India and Pakistan in a legal battle over Kashmiri water

India and Pakistan could not reach consensus over use of water of
Neelam River and have decided to fight it out in a court of
arbitration which will cost millions of Dollars to both countries. The
process of arbitration is not only expensive, but it is also a lengthy
one. Whatever the outcome of the arbitration, the legal battle will
surely embitter the relationship between the two countries.

Both India and Pakistan want to generate electricity by diverting

water of Neelam River, water of which belongs to the people of
Jammu and Kashmir. The Pakistani project is known as Neelam
Jhelum Hydroelectric Project is located near Muzaffarabad, capital of
Pakistani Administered Kashmir, and aims to divert water through a
tunnel from Nauseri and release it in River Jhelum near Chatar
Kalas about 22 KM South of Muzaffarabad. The project once
completed, will produce 969 MW of electricity.

India on the other hand is constructing

Kishanganga Hydro Electrical Project
At Gurez which will divert water of River Neelam through 22 KM
long tunnel before it enters Pakistani Administered Kashmir; and
release the water in to Bonar Madumati Nallah – a tributary of the
Jhelum River. The diverted water would be used for generating 390
megawatt electricity and feeding the Wullar Lake.
Map showing location of both projects on Neelam River and Baghliar Dam
on Chenab River

The government of Pakistan claims that the diversion of water to

Wullar Lake contravenes the provisions of the Indus Water Treaty,
as it reduces flow of water and will reduce the power generation
capacity by 16 per cent, and will cause Pakistan a loss of 6 billion
rupees worth of energy per year. Bilateral Talks between the
countries on this issue have failed and Pakistan wants to resolve
this issue by invoking the arbitration process enshrined in the Indus
Water Treaty of 1960.

16 per cent of 969 megawatt (which the Pakistani Project will

generate) is 155.04 megawatt, and if that, according to Pakistan
government, is worth 6 billion Rupees then one can work out how
many billions worth is the energy of Mangla Dam. The Dam was
completed in 1967, and generates 1000 megawatt; which Pakistan
has been using without paying the price to the government of Azad
Kashmir. People of Azad Kashmir pay more per unit of electricity
than people of Pakistan pay a few miles across the River Jhelum.

Leaving other things aside from which Pakistan benefits

economically, Pakistan owes approximately 1720 billion rupees just
for the electricity of Mangla Dam. And if we include value of other
hydroelectric generation from Pakistani Administered Kashmir, then
Pakistan owes us approximately 2580 billion. Of course profit from
use of water for irrigation and fishery is not included in this; and yet
Pakistani officials and their puppets have nerve to say that Pakistan
feeds us.

However, for sake of records Pakistan has started paying royalty for
Mangla Dam (not for other projects in Azad Kashmir) since 2003.
Pakistan pays Azad Kashmir government 15 Paisa per unit; and
pays 70 Paisa per unit to provinces of Pakistan. Despite this
exploitation and gross inequality, puppet leaders of Azad Kashmir
are happy that their political masters have started paying
something for the Mangla dam.

Anyway that aside, the Court of Arbitration consists of seven

prominent experts. Both countries are entitled to nominate two
members each; and they have to suggest and agree the remaining
three independent experts who must be experts in water disputes,
engineering and law. Apart from that they must either belong to the
International Court of Justice, the World Bank or the Massachusetts
Institute of Technology. Both countries had a meeting on 6 July to
finalise the selection of names for the court of arbitration.
The Indus Water Treaty was a water sharing formula between India
and Pakistan, which was brokered by the World Bank in 1960.
Despite wars between India and Pakistan and frosty relationship,
the Treaty has survived, and to a large extent has been working as
envisaged in 1960.

A Commission was set up which meets regularly and exchange data

and tries to resolve disputes. If the Commission fails to resolve a
dispute, then it has to be resolved by both governments. And if
both governments and the Commission fail to resolve the dispute
then it could be referred to a Neutral Expert in a Court of
Arbitration.

The Court of Arbitration has to see if the proposed diversion of

water from one tributary of Jhelum River to another is permissible
under the Treaty or not. This diversion reduces flow of water in
Neelam River, but it does not reduce overall flow of water entering
Pakistan, as the diverted water is released in another tributary of
Jhelum River.
It is for the Court of Arbitration to decide, but one could foresee
three possible outcomes:
1. that the diversion of water is not permitted under the Treaty;
2. that the diversion is permissible;
3. Mixed findings.

In case of the first finding India will have to abandon the project
which has cost them in billions. In case of the second finding the
Pakistani project will suffer. It is probable that the Court of
Arbitration might reach a mixed verdict – that the diversion is
permitted subject to certain changes to minimise adverse
downstream impacts.

As noted earlier, arbitration process is very expensive and lengthy

one. It could take a good few years before the Court gives its
verdict. In the mean time both governments are racing to complete
their Projects, as the understanding is if a project is near to
completion it will be very difficult for the Court to give a totally
negative verdict.

I don’t believe for a minute that India is spending millions of rupees

on a project that it would abandon after the verdict of the Court.
Indian Federal Minister of Power Jairam Ramesh, during a recent
visit to Kashmir said the Kishanganga project had geo-strategic
importance to India. He said: "This is an issue with geo -strategic
and foreign policy implications". The Indian government is working
at full speed and wants to complete the Project by 2015.
Although Pakistan has initiated the arbitration process, its legal
team is not ready to proceed. In reality there is still some
controversy as to who should be included in the legal team, mainly
because of potential rewards and favouritism. And by time
everything is in place and verdict is given the Indian Project would
be near its completion, as happened in the case of Baghliar Dam,
and Pakistan, despite enormous expenses did not get much out of
it.

Both India and Pakistan have their plans, as how to exploit the
resources of State of Jammu and Kashmir. As a Kashmiri nationalist
it is not our concern which country gets a favourable verdict from
the Court; and which country loses out. We feel it is the people of
Jammu and Kashmir who are ultimate losers in this power game.

Although we have no control over construction of dams, we,

however, feel that the Project which is favourable to the people of
Jammu and Kashmir should be completed. I have done extensive
research on the Pakistani Project and learn that it has nothing
positive for the people of Azad Kashmir, as it will only benefit
Pakistan and we will only face all the negative impacts.

Claims are made that the Kishanganga Project will benefit people of
Indian Administered Kashmir, but I have not done any research to
ascertain or reject these claims.