paragraph 6 shall be determine d and, in the first instance, borne by their Governments ; those of the umpires shall be agreed upon with them by the Parties or by the persons appointing them, and (subject to Paragraph 13) shall be paid, in the first instance , by the Treasurer . The salaries and allowances of the secretariat
of the Court shall be determined by the Court and paid, in the first instance, by the Treasurer .

25. Each Government agrees to accord to the members and officials of the Court of Arbitration and to the Agents and Counsel appearing before the Court the same privileges and immunities as are accorded to representatives of member states to the principal and subsidiary organs of the United Nations under Sections 11, 12 and 13 of Article IV of the Convention on the Privileges and Immunities of the United Nations (dated 13th February 1946 ) during the periods specified in these Sections . The Chairman of the Court, with the approval of the Court, has the right and the duty to waive the immunity of any official of the Court in any case where the immunity would impede the course of justice and can be waived without prejudice to the interests of the Court. The Government appointing any of the aforementioned Agents and Counsel has the right and the duty to waive the immunity of any
of its said appointees in any case where in its opinion the immunity would impede the course of justice and can be waived without prejudice to the effective performance of the functions of the said appointees . The immunities and privileges provided for in this paragraph shall not be applicable as between an Agent or Counsel appearing before the Court and the Government which has appointed him.

26. In its Award, the Court shall also award the costs of the proceedings, including those initially borne by the Parties and those paid by the Treasurer .

27. At the request of either Party, made within three months of the date of the Award, the Court shall reassemble to clarify or interpret its Award . Pending such clarification or interpretation the Court may, at the request of either Party and if in the opinion of the Court circumstances so require, grant a stay of execution of its Award . After furnishing this clarification or interpretation, or if
no request for such clarification or interpretation is mad e within three months of the date of the Award, the Court shall be deemed to have been dissolved .

28. Either Party may request the Court at its first meeting to lay down, pending its Award, such interim measures as, in the opinion of that Party, are necessary to safeguard its interests under the Treaty with respect to the matter in dispute, or to avoid prejudice to the final solution or aggravation or extension of the dispute .
The Court shall, thereupon, after having afforded an adequate hearing to each Party, decide, by a majority consisting of at least four members of the Court, whether any interim measures are necessary for the reasons hereinbefore stated and, if so, shall specify such measures : Provided that

(a) the Court shall lay down such interim measures only for such specified period as, in its opinion, will be necessary to render the Award : this period may, if necessary, be extended unless the delay in rendering the Award is due to any delay on the part of the Party which requested the interim measures in supplying such information as may be required by the other Party or by the Court in connection with the dispute ; and

(b) the specification of such interim measures shall not be construed as an indication of any view of the Court on the merits of the dispute.

29. Except as the Parties may otherwise agree, the law to be applied by the Court shall be this Treaty and, whenever necessary for its interpretation or application, but only to the extent necessary for that purpose, the following in the order in which they are listed :
(a) International conventions establishing rules which are expressly recognized by the Parties .
(b) Customary international law.

APPENDIX TO ANNEXURE G
(Paragraph 7(b) )
List I
for selection of Chairman
(i) The Secretary-General of the United Nations (Ban Ki Moon)
(ii) The President of the International Bank for Reconstruction and Development ( World Bank) (Robert B. Zoellick)

List II
for selection of Engineer Member
(i) The President of Massachusetts Institute of Technology, Cambridge, Mass., U .S.A. (Susan Hockfield, "President and Professor of Neuroscience ,She is currently a corporate director of GE Industrial)
(ii) The Rector of the Imperial College of Science and Technology, London, England (Sir Keith O'Nions)

List III
for selection of Legal Member
(i) The Chief Justice of the United States (Chief Justice John Roberts)
(ii) The Lord Chief Justice of England (Lord Igor Judge)

By nominating Peter Tomka current Vice President of ICJ , the field of Choice for legal member has been restricted.
India needs support of at least two more members to prevent interim award.List of umpires ( the Panel) and the selection of members thereof would be of extreme interest to both the parties. Rumour of USA mediating , while proceedings are being initiated, is quite interesting.

