Kishenganga Hydel Power Project

Battle for Kishenganga
So is it ‘Deuce’ or ‘Advantage Pakistan’?

Arjimand Hussain Talib

The India-Pakistan battle for Kishenganga Hydro-electric Project is now international. Late May, Pakistan informed India that it had instituted arbitration proceedings on the Kishenganga issue with the World Bank on May 18, 2010. It cited failure of bilateral talks with India on the project and the latter’s failure in addressing its concerns as the key reasons for doing so.

This news came close on the heels of the claims by the two countries earlier this month that they resolved their differences over three power projects in J&K, namely Baglihar Power Project, Uri II and Chutak Power Project. During those talks between Indus Water Commissioner G Ranganathan and his counterpart Jamaat Ali Shah, there was a mention of disagreement only related to the Nimoo Bazgo hydel power project in Ladakh region. There was no mention of Kishenganga.

The latest move also comes in the backdrop of the all-is-well environment created by the two countries’ Indus Commissioners’ meeting. So, now that the Kishenganga’s fate, like the Baglihar’s, will be decided by neutral arbitration, it is ‘advantage Pakistan’ or a ‘deuce’?

More than this move, what evokes curiosity is the ease with which both these countries seem to have taken this decision. Pakistan seems determined to make a point that bilateral talks have failed, necessitating neutral arbitration. India doesn’t seem to be alarmed by the proposition either.

Pakistan’s stand is that it is doing all this well within the Indus Waters Treaty (IWT) provisions. According to it, its arbitration proceedings are in line with the paragraph 2 (b) and paragraph 6 of Annexure G to the IWT. It informed India that it is appointing H.E. Mr. Bruno Simma, Judge of the International Court of Justice and Mr. Jan Paulsson, an international legal consultant, as its arbitrators for the 7-member Court of Arbitration. Pakistani newspaper The Dawn on May 10th reported that Pakistan government had earmarked 10 million US dollars for fighting the arbitration case.

New Delhi, on its part, seems unalarmed. That is despite the inevitable spin off leading to internationalisation environment of the larger Jammu & Kashmir issue.
On Wednesday, India said that it has conveyed names of its two arbitrators related to the issue to Pakistan. The two persons who would plead India’s case are Peter Tomka, Vice President of the International Court of Justice and Professor Lucius Caflisch, an international legal expert and Member of the International Law Commission.

There are conflicting signals on why the two countries have in fact decided to take the international arbitration route. But one thing is certain: it marks an inevitable internationalization of Kashmir’s water issue.

In the first week of May, Mail Today reported that India is now finally open to neutral arbitration on the Kishenganga Project. The report said that the matter was discussed during the meeting between Prime Ministers Manmohan Singh and Yusuf Raza Gilani on the sidelines of the SAARC summit at Thimpu. The report further quoted an Indian official source saying that even though the Indian Indus Water Commission officials have been in continuous touch with their Pakistani counterparts, offering bilateral talks to resolve the Kishenganga issue, the Pakistani side was adamant on neutral arbitration by the World Bank. Interestingly, the report quoted the Indian official saying that India did not see "any harm" in doing so.

There are reasons to believe that Pakistan’s political establishment was not too happy about the all-is-well feeling generated by the Indus Commissioners’ meeting.

On Monday, after being briefed by the Indus Water Commissioner Jamat Ali Shah on his water talks with India, the Chairman of Pakistan’s Parliamentary Committee on Kashmir, Maulana Fazlur Rehman, urged the Pakistan government to construct small dams in line with Indus Water Treaty rather than, what he said, wasting time in holding talks with India on water issue.

Fazl said “India prolonged the dialogue process on water issue and constructed Baglihar Dam by buying the time in contravention of Indus Water Treaty. Pakistan was now suffering a shortfall of 200,000 acre-feet.”

It is now the second time that the arbitration mechanism under Article IX of Indus Water Treaty is being invoked in the fifty years since the treaty came into force on 1 April 1960. The first arbitration happened on the Baglihar Power Project in February 12, 2007 when Pakistan said it was not satisfied with India’s rationale on the project design. The decision by the neutral arbitrator on Baglihar is widely known to have been more in India’s favor, with he conceding not only the construction of the dam with minor modification in its height but also shooting down Pakistan’s specific concerns relating to the installation of Gated Spillways, which India saw important for silt control.

Pakistan’s says its latest stand is based on Articles 7 & 9 of the International Convention of Non Navigational uses of International waters of 1997. However, the fact remains that it is not binding on either of the two countries and at no point replace the existing provisions of the IWT, which are seen far more favourable to Pakistan.

Pakistan primary fear is that the Wullar Barrage could be used as a geo-strategic weapon by India. It also feels that the project could be used by India as a potential to disrupt its Triple Canal Project (Upper Jhelum-Upper Chenab-Lower Doab). It is also concerned that the project could badly affect its Neelum Jhelum Hydro electro project.

There are two basic points which the neutral arbitrator may look on the issue. His judgment, on the basis of IWT provisions, could go to any side’s favor. Firstly, the arbitrator is expected to examine whether the diversion of water from Kishenganga to the Wullar Lake and thence to the Jhelum river is admissible under the Indus Water Treaty. Such a massive diversion on any of the tributaries of the Indus rivers has not happened before.

Secondly, it would also examine the key issue: whether Pakistan had initiated prior steps on the Neelam Jhelum Hydro electric project before the Kishenganga Project was initiated. In case that is really the case, then Kishenganga project may see some serious modifications, and even complete redesigning.

For the people of Jammu & Kashmir, however, it is a classic wait-and-watch case. Kishenganga project is as unhelpful to it as the Neelam Project on the other side of the LoC.