Pakistan’s case against Kishanganga Project

In Backgrounder, Climate Security, National Security
June 10, 2021
Mahnoor Islam
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In 2018, Indian Prime Minister Narendra Modi inaugurated the Kishanganga project which is an $864 million run of the river hydroelectric scheme. The Kishanganga River flows through Neelum in Azad Jammu and Kashmir and Astore District before entering the India-held region Gurez. The project will generate 1713 million units of electricity per year. The dam

In 2018, Indian Prime Minister Narendra Modi inaugurated the Kishanganga project which is an $864 million run of the river hydroelectric scheme. The Kishanganga River flows through Neelum in Azad Jammu and Kashmir and Astore District before entering the India-held region Gurez. The project will generate 1713 million units of electricity per year. The dam will divert Jhelum waters to an underground power house by transferring water from Gurez Valley back into the mainland Kashmir instead of allowing it to flow into Pakistan.

The dam will give India control over a river that flows from Pakistan into the Indian occupied Kashmir and re-enters Pakistan. Pakistan argues that the Indus Water Treaty (IWT) 1960 gives Pakistan control over the Indus, Chenab and Jhelum Rivers while it gives India control over Beas, Ravi and Sutlej. The treaty allows India to use the water of western rivers in ‘non-consumptive’ ways. However, India has interpreted this as a permission to build a ‘run of the river’ hydel projects that don’t change the course of the river and don’t deplete the water level. The Kishanganga project violated both the conditions as it changes the course of the river and depletes the water level. Pakistan has argued that the project comprises the flow of the water by an estimated 27 percent in the winters and 11 percent in the summers.

Article 4(14) of the Treaty states that if either party utilises the water of rivers while contravening the provisions of the treaty that party would have to stop its use in that manner. Furthermore, Article 7(1)(c) of the IWT states that there would be mutual agreement and co-operation in undertaking any engineering works on the said rivers. India and Pakistan have not reached any mutual agreement on the building of the dams on the Western Rivers. Thus, the Kishanganga Dam aswell as the Baglihar Dam are against the provisions of the treaty.

Article 7(2) of the same Treaty puts an obligation on both the countries that if either of them plans an engineering project, that may cause interference with the flow of the water belonging to the other party, the party arranging the project would be under an obligation to provide all the available information regarding the nature, magnitude and effect of the intended work to the second party. However, Pakistan has not been provided with any information regarding the project.

Looking at International law, The International Convention of the Non-navigational Uses of International Watercourses (ICNUIW) 1997 pertains to the uses of conservation of all waters that cross national boundaries. Article 7 of the ICNUIW states that all water course states should take appropriate measures to prevent causing harm to the neighbouring states.Article 9 of ICNUIW requires water course states to regularly exchange available data like the hydrological, ecological and hydro-geological nature of the water courses similarly like IWT. Article 14 of the ICNUIW, requests for additional data and information by an affected state should be met to the satisfaction of the latter and consent of the aggrieved party is integral in the completion of a new project. India has repeatedly violated all these provisions by not responding to Pakistan’s requests regarding exchange of information about the construction of its projects.

In 2010, the Court of Arbitration concluded that the dam component of the Kishanganga project would ‘eventually enable India to exercise a certain degree of control over the volume of water that will reach Pakistan’ and therefore ordered a temporary halt to construction. The second interim order in 2013 held that India was not entitled to drawdown the water level for the purposes of ‘maintenance’. However,with regards to diversion, the Court also stated that Pakistan had a superior right to the flows of the Kishanganga river, it had waited too long to exercise those rights thus, the Court declared that India was entitled to divert water for the Kishanganga project. The Court also concluded that India was required to release minimum flows.

In August 2016, Pakistan asked the World Bank to appoint a court of arbitration to review the designs of the Kishanganga however the suggestion was rejected by India saying that Pakistan’s objections were technical and the matter should be decided by a neutral expert. Pakistan disagreed by arguing that the decision by the expert would be non binding and therefore would not put India under a legal obligation to comply. The World Bank has since held many talks with both states, last which took place in 2017 but failed to come to a conclusion.

Concrete steps need to be taken in order to solve the dispute.According to the Ministry of Water Resources, Pakistan’s stored water has plummeted to 1 million acre-feet, though it stood at 7 million acre-feet during the corresponding period last year. Lessons should be learnt from earlier experiences and a strategy should be created to deal with the dispute. Both countries need to realise the importance of these rivers as being a natural resource which is integral for survival.