India seeks clarification in Kishenganga

According to this report, India has sought a “clarification or interpretation”of the Partial Award of February 18 in the Indus Waters Kishenganga Arbitration (Pakistan v. India). India reportedly has sought clarification over the prospective, binding nature of the Court of Arbitration’s ruling in the “Second Dispute” relating to the use of a technique of sediment management called “drawdown flushing”. To recall, in the Partial Award, the Court of Arbitration had held that India was prohibited from using drawdown flushing at the Kishenganga project or any future run-of-river plant on the Western Rivers, which are allocated to Pakistan under the Indus Waters Treaty. India presumably wants a clarification of the second part of the ruling, i.e., whether India is prohibited from using drawdown flushing at any future run-of-river plant on the Western Rivers. This raises very interesting issues relating to the tribunal’s jurisdiction and judicial remedies under international law generally. I hope to discuss some of these issues in future posts, but for now if you’re interested in learning more about the Partial Award, you can read my recently published ASIL Insight on the topic.

BREAKING: Award in India-Pak Kishenganga Arbitration Delivered

The Kishenganga Tribunal at the PCA

The Kishenganga Tribunal at the PCA

A Tribunal constituted under the 1960 Indus Waters Treaty (also called the “Court of Arbitration” under the Treaty) today rendered its (partial) Award in a dispute between India and Pakistan over the construction of the Kishenganga hydro-electric power project by the former (previously covered here, here, and here). According to The Hindu, the Tribunal in its Award found that:

India can go ahead with the diversion of the waters of Kishanganga, a tributary of Jhelum, for hydro-electric power generation.

However, the court restrained India from adopting the drawdown flushing technique for clearing sedimentation in the run-of-the river project designed for generation of 330 MW power. India may have to adopt a different technique for flushing.

In the initial reports received by The Hindu it is learnt that the court also sought statistics on the environmental flows into the river downstream of the project.

To recall, Pakistan had originally requested the Tribunal to determine two issues:

1. Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels)? [the “First Dispute”]

2. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency? [the “Second Dispute”]

From the above, it thus appears that the Tribunal found in favour of India on the issue of diversion (the “First Dispute”), but against it on the second issue of reservoir level (the “Second Dispute”).

As of writing this post, neither the Award nor a press-release was available on the Permanent Court of Arbitration website. As always, we hope that the Award will soon be made publicly available. ILCurry will bring you more detailed analyses as and when that happens.

UPDATE (19 Feb. 2013): The partial Award is now available on the PCA website here. A press-release is available here. According to the press-release:

In its Partial Award, which is final with respect to the matters decided therein, without appeal and binding on the Parties, the Court of Arbitration unanimously decided:

1. that the Kishenganga Hydro-Electric Project (KHEP) constitutes a Run-of-River Plant under the Treaty, and India may accordingly divert water from the Kishenganga/Neelum River for power generation by the KHEP in the manner envisaged. However, when operating the KHEP, India is under an obligation to maintain a minimum flow of water in the Kishenganga/Neelum River, at a rate to be determined by the Court in a Final Award.

2. Except in the case of an unforeseen emergency, the Treaty does not permit India’s reduction below “Dead Storage Level” of the water level in the reservoirs of Run-of-River Plants located on the rivers allocated to Pakistan under the Treaty. This ruling does not apply to Plants already in operation or under construction (whose designs have been communicated by India and not objected to by Pakistan)

The Court expects to be able to render its Final Award determining the minimum flow of water India would be required to release in the Kishenganga/Neelum River by the end of 2013.

 

More on this soon!

Breaking News: PCA stays construction of Kishanganga power project?

This just in: contrary to previous reports (as previously noted on ILCurry here), some reports that appeared today in Pakistani news-media (Associated Press of Pakistan, The Express Tribune, The Dawn) suggest that the PCA has issued an interim order restraining India from proceeding with the construction of the Kishanganga power project.

