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India and Pakistan in a Legal Battle Over Kashmiri Water

India and Pakistan in a Legal Battle Over Kashmiri Water

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Published by JamilMaqsood

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Published by: JamilMaqsood on Aug 31, 2010
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09/07/2010

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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 oarbitration which will cost millions of Dollars to both countries. Theprocess of arbitration is not only expensive, but it is also a lengthyone. Whatever the outcome of the arbitration, the legal battle willsurely embitter the relationship between the two countries.Both India and Pakistan want to generate electricity by divertingwater of Neelam River, water of which belongs to the people of Jammu and Kashmir. The Pakistani project is known as NeelamJhelum Hydroelectric Project is located near Muzaffarabad, capital of Pakistani Administered Kashmir, and aims to divert water through atunnel from Nauseri and release it in River Jhelum near ChatarKalas about 22 KM South of Muzaffarabad. The project oncecompleted, 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 KMlong tunnel before it enters Pakistani Administered Kashmir; andrelease the water in to Bonar Madumati Nallah – a tributary of theJhelum River. The diverted water would be used for generating 390megawatt electricity and feeding the Wullar Lake.
 
Map showing location of both projects on Neelam River and Baghliar Damon Chenab River
The government of Pakistan claims that the diversion of water toWullar Lake contravenes the provisions of the Indus Water Treaty,as it reduces flow of water and will reduce the power generationcapacity by 16 per cent, and will cause Pakistan a loss of 6 billionrupees worth of energy per year. Bilateral Talks between thecountries on this issue have failed and Pakistan wants to resolvethis issue by invoking the arbitration process enshrined in the IndusWater Treaty of 1960.16 per cent of 969 megawatt (which the Pakistani Project willgenerate) is 155.04 megawatt, and if that, according to Pakistangovernment, is worth 6 billion Rupees then one can work out howmany billions worth is the energy of Mangla Dam. The Dam wascompleted in 1967, and generates 1000 megawatt; which Pakistanhas been using without paying the price to the government of AzadKashmir. People of Azad Kashmir pay more per unit of electricitythan people of Pakistan pay a few miles across the River Jhelum. Leaving other things aside from which Pakistan benefitseconomically, Pakistan owes approximately 1720 billion rupees justfor the electricity of Mangla Dam. And if we include value of otherhydroelectric generation from Pakistani Administered Kashmir, thenPakistan owes us approximately 2580 billion. Of course profit fromuse of water for irrigation and fishery is not included in this; and yetPakistani officials and their puppets have nerve to say that Pakistanfeeds us.However, for sake of records Pakistan has started paying royalty forMangla Dam (not for other projects in Azad Kashmir) since 2003.Pakistan pays Azad Kashmir government 15 Paisa per unit; andpays 70 Paisa per unit to provinces of Pakistan. Despite thisexploitation and gross inequality, puppet leaders of Azad Kashmirare happy that their political masters have started payingsomething for the Mangla dam.Anyway that aside, the Court of Arbitration consists of sevenprominent experts. Both countries are entitled to nominate twomembers each; and they have to suggest and agree the remainingthree independent experts who must be experts in water disputes,engineering and law. Apart from that they must either belong to theInternational Court of Justice, the World Bank or the MassachusettsInstitute of Technology. Both countries had a meeting on 6 July tofinalise the selection of names for the court of arbitration.
 
The Indus Water Treaty was a water sharing formula between Indiaand 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 asenvisaged in 1960.A Commission was set up which meets regularly and exchange dataand tries to resolve disputes. If the Commission fails to resolve adispute, then it has to be resolved by both governments. And if both governments and the Commission fail to resolve the disputethen it could be referred to a Neutral Expert in a Court oArbitration.The Court of Arbitration has to see if the proposed diversion of water from one tributary of Jhelum River to another is permissibleunder the Treaty or not. This diversion reduces flow of water inNeelam River, but it does not reduce overall flow of water enteringPakistan, as the diverted water is released in another tributary of Jhelum River.It is for the Court of Arbitration to decide, but one could foreseethree 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 projectwhich has cost them in billions. In case of the second finding thePakistani project will suffer. It is probable that the Court of Arbitration might reach a mixed verdict that the diversion ispermitted subject to certain changes to minimise adversedownstream impacts.As noted earlier, arbitration process is very expensive and lengthyone. It could take a good few years before the Court gives itsverdict. In the mean time both governments are racing to completetheir Projects, as the understanding is if a project is near tocompletion it will be very difficult for the Court to give a totallynegative verdict.I don’t believe for a minute that India is spending millions of rupeeson a project that it would abandon after the verdict of the Court.Indian Federal Minister of Power Jairam Ramesh, during a recentvisit to Kashmir said the Kishanganga project had geo-strategicimportance to India. He said: "This is an issue with geo -strategicand foreign policy implications". The Indian government is workingat full speed and wants to complete the Project by 2015.

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