"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.

Tuesday, February 19, 2013

Kishenganga Award: A Summary

In the last post, we had stated that the Court of Arbitration has held the Kishenganga Hydroelectric Project (KHEP), a project under construction by India is not violative of the Indus Water Treaty, 1960 between India and Pakistan. The website of the Permanent Court of Arbitration (PCA) has come up with a six page press release and has also published the 250 odd paged Partial Award by the Tribunal.

We will come up with a detailed analysis of the award subsequently. The Award can be summarised in the following points (See the PCA press release):
  • The planned diversion of waters from Kishenganga river for generation of hydroelectricity constitutes a Run-of-River plant and is not prohibited nor does it violate the Indus Water Treaty.
  • The planned diversion of the water comes within the ambit of "necessary" under the Treaty (see the post on India's arguments)
  • The Treaty provides that "the then existing" agricultural or hydroelectric use of Pakistan must be taken into consideration when India attempts to do an inter-tribunal transfer. The phrase "the then existing" refers to the period when there is a firm intent to proceed with the project. In the current case, the firm intent as regards KHEP was 2004-2006 while for NJHEP of Pakistan, the critical period was 2007-2008. Hence India's right to divert the waters of Kishenganga was protected by the Treaty.  
  • Nevertheless the right is not absolute. India is obligated under the said treaty to maintain a minimum water flow at a rate to be determined in the Final Award to be rendered by the Tribunal subsequently.
  • The Treaty does not permit India to reduce the water in the reservoid below the "Dead Storage Level" under the Treaty. Hence, India has to employ some other method of sediment management in the reservoir. However, this will not affect the employment of draw-down flushing in reservoirs Run-of-River plants already in operation or under construction and not objected to by Pakistan.
  • Data is required on the impact of a range of minimum flows at KHEP dam on (a) power generation at KHEP, (b) environmental concerns arising from the dam site at Gurez to the Line of Control, (c) power generation at NJHEP, (d) agricultural uses of water downstream the Line of Control to Nauseri, and environmental concerns  downstream the Line of Control to Nauseri. On receipt of data and analysis. the Final Award would be published by the end of 2013.

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