Frankly, I am thoroughly confused as the PCA website doesn’t provide a copy of the interim order, or a relevant press release. I hope things will get a little clearer in the days to come and will keep you posted on the latest. In the meanwhile, here is what the Associated Press of Pakistan reports on the PCA’s ruling:

The Court of Arbitration unanimously ruled that:
1)    India shall not proceed with the construction of any permanent works on or above the Kishanganga/Neelum River bed at the Gurez site that may inhibit the restoration of the flow of the river to its natural channel;
2)    Pakistan and India shall arrange for periodic joint inspections of the Dam site at Gurez in order to monitor the implementation of the Court’s Order;
Pakistan had submitted an application for interim measures to the Court of Arbitration.
In its application, Pakistan had sought:
a)    A stop work Order;
b)    An Order that any steps India has taken or may take in respect of the KHEP (Kishanganga Hydro Electric Project) are taken at its own risk without prejudice to the possibility that the Court may order that the works may not be continued, be modified or dismantled;
c)    That India be Ordered to inform the Court and Pakistan of any imminent and actual developments on the Kishanganga Dam that may adversely affect the restoring of the status quo ante or that may jeopardize Pakistan’s rights and interests under the Treaty;
d)    Any further relief the Court considered necessary.

Regarding Pakistan’s legal representation, the APP report notes that the Special Assistant to the Prime Minister of Pakistan on Water Resources and Agriculture along with legal experts from Pakistan and abroad “prepared a tremendous case“. Compare this to the description of the Special Assistant to the Prime Minister that appeared a few weeks ago in Pakistani news media labeling him as the “villain of the piece“:

The villain of the piece appears to be the special assistant to the prime minister, Kamala Majidullah, who has been leading the legal team pleading our case. The competence of Majidullah for this task has been questioned in the past by experts and researchers who have had something to say about the environmental impact of the Kishanganga dam on our own Neelum Valley project. The COA raised the highly pertinent point to Majidullah as to why he did not raise objections to Kishanganga when he had the opportunity to do so back in January this year – to which there was no satisfactory reply. In other words, for lack of a little fast footwork, Pakistan had missed the window of opportunity to register an objection to an Indian project that is clearly to its detriment. The COA has questioned why Pakistan failed to register objections in January but was putting it forward now.

Whatever be the truth of the matter, and the content of the PCA’s interim order, two things are clear:

(i) Considering the contradictory reports both with regard to the actual interim order and the role of the Special Assistant within the span of a month, the news media seems to be thoroughly confused and does not appear to have conducted a thorough unbiased factual check (unbiased at least with regard to the role of the Special Assistant) before publishing reports on an issue which, at the very least, is highly contentious, and quite sensitive keeping in mind the relations between India and Pakistan. Such reporting certainly does not go a long way in promoting a better, and unbiased, understanding of the issues between the two countries.

(ii) The contradictory reports serve as an example and reminder of the need for greater transparency in international arbitration. The Kishanganga arbitration is completely public (i.e. between two states, as opposed to a mixed arbitration like investor-state) and is of enormous importance to the people of the affected region, if not the entire population of both the countries and peace and security in South Asia. As such, in my opinion, there is no reason whatsoever for such opacity in the actual proceedings. Such information vacuum only provides space for irresponsible, biased, and inflammatory speculation to thrive. In such times, I think both India and Pakistan can do without that.

Update (27 September 2011): The Interim Order of September 23 is now available on the PCA website here. To settle the tug-of-war between the Pakistani and Indian media, in short, the Tribunal has issued some interim measures – “albeit not in as far-reaching a form as requested by Pakistan” – (para.136) to “avoid prejudice to the final solution” to the dispute as may be prescribed by the final award (Id.). Whereas this may help clear the fog a little, a cursory glance over the 50-page-Order reveals that there are many other interesting points and issues. A summary of the Interim Order shall follow shortly. Thank you Parties (and the PCA) for publishing the Order!

Kishanganga Update: Pakistan Denied Stay

According to several news reports (here, here and here) Pakistan’s request seeking a stay against India’s construction of the Kishanganga power project has been rejected by the PCA tribunal hearing the matter. One report notes:

“The COA denied the stay order to the low riparian country, putting Pakistan the question as to why it has changed its earlier stance as in January when the court met for the first time it did not ask for the stay,” a senior official, who was part of court proceedings, told The News on the condition of anonymity.

It goes on to blame Kamal Majidullah, special assistant to the Pakistani PM and Pakistan’s agent in the arbitration, for the denial of stay:

When contacted, Arshad Abbasi, an eminent water expert, said: “This utter failure that may lead to lose the legal battle on this vital case is all because of incompetence and ignorance of Kamal Majidullah, who did not apply for a stay order against the construction at the Kishanganga project site in January”.

