CURRENT UPDATE : KISHENGANGA ISSUE: RELIEF FOR INDIA, PAK OBJECTIONS REJECTED

KISHENGANGA ISSUE

In a major relief for India, The Hague-based International Court of Arbitration has rejected Pakistan's objections by upholding New Delhi's right to divert water from the Kishenganga river for power generation in Jammu and Kashmir. 

In its final award on the India-Pakistan arbitration case, the court also decided that India shall release a minimum flow of nine cumecs (cubic meters per second) into the Kishenganga/Neelum river below the Kishenganga hydro-electric project (KHEP) at "all times." 

The issue of minimum flow was left unresolved by the partial award issued on February 18, 2013. The court, in its final award pronounced yesterday, also decided that both India and Pakistan may seek "reconsideration" of its decision through the Permanent Indus Commission and the mechanisms of the Indus Waters Treaty "after a period of seven years from the first diversion of water from the Kishenganga river." 

In its partial award, the court had unanimously decided that the 330 mw project in Jammu and Kashmir is a run-of-river plant within the definition of the Indus Waters Treaty. It had also held that India was free to divert water from the Kishenganga/Neelum River for power generation. 

The court has given India the right to divert water for the project and has accepted Pakistan's demand for uninterrupted flow of water. Pakistan has claimed that the project would rob it of 15 per cent of its share of river waters. 

It also accused India of trying to divert the river to harm Pakistan's Neelum-Jhelum hydro-electric project (NJHEP). 

Recalling the matters already decided in the partial award, the court noted that India had "coupled intent with action" in the planning and construction of the KHEP before Pakistan achieved the same with respect to NJHEP, and that the KHEP had acquired "priority in right" as a result.

The final award is binding upon the two countries without recourse to appeal. On May 17, 2010, Pakistan had moved for arbitration against India under the provisions of the Indus Waters Treaty 1960. 

The Indus Waters Treaty is an international agreement signed by India and Pakistan in 1960 that regulates the use waters of the Indus system of rivers by the two neighbours.

The KHEP is designed to generate power by diverting water from a dam site on the Kishenganga to the Bonar Nallah, another tributary of the Jhelum, through a system of tunnels, with the water powering turbines having a capacity of 330 mw.

In commencing the arbitration, Pakistan challenged the permissibility of the planned diversion by the KHEP of the waters of the Kishenganga into the Bonar Nallah and the effect that this diversion would have on NJHEP. 

Besides others, India's case was defended by jurists Fali S Nariman and R K P Shankardass. The seven-member Court of Arbitration was chaired by judge Stephen M Schwebel of the US who is former president of the International Court of Justice. 

The other members of the court were Franklin Berman and Howard S Wheater (UK), Lucius Caflisch (Switzerland), Jan Paulsson (Sweden) and judges Bruno Simma (Germany) and Peter Tomka (Slovakia). 

In June 2011, the Court of Arbitration conducted a site visit to the Kishenganga project and surrounding areas located on the Kishenganga river. In February 2012, a delegation of the court carried out a second site visit to the Neelum river valley. 

From August 20 to 31, 2012, the Court of Arbitration held a two-week hearing on the merits of the dispute between India and Pakistan before giving a partial award in February last year.