International Court Asks India to Release More Water and Rejects Plea to Re-interpret February Verdict on Kishanganga

PCA Final Order on India-Pakistan Kishanganga Dispute

India asked to increase environmental water releases to 212%;

India’s plea to re-interpret Feb 2013 order rejected;

Both countries asked to expand analysis & practices on e-flows

In a clear set back to Indian government stand, the Final Order of Dec 20, 2013 by the Permanent Court of Arbitration (PCA)[i] has not only asked India to increase the environmental water flow downstream from the dam at all times to 9 cubic meters per second (Cumecs) from the Indian government proposal of 4.25 cumecs (an increase of 112%), the PCA has also rejected Indian government plea to reconsider or re-interpret the PCA order of Feb 2013 that the 330 MW Kishanganga Hydro Electric Power Project (KHEP) under construction and all other subsequent projects cannot draw down the water level in projects below the dead storage level. (The accompanying maps are from the PCA Award in Feb 2013.)

Kishanganga Hydro Electric Power Project Layout map

Kishanganga Hydro Electric Power Project Layout map

The dispute India’s 330 MW KHEP on Kishangana River (known as Neelum in Pakistan) in Jammu and Kashmir plans to divert the water of Kishanganga River to Bonar Nallah, which then flows to Wular lake. The overflow from Wular lake is known as Jhelum river, which then flows to Pakistan and meets Neelum River there. However, upstream from this confluence, Pakistan is building a 980 MW Neelum Jhelum HEP (NJHEP) on Kishanganga river, called Neelum in Pakistan, and diverting the water to Jhelum. Because of the diversion of water by KHEP, Pakistan fears its NJHEP will become unviable and had filed a case against India in Permanent Court of Arbitration, alleging that the KHEP was in violation of the India Pakistan Indus Water Treaty of 1960. As the official website of PCA says, “On May 17, 2010, the Islamic Republic of Pakistan instituted arbitral proceedings against the Republic of India under Paragraph 2(b) of Annexure G to the Indus Waters Treaty 1960. A Court of Arbitration composed of seven members has been constituted pursuant to Annexure G. The Permanent Court of Arbitration acts as Secretariat to the Court of Arbitration pursuant to Paragraph 15(a) of Annexure G. The Court of Arbitration is composed of: Judge Stephen M. Schwebel (Chairman), Sir Franklin Berman KCMG QC, Professor Howard S. Wheater FREng, Professor Lucius Caflisch, Professor Jan Paulsson, Judge Bruno Simma, H.E. Judge Peter Tomka”. On Feb 18, 2013, the Court gave partial award[ii], that resolved most of the issues, except that of the environment flows that India needs to release from KHEP. The Final award of Dec 20, 2013 is about the environment flows.

What India said about Environment flows “India’s experts examined the riverbed profile at 12 sites at one kilometer intervals from the KHEP to the Line of Control. At each site, India estimated the water level for minimum flows from 0 to 3 cumecs (at increments of 1 cumec), at 3.94 cumec, and from 4 to 10 cumecs (at increments of 0.25 cumecs), and replicated each calculation across the 99.99- percent, 90-percent, 75-percent, 50-percent, 25-percent and 10-percent dependable flow values. India’s experts then compared these depths to the minimum depths required by three umbrella species of fish: brown trout, snow trout and Tibetan stone loach. Based on these calculations, India’s experts conclude that: The reach between the dam and the first tributary is the most vulnerable to reductions in flow and the site at 6 km downstream show the 90th and 99.9th percentile flows as dropping below the minimum 0.5 m depth specified for brown and snow trout. However, Triplophysa [Tibetan stone loach] would have sufficient depths even with a minimum flow of 2.0 m3/s. Thus, the analysis indicates depths would drop below minimum depth requirements for trout species about 10 percent of the time in the upper 5.7-km reach below the dam. Downstream of this point, contribution of runoff from the tributaries will dilute the effects of the dam on flow regime.” (para 65) Based on this India told the court that even 2 cumecs flow would be sufficient, but they offered to release 4.25 cumecs as required by India’s Ministry of Environment and Forests (MoEF). It is not clear what is the basis for the 4.25 cumecs e-flows as mandated by MoEF.

