Kishanganga a legal challenge

In view of the on-going Indo-Pakistan water dispute, the Government of Pakistan feels greatly perturbed over Indias control of the western rivers - Chenab, Indus and Jhelum whose exclusive use rests with Pakistan under the World Bank-brokered Indus Waters Treaty (IWT). These rivers flow into Pakistan through the Indian occupied part of Jammu and Kashmir. It is by stealing water from these rivers India has been deliberately and repeatedly violating the Treaty. The IWT was signed between India and Pakistan with the mutual understanding and desire to equally attain a satisfactory utilisation of the rivers of Indus basin. Both countries were determined to develop mechanisms, through which issues pertaining to these rivers would be settled amicably. However, in one of the recent developments, India has built a 330-megawatt Kishanganga hydro-power project on River Jhelum that has become a matter of great worry for Pakistan. The project has been constructed in such a manner that will ultimately lead to diversion of the natural course of the river Neelam by 100km. Pakistan has opposed its construction on the basis that the diversion is not only in contravention of the Treaty but also compromises the flow of water into Pakistan by as much as 27 percent in the winters and 11 percent during the summers. In addition to depriving Pakistan of a considerable amount of water, this diversion could also result in an ecological disaster for Pakistan. This alteration would change the meeting point of these big rivers, and as a result they would be meeting in the Indian held Kashmir rather Azad Jummu and Kashmir. The IWT that was signed by both the parties in 1960, as mentioned above, was explicitly drafted to cater for any dispute that might occur. Article 4(14) of the treaty states that if either party utilises the water of rivers while contravening the provisions of the treaty that party would have to stop its use in that manner. Furthermore, Article 7(1)(c) of the IWT states that there would be mutual agreement and co-operation in undertaking any engineering works on the said rivers. India has so far failed to reach any mutual agreement with Pakistan on the building of dams on the Western Rivers, thus the building of Baglihar Dam and now the Kishanganga Dam (which is nearing its completion) is against the spirit of the Indus Waters Treaty. Also, Article 7(2) puts another obligation on both parties. If either of them plans an engineering project, which is likely to cause interference with the flow of the water belonging to the other party, the party arranging the project would be under an obligation to provide all the available information regarding the nature, magnitude and effect of the intended work to the second party. Unfortunately, Pakistan has not been provided with any such information. While looking at international regimes, it is important to mention the International Convention of the Non-navigational Uses of International Watercourses (ICNUIW) 1997, which pertains to the uses and conservation of all waters that cross over national boundaries. This UN drafted document is an important law that helps conserve and manage water resources for the present and future generations. Provisions of this convention have attained the status of customary international law, meaning thereby that irrespective of the ratification of the convention, these provisions have a strong persuasive authority. Article 7 of the ICNUIW states that all water course states (i.e. states in the territory of which a part of an international water course is situated) should take appropriate measures to prevent causing harm to the neighbouring states. Similar to the provisions of the IWT, Article 9 of ICNUIW also requires water course states to regularly exchange available data like the hydrological, ecological and hydro-geological nature of the water courses. Finally, under Article 14 of the ICNUIW, the request for additional data and information by an affected state should be met to the satisfaction of the latter and consent of the aggrieved party is integral in the completion of a new project. In utter disregard of the above mentioned provisions, India has refrained from responding to Pakistans requests for the exchange of information about its construction works on the western rivers, and further disputes the contention that the diversion would reduce the flow of water into Pakistan. Recently, Pakistan has decided to approach the International Court of Arbitration to resolve the issue of Kishanganga Dam. Previously, Pakistan had expressed her reservations on the construction of the Baglihar Dam, built on River Chenab, for which it approached the World Bank in 2005 for the resolution of the dispute. However, the outcome of the decision was not favourable for Pakistan and her entire reservations were disregarded. Concrete steps have to be taken in order to create awareness at the domestic and international levels of Indias efforts at diverting Pakistans share of water. It is unfortunate that the people are completely oblivious of the intricacies involved in this dispute. As a way forward, Pakistan must take this issue as a national crisis and seek its solution on a war footing. Secondly, the media should be taken into confidence. Famous intellectuals having an understanding and expertise in this area should be encouraged to deliver lectures and write articles in the print media. Thirdly, a team of well-reputed lawyers in international law should be hired to formulate a strategy on legalistic grounds to represent Pakistan at different international levels. The lesson learnt from earlier experiences must be used to obtain a favourable outcome of the Kishanganga dispute. If India and Pakistan do not co-operate on these issues, the possibility of war in the future cannot be ruled out. Indias non-cooperation has reinforced anti-Indian sentiments amongst the people of Pakistan. As a way forward both the countries need to realise the importance of these rivers as being a natural resource that is integral to their survival. The author is a Practicing Advocate and a Research Associate at the Research Society of International law (RSIL) Pakistan. Email: sanahassan@rsilpak.org

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