The IWT permits India to develop the HEP even if there are existing usages on the Pakistani side and all it says is that it should not 'adversely affect' Pakistan's 'existing' usage. Of course, what is 'adversely' is left undefined. I do not see therefore at all Pakistan's claims standing legal interpretation at all. See Clasue (iii), Para-15, Part-3 of Annexure D

where a Plant is located on a Tributary of The Jhelum on which Pakistan has any Agricultural use or hydroelectric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent existing Agricultural Use or hydroelectric use by Pakistan on the former Tributary would not be adversely affected.

 

[ajtr]

Here is the approved drawings from Baglihar Award ( extracted from Indian Counter proposal)

As one can see there is no gates below sluice gates.
Neutral Expert's determination on the level of Gated Spillway.NE has allowed gated spillway 8 M lower at 800 asl to prevent flooding of Pul Doda town.

 

[ajtr]

Arbitration & Kishenganga project​

RAMASWAMY R. IYER

The Kishenganga Hydroelectric Project in Jammu & Kashmir is proceeding towards arbitration under the Indus Treaty 1960. This article is an attempt to explain the issues involved for the information of the general public, without expressing any personal opinions on the issues that are going before a judicial body.

While water-sharing in the Indus system stands settled by the Indus Treaty 1960, divergences are possible, and have occurred, over the question of the compliance of Indian projects on the western rivers with certain stringent provisions of the Treaty which were meant to take care of Pakistan's concerns as a lower riparian.

The Treaty recognises three categories of such divergence: ‘questions' to be discussed and resolved at the level of the Indus Commission, or at the level of the two governments; ‘differences' (that is, unresolved ‘questions') to be referred to a Neutral Expert (NE) if they are of certain kinds (that is, broadly speaking, differences of a technical nature); and ‘disputes' (going beyond ‘differences,' and perhaps involving interpretations of the Treaty) that are referable to a Court of Arbitration. In the Kishenganga case, both ‘difference' and ‘dispute' come into play. Pakistan has proposed the reference of certain technical issues to a Neutral Expert, and the submission of a couple of other issues to a Court of Arbitrators.

The Kishenganga is a tributary of the Jhelum. It originates in J&K, crosses the Line of Control, runs for some 150 km in ***************** Kashmir, and joins the Jhelum (in ***). India proposes to build a dam on the Kishenganga shortly before it crosses the LoC, divert a substantial part of the waters of the river through a tunnel to the hydroelectric project (330 MW, that is, 110 MW x 3) located near Bonar Nala, another tributary of the Jhelum, and then return the diverted waters, after they have passed through the turbines, to the Jhelum via the Wular Lake.

The ‘differences' to be referred to a Neutral Expert will be regarding the compliance of the project features with the conditions and restrictions laid down in the Treaty (design of the project, quantum of pondage, need for gated spillways, placement of the gates, etc.). This reference, which will be somewhat similar to the reference to the NE in the Baglihar case, will not be discussed further in this article.

The main ‘dispute' to be referred to a Court of Arbitration is on the issue of whether the diversion of waters from one tributary of Jhelum to another is permissible under the Treaty. Art. III (2) of the Treaty requires India to let flow all the western rivers to Pakistan and not permit any interference with those waters, and Art. IV (6) calls for the maintenance of natural channels. If we go by these provisions, the diversion of waters from one tributary to another seems questionable. On the other hand, there is another provision (Ann. D, paragraph 15 (iii)) which specifically envisages water released from a hydroelectric plant located on one tributary of the Jhelum being delivered to another tributary; this seems to permit inter-tributary diversion. The correct understanding of these provisions and the determination of the conformity of the Kishenganga Project to the Treaty is a matter for the two governments to agree upon, or for the Court of Arbitration to decide.

