WASHINGTON: Pakistan engaged the World Bank on Monday for arbitration in settling its water dispute with India, which opened a run-of-the-river hydroelectric scheme earlier this week for harnessing the flow of the Neelum River.

The World Bank and the four-member Pakistani delegation, which arrived in Washington on Sunday for the talks, are refusing to disclose the details of the talks on an issue which can have disastrous consequences for Pakistan, if not handled aptly.

“The meetings are scheduled for today and tomorrow,” said a World Bank spokesperson Elena Karaban. “We can update you later as needed,” said she when asked for comments. The Pakistani delegation, which is led by Attorney General Ashtar Ausaf Ali, avoided the media as well.

The talks would cover four key points: the height of the dam built on the Kishanganga River, its capacity to hold water, Pakistan’s demand for setting up a court of arbitration to settle the dispute and India’s counter-demand for an international expert.

The document that would determine the outcome of Pakistan’s efforts to protect its rivers, however, is the Dec 20, 2013, decision of The Hague Court of Arbitration.

Islamabad has raised serious concerns over Kishanganga power plant opened by Modi recently

The document, known as Final Award of the Court of Arbitration, tries to resolve the Kishanganga dispute under the guidelines of the 1960 Indus Waters Treaty (IWT), which defines how India and Pakistan should share the waters of the Indus and its tributaries.

In the final award, which is binding upon the parties and is without appeal, the Court of Arbitration unanimously decided the question of the minimum flow that was left unresolved in the partial award announced in February 2013.

The final award determined that India shall release a minimum flow of 9 cumec (cubic metre per second) into the Kishanganga/Neelum River below the Kishanganga Hydroelectric Project (KHEP) at all times. However, the Court also decided that either India or Pakistan may seek reconsideration of this decision through the Permanent Indus Commission and the mechanisms of the Indus Waters Treaty after a period of seven years from the first diversion of water from the Kishanganga/Neelum River.

Pakistan instituted arbitral proceedings against India in 2010, requesting that a court of arbitration determine the permissibility of the KHEP under the treaty.

The KHEP generates power by diverting water from a dam site on the Kishanganga/Neelum River to the Bonar Nallah, which, like Neelum, is another tributary of the Jhelum. India has built a system of tunnels, with the water powering turbines having a capacity of 330 megawatts.

Pakistan challenged the permissibility of the planned diversion because of the effect that this would have on its Neelum-Jhelum Hydro-Electric Project (NJHEP), currently under construction downstream of the KHEP.

In June and August 2013, both India and Pakistan provided data on the flow in the river at various locations along the Kishanganga/Neelum.

India ahead

The court noted that India had “coupled intent with action” in the planning and construction of the KHEP before Pakistan achieved the same with the NJHEP and that the KHEP had acquired priority in right as a result.

The Court also recalled that in the Partial Award it had nevertheless found that Pakistan’s downstream agricultural and hydro-electric uses remain relevant on an ongoing basis throughout the operation of India’s hydro-electric plant.

India, Pakistan hydrological data

Both India and Pakistan presented extensive evidence to indicate the level and patterns of flow in the Kishanganga/Neelum River. The court examined the anticipated effects of the KHEP on downstream agriculture and hydro-electric uses by Pakistan and on the environment.

The court noted that, although Pakistan had described plans to increase the use of lift irrigation in the Neelum Valley, “it had been unable to provide a quantitative estimate of the likely scale of such development”.

In the absence of concrete evidence, the court “found it unable to take account of agricultural uses,” but noted that “the minimum flow ultimately adopted would ensure adequate water for development in the valley”.

With respect to Pakistani hydro-electric uses, and in particular the NJHEP, the Court noted that “the diversion of water by the KHEP would have a direct effect and would somewhat reduce the downstream generation of hydro-electric power under almost any minimum flow regime”.

The court observed that “Pakistan had provided … a holistic assessment of the interaction of a range of environmental indicators and attempted to capture the complexity of interactions within the river ecosystem”.

In contrast, India “submitted a simpler assessment, drawing its conclusions from more limited data regarding the habitat for fish species”.

While noting that there’s no single “correct” approach to environmental assessments, the court expressed the view that “Pakistan’s in- depth assessment, while not perfect was more appropriate for a project of the magnitude of the KHEP”. The court acknowledged, however, that Pakistan’s approach in these proceedings “does not match its own historical practices”.

The court had provisionally concluded that taking exclusive account of environmental considerations would suggest an environmental flow of 12 cumec. The Court noted that below this level, the lowest flows recorded at the Line of Control increasingly become the norm during parts of the winter dry season.

The minimum flow determination

The court decided that, on the basis of the evidence currently available to it, India should have access to at least half of the average flow at the KHEP site during the driest months of the year.

The court concluded that although customary international law requires the provision of a minimum flow, “the Indus Waters Treaty limits the use of customary law”.

Examining the hydrological data, the Court concluded that “a flow of 9 cumec at the KHEP would be sufficient to maintain the natural flows throughout the dry months of December, January, and February, even in the driest winter of the 34-year flow data record presented by the parties”.

Although the court considered this approach to be somewhat severe in environmental terms, it concluded that such an approach “represents an appropriate balance between the needs of the environment and India’s right to power generation”.

Reviewing the effects of a 9 cumec minimum flow, the court noted that such a flow would accord India 51.9 per cent of the flow at the KHEP dam site during the month of January and a higher proportion in other months.

Published in Dawn, May 22nd, 2018