"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, January 28, 2013

Kishanganga Arbitration: Pakistan v. India: Hearing on Merits

Image from here
Previously, we had blogged about the arbitration between India and Pakistan under the Indus Water Treaty, 1960 (the previous sixteen posts can be accessed from this label). The hearing on merits took place in August 2012. The PCA Rules of Procedure provides: “[t]he Court shall endeavour to render its Award within 6 months of the close of the hearings." Hence, the award could be expected to be published by the end of February 2013. Two issues appear to be the crux of the case of Pakistan:

"1. Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels)? [the “First Dispute”]
2. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency? [the “Second Dispute”]
"
India proposed to construct a dam (KHEP) across the Kishanganga/ Neelum, a tributary of Jhelum river.The dam's design was to divert the river from the dam site (located at higher elevation) to another tributary of Jhelum, Bonar Madmati Nallah (located at lower elevation). From the difference in elevation, water current was to be created and hydroelectricity (330 megawatts) was to be generated through rotation of turbines by the diverted water. Since the diversion would bring a lot of sediments into the KHEP reservoir due to the design, a technique known as draw-down flushing technique is proposed to be used by India.Accumulation of sediments in the reservoir lessens the storage capacity of the reservoir. It is estimated that the annual loss of storage capacity in reservoir due to sediment accumulation if 0.46% in India and 1% worldwide (Liu, J., Liu, B.Y., and Ashida, K., "Reservoir Sedimentation Management in Asia", Advances in Hydro-Sciences and Engineering, 5th International Conference on Hydro-Science and Engineering, Warsaw, Poland, 2002). Hence, several methods are employed to manage sediments, which are:
  • Water shed management
  • Sediment flushing
  • Sluicing
  • Density current venting
Of these methods, sediment flushing is the most widely used for its economy and effectiveness. Two methods of sediment flushing are commonly used- complete draw-down flushing and partial draw-down flushing. In complete draw-down flushing, the reservoir is emptied before the flood season through low level outlets located near the reservoir bed. This creates a river-like situation where there is water flow along with sediment flow through the outlets. in KHEP the employment of draw-down techniques would bring the storage level in the reservoir below the Dead Storage Level as defined in Para 2(a), Annexure D of the Treaty are reproduced below:
“Dead Storage” means that portion of the storage which is not used for operational purposes and “Dead Storage Level” means the level corresponding to Dead Storage.
This, according to Pakistan is impermissible under the Treaty.

Contentions of India and Pakistan are summarised below:

Pakistan (Petitioner):
  • A treaty was necessary between the parties as mutual co-operation at that historical juncture was impossible. Hence, the Treaty inked was by both parties after "painstaking negotiations" of ten years.
  • The fundamental premise of the historic Indus Water Treaty is that India should not interfere with flow of the Western Rivers of Indus System which has been allocated to Pakistan. India's plan to divert Kishanganga/ Neelum is in breach of this fundamental premise of the Treaty.
  • Through the Treaty, both parties have been apportioned the rivers of the Indus System and the rights and obligations of both parties are strictly delineated. Hence, the Treaty should be interpreted in its ordinary meaning and in case of ambiguity, interpretation should take into consideration the precise delineation of the rights and obligations under the Treaty.
  •  Article III of the Treaty obligates India to "let flow" and "not permit any interference with" the Western Rivers (the Indus, the Chenab, the Jhelum and their tributaries, including the Kishenganga/Neelum). this obligation constitutes the essential element of the delineation in the Treaty. The purpose of the obligation is to prevent India from "manipulating" the water flow to Pakistan's detriment.
  • The only exception as regards the Western Rivers is provided in Article III(2) of the Treaty. As per this provision, India could use the Western River waters for certain purposes such as for hydroelectic generation but through"run-of-river" projects. The Treaty strictly regulates the right to use the Western Rivers for such purposes, including through Annexure D which creates restrictions on hydroelectric generation.
  • Particularly, the Treaty does not permit intra-tributary transfer of water and such an act is contrary to the general obligation to "let flow" and "not permit any interference with" the Western Rivers.
  • India is specifically obligated under Para 15, Annexure D of the Treaty (quoted below) to deliver into the river below the hydroelectric plant the same quantity of water it received during the 24 hour period.
"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..."
  • The exception to the above rule contained in Para 15(iii) to Annexure D permits diversion from one tributary to another but only when such diversion is "necessary". This however does not mean that India can permanently divert the waters from one territory into another simply to create a potential for hydroelectric generation. "Necessity" can only mean diversion from time to time and that too for emergency purposes such as "emergency exit".
"Provided however that :
[…]
(iii) where a Plant is located on a Tributary of The Jhelum on which Pakistan has any Agricultural use or hydro-electric 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 or hydro-electric use by Pakistan on the former Tributary would not be adversely affected
."
  • The above said provision also prioritises downstream agricultural or hydroelectric use by Pakistan and requires India to adjust its use so that it shall not affect the use by Pakistan. If KHEP is built, Pakistan will be adversely affected. During lean season, the project would divert the entire waters of Kishanganga/ Neelam and up to its design capcaity of 58.4m^3/s during peak season. This would result in significant loss in power generation and revenue for downstream N-JHEP of Pakistan and any other future power project. Pakistan has been informing India of this since the commencement of KHEP.
  • Article VI(6) of the Treaty reproduced below obligated India to conduct downstream impact assessment of the KHEP which India failed to do. Expert evidence showed that reduced flow in Kishanganga would have an adverse environmental impact on the downward reaches of the river.
"Each Party will use its best endeavours to maintain the natural channels of the Rivers, as on the Effective Date, in such condition as will avoid, as far as practicable, any obstruction to the flow in these channels likely to cause material damage to the other Party."
  • Employment of draw-down flusing for sediment management is prohibited by the Treaty. Further, such a method would give India control over the timing and volume of flow of water downstream of the dam which is not permissible under the Treaty. Further such technique will have adverse environmental impact downstream of the dam. Hence, India should employ alternative sediment management methods.
More on hearings in the next post.

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