Pakistan case on Environment FlowsPakistan had presented a more elaborate analysis of environment flow regime. The Award says about the Pakistan case: “In keeping with the DRIFT methodology and based on the predicted response of the indicators to various flow regimes, Pakistan’s experts graded the resultant ecological condition of the Kishenganga/Neelum under the 17 scenarios on a scale from A to F, ranging from pristine to critically modified. The results show that the current baseline condition of the Kishenganga/Neelum at the Line of Control is in low category B (near pristine). Various high release scenarios, for example a 20-cumec minimum flow and above, would maintain the river in category C (moderately modified from natural). Other scenarios, including a 10-cumec minimum flow, would achieve high category D conditions (significantly modified from natural), while a minimum flow of 3.94 cumecs and a maximum diversion scenario would reduce the river to low category D.” (Para 56) Pakistan concludes that between 20 and 40 cumecs flow releases should be required from KHEP. 

Kishanganga Basin Map covering both India and Pakistan

Kishanganga Basin Map covering both India and Pakistan

PCA calls India’s analysis Simplistic and unsatisfactory PCA praises Pakistan analysis: “Pakistan has undertaken a far more extensive analysis, attempting to capture complex interactions within the river ecosystem. The Court notes that assessments of this nature are increasingly used by scientists and policymakers to bring a deeper understanding of ecology to bear on the management and development of river systems.152 In contrast, India has carried out a simpler assessment, drawing its conclusions essentially from a single indicator—the habitat available for selected fish species… Nevertheless, for a project of the magnitude of the KHEP, the Court is of the view that an in-depth assessment of the type that Pakistan has attempted for these proceedings is a more appropriate tool for estimating potential changes in the downstream environment… In contrast, the Court is not wholly satisfied that India’s consideration of the water depths available for fish and its associated analysis offer adequate assurances in light of the complexity of the ecosystem in the Kishenganga/Neelum.” (Para 98, 100)

PCA unconvincingly says E-flow of 12 cumecs is required In Para 103-5 the Award concludes, “as the release falls below 12 cumecs, the lowest flows at the Line of Control progressively become the norm for a significant part of the dry season… The Court provisionally concludes that an approach that takes exclusive account of environmental considerations—assessed in the absence of other considerations—would suggest an environmental flow of some 12 cumecs… And if Pakistan’s hydro-electric uses alone were to be taken into account, moderating the KHEP’s effect on the NJHEP might entail even higher releases.” The PCA analysis as to how it reaches this conclusion is not very convincing, since this is protecting only the minimum flows and not looking at the river as an ecosystem that would require a range of flows. While KHEP may be passing occasional surpluses above 9 cumecs E-flow releases beyond what it cannot divert, but considering the 18.35 Million Cubic Meters storage capacity of the 35.48 m high dam and 58.4 cumecs capacity diversion tunnel with 23.7 km length, the quantum of release in most months in all years and almost all months in lean years will only be minimum flow prescribed by PCA.

More unconvincingly, PCA does not adhere to its own conclusions It is even more disturbing is that PCA decides not to adhere to even this 12 cumecs flow. Its reasoning for the same is equally unconvincing when it says that India has right to set up KHEP and also ensure it works effectively. This has already been concluded, but as PCA has itself stated, this right is not absolute and is subject to environment flow requirements. How can this right change the environment flow requirement remains an unanswered question. The second reason given by PCA in not adhering to this E-flow requirement is that according to Indus Treaty, considerations of customary international environmental norms and practices is secondary to the treaty. But that is not at dispute here, how can that again come in the way of determination of environment flow again remains unanswered. The arbitrary assumption that PCA has to recommend a minimum release more than half the minimum monthly release has resulted in recommendation of 9 cumecs (which is 49.1% of average dry season flow in the driest month of January). This assumption itself is  arbitrary and unjustified. The PCA does not state that KHEP will become unviable with environmental flow releases more than 9 cumecs. In this scenario, just assuming that monthly flows should not be less than 50% due to environmental flows is clearly arbitrary, unscientific and unacceptable.

