Monday, May 3, 2010

Pakistan, India, Water, International Arbitration

Pakistan to move arbitration court on Kishanganga project
By Khaleeq Kiani
Monday, 03 May, 2010
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A view of the dry beds of river Chenab, April 26, 2010. - Photo by APP.
ISLAMABAD: Pakistan has finally decided to approach the International Court of Arbitration against construction of the controversial Kishanganga Hydropower Project by India in alleged violation of 1960 Indus Waters Treaty and has formed a team of legal experts to fight the case.

Informed sources told Dawn on Sunday that Professor Kaiyan Homi Kaikobad, an international legal expert of Pakistan origin, would lead the team at the International Court of Arbitration.

He will be assisted by officials of ministries of water and power, law and justice and foreign affairs and Pakistan’s permanent commissioner to the Indus Commission and a few Pakistani lawyers.

The sources said that a group of government officials had recommended that James Crawford be hired for the job because he had represented Pakistan before the neutral expert when Pakistan took its case on the controversial Baglihar project on the Chenab a few years ago. However, prime minister’s adviser on water resources Kamal Majidullah opposed the move saying the outcome of Baglihar case was generally not in Pakistan’s favour. The government is estimated to have allocated about $10 million for the case.

The sources said that India had almost completed the 22-km tunnel to divert Kishanganga (Neelum) waters to Wullar Lake in violation of the Indus Waters Treaty and was working to complete the 330MW project by 2016. If completed, the project would severely affect Pakistan’s rights over the river, reduce the river flows into Pakistan and minimise its power generation capacity of the 969MW Neelum Jhelum Hydropower project near Muzaffarabad in Azad Kashmir.

They said that Pakistan’s Permanent Indus Water Commissioner had requested the government in March last year to quickly take up the case with the International Court of Arbitration after all options at the level of Permanent Indus Commission had been exhausted. It, however, took the government more than 14 months to seriously consider the advice.

Meanwhile, the Indian government’s project update reveals that about 33 billion Indian rupees sanctioned for the 330MW Kishanganga project in January last year has been increased to Rs37 billion.

“Work has restarted after settlement of outstanding issues. The project is expected to be completed by January 2016,” Indian documents reveal.

Pakistan has been opposing the project for more than a decade because it could stop water flows into Jhelum river. Bilateral talks have so far failed to yield any result to Pakistan’s satisfaction. The sources said Pakistan might have already lost priority rights over the project “as this tunnel is the major component of the project”.

Like the Chenab, the Jhelum of which Neelum is an integral part belongs to Pakistan under the 1960 treaty. Under the treaty, India cannot divert waters from Jhelum and Chenab rivers.

The Kishanganga project is located about 160 kilometres upstream of Muzzafarabad and involves diversion of the Kishanganga or Neelum to a tributary named Bunar Madumati Nullah of the Jhelum through a 22-km tunnel. Its power house will be built near Bunkot and the water will be re-routed into the Jhelum river through Wullar Lake, drying up a long stretch of the river on the Pakistani side.

When completed, the project would reduce the flow (pressure) of the Neelum and decrease the power generation capability of Pakistan’s proposed 969-MW Neelum-Jhelum Hydropower Project by more than 20 per cent or about 100-MW.

India has continued with the work on the project despite serious objections by Pakistan that it could not allow even a minor diversion of the river. Pakistan first received reports about Indian intentions to develop the project in 1988 but India officially confirmed it in the mid-1990s.

The issue had been on the agenda of the Permanent Indus Commission for more than eight years now, the sources said. Pakistan is constructing its 969MW Neelum-Jhelum project, which also is expected to be completed by 2016. Under the treaty, India cannot change the flow of Jehlum river even for power generation that may affect any Pakistani power project. The treaty provides Pakistan exclusive rights to use the water of western rivers -- Indus, Jehlum and Chenab -- while eastern rivers -- Ravi, Sutlej and Beas -- have been assigned to India.

Mr Kaikobad who has done his PhD from London School of Economics is a fellow of Royal Geographical Society (FRGS). Formerly a legal adviser to the government of Bahrain, he is currently a professor of law and director of research at Brunel University.

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