Another Pakistani news report also notes:

The villain of the piece appears to be the special assistant to the prime minister, Kamala Majidullah, who has been leading the legal team pleading our case. The competence of Majidullah for this task has been questioned in the past by experts and researchers who have had something to say about the environmental impact of the Kishanganga dam on our own Neelum Valley project. The COA raised the highly pertinent point to Majidullah as to why he did not raise objections to Kishanganga when he had the opportunity to do so back in January this year – to which there was no satisfactory reply. In other words, for lack of a little fast footwork, Pakistan had missed the window of opportunity to register an objection to an Indian project that is clearly to its detriment. The COA has questioned why Pakistan failed to register objections in January but was putting it forward now.

 

The Essential Kishanganga Post – I

Readers may be aware of an international dispute between India and Pakistan over the Kishanganga (var. Kishenganga) project under the Indus Waters Treaty (1960, available here) currently pending at the Permanent Court of Arbitration (PCA). (India is also involved in another arbitration with Bangladesh pending at the PCA [see here].) This is the first time a dispute under the Indus Waters Treaty (persistently surviving many wars for over 50 years now) has been referred to arbitration. From an international legal perspective (which is certainly not the only one, see below), the use of arbitration as a means for dispute settlement between India and Pakistan certainly seems quite promising. Earlier, in a dispute over the Baglihar project between the two countries, the matter was referred to a neutral expert under the Treaty, who, under the aegis of the World Bank and ICSID, issued his expert determination in 2007 (summary of expert report here).

Without getting into the merits of the dispute at this stage, this post notes some recent developments and resources on the Kishanganga arbitration:

1. The Tribunal (headed by Stephen Schwebel, composition here) conducted a week-long site visit in June, 2011. Arriving in Islamabad, they traveled to inspect the Neelum-Jhelum hydroelectric project, crossed the Line of Control and traveled to Srinagar, inspecting the Kishanganga project, before finally reaching Delhi. According to the PCA Press Release, the Tribunal observed “expert briefings and features” during the visit. The PCA Press Release is available here, and is accompanied by this photograph of the members inspecting the Kishanganga project (I quite like the transparency of the PCA on this thus far):

2. A wonderful summary of the dispute and the main arguments by both the countries is provided by Athar Parvaiz (available here). Parvaiz notes:

Pakistan has raised objections to a number of controversial projects undertaken by India in Kashmir in the past, including the Baglihar project on the Chenab River and the Wullar Barrage on the Jhelum River. But the Kishanganga dispute assumes a greater significance because Pakistan is also vying to construct its own project – the Neelum-Jhelum hydro scheme – on the Pakistani side of the Neelum River. The IWT states that the country that completes its project first will secure priority rights to the river

The dispute over the Kishanganga project itself centres on the diversion of water from one tributary of the Indus River to another. Pakistan said this violates the IWT, while India argues the diversion is well within treaty provisions. India maintains that it will only divert the Neelum to join the Jhelum River, which also flows through Pakistan – and that therefore the water will ultimately reach Pakistan anyway.

3. A different, and essentially non-legal, perspective is offered by Maaz Gardezi of the LUMS Water Programme here. Gardezi argues that there is a “trust deficit” between the two riparians and that:

The difference between Kashmir and the water issue is that the latter is an existential issue. Therefore, the consequence of bringing water to a pedestal on India-Pakistan relations can have devastating effects on regional security and prosperity. We need to work closely with our neighbours in order to share this resource, rather than divide it. 

4. There have been several reports about a domestic controversy in Pakistan over its legal representation in the dispute. Details on this can be found here (posted Jan. 18, 2011), here (posted Jul. 2010), and here (posted Jul. 7 2011).

5. Ramaswamy Iyer, a noted Indian expert on water, recently published an insightful opinion on the issue (available here). According to Iyer, water has the potential of becoming a new ‘core issue’ of even greater importance than Kashmir. He goes on to identify and analyze the common arguments raised by Pakistan against Indian actions. He concludes noting that:

Right or wrong, certain misperceptions on water persist and are widespread in Pakistan. This has serious implications for India-Pakistan relations and for peace on the subcontinent. Persistent efforts are needed at both official and non-official levels to remove misperceptions and to reassure the people of Pakistan that their anxieties are uncalled for.

(Interestingly, even after the matter was referred to arbitration, Iyer published an article in June 2010 (available here) arguing that despite the initiation of arbitration, India and Pakistan should settle the dispute by an agreement, as opposed to arbitration which is an expensive, time consuming and adversarial process.) 

6. Meanwhile, in addition to the Kishanganga dispute, other reports indicate that a recent meeting between officials of India and Pakistan in May 2011 over the Wullar Barrage dispute also failed to resolve the deadlock. (report here.)

ILCurry hopes to follow the Kishanganga arbitration closely and welcomes readers to contribute to the discussion.