PCA determination of E-flow of 9 cumecs is also unimpressive In Para 113 the Award says, “The most severe winter in the 34-year record used by both India and Pakistan to assess impacts was 1974-75. The Court notes that, based on India’s data, a minimum flow criterion of 9 cumecs at KHEP is a relatively severe criterion with respect to environmental flow, but would nevertheless be sufficient to maintain the natural flows through the December, January, February period of that winter.” Elsewhere PCA says that this flow will not protect even minimum flow in 16% of the time. It is very disappointing to note that there is no scientific reason provided in the PCA award for arriving at the conclusion that why 9 cumecs E-flow would be sufficient.

Implication of 9 cumecs on KHEP generation “Preserving a minimum flow of 9 cumecs would result in a monthly reduction in energy generation at the KHEP of, on average, 19.5 GWh from October to March… On an annual basis, the average reduction in energy generation at the KHEP would be 5.7 percent… The Court’s figures for the net and percentage reduction in energy generation are calculated as against the 4.25-cumec minimum flow ordered by the Indian Ministry of Environment & Forests, which the Court takes as the baseline for its determination and for the purposes of this Award.” (para 114, footnote 165)

PCA uses minimum flows for environmental flow without providing plausible explanation It is strange that throughout the award, PCA uses the word “minimum flow” for environmental flow. It is apparent that PCA knows the difference, but the reasons it gives for this in a footnote (no 151, para 97) is rather lame: “It is only the particular characteristics of the Kishenganga/ Neelum and the fact that low-season flows appear to be the principal drivers of ecological change that permit the Court to discuss environmental flows in terms of a fixed minimum.” This is doing a lot of dis-service to the cause of environmental flows.

PCA fails to mandate the method of E-flow releases One had expected that the PCA would, beside deciding the quantum of flow releases, would also mandate the method of flow releases, including mandating well designed fish ladder and ensuring more regular sediment transport. Even as India considered only three umbrella species, 2 of these species (snow trout and brown trout) migrate in the downstream in winters. Without a fish ladder, these species will be severely affected. The PCA award says what India and Pakistan say about sediment flow, but PCA itself does not say anything about the impact of changing sediment flow on the river ecosystem. One had hoped that PCA would make it clear that India cannot make the E-flow releases through a dam tow power house as India is doing in a number of other projects. One was looking for the PCA assessment of impacts of KHEP on the 12.07 km long downstream river stretch within India, since the stretch beyond Line of Control cannot be healthy if the stretch before is not. One sought for not just the lean season flow, but a range of flow regimes, including daily changing flows in each season[iii]. The changing flood character downstream from KHEP was also expected to be assessed by the PCA as also the issue of safe operation of the project. Unfortunately, there was only disappointment on each of these counts.

There was also an expectation that the PCA would put all the submissions of both parties in public domain.

Indian media misleads the nation The actual PCA award of Dec 20, 2013 is clearly contrary to the message the Indian Media seems to be giving. For example, the front page headline of The Tribune screamed on Dec 22, 2013[iv], Kishenganga: India’s right upheld – Arbitration court rejects Pakistan objection to diversion of water for power by India in J-K (in reality, this was not the PCA decision of Dec 20, 2013, it was the decision of Feb 2013 order. The Indian Express headline[v] on the same day was equally misleading: Kishanganga: Court lets India build, operate as it wants. This again was a decision of Feb 2013, not of Dec 20, 2013. The Times of India only had one-column news buried on page 20, strangely with dateline PTI-Islamabad, saying equally misleadingly[vi]: Kishanganga project gets official nod.

Pakistan Media Pakistan’s newspaper Business Recorder on Sunday said[vii]: Kishanganga: India allowed to divert minimum flow of water: Commissioner. The Pakistan Tribune headline[viii] said: Kishanganga project: Victory claims cloud final arbitration award. They sound closer to the PCA order of Dec 20, 2013. The News headline[ix] was though off the mark:  ICA allows India to construct Kishanganga Dam.

Concluding PCA advise The PCA awards notes that Pakistan’s historical practices does not match with what it was demanding from India in case of KHEP and that India’s own analysis of downstream impacts was too simplistic and unsatisfactory. It has advised both countries to expand their analysis and practices on environment flow regime and has clearly stated that this will not be against their drive for more power generation. This is good in spite of number of disappointments of the PCA award listed above. We hope both countries heed this advice earnestly and at the earliest. We also hope the media in both countries would report this in proper perspective.

