Understanding Kishanganga Dam ‘legally’
In addition of the above discussion, there are certain other international norms that need fair consideration. The Helsinki Rules on the Uses of the Waters of International Rivers 1966, formulated by the International Law Association (ILA), and the second report on the Uses of International Watercourse 1986, drafted by the International Law Commission (ILC), prohibit co-riparian states (states through which or along a portion of a river flows) from altering the flow of an international watercourse in a way that can cause harm to another state.
Furthermore, the International Convention on the Law of Non-navigational Uses of International Watercourses 1997 (ICLNUIW), also states that the riparian countries (states bordering the same transboundary waters) have the right to use their water resources in a way so as not to damage the other riparian states. This law has been approved by the United Nations General Assembly. Article V of the ICLNUIW talks about the “equitable” and “reasonable utilisation” of water keeping in mind the interests of other states, while Article VII places an obligation on states not to cause significant harm to other watercourse states.
Another area that needs consideration is the impact on environment. The Gurez Valley is rich in natural beauty. Its forests and meadows are home to a wide range of flora and wildlife. The project threatens to eradicate large known habitat areas and to destroy an entire valley with its forests and meadows. This deforestation can eventually and drastically affect the climate of the region causing a change in the weather patterns that can result in severe droughts, floods and widespread disruption of natural ecosystem. As part of the proceedings in the ICA, the court has also instructed the Indian delegation to submit a report on the environmental hazards to the ecosystem due to this project.
Further, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki’s Convention 1992) is another area that needs to be considered. It requires states to strengthen their national measures for the protection and ecologically sound management of transboundary surface waters and ground waters. Article II(2)(d) of the convention, in particular, obliges states to take all appropriate measures to ensure the conservation, protection and restoration of the ecosystem.
Although, Pakistan and India have not ratified the treaty, there is a responsibility on these states (as these norms are also part of customary international law that have a persuasive authority) to formulate effective measures to protect their respective ecosystems.
It is, however, evident from the above discussion that India's actions have become a serious cause of concern for the Government of Pakistan. Simply approaching the ICA to find a solution to the dispute will not suffice, rather what needs to be done is to form a team of experts, who have the requisite qualification for the job. I would suggest that a team of experts on international law, not international relations, is the need of the hour, which is led by a person, who would comprehend all the legal lacunas and would sensitise his peers with the possible outcomes and an expert on water laws. Unfortunately, what we do not realise is that the recent debacle at the ICA is purely due to the absence of an international law expert, which had a fatal brunt on the Pakistani water laws expert.
By Barrister Haaris Ramzan
The writer is a practicing barrister and an alumni of the International Visitor Leadership Programme (IVLP) organised by the US Department of State.
I have not quoted full article, but only those paras where questions of international laws and conventions are raised.
First point here is Helsinki Rules 1966
The general rules of international law as set forth in these chapters are applicable to the use of the waters of an international drainage basin except as may be provided otherwise by convention, agreement or binding custom among the basin States.
Indus Water treaty came into existence in 1960. Clearly any provision of Helsinki Rules would not be applicable in the context of Indus Basin between India and Pakistan. India or Pakistan could invoke this in the context of China.
However, if we examine another article we see that reasonable use can not be denied to a basin state. Kishenganga Dam is ROR and water rejoins Jhelum near Muzaffarabad. Between Kishenganga and Neelum Dams there is no pre-existing use which is adversely affected. Pakistan has not been able to show that there exist any agricultural usage or non agricultural or consumptive use which would be affected. In so far Neelum Dam is concerned , it is only on paper and another article of the same vaunted rules say
A basin State may not be denied the present reasonable use of the waters of an international drainage basin to reserve for a co-basin State a future use of such waters.
Hence that is also precluded.
What is the provision about existing use.
2.(a) A use that is in fact operational is deemed to have been an existing use from the time of the initiation of construction directly related to the use or, where such construction is not required, the undertaking of comparable acts of actual implementation.
Let Pakistan clarify that Neelum Dam is an existing use. In fact it is Kishenganga Dam which qualifies on the basis of this article.
Therefore if Pakistan initiates construction of Neelum dam it is bound by the following article
3.A use will not be deemed an existing use if at the time of becoming operational it is incompatible with an
already existing reasonable use.
That is to say that Neelum Dam , under no circumstances , would be an existing use.
