The lower riparian is always the loser when there is a powerful player upstream. It’s worse when the two also happen to generally mistrust, and more than occasionally shoot at one another, as is the case with Indian and Pakistan.

While the historically strained relations are blamed on many causes; the trauma of partition, the Kashmir issue and so much more, for Pakistan perhaps the greatest bone of contention is the flow of water from Indian-controlled territory into Pakistan.

No wonder then, that Islamabad was compelled to take two cases for adjudication to a World Bank appointed neutral expert and the International Court of Arbitration over the construction of dams and diversion of the waters of Chenab and Jhelum by India. This was done after exhausting all the bilateral options, including the failure of composite dialogue at the political and institutional level.

Under the 1960 Indus Waters Treaty, India cannot change the flow of river Jhelum, even for power generation as it may affect Pakistan’s power projects. The treaty provides Pakistan exclusive rights to use the water of the western rivers — Indus, Jhelum and Chenab — except for allowing a nominal non-consumptive use to New Delhi while the eastern rivers — Ravi, Sutlej and Beas — have been assigned to India.

However, India is currently in different phases of operating, planning and implementing a total of at least 32 water storage and hydropower projects on these rivers. There are 17 on the Chenab, five on the Jhelum and 10 on the Indus, with a cumulative generation capacity of about 13,247mw. Amongst the planned projects, the Chenab’s Bursar dam alone would have a 2.5BCM (billion cubic metres) storage against the cumulative multi-purpose storage 0provision of 4.44BCM on all the western rivers.

According to Pakistan Institute of Legislative Development and Transparency (PILDAT), India is planning to implement a mega project for linking the water surplus basins with water deficit ones through a network of 30 link canals by interlinking 37 rivers, which may include western rivers as well. “India has also aggrieved its other transboundary water stakeholders such as Bangladesh, Bhutan and Nepal through multiple self-serving hydroelectric and irrigation projects and is now bent upon taking control of the western rivers of Pakistan as well,” says PILDAT

The claim is backed by Pakistan’s minister for water and power Khawaja Mohammad Asif, who says that “India has committed a number of violations of the Indus Waters Treaty since January 2000”. Of the five major violations since then, three are as follows:

(i) Not following the design criteria given in the treaty as in the case of Baglihar and Kishanganga, (ii) Starting construction without informing Pakistan as in the case of Chutak Hydroelectric and Nimoo Bazgo plants constructed on a tributary of the Indus river and (iii) Not following the operational provisions as in the case of filling of Baglihar dam in off-peak season and without informing Pakistan.

In all these cases, the UN Framework Convention on Climate Change (UNFCCC) were violated by India by not providing an opportunity to the affected people and Pakistan for environmental impact assessment as required under clause 37(b) and (c) of UNFCCC.

Before that, the 450mw Baglihar Hydroelectric and Storage power project on river Chenab was constructed by India despite four major objections raised by Pakistan over violations of the treaty to its disadvantage. India kept on delaying negotiations on resolution of these objections and simultaneously went ahead with construction work to a stage that a major violation — the height of the dam — was declared a fait accompli by the neutral expert appointed by the World Bank.

Disappointed with the outcome of the neutral expert’s decision, Pakistan had to belatedly take up another dispute over the construction of Kishanganga Hydropower project — envisaging the diversion of Neelum River waters to Wular Lake — to the International Court of Arbitration at The Hague set up by the United Nations. Pakistan claimed the project design adversely impacts the environment and hydropower generation in Pakistan in violation of the treaty.

Although in its partial judgement the ICA has found violations by India of the bilateral treaty, it has allowed storage and diversion as fait accompli because of delayed action by Islamabad.

India had almost completed the 22-km tunnel to divert Kishanganga (Neelum) waters to Wular Lake in violation of the Indus Waters Treaty and was working to complete the 330MW project by 2016.

When completed, the project would severely affect Pakistan’s rights over the river, completely dry out more than 60km of Neelum’s river bend upstream of Muzaffarabad, reduce the river’s flow into Pakistan and minimise the power generation capacity of the 969MW Neelum Jhelum Hydropower project by 20pc (100mw) near Muzaffarabad in Azad Kashmir with an annual loss of $141 million on account of less energy generation.

Located about 160km up-stead of Muzaffarabad, Kishanganga project involves diversion of the Kishanganga or Neelum to a tributary named Bunar Madhumati Nullah of the Jhelum through a 22-km tunnel. Its power house will be built near Bunkot and the water will be re-routed into the Jhelum River through Wular Lake, drying up a long stretch of the river on the Pakistani side.

According to Arshad H. Abbasi, a senior adviser at Sustainable Policy Development Institute (SDPI), India has never shared with Pakistan any transboundary environmental impact assessment (EIA) to assess hydrological and environmental changes on the downstream of its projects in Pakistan.

Abbasi also pointed out that India has allocated hundreds of thousands of acres of forest land to the Indian army after 1990 to fight against Kashmiri militants, and in the process cleared the thick conifer forest of Kashmir to build major infrastructure — roads, cantonments, etc. This has changed the ecology of Kashmir with a severe impact on water yield, frequency in fluctuation of water flows and extreme weather conditions — floods and droughts. “More than 193km of Neelum Valley has been dried out forever,” he added.