INDO-PAK LEGAL BATTLE ON KISHENGANGA PROJECT
India is bracing itself for a costly and cumbersome international arbitration case with Pakistan over the Kishenganga hydel project. After failing to persuade Pakistan to resolve the dispute at the government level, India on Wednesday named a judge of the Geneva-based International Court of Justice Peter Tomka and a Swiss international law expert Lucius Caflisch to represent it.
India’s initial choice for legal representative was the Baglihar neutral expert, Raymond Lafitte and Prof Boisson de Chazournes. Tomka, was formerly a legal advisor to the Slovak foreign ministry while Caflisch is a professor at the Graduate Institute of International Studies in Geneva.
But Baglihar was probably an easier verdict, according to internal assessments in the government. For one thing, the Kishenganga project is not as advanced as Baglihar was, and Pakistan’s Neelum-Jhelum project is already under construction. Most important, the unknown of an international legal verdict is disquieting to the Indian system, hence India’s greatest effort will go into ensuring that Pakistan should not get a veto on forthcoming water projects in India.
For Pakistan though, the legal recourse is more political — in a note verbale (diplomatic missive) to India on May 17, Pakistan’s primary complaint appears is the fundamental structure of the treaty itself — questioning India’s right to divert water. Here, India is on more solid ground, because the Indus Waters Treaty is fairly clear on the subject, because it shows that Pakistan is taking a more political stance on water disputes rather than a technical one, which was India’s objection from the start.
Pakistan’s main disputes are __ first that India’s proposed diversion of the Kishenganga (its called Neelum in Pakistan) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.”
Pakistan also objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. Its reason being that it says the treaty places strict limitations on drawdown of water.
What does Pakistan want?
First, to prevent India from proceeding on the project until the verdict. India doesn’t want to do this because it’s a financial liability and then the project could become threatened like the Tulbul project. Second, Pakistan wants a legal declaration that the diversion is a breach of the treaty. Third, that India should not draw down the water level of the reservoir. India says the treaty permits India to move water from one tributary to another after power generation. India will refute Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, by showing that there is very little agricultural activity there anyway. Indian government sources said the NHPC had also kept a provision of an extra 150 cusecs of water to be released downstream for Pakistani use, if necessary.
But ultimately, the dispute resolution is political, because for Pakistan, water is an emotive issue at present, including their belief that India was stealing their water. Apart from Kishenganga, Pakistan also objects to the Uri II project and the Chutak and Nimoo-Bazgo projects on the tributaries of the Inddus.
According to the 1960 treaty, India is allowed to create storage capacity of 3.6 million acre feet on the Indus, Jhelum and Chenab, the three western rivers. India is nowehere close to this figure. India is also allowed to create 1.34 million acres of irrigation capacity but its still to be exploited.
India’s initial choice for legal representative was the Baglihar neutral expert, Raymond Lafitte and Prof Boisson de Chazournes. Tomka, was formerly a legal advisor to the Slovak foreign ministry while Caflisch is a professor at the Graduate Institute of International Studies in Geneva.
But Baglihar was probably an easier verdict, according to internal assessments in the government. For one thing, the Kishenganga project is not as advanced as Baglihar was, and Pakistan’s Neelum-Jhelum project is already under construction. Most important, the unknown of an international legal verdict is disquieting to the Indian system, hence India’s greatest effort will go into ensuring that Pakistan should not get a veto on forthcoming water projects in India.
For Pakistan though, the legal recourse is more political — in a note verbale (diplomatic missive) to India on May 17, Pakistan’s primary complaint appears is the fundamental structure of the treaty itself — questioning India’s right to divert water. Here, India is on more solid ground, because the Indus Waters Treaty is fairly clear on the subject, because it shows that Pakistan is taking a more political stance on water disputes rather than a technical one, which was India’s objection from the start.
Pakistan’s main disputes are __ first that India’s proposed diversion of the Kishenganga (its called Neelum in Pakistan) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.”
Pakistan also objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. Its reason being that it says the treaty places strict limitations on drawdown of water.
What does Pakistan want?
First, to prevent India from proceeding on the project until the verdict. India doesn’t want to do this because it’s a financial liability and then the project could become threatened like the Tulbul project. Second, Pakistan wants a legal declaration that the diversion is a breach of the treaty. Third, that India should not draw down the water level of the reservoir. India says the treaty permits India to move water from one tributary to another after power generation. India will refute Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, by showing that there is very little agricultural activity there anyway. Indian government sources said the NHPC had also kept a provision of an extra 150 cusecs of water to be released downstream for Pakistani use, if necessary.
But ultimately, the dispute resolution is political, because for Pakistan, water is an emotive issue at present, including their belief that India was stealing their water. Apart from Kishenganga, Pakistan also objects to the Uri II project and the Chutak and Nimoo-Bazgo projects on the tributaries of the Inddus.
According to the 1960 treaty, India is allowed to create storage capacity of 3.6 million acre feet on the Indus, Jhelum and Chenab, the three western rivers. India is nowehere close to this figure. India is also allowed to create 1.34 million acres of irrigation capacity but its still to be exploited.
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