Himanshu Thakkar[x], SANDRP

———

Important Extracts from PCA Final Order of Dec 20, 2013

Permanent Court of Arbitration (PCA) based at The Hague Source: PCA website

Permanent Court of Arbitration (PCA) based at The Hague
Source: PCA website

India’s argument: “releases from the KHEP will also reduce energy generation at India’s Uri-I and Uri-II projects on the lower Jhelum” (para 43 of PCA order of 201213)

“The average annual loss in energy generation at KHEP is the maximum in 90% Dependable Year (Dry Year) viz. about 16% [with a 10-cumec minimum release] which works out as around 32 MU per cumec… the loss being as high as 80.2% in percentage terms in the month of December corresponding to minimum release of 10 cumec.” (para 44)

“According to India, any minimum flow greater than 4.25 cumecs would seriously compromise the economic viability of the KHEP. Examining a 90-percent dependable (dry) year (on the basis of which the KHEP was designed), India submits that a minimum release of 20 cumecs would render the KHEP inoperable for three months of the year, while Pakistan’s 100-cumec release would prevent the KHEP from operating for 10 months of the year”. (para 46)

“… even this 7.2 cumec scenario would result in the KHEP being able to operate at its design discharge for only four months of the year”. (para 48)

Pakistan: “Pakistan presents its data on environmental concerns through a revised submission based on the DRIFT methodology (“Downstream Implications of Flow Transformation”) employed in its expert submissions earlier in these proceedings.86 This approach endeavours to estimate the effect of changes to the flow regime through the integrated examination of a large number of indicators related to the hydrology, sediments, hydraulics, geomorphology, water quality, vegetation, macroinvertebrates, and fish of the river” (Para 54)

“Pakistan notes that the release of 4.25 cumecs mandated by the Indian Ministry of Environment & Forests “is not supported by any reasoning, either in the October 2012 decision of India’s Ministry of Environment and Forests or in India’s submission.” (para 59)

“Pakistan’s experts further note that “[i]n terms of conditions that the aquatic life would face through their 30 scenarios, DHI predicts maximum depths of questionable validity; DHI predicts velocities that are not subsequently used; and DHI does not predict at all how much wetted river bed would be left for the organisms to live in… According to Pakistan, India’s experts then consider only the survival of three fish species, and only on the basis of undocumented minimum (rather than optimum) depths for each species… They do not specify the habitat needs of any other aquatic organisms. Their conclusions that a minimum depth of 0.5 m for trout and 0.25 m for loach are sufficient for survival are not supported by the data they present. Even if they are, DHI’s targeting of the lowest depths fish were found at, rather than analysing their data to produce optimum depths, is not appropriate and would not promote fish survival… India’s experts then proceed to link “maximum water depths with minimum fish depth requirements” in an approach that Pakistan’s experts consider “obscure, simplistic and misleading.” (Para 60)

India: “In approaching the question of the environmental effects of the KHEP, India first notes that the Indian Ministry of Environment & Forests has fixed a minimum flow of 4.25 cumecs for the KHEP. According to India, this figure was set after a process that considers “all the relevant environmental and socio-economic factors” leading to results that vary from project to project.” (Para 62)

In the view of India’s experts, “[t]he reduction in sediment downstream of the KHEP dam resulting from sediment trapping will be minor,” and in any event “native species have evolved in a dynamic environment, in which they periodically take refuge from high mainstem sediment concentrations by migrating up tributaries.”110 Similarly, India’s experts conclude that because the KHEP has limited pondage and retains water for only a short period of time, “alteration in temperature and its impact becomes negligible.” (Para 64)

On flow regime “India’s experts examined the riverbed profile at 12 sites at one kilometer intervals from the KHEP to the Line of Control. At each site, India estimated the water level for minimum flows from 0 to 3 cumecs (at increments of 1 cumec), at 3.94 cumec, and from 4 to 10 cumecs (at increments of 0.25 cumecs), and replicated each calculation across the 99.99- percent, 90-percent, 75-percent, 50-percent, 25-percent and 10-percent dependable flow values.112 India’s experts then compared these depths to the minimum depths required by three umbrella species of fish: brown trout, snow trout and Tibetan stone loach. Based on these calculations, India’s experts conclude that: The reach between the dam and the first tributary is the most vulnerable to reductions in flow and the site at 6km downstream show the 90th and 99.9th percentile flows as dropping below the minimum 0.5 m depth specified for brown and snow trout. However, Triplophysa [Tibetan stone loach] would have sufficient depths even with a minimum flow of 2.0 m3/s. Thus, the analysis indicates depths would drop below minimum depth requirements for trout species about 10 percent of the time in the upper 5.7-km reach below the dam. Downstream of this point, contribution of runoff from the tributaries will dilute the effects of the dam on flow regime.” (para 65)

