India’s illegitimacy to build dams on Indus waters | By Syed Qamar Afzal Rizvi


India’s illegitimacy to build dams on Indus waters

FOR years, it has been India’s illegitimate legacy to build dams on the Indus waters flowing in the Indian Occupied Kashmir.

The World Bank’s International Court of Arbitration’s current hearings (Jan 27-28) in The Hague regarding the Indo-Pak water dispute on Kishanganga and Ratle hydro-projects have developed anxiety in the Indian policy quarter.

Since 2011, Islamabad has intermittently chartered its qualified reservations over the construction of the Kishanganga project (KHEP).

New Delhi’s current letter to the Pakistani officials regarding the proposed amendments in the IWT shows that Indian authorities apprehend the legal fallout on India’s unilateral approach in the matter.

The Hague-based Court of Arbitration (IAC) started its preliminary proceedings with the stipulations that nothing will be shared with the media till the final verdict.

In the first two days, Pakistan pleaded its case. And yet, some more hearings will be heard in due course.

Pakistan’s delegation, headed by the Secretary Water Resources Ministry and comprising Pakistan’s Commissioner of Indus Waters, top officials of the Attorney General’s Office, and a team of international lawyers hired by the Government of Pakistan are pursuing the country’s case for justice.

Objectively arguing, Pakistan’s case is supported by a logical legal instance vis-à-vis the Kishanganga and the Ratle dams.

The Hague court has already given the verdict on the issues of drawdown and poundage in favour of Pakistan.

Seen from the Pakistani point of view, the 850MW Ratle Hydropower project— if constructed under its existing objectionable design— will reduce the water flow of Chenab River at Head Marala by 40%, causing a great harm to the irrigation in central Punjab of Pakistan.

India has awarded the contract of the Ratle project to a private company that will run the project on BOT (build, operate and transfer) basis for 35 years and then hand over the project to India.

In September 2011, Pakistan was successful in getting a stay order regarding the construction of the Kishanganga dam by the Court of Arbitration.

The said stay order had provided an enforcement mechanism of establishing a bilateral arrangement for joint inspections of the dam site in India.

Whereas, in Feb 2013, the International Court of Arbitration (ICA)issued a partial award on the controversial Kishanganga hydro-electricity project (KHEP) in response to Pakistan’s appeal for ‘interim measures’ against the dam which may inhibit the restoration of the river flow to its natural channel.

Initially, the court allowed India to divert the Kishanganga-Neelum River as it considered the Indian project to be “run-of-the river” plant, meaning they do not require large storage reservoirs or cause major disruption to the flow.

As for the design and operations of the dam, the Pakistani side pleaded that they were in violation of the Indus Water Treaty (IWT).

The court stated that drawdown flushing below the dead storage level was not permissible and that sediment flushing did not constitute an unforeseen emergency.

The court had also endorsed Pakistan’s strongly-held view that the neutral expert’s decision in the Baglihar case was horribly wrong and in total violation of the provisions of the treaty.

“The treaty provides for two forums for settlement of the disputes – the Court of Arbitration that addresses legal, technical and systemic issues and the Neutral Expert that addresses only technical issues.

Pakistan requested the establishment of the Court of Arbitration because of systemic questions requiring legal interpretation.

” Subsequently, Pakistan initiated legal proceedings on 19 August 2016, by requesting the establishment of the ad hoc Court of Arbitration pursuant to Article IX of the IWT.

While fearing conflicting outcomes from two parallel processes, on 12 December 2016, the World Bank suspended the processes for the establishment of the Court of Arbitration and appointment of the neutral expert and invited both countries to negotiate and agree on one forum.

Although a binding order was issued by the Permanent Court of Arbitration (PCA), the dispute has since been raised again by Pakistan in bilateral talks with India and the Permanent Indus Commission (PIC).

Pakistan sought further action from the World Bank – the designated third-party mediator of the IWT – to ensure that India abided by the treaty and to seek another international court of arbitration to address their concerns (Gupta & Ebrahim, 2017; Iqbal, 2018).

Since both Pakistan and India could not agree on a mutually acceptable forum — the World Bank, after six years, during which India completed the construction of the Kishanganga project— finally lifted the suspension and created the Court of Arbitration and appointed a neutral expert.

As for India’s current letter to Pakistan, the Attorney General for Pakistan, said, ‘’the treaty cannot be unilaterally modified.

This is an attempt to divert attention from the ongoing proceedings at the Permanent Court of Arbitration under the Indus Waters Treaty’.

There is no provision in the treaty for a unilateral revocation. Any such move by India is tantamount to an act of aggression under international law.

’’ The Vienna Convention on Law of Treaties (VCLT) 1969 provides for the termination or withdrawal from a treaty.

Article 54 of VCLT states that the termination of the treaty or the withdrawal of a party from the treaty may take place either in accordance with the provisions of the particular treaty or, at any time, by the consent of all parties after the consultation with the other contracting states’’.

Moreover, being an agro-based economy, Pakistan’s hydro economics largely banks on the Indus water tributaries of River Chenab and Jhelum that India is illegally utilizing to build dams in the Indian Occupied Kashmir (IOK).

Pakistan charters its grave concern over India’s construction of seven new dams in Kishtwar, a region of dense forest in the Indian occupied Kashmir – Bursar Dam (800 MW), Pakal Dul (1000 MW), Kwar Dam (540 MW), Kiru Dam (624 MW), Kirthai-I (390 MW), Kirthai II (930 MW) and Ratle hydro-electric project (930 MW).

Notably, work on four of the dams has already begun. Michael Kugelman, Director of the South Asia Institute at the Wilson Center in Washington, said, ‘all and those in Kishtwar are no exception, especially because as many as seven of them are expected to be built close to one another’’.

Against this backdrop and for the reasons cited above, Pakistan is highly justified in seeking a meaningful help from The Hague-based court of arbitration.

—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law. He deals with the strategic and nuclear issues.