"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.

Friday, February 1, 2013

Part II: Kishanganga Dispute: India v. Pakistan: Hearing on Merits

In the previous post in this blog, we had noted that the final arguments in the Kishanganga Dispute between India and Pakistan were concluded and the Award was expected any time soon. We had also dealt with the arguments of Pakistan in the matter. India was represented by Mr. Dhruv Vijay Singh (Secretary to the Government of India, Ministry of Water Resources) and Mr. Fali S. Nariman and Pakistan was represented by Mr. Kamal Majidulla (Special Assistant to the Prime Minister for Water Resources and Agriculture) and Professor James Crawford. Pakistan produced Mr. Syed Muhammad Mehr Ali Shah as expert regarding the potential hydrological impact of the KHEP on the reach of the Kishenganga/Neelum River downstream as well as the anticipated impact of the KHEP on the production of electricity by the Neelum-Jhelum Hydro-Electric Project (the “N-JHEP”), Dr. Jackie King and Mr. Vaqar Zakaria with respect to the expected environmental impact downstream of the KHEP and Dr. Gregory Morris on sediment management in relation to hydroelectric plants, including the KHEP. India presented its experts,  Mr. Jesper Goodley Dannisøe and Dr. Niels Jepsen for testifying on the potential environmental impact of the KHEP and  Dr. K.G. Rangaraju testified on the sediment control in response to Dr. Morris’ views. In this post, we summarize the arguments of India in the arbitration.
    • The Treaty must be interpreted from the perspective of its object and purpose as disclosed by the Treaty's Preamble. As per the Preamble, it is the parties' desire in signing the Treaty to “attain the most complete and satisfactory utilisation of the waters of the Indus system of rivers.” This objective would be met if India is allowed to go ahead with the KHEP while Pakistan is also benefitted to use the Kishanganga river for hydroelectricity generation.
    • While 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), Article III(2) of the Treaty creates an exception: India could use the Western River waters for certain purposes such as for hydroelectic generation but through"run-of-river" projects. KHEP falls within this exception.
    • India has a right to transfer water between the tributaries of Jhelum for hydroelectric generation as prior to inking the Treaty, India had planned to construct a hydroelectric project similar to at the location of the KHEP. India would not have inked the Treaty had it precluded such a project.
    •  Para 15(iii) of Annexure D to the Treaty gives the right to India to judge whether it is necessary to divert the waters of Kishanganga.  It is necessary to do so in order to generate hydroelectricity. The said provision reads:
    "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.
    • Further Para 15(iii) of Annexure D protects Pakistan's "then existing" downstream agricultural and hydroelectric use by Pakistan. India is to take into account the downstream uses only up to a cut-off point, i.e., up to design finalisation. An interpretation which provides for India to continuously adjust its design would negate India's right to use the river waters in the Jhelum and result in wastage of vast amounts of resources.
    • From 1989, when Pakistan was first informed of the KHEP till 2006 when the final design was notified to Pakistan, India had expressed its willingness to take into account the downstream uses of Pakistan and had repeatedly sought data but Pakistan failed to substantiate its uses and relied solely on verbal assurances that the project was "in hand" and "under construction" without demonstrating any commitment to realisation. Also, the agricultural uses of residents of Neelum valley are not dependent on the waters of Kishanganga/ Neelum.
    • Even if the Neelum-Jhelum Hydroelectric Project of Pakistan was a "then-existing" use, it would not be affected by the KHEP as the latter will divert less than 1% of the total volume of waters of the Western rivers and during the high flow season, N-JHEP will receive volume of water in excess of its maximum discharge capacity and during lean season N-JHEP could be operated through several tributaries flowing into Kishanganga/ neelum between KHEP and N-JHEP sites. During the lean season, N-JHEP would receive more water than the KHEP itself. Any adverse effect on the generation of N-JHEP would be mitigated by the releease of water during lean season from the Dudhnial storage work that Pakistan intends to construct between KHEP and N-JHEP.  In fact, due to the diversion of Kishanganga, Pakistan would benefit due to increased flow and consequent increased power generation in the Kohala HEP. Thus, any adverse effect on the N-JHEP would be offset by benefit in the Kohala HEP.
    • Neither the provisions of the  Treaty nor Article IV(6) theren, quoted below provided basis for reading in any international environmental obligation into the Treaty. Hence, the alleged breach of such an obligation is not a proper subject matter for determination by the Tribunal: "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."
    • In any case, India complied with Article IV(6) of the Treaty and the domestic environmental laws and customary international environmental laws as regards the project and international engineering standards applicable to the design and operation of hydroelectric projects. In fact, in 2000 a comprehensive environmental impact assessment showed that KHEP will not have any signficant adverse effect on the Kishanganga/ Neelum river. A minimum “environmental flow” of at least 3.9 m3/s would be released at all times below the KHEP dam
    • As regards the use of draw-down flushing technique for sediment managment (see the previous post on the said technique), the said dispute is not arbitrable as the matter is to be referred to a neutral expert appointed as per the Treaty. In fact, the Neutral Expert in Baghlihar Dam Dispute between India and Pakistan had confirmed that the said technique was allowed under the Treaty (Note: see the executive summary (pdf) of the decision of the Neutral Expert, especially last para in page 12 ).
    • In view of the following facts (a) draw-down flushing is essential for the sustainability of the KHEP and can be done by effectively lowering the level below the Dead Storage Level (b)  it would take a very short period of time to re-fill the reservoir after lowering of water level, (c) the relatively small reservoir capacity of KHEP,  the KHEP would have minimal effect on Pakistan.
    Both parties completed their closing arguments on 31 August 2012. The Press Release by the Permanent Court of Arbitration on the arguments can be accessed from here (pdf).

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