“Given these limited effects, India argues that “a minimum flow of 2.0 cumec will suffice to protect the three umbrella species in the stretch down to the LOC [Line of Control].” (para 66)

“[DRIFT] is thus designed as a planning tool, not as a normative instrument.”118 India considers DRIFT to be “inappropriate for the purposes in question here” and considers it significant that DRIFT has not been used extensively in Asia, in light of the importance of local knowledge and expertise in the analytic process” (para 68)

“As Pakistan makes use of a constant minimum flow on its own dams, India views this as the only permissible approach at the KHEP for, in its view, the Treaty limits the obligations on the Parties to “customary practices followed in similar situations” when assessing what measures must reasonably be taken (for instance, with respect to such matters as environmental pollution)… India also submits that anything other than a constant minimum flow would place excessive administrative burdens on India, which would “inevitably require India to respond to Pakistani requests to justify its measurements, calculations and actual releases.” (para 69)

On Monitoring “Pakistan therefore requests an order from the Court that the flow regime be supported by India providing to Pakistan, on a real time basis, (i) daily flow data from gauges recording the inflow into the KHEP reservoir and the outflow below the KHEP dam, as well as (ii) the reservoir level, and (iii) with regular inspections permitted to Pakistan of the gauging stations.” (Para 71)

PCA Purpose for Final Award  “As indicated in paragraphs 455-457 of the Partial Award, the purpose of this Final Award is to fix the precise rate of the minimum flow to be preserved downstream of the KHEP.” (Para 78)

“At the same time, in fixing this minimum flow, the Court must give due regard, in keeping with Paragraph 29 of Annexure G, to the customary international law requirements of avoiding or mitigating trans-boundary harm and of reconciling economic development with the protection of the environment.” (Para 87)

On Pakistan Failure “In now setting a fixed minimum flow, anticipated future agricultural uses would ordinarily feature in the Court’s determination. However, as Pakistan has not submitted even an estimate of the likely scope of such development, much less evidence upon which the Court could rely, the Court is unable to take account of such potential uses” (para 94)

On “minimum” vs “environmental” flow “It is only the particular characteristics of the Kishenganga/Neelum and the fact that low-season flows appear to be the principal drivers of ecological change that permit the Court to discuss environmental flows in terms of a fixed minimum. At the same time, because the Court’s ultimate flow determination is based not solely on the environment, but also on hydro-electric power generation as required under the Treaty, the Court’s decision fixes a “minimum flow.” Insofar as this minimum flow serves to mitigate significant environmental harm, it also serves as an environmental flow without being synonymous with that term.” (footnote 151, para 97)

On Downstream Impact Assessment “Pakistan has undertaken a far more extensive analysis, attempting to capture complex interactions within the river ecosystem. The Court notes that assessments of this nature are increasingly used by scientists and policymakers to bring a deeper understanding of ecology to bear on the management and development of river systems.152 In contrast, India has carried out a simpler assessment, drawing its conclusions essentially from a single indicator—the habitat available for selected fish species… Nevertheless, for a project of the magnitude of the KHEP, the Court is of the view that an in-depth assessment of the type that Pakistan has attempted for these proceedings is a more appropriate tool for estimating potential changes in the downstream environment… In contrast, the Court is not wholly satisfied that India’s consideration of the water depths available for fish and its associated analysis offer adequate assurances in light of the complexity of the ecosystem in the Kishenganga/Neelum.” (Para 98, 100)

Criticism of Pakistan’s practices in Env flows “The Court acknowledges India’s point that the environmental sensitivity that Pakistan urges in these proceedings does not match Pakistan’s own historical practices, where the environmental flow has often been set at a low minimum, apparently using a “rule of thumb” approach.” (Para 101)

