The Kishanganga Arbitration: Summary of the Awards of the Tribunal

Readers interested in reading the entire Kishanganga dispute can go through the posts in this blog under the Label Arbitration: Indus Water Treaty Dispute which contains several small as well as lengthy posts on various facets of the decision. This short post is to summarize the outcome of the developments in the arbitration. 

The title, one may note, uses the term "Awards" instead of "Award" as there are a total of three awards in the matter. The three are the Partial Award (Feb 2013), Interpretation Award (Dec 2013) and the Final Award (Dec 2013). The summary of these three awards are given below:

• Since the Kishanganga project is a Run-of-River Plant, India is entitled under the Indus Water Treaty to divert the water from the river for the purpose of generation of electricity. (Partial Award)
• The Treaty does not permit India to reduce the level of the water stored in the Kishanganga dam below the Dead Storage Level of the water level, except in case of Unforeseen Emergency. However, this prohibition is applicable in Run-of-River plants which are either in existence on the date of the Partial Award or are under construction after exchange of designs of such projects to Pakistan and Pakistan has not objected to it. (Partial Award)
• Desilting using the drawdown flushing method does not constitute Unforeseen Emergency for the purposes of the Treaty. (Partial Award)
• While India's right to diver the waters under the Treaty is available, such a right is not absolute. India is obligated to take into consideration the existing uses by Pakistan of the river for hydroelectric and agricultural uses. (Partial Award) 
• Pakistan's uses as provided above are to be considered from two relevant points of time- (1) at the time the Kishanganga project crystallised, and (2) on an ongoing basis throughout the operation of the Kishanganga plant. (Partial Award) 
• Consequently, India has the obligation to maintain a minimum flow of water downstream the Kishanganga project. (Partial Award) 
• India's obligation is to maintain a minimum flow of 9 cubic metres per second of water below the plant at all times at which the upstream flow is 9 cubic metres per second or above. (Final Award) 
• Either party may seek reconsideration of the minimum flow of 9 cubic metres per second as provided above seven years after the diversion of the waters from the Kishanganga river for the purposes of power generation. (Final Award) 
• Such reconsideration may either be through the Permanent Indus Commission or under the mechanisms built in into the Treaty. (Final Award) 
• The prohibition on the reduction of level of water in the Run-of-River Plant below the Dead Storage Level is of general applicability under the Treaty and is not restricted merely to the Kishanganga plant. (Interpretation Award).

The prima facie view on the award is that it seems to balance interests of both parties by protecting India's right to harness the river water system and at the same time protect the interests of the riparian Pakistan.

Final Award in the Kishanganga Arbitration and Related Documents

In the previous post this morning, we had informed of news reports regarding the final decision in the Kishanganga Arbitration. The PCA website has uploaded the Final Award which can be accessed from here. According to the Press Release:

"The Court decided that India shall release a minimum flow of 9 cumecs into the Kishenganga/Neelum River below the KHEP at all times. However, the Court also decided that either India or Pakistan may seek reconsideration of this decision through the Permanent Indus Commission and the mechanisms of the Indus Waters Treaty after a period of seven years from the first diversion of water from the Kishenganga/Neelum River."

Further, it appears that India had sought clarification on the Partial Award as to whether India may deplete the reservoir level of a run-of-river Plant below Dead Storage Level in any circumstances except in the case of an unforeseen emergency was site specific or was applicable in general under the Treaty. The Tribunal held that it was of general application under the Indus Water Treaty.

Kishanganga Award in India's Favour: News Report

A Pakistani news report suggests that the Arbitral Tribunal constituted under the Indus Water Treaty has passed the award in India’s favour, subject to the conditions that half the water from the Kishanganga dam should go to Pakistan and that India cannot maintain water at a very low level in the dam.

The news report can be accessed from here. It may be recollected that the Tribunal had previously passed a partial award in India's favour. The Permanent Court of Arbitration page on the dispute does not contain the details at the time of this post. More once we get the updates.

Added After Posting:

The PCA website has uploaded the Final Award which can be accessed from here. According to the Press Release:

"The Court decided that India shall release a minimum flow of 9 cumecs into the Kishenganga/Neelum River below the KHEP at all times. However, the Court also decided that either India or Pakistan may seek reconsideration of this decision through the Permanent Indus Commission and the mechanisms of the Indus Waters Treaty after a period of seven years from the first diversion of water from the Kishenganga/Neelum River."

Further, it appears that India had sought clarification on the Partial Award as to whether India may deplete the reservoir level of a run-of-river Plant below Dead Storage Level in any circumstances except in the case of an unforeseen emergency was site specific or was applicable in general under the Treaty. The Tribunal held that it was of general application under the Indus Water Treaty.

Bangladesh v. India Arbitration on the Territorial Dispute on the Bay of Bengal

Source

We had given links in our facebook page of news paper reports (here and here) pertaining to the final hearing between Bangladesh and India in the Permanent Court of Arbitration regarding their claims over territorial boundaries in the Bay of Bengal. The Permanent Court of Arbitration page on the dispute can be accessed from here. The said page provides info on the arbitrators and the parties. 

The arbitration was invoked by Bangladesh in October 2009 under the United Nations Convention on the Law of the Sea (UNCLOS).The final hearings commenced on 9 December 2013 and would have ended today (18 December 2013). 

The PCA Press Release on the dispute can be accessed from here. Links to documents related to the dispute as available in the PCA site can be found below:

Rules of Procedure

Procedural Order No. 1, dated August 28, 2013

Procedural Order No. 2, dated November 6, 2013

Procedural Order No. 3, dated November 20, 2013

Procedural Order No. 4, dated December 6, 2013

The dispute has a lot of economic implications to the respective States. A news report in the Telegraph states:

"At stake is the future livelihood of millions of Bengal and Odisha fishermen, for whom the settlement could open up miles of unchallenged open sea that both India and Bangladesh currently prevent each other from using for anything other than transit. As fish near the coast are depleted, fishermen are increasingly finding themselves forced to go further out to sea.

India in 2006 also discovered 100 trillion cubic feet of natural gas in a creek about 50km to the south of the mouth of the Hariabhanga, and within the contested region. This is almost twice what the entire Krishna-Godavari basin at the centre of the corporate battle between the Ambani siblings has been shown to hold to date."

We will keep readers updated on the developments in the arbitration. Further readings on the dispute can be accessed from here here and here.