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.

Kishenganga Award: A Summary

In the last post, we had stated that the Court of Arbitration has held the Kishenganga Hydroelectric Project (KHEP), a project under construction by India is not violative of the Indus Water Treaty, 1960 between India and Pakistan. The website of the Permanent Court of Arbitration (PCA) has come up with a six page press release and has also published the 250 odd paged Partial Award by the Tribunal.

We will come up with a detailed analysis of the award subsequently. The Award can be summarised in the following points (See the PCA press release):

• The planned diversion of waters from Kishenganga river for generation of hydroelectricity constitutes a Run-of-River plant and is not prohibited nor does it violate the Indus Water Treaty.
• The planned diversion of the water comes within the ambit of "necessary" under the Treaty (see the post on India's arguments)
• The Treaty provides that "the then existing" agricultural or hydroelectric use of Pakistan must be taken into consideration when India attempts to do an inter-tribunal transfer. The phrase "the then existing" refers to the period when there is a firm intent to proceed with the project. In the current case, the firm intent as regards KHEP was 2004-2006 while for NJHEP of Pakistan, the critical period was 2007-2008. Hence India's right to divert the waters of Kishenganga was protected by the Treaty.  
• Nevertheless the right is not absolute. India is obligated under the said treaty to maintain a minimum water flow at a rate to be determined in the Final Award to be rendered by the Tribunal subsequently.
• The Treaty does not permit India to reduce the water in the reservoid below the "Dead Storage Level" under the Treaty. Hence, India has to employ some other method of sediment management in the reservoir. However, this will not affect the employment of draw-down flushing in reservoirs Run-of-River plants already in operation or under construction and not objected to by Pakistan.
• Data is required on the impact of a range of minimum flows at KHEP dam on (a) power generation at KHEP, (b) environmental concerns arising from the dam site at Gurez to the Line of Control, (c) power generation at NJHEP, (d) agricultural uses of water downstream the Line of Control to Nauseri, and environmental concerns  downstream the Line of Control to Nauseri. On receipt of data and analysis. the Final Award would be published by the end of 2013.

India Wins the Kishenganga Arbitration

In our previous post, we had informed that the Award in the Kishenganga arbitration between India and Pakistan was to be passed on 18 February. It appears that the said award has been passed by the Court of Arbitration in the presence of the ambassadors of India and Pakistan- Bhaswati Mukherjee and Fauzia Mazhar Sana respectively at The Hague.News reports suggest that India has won the Kishenganga arbitration although the details of the award are yet to be known. Access the news reports from here, here and here.

The major points of the Award appear to be the following:

• Construction of the Kishenganga Hydroelectric Project (KHEP) does not violate the Indus Water Treaty 1960
• Adoption of draw-down flushing technique (see here for an explanation of this technique) for sediment management in the KHEP will violate the Indus Water Treaty

More on the Award as and when we get to know further details. Previous posts on the arbitration can be accessed from this label.

Kishanganga Arbitration: Award to be Passed

In the last two posts in this blog (here and here), we had blogged about the hearing on merits in the Kishanganga Arbitration between India and Pakistan under the Indus Water Treaty. According to this news report in the Hindu, the Court of Arbitration is expected to pass the arbitral award on the 18th of this month. We will keep a close watch on the developments and inform the readers.