Pakistan had put two questions, which were legal in nature, before the tribunal — whether India’s proposed diversion of the Neelum/Kishanganga River into another tributary breaches India’s legal obligations owed to Pakistan under the treaty and whether under the treaty, India may deplete or bring the reservoir level of a run-of-river plant below the dead storage level in any circumstances except in the case of an unforeseen emergency.
On the second question, the court determined that except in the case of an unforeseen emergency, the treaty did not permit reduction below the dead storage level of the water level in the reservoirs of run-of-river plants on the western rivers.
It further said the accumulation of sediment in the reservoir of a run-of-river plant on the western rivers did not constitute an unforeseen emergency that would permit depletion of the reservoir below the dead storage level for drawdown flushing purposes. Accordingly, India may not employ drawdown flushing at the reservoir of the Kishanganga hydroelectric plant to an extent that will entail depletion of the reservoir below dead storage level.
A senior official who is familiar with the development told Dawn that the court’s decision had endorsed Pakistan’s view that the neutral expert’s decision in the Baglihar case regarding drawdown flushing below the dead storage level was wrong and in gross violation of the parameters defined by the Indus Waters Treaty. Henceforth, designs and operations of run-of-river plants on western rivers would be determined by this decision and not that of the neutral expert.
By obtaining this award, Pakistan has taken the issue of Indus waters with India on a new basis. The years of inconclusive discussions and delays in the Indus Waters Commission during which Pakistan was constantly frustrated by the apparent inability of the commission to oversee the water regime effectively have been brought to an end.
Experts said the award had clearly and conclusively established that there were procedures set out in the Indus Waters Treaty that India must follow and the commission must secure and that India’s compliance with these obligations could and would be reviewed by international courts.
