ISLAMABAD/NEW DELHI - The award by the International Court of Arbitration on the Kishenganga dam case appears to have yielded positive results for the two feuding neighbours, with Pakistan getting half of the dam’s water and India getting a go-ahead for its construction plan.
The court accepted Pakistan's demand for uninterrupted flow of water and gave India the right to divert water for the project.
In the final award – handed down nine months after the case was filed against Indian violation of the Indus Water Treaty signed in 1960 – the ICA accepted Pakistan's right on waters of Kishanganga, commonly known as Neelum river in Pakistan.
"Pakistan has achieved a big victory in terms of acceptance of its right on waters of Neelum river as a riparian state,” said the federal minister for water and power.
Khawaja Asif said likewise Pakistan's right on waters of Jhelum and Chenab rivers was also established. He added that ICA’s decision would safeguard “our water rights in the future”.
According to officials, construction of the Kishenganga project by India in Held-Kashmir would result in 14 per cent decrease in the flow of water for Pakistan's 969-MW Neelum-Jhelum hydroelectric project.
India also thought the ICA verdict was a major takeaway for it. In a statement, the Indian High Commission said “the court decided that India shall release a minimum flow of nine cumecs (cubic meters per second) into the Kishenganga/Neelum river below the Kishenganga hydro-electric project (KHEP) at all times".
The court decided that both India and Pakistan might seek "reconsideration" of its decision through the permanent Indus Water Commission and the mechanisms of the Indus Water Treaty after a period of seven years from the first diversion of water from the Kishenganga river.
The issue of minimum flow was left unresolved by the partial award issued on February 18 this year.
In its partial award, the court had unanimously decided that the 330 MW project in Held-Kashmir was a run-of-river plant within the definition of the Indus Waters Treaty. It had also held that India was free to divert water from the Kishenganga/Neelum River for power generation.
Pakistan had complained that the project would rob it of 15 per cent of its share of river waters. It also accused India of trying to divert the river to harm Pakistan's Neelum-Jhelum hydro-electric project (NJHEP).
Recalling the matters already decided in the partial award, the court noted that India had "coupled intent with action" in the planning and construction of the KHEP before Pakistan achieved the same with respect to NJHEP, and that the KHEP had acquired "priority in right" as a result.
Pakistan had objected to the design of the dam, and approached the ICA arguing that the Indian government had been violating the Indus Water Treaty. It had also submitted facts and figures regarding water flow in the court.
Officials said the Indian project would reduce energy generation of Pakistan's hydroelectric project by 13 per cent or 700 million units. The gross capacity of the reservoir is 18.80 million cubic metres or 14,900 acre feet with dead storage of 8,755 acre feet.
During the case proceedings, Indus Water Commissioner Asif Baig and international lawyers including James Crawford and Simpson Woodsworth presented their arguments.
They were of the view that diversion of Kishenganga near Bandipurah area in Occupied Kashmir and installation of powerhouse gates on lower level was violation of the water treaty and demanded that the project be closed or its design be changed.
They told the court that the project would affect 30 per cent production of Pakistan's Neelum-Jhelum powerhouse and cause a shortage of 2,000 cusecs of water in Neelum Valley.
The court ruled that India could not take the water on a very low level in the dam.
In 2010, Pakistan protested to the altered design and took up the issue with the World Bank.
A seven-member team, appointed by the UN secretary general, after surveying the site and listening to the arguments of both Pakistan and India finally decided settle the dispute.
The first hearing was held at The Hague on January 14, 2011 when it was decided that Pakistan would submit its case to the ICA in May, 2011. In September last year, the ICA in its interim decision had restricted India from any permanent work on the Kishenganga project.