BOTH Pakistan and India view the verdict of the International Court of Arbitration at The Hague released on February 18 on the diversion of Kishanganga River’s water as favouring their position on the dispute. But if seen closely, one finds it showing a tilt in India’s favour.

Pakistan feels satisfied with the fact that the court has allowed India to divert only a minimum flow of water from Kishanganga River for power generation although the Indian government had sought full diversion of the river water which Islamabad considers a violation of the Indus Water Treaty of 1960.

The court ruled that India is under an obligation to construct and operate the Kishanganga Hydroelectric Plant (KHEP) in such a way as to maintain a minimum flow of water in the river. The court asked India and Pakistan to provide data by June so that it could determine the minimum flow of water in its final award to be issued in December.

The Indian government and media is jubilant over the ICA award and describe it as their country’s victory. A statement issued immediately by its ministry of external affairs said, “the award of the Court of Arbitration at The Hague today reaffirms the validity of India’s position regarding the 330 MW Kishanganga Hydro-electric project (KHEP) by allowing diversion of water from the river as envisaged by India. It highlights once again that India is adhering to all the provisions of the Indus Waters Treaty.”

A former bureaucrat A. K. Bajaj, who was involved with this case from the beginning said, “It was a major point that Pakistan was opposing on various grounds and it is good that the tribunal has decided the matter by correctly interpreting the relevant provisions of the Treaty.” According to Indian Express, although the broad verdict is in India’s favour, officials are still going through the detailed order to check the fine print.

“The verdict is likely to mean a green signal for the Kishanganga project,” the newspaper said. Another newspaper The Hindu said in its report that the court chaired by Stephen M. Schwebel, has said “India can go ahead with the diversion of the waters of Kishanganga, a tributary of Jhelum, for hydro-electric power generation.”

It is worth noting that the external ministry’s statement and the media reports give no impression that India is being allowed only a minimum flow of the river’s water and that the verdict is a partial award. There is also no mention of the final award. They say India has three months to ‘apply for interpretation and clarifications’ of the court verdict.

Pakistan had raised two questions regarding its dispute with India before the arbitration court.

The first was whether India’s proposed diversion of the river Kishanganga (Neelum) water into another tributary, i.e., the Bonar Madmati Nallah — being one central element of the Kishanganga project — breaches India’s legal obligations owed to Pakistan under the IWT, as interpreted and applied in accordance with international law.

This includes India’s obligations under Article III (2) (let flow all the waters of the western rivers and not permit any interference with those waters) and Article IV (6) (maintenance of natural channels).

Pakistan argued that the KHEP’s planned diversion of waters of the Kishenganga/Neelum, as well as the use of the drawdown flushing technique, both at the KHEP or at other Indian hydroelectric projects that the IWT regulates, are impermissible under the Indus Waters Treaty.

The second point raised was whether under the treaty, India may deplete or bring the reservoir level of a run-of-river plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency. The court determined that except in the case of an unforeseen emergency, the treaty does not permit reduction below the dead storage level of the water level in the reservoirs of run-of-river plants on the western rivers. India refused to accept that both the design and planned mode of operation of the KHEP were not in conformity with the treaty.

For management of sedimentation in the dam, India planned to use the modern drawdown flushing technique that requires waters to be brought below the Dead Storage Level. This technique was accepted by the neutral expert in the Baglihar dispute with Pakistan but has been disallowed by the Court of Arbitration. Pakistan had raised objections to both, saying it will affect its water availability downstream.

The court restrained India from adopting the drawdown flushing technique for clearing sedimentation in the run-of-river project designed for generation of 330 MW power. India may have to adopt a different technique for flushing. The court also sought statistics on the environmental flows into the river downstream of the project.

Kishanganga is the second water dispute on which Pakistan has taken India to an international dispute resolution. Earlier a neutral expert was appointed by the World Bank to adjudicate on the Baglihar dam which Pakistan lost to India.

Pakistan had earlier sought a stay on the Kishanganga power project, now under construction in Gurez valley. But on September 23, 2011, the Court of Arbitration had, in its ‘interim measures’ stated that "permanent works above the riverbed is not allowed”. But India can go ahead with construction of powerhouse, tunnelling works, constructing coffer dams, temporary bypass tunnel and concretisation under the riverbed for the dam.

However, India insisted the decision was ‘not a setback’ and that it has ‘ample freedom’ to continue with almost the entire range of construction activities for the project other than the dam itself. The court has also ordered joint ‘periodic inspections’ at the Gurez site to ensure that the ‘interim measures’ are not violated.

Legally speaking, projects like Kishanganga are allowed under the Indus treaty; the dispute, however, is over how they should be built and about timely release of water. Pakistan opposes the KHEP on grounds that it will reduce generation capacity of its 969MW Neelum-Jhelum power project by 16 per cent.

The diversion will also reduce river flows near the Line of Control, on the Pakistan side, for at least six months. Pakistan has also objected to the design of the project because it envisages drawdown flushing which is against the spirit of the 1960 treaty. The design, it is feared, also enables India to cause floods and water scarcity in Pakistan in the event of a conflict.