Any diversion of waters from a river is bound to reduce the flows downstream of the diversion point. It is true that the diverted waters will be returned to the Jhelum, but there will certainly be a reduction of flows in the stretch of the Kishenganga (some 150 km) before it joins the Jhelum. This will affect not merely certain uses of the waters but also the river regime itself and the ecological system. It may be true that only a small part of the waters (30 per cent or so) flows from the Indian part to the Pakistani part and that the rest (70 per cent) of the flows arise after the river crosses the LoC. However, the diversion of a substantial part of the former by India will undoubtedly have some impacts downstream.

Assuming that diversion from the Kishenganga to another tributary is found permissible, there is a condition attached: the existing agricultural use and use for hydro-electric power generation on the Kishenganga in Pakistan must be protected. There is indeed some existing agricultural use along the Kishenganga (Neelum) in ***. Pakistan is also planning the Neelum-Jhelum hydroelectric project at a point on the Neelum before it joins the Jhelum. These claims of existing uses will probably be contentious issues between the two countries, with reference to (a) the crucial date for determining ‘existing use' and (b) the quantum of existing use.

Arbitration is action under the Treaty and is therefore not a matter for concern. In this case, the arbitration process has already been initiated. However, it seems to this writer that even at this stage an effort should be made to reach an agreed settlement on this project. The reasons for saying so are as follows:

First, arbitration by a court of seven arbitrators of the highest international standing will be a very expensive process; it may also take a long time — possibly several years.

Secondly, arbitration is essentially an adversarial process. Each side will try to make the strongest possible presentation of its own case, and question the other's. The media in both countries will keep reporting developments in the case, probably in a partisan manner. All this will definitely cause an accentuation of strained relations between the two countries.

Thirdly, the outcome of the process is uncertain. There are three possibilities: a clear negative finding (that is, the diversion of waters is impermissible under the Treaty), in which case the project will have to be abandoned; or a clear positive finding (that the diversion is permissible) in which case, the project can go ahead as planned; or a mixed finding that the diversion is permissible but must be such as to minimise adverse downstream impacts, in which case India may have to reduce the planned diversion and let a larger quantum of waters flow down. It would be very rash to predict the outcome of the process, but undertaking that rashness, the author would venture to suggest that a mixed finding seems more likely than a categorical one (positive or negative).

If that tentative forecast seems plausible, is it really necessary to go through a costly and time-consuming process of arbitration to arrive at that result? Is it not possible — and more sensible — for the two countries to try for an agreed settlement of the dispute even at this stage? It should not be extremely difficult to arrive at a satisfactory, negotiated settlement on the reconciliation of the conflicting interests of the Kishenganga and Neelum-Jhelum projects, as also on the extent of agricultural use that needs to be provided for, and on the ‘ecological flows' that must be maintained.

A second issue that Pakistan proposes to refer to the Court of Arbitration is the legitimacy of drawdown flushing of the reservoir for sediment-control. This is not specific to the Kishenganga project but is a general issue applicable to all future projects. In the case of Baglihar, the Neutral Expert had strongly recommended periodical drawdown flushing of the reservoir as a means of sediment control, which (in his view) was part of proper maintenance, and had observed that while the dead storage could not be used for operational purposes, there was no objection to its use for maintenance purposes. Pakistan has been unhappy with that recommendation, but could not challenge it as the NE's findings are final and binding. It is now raising this as a general issue before the Court of Arbitration. Three questions arise:

(i) Can an issue on which a NE has given a final and binding finding be raised again before another NE or a Court of Arbitration?

(ii) If the NE's finding is applicable only to the particular project in question and not to others, should we accept the position that there can be substantially different (even contradictory) principles (laid down by different NEs) applying to different projects?

(iii) If drawdown flushing is ruled out, then must the corollary of heavy siltation and reduction of project life (as in the case of Salal) be accepted as inevitable? If so, does this not amount to ignoring the words “consistent with sound and economical design and satisfactory construction and operation” and again “unless sediment control or other technical considerations necessitate this” in the Treaty?

These questions will no doubt be argued before the Court by the two countries.

It should not be extremely difficult to arrive at a negotiated settlement on the reconciliation of the conflicting interests of the Kishenganga and Neelum-Jhelum projects, as also on the extent of agricultural use that needs to be provided for, and on the ‘ecological flows' that must be maintained.