If disputes continue the final provisions under the Helsinki Rules provide for
It is recommended that the States concerned agree to submit their legal disputes to an ad hoc arbitral tribunal, to a permanent arbitral tribunal or to the International Court of Justice if:
So Mr Barrister, we are already with COA, what more do you need.
Now coming to second report on the Uses of International Watercourse 1986 as an annex to General Assembly resolution 51/229.http://untreaty.un.org/ilc/texts/instru ... 3_1997.pdf
1. In the absence of an agreement to the contrary, nothing in the present Convention shall affect the rights or obligations of a watercourse State arising from agreements in force for it on the date on which it became a party to the present convention.
2.Notwithstanding the provisions of paragraph 1, parties to agreements referred to in paragraph 1 may, where necessary, consider harmonizing such agreements with the basic principles of the present Convention.
3.Watercourse States may enter into one or more agreements, hereinafter referred to as “watercourse agreements”, which apply and adjust the provisions of the present Convention to the characteristics and uses of a particular international watercourse or part thereof.
4.Where a watercourse agreement is concluded between two or more watercourse States, it shall define the waters to which it applies. Such an agreement may be entered into with respect to an entire international watercourse or any part thereof or a particular project, programme or use except insofar as the agreement adversely affects, to a significant extent, the use by one or more other watercourse States of the waters of the watercourse, without their express consent.
5.Where a watercourse State considers that adjustment and application of the provisions of the present Convention is required because of the characteristics and uses of a particular international watercourse, watercourse States shall consult with a view to negotiating in good faith for the purpose of concluding a watercourse agreement or agreements.
6.Where some but not all watercourse States to a particular international watercourse are parties to an agreement, nothing in such agreement shall affect the rights or obligations under the present Convention of watercourse States that are not parties to such an agreement
The first two articles are relevant. If there is an existing agreement then the convention is not relevant. However second article says the parties to any such agreement may consider harmonizing with basic principles of the convention. Has Pakistan , at any stage of the operation of IWT, either after Helsinki Rules or the Convention in 1997, indicate its intention to initiate the process with India. Oh I forgot, Pakistan is yet to ratify these international conventions. So I think they are not bound by it but want to bind India when it suits them.
The whole discussion on International treaty is nothing but red herring as IWT encompasses more stringent provisions and binding obligations and lays down strict procedures for dispute resolutions. It also has data sharing protocol which are extensive. Oc course Pakistan knows that it would lose the case and is creating this kind of diversion. It sure knows that these laws would not come to their rescue.
However the article quoted below would come to India's aid.
Kishenganga Dam is of urgent importance to India as Energy security is prime concern of India and important for Indian growth upon which public safety and health is contingent.
Urgent implementation of planned measures
1. In the event that the implementation of planned measures is of the utmost urgency in order to protect public health, public safety or other equally important interests, the State planning the measures may, subject to articles 5 and 7, immediately proceed to implementation, notwithstanding the provisions of article 14 and paragraph 3 of article 17.
He is talking of Article V and VII which talks about equitable & reasonable use and not to cause significant harm to co basin state.
In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.
It is on record that Pakistan wastes about 40% of IWT water delivered to it due to bad water management and no investment in such facilities. In fact it is unable to utilise water in an optimal and rational manner consistent with the articles quoted by Mr Barrister. The question would , in case India ever ratifies such conventions along with Pakistan , should we allow pakistan to continue to waste precious resources. In fact IWT protects Pakistan as it does not impose an obligation on Pakistan to utilise waters flowing into its territory in optimal manner.
Obligation not to cause significant harm
1.Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.
2.Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
Pakistan has not established that it Kishenganga Dam would cause significant damage to its interest except saying that reduction in flow of water to an extent of 13% and unsubstantiated claim of existing use. Future uses are certainly not covered under this article and reduction in power generation to an extent of 96Mwe is not at all significant given the fact that Pakistan's Transmission losses would be far more that the reduction in the capacity if power is transmitted from Neelum Dam to Pakistan, (Let us not forget that power would not be used by POK).
Lastly he has mentioned the Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes (Helsinki’s Convention 1992) which obliges national measures for the protection and ecologically sound management of transboundary surface waters and ground waters. I think Mr Barrister, do so by all means and if you need Indian help , you just have to ring the Man from Gah and he would be all the more happy to help you .
I forgot to mention that Mr Barrister knows that neither India nor Pakistan has ratified the conventions quoted by him.
Sorry for rambling post.