"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, February 21, 2013

Kishenganga Award: Analysis: Part I

Over the past several months, we have been following the Kishenganga Arbitration between India and Pakistan in this blog (access the label from here). In the last two posts (here and here), we had noted that the Court of Award had passed a partial award in India's favour and had summarised the decision of the court. We had noted the arguments of both parties in two posts (here and here). In this series of posts, we would be discussing in detail the arbitral award. This post specifically deals with certain preliminary aspects of the Award. Summary of the Award on these aspects are as below:

Arguments of Parties on Issues Pertaining to Sovereignty of Jammu & Kashmir:
  • A perusal of the negotiating history of the Indus Water Treaty (Treaty) would show that India and Pakistan exectuted it in the midst of territorial disputes.
  • Hence, the Treaty takes this fact into cognizance and clarifies that each party's respective rights or claims would not be affected by the Treaty. Article XI(1) reads:
"Article XI: General Provisions

(1) It is expressly understood that
(a) this Treaty governs the rights and obligations of each Party in relation to the other with respect only to the use of the waters of the Rivers and matters incidental thereto; and
(b) nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a recognition or waiver (whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the Parties other than those rights or claims which are expressly recognized or waived in this Treaty.
Each of the Parties agrees that it will not invoke this Treaty, anything contained therein, or anything arising out of the execution thereof, in support of any of its own rights or claims whatsoever or in disputing any of the rights or claims whatsoever of the other Party, other than those rights or claims which are expressly recognized or waived in this Treaty
."
  • The Treaty does not determine the territorial rights of the parties over the Indus river. It only records the agreement of the parties on the use of the waters of the Indus River Basin.
  • In consonance with the Treaty objectives, this Partial Award would also not affect or deal with the territotorial rights or claims of either party. As regards the issue as to the extension of right to use the rivers that flow in the "disputed territory", considering the above objectives of the Treaty the question is not addressed by the Treaty.
  • In resolving the disputes between the parties, the text of the Treaty, read in the context and from the perspective of the Treaty's object and purpose, are critical in resolving the dispute.
  • From this perspective, it is clear that the Treaty applies to the entire Indus River Basin and not merely to the rivers that flow through each party's territories. Further, if the Treaty was to given such a restricted interpretation, its object of providing a comprehensive solution to the problem of allocation waters in the Basin would not be fulfilled.
  • Hence, the Treaty extends to the use of the waters of the Basin even in the "disputed" territories.
 More on other aspects of the Award in the next post on this topic.

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