Kishanganga project: Pakistan loses case at The Hague court

The International Court of Arbitration at The Hague has upheld India’s right to divert water from the Kishanganga hydroelectric project in Kashmir.

Islamabad had proposed the establishment of a court of arbitration and the appointment of a neutral expert to resolve the dispute in November 2009.

Pakistan objected to the construction of the Kishanganga project, which is called Neelum River in Pakistan.

In a partial award announced in the Kishanganga dispute, the Hague-based Court of Arbitration allowed India to divert only a minimum flow of water from Neelum/Kishanganga River for power generation.

The Indian government had sought full diversion of the river water, but the court determined that India was under an obligation to construct and operate the Kishanganga Hydroelectric Plant (HEP) in such a way as to maintain a minimum flow of water in the river at a rate to be determined by the court in its final award.

The final award will be announced in December this year. The court asked India and Pakistan to provide data by June so that it could determine the minimum flow of water.

Pakistan had put two questions, which were legal in nature, before the tribunal – whether India’s proposed diversion of the Neelum/Kishanganga River into another tributary breaches India’s legal obligations owed to Pakistan under the treaty and whether under the treaty, India may deplete or bring the reservoir level of a run-of-river plant below the dead storage level in any circumstances except in the case of an unforeseen emergency.

On the second question, the court determined that except in the case of an unforeseen emergency, the treaty did not permit reduction below the dead storage level in the reservoirs of run-of-river plants on the western rivers.

It further said the accumulation of sediment in the reservoir of a run-of-river plant on the western rivers did not constitute an unforeseen emergency that would permit depletion of the reservoir below the dead storage level for drawdown flushing purposes. Accordingly, India may not employ drawdown flushing at the reservoir of the Kishanganga hydroelectric plant to an extent that will entail depletion of the reservoir below dead storage level.

A senior official who is familiar with the development said that the court’s decision had endorsed Pakistan’s view that the neutral expert’s decision in the Baglihar case regarding drawdown flushing below the dead storage level was wrong and in gross violation of the parameters defined by the Indus Water Treaty. Henceforth, designs and operations of run-of-river plants on western rivers would be determined by this decision and not that of the neutral expert.

India is constructing the 330MW hydroelectric project with a dam at Gurez from where it intends to divert the entire winter flow through a tunnel and deliver water into Bunar, Madhmati, Nallaat, Bandipora in occupied Kashmir.