PCA advise to both countries “With respect to the information brought to bear on decision-making, however, the Court sees no reason to remain wedded to past practices. On the contrary, more comprehensive and accurate information on the likely impacts of infrastructure projects can only benefit decision-making in both Pakistan and India. The Court urges both Parties to continue or expand their attention to environmental considerations at other projects, including the NJHEP. In the Court’s view, such an approach is consistent with the acute need of both Parties for increased production of hydro-power. Indeed, the Court’s ultimate decision on the minimum flow is informed by a deep awareness of the critical importance (and shortage) of electricity in both India and Pakistan. Meaningful development in this area need not be at odds with careful consideration of environmental effects.” (Para 101)

12 cumecs Flow Regime “For example, based on India’s 1971-2004 10-day flow estimates, under current conditions, a flow of 12 cumecs at the Line of Control represents an exceptional event, with just nine occurrences of lower 10-day flows in 34 years. As the release from the KHEP drops below 12 cumecs, however, this exceptional condition would become more common, rising to 16 percent of the time with a release of 9 cumecs, and 30 percent of the time with an 8-cumec release. In other words, as the release falls below 12 cumecs, the lowest flows at the Line of Control progressively become the norm for a significant part of the dry season… The Court provisionally concludes that an approach that takes exclusive account of environmental considerations—assessed in the absence of other considerations—would suggest an environmental flow of some 12 cumecs… And if Pakistan’s hydro-electric uses alone were to be taken into account, moderating the KHEP’s effect on the NJHEP might entail even higher releases.” (Para 103-5)

Unconvincing reason for variable release regime “Since the Parties’ data indicate that the effect of the KHEP on dry-season flows is the principal determinant of ecological change, the Court sees no reason to consider a percentage or variable release regime… This would, of course, not necessarily be the case with other river conditions, and the Court’s decision in this respect should not be interpreted to equate an environmental flow with a fixed minimum flow. Under other circumstances, in particular where the difficulties of cooperation between the multiple State bureaucracies are not present, the appropriate environmental flow could well involve a regime of variable releases.” (Para 104)

Unconvincing reason for abandoning 12 cumecs flow “First, as India correctly observes,155 the Partial Award accorded priority to the KHEP… The right to operate the KHEP is a right to operate it effectively… In balancing India’s right to operate the KHEP effectively with the needs of the downstream environment, the Court has decided that, on the basis of the evidence currently available, India should have access to at least half of the average flow at the KHEP site during the driest months. In the Court’s view, it would not be in conformity with the Treaty to fix a minimum release above half the minimum monthly average flow for the purpose of avoiding adverse effects on the NJHEP.” (Para 107-109) This is most unconvincing. As PCA order notes in next (Para 110) Para, “The Court’s Partial Award did not make the operation of the KHEP immune from environmental considerations.” Moreover, “recourse to customary international law is conditioned by Paragraph 29 of Annexure G to the Indus Waters Treaty… (thus) this (Indus) Treaty expressly limits the extent to which the Court may have recourse to, and apply, sources of law beyond the Treaty itself.” (para 111)

““States have ‘a duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-scale construction activities.” In light of this duty, the Court has no difficulty concluding that the requirement of an environmental flow (without prejudice to the level of such flow) is necessary in the application of the Treaty. At the same time,… If customary international law were applied not to circumscribe, but to negate rights expressly granted in the Treaty, this would no longer be “interpretation or application” of the Treaty but the substitution of customary law in place of the Treaty… That Paragraph 29 does not permit.” (Para 112)

“The most severe winter in the 34-year record used by both India and Pakistan to assess impacts was 1974-75. The Court notes that, based on India’s data, a minimum flow criterion of 9 cumecs at KHEP is a relatively severe criterion with respect to environmental flow, but would nevertheless be sufficient to maintain the natural flows through the December, January, February period of that winter.” (para 113)

“However, given the right of India to develop hydropower, and the associated right to operate KHEP effectively, the Court considers that a high category D (‘significantly modified from normal’) represents an appropriate balance between the needs of the environment and India’s rights for power generation.” (footnote 163- para 113)

“For the avoidance of doubt, if at any time the flow in the Kishenganga/Neelum immediately upstream of the KHEP dam is below 9 cumecs, India is only required to release an amount equivalent to 100 percent of the inflow, until such time as the flow upstream of the KHEP dam again exceeds 9 cumecs.” (footnote 166)

