India-Pakistan legal battle over Kashmiri water

Dr Shabir Choudhry

India and Pakistan could not reach consensus over use of water of Neelam River and have decided to fight it out in a court of arbitration which will cost millions of dollars to both countries. The process of arbitration is not only expensive, but it is also a lengthy one. Whatever the outcome of the arbitration, the legal battle will surely embitter the relationship between the two countries.

Both India and Pakistan want to generate electricity by diverting water of Neelam River, water of which belongs to the people of Jammu and Kashmir. The Pakistani project is known as Neelam-Jhelum Hydroelectric Project is located near Muzaffarabad, capital of Pakistani Administered Kashmir, and aims to divert water through a tunnel from Nauseri and release it into River Jhelum near Chatar Kalas about 22 km south of Muzaffarabad. The project once completed, will produce 969 MW of electricity.

India, on the other hand, is constructing Kishanganga Hydroelectrical Project at Gurez which will divert water of River Neelam through 22 km long tunnel before it enters Pakistani Administered Kashmir; and release the water into Bonar Madumati Nullah - a tributary of the Jhelum River. The diverted water would be used for generating 390 megawatt electricity and feeding the Wullar Lake.

The government of Pakistan claims that the diversion of water to Wullar Lake contravenes the provisions of the Indus Water Treaty, as it reduces flow of water and will reduce the power generation capacity by 16 percent, and will cause Pakistan a loss of 6 billion rupees worth of energy per year. Bilateral talks between the countries on this issue have failed and Pakistan wants to resolve this issue by invoking the arbitration process enshrined in the Indus Water Treaty of 1960.

16 percent of 969 megawatt (which the Pakistani project will generate) is 155.04 megawatt, and if that, according to Pakistan government, is worth 6 billion rupees then one can work out how many billions worth is the energy of Mangla Dam. The dam was completed in 1967, and generates 1000 megawatt; which Pakistan has been using without paying the price to the government of Azad Kashmir. People of Azad Kashmir pay more per unit of electricity than people of Pakistan pay a few miles across the River Jhelum.

Leaving other things aside from which Pakistan benefits economically, Pakistan owes approximately 1720 billion rupees just for the electricity of Mangla Dam. And if we include value of other hydroelectric generation from Pakistani Administered Kashmir, then Pakistan owes us approximately Rs2580 billion. Of course profit from use of water for irrigation and fishery is not included in this; and yet Pakistani officials and their puppets have the nerve to say that Pakistan feeds us.

However, for sake of records Pakistan has started paying royalty for Mangla Dam (not for other projects in Azad Kashmir) since 2003. Pakistan pays Azad Kashmir government 15 paisa per unit; and pays 70 paisa per unit to provinces of Pakistan. Despite this exploitation and gross inequality, puppet leaders of Azad Kashmir are happy that their political masters have started paying something for the Mangla Dam.

Anyway that aside, the Court of Arbitration consists of seven prominent experts. Both countries are entitled to nominate two members each; and they have to suggest and agree the remaining three independent experts who must be experts in water disputes, engineering and law. Apart from that they must either belong to the International Court of Justice, the World Bank or the Massachusetts Institute of Technology. Both countries had a meeting on 6 July to finalise the selection of names for the court of arbitration.

The Indus Water Treaty was a water-sharing formula between India and Pakistan, which was brokered by the World Bank in 1960. Despite wars between India and Pakistan and frosty relationship, the Treaty has survived, and to a large extent has been working as envisaged in 1960.

A Commission was set up which meets regularly and exchange data and tries to resolve disputes. If the Commission fails to resolve a dispute, then it has to be resolved by both governments. And if both governments and the Commission fail to resolve the dispute then it could be referred to a Neutral Expert in a Court of Arbitration.

The Court of Arbitration has to see if the proposed diversion of water from one tributary of River Jhelum to another is permissible under the Treaty or not. This diversion reduces flow of water in Neelam River, but it does not reduce overall flow of water entering Pakistan, as the diverted water is released in another tributary of Jhelum River.

It is for the Court of Arbitration to decide, but one could foresee three possible outcomes:

1) that the diversion of water is not permitted under the Treaty;

2) that the diversion is permissible;

3) or a mixed findings.

In case of the first finding India will have to abandon the project which has cost them in billions. In case of the second finding the Pakistani project will suffer. It is probable that the Court of Arbitration might reach a mixed verdict - that the diversion is permitted subject to certain changes to minimise adverse downstream impacts.

As noted earlier, arbitration process is very expensive and lengthy one. It could take a good few years before the Court gives its verdict. In the meantime both governments are racing to complete their projects, as the understanding is if a project is near completion it will be very difficult for the court to give a totally negative verdict.

I don't believe for a minute that India is spending millions of rupees on a project that it would abandon after the verdict of the court. Indian Federal Minister of Power Jairam Ramesh, during a recent visit to Kashmir said the Kishanganga project had geo-strategic importance to India. He said: "This is an issue with geo-strategic and foreign policy implications". The Indian government is working at full speed and wants to complete the project by 2015.

Although Pakistan has initiated the arbitration process, its legal team is not ready to proceed. In reality there is still some controversy as to who should be included in the legal team, mainly because of potential rewards and favouritism. And by time everything is in place and verdict is given the Indian project would be near its completion, as happened in the case of Baglihar Dam, and Pakistan, despite enormous expenses did not get much out of it.

Both India and Pakistan have their plans, as how to exploit the resources of State of Jammu and Kashmir. As a Kashmiri nationalist it is not our concern which country gets a favourable verdict from the court; and which country loses out. We feel it is the people of Jammu and Kashmir who are ultimate losers in this power game.

Although we have no control over construction of dams, we, however, feel that the project which is favourable to the people of Jammu and Kashmir should be completed. I have done extensive research on the Pakistani project and learn that it has nothing positive for the people of Azad Kashmir, as it will only benefit Pakistan and we will only face all the negative impacts.

Claims are made that the Kishanganga Project will benefit people of Indian Administered Kashmir, but I have not done any research to ascertain or reject these claims.

Writer is Director Diplomatic Committee of Kashmir National Party, political analyst and author of many books and booklets. Also he is Director Institute of Kashmir Affairs.Email:drshabirchoudhry@gmail.com