Implication of 9 cumecs on KHEP generation “Examining the effect that a 9-cumec minimum would have on the KHEP, the Court notes that this would, on average, accord India 51.9 percent of the flow at the KHEP dam site during the month of January, and that India’s portion of the flow would increase to more than 60 percent in November and February, and well over 75 percent in October and March. Preserving a minimum flow of 9 cumecs would result in a monthly reduction in energy generation at the KHEP of, on average, 19.5 GWh from October to March. Although such a reduction is quite significant—in percentage terms—during the driest month of January, over the dry season as a whole it would amount to a 19.2 percent average reduction in energy generation. On an annual basis, the average reduction in energy generation at the KHEP would be 5.7 percent.” (para 114) “The Court’s figures for the net and percentage reduction in energy generation are calculated as against the 4.25-cumec minimum flow ordered by the Indian Ministry of Environment & Forests, which the Court takes as the baseline for its determination and for the purposes of this Award.” (footnote 165)

Climate change? “Uncertainty is also present in attempts to predict future flow conditions, and the Court is cognizant that flows in the Kishenganga/Neelum may come to differ, perhaps significantly, from the historical record as a result of factors beyond the control of either Party, including climate change.” (para 117)

Review “If, beginning seven years after the diversion of the Kishenganga/Neelum through the KHEP, either Party considers that reconsideration of the Court’s determination of the minimum flow is necessary, it will be entitled to seek such reconsideration through the Permanent Indus Commission and the mechanisms of the Treaty.” (para 119)

Compiled by SANDRP

END NOTES:


[iii] In this respect the PCA award is more backward that India’s own current environment flow regime that mandates seasonal flows and the BK Chaturvedi committee has actually asked for daily changing flows so that the releases mimic the river flow regime.

[x] Thanks to Shripad Dharmadhikary and Parineeta Dandekar for providing comments on earlier drafts of this.

2 Comments on “International Court Asks India to Release More Water and Rejects Plea to Re-interpret February Verdict on Kishanganga

  1. Response from Shri Ramaswamy Iyer on Dec 24, 2013:

    Dear Himanshu,

    I have seen your elaborate analysis of the Court of Arbitration’s final award on the Kishenganga Dispute between India and Pakistan. The analysis is excellent. However, the CoA was not an expert body of environmental scientists or ecologists set up to determine the env/ecol flows on the Kishenganga as part of an examination of the Kishenganga project. (Let me make it clear that I am unenthusiastic about hydroelectric projects in general, particularly so about the multiplicity of projects that India is undertaking on the Jhelum and the Chenab, and even more so about the Kishenganga project.) It was a judicial body set up under the Indus Waters Treaty to arbitrate on a dispute between India and Pakistan arising under that Treaty. From that limited perspective, it decided first in its Interim Order that diversion from one tributary of the Jhelum to another was permissible under the treaty. The final award rules on how much can be diverted. (The Treaty itself makes no mention of any environmental flows, it talks only about protecting existing use.) India proposed to maintain a flow of x cumec, Pakistan said it should be y cumec (a much larger figure), and the CoA has set it at 9 cumec. This is a kind of intermediate settlement between the Indian and Pakistani positions (closer to the Indian position). It is not a scientific determination of e-flows. If that were the case, the Kishenganga Project should be ruled out. The Court has in a way gone beyond the Treaty under which it was set up, but only partially. The result is that it is neither a scientific determination of e-flows, nor a strictly legal determination under the Treaty. I am thinking of writing an article on the subject.

    Best Wishes.

    Ramaswamy R Iyer
    E-Mail: ramaswamy.iyer@gmail.com

    SANDRP RESPONSE:

    Dear Iyersaab,

    Many thanks for your detailed comment on my analysis of Court of Arbitration’s final Award on Kishanganga Dispute.

    I agree that CA is not an expert body on environment flows. However, having concluded that India needs to release environment flows, I think the CA needed to apply its mind more carefully to the issues and status of environment flow norms in India and the world. I feel CA did not do that and hence has to a significant extent done a dis-service to the cause of environment flow determination. It had all the expertise that it needed at its disposal and it also had sufficient time.

    I will of course keenly look forward to your article on the subject.

    Best wishes,
    Himanshu

    Like

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