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Building The Difficult Balance Between Development And Environment: The Kishenganga Case (pakistan V India)

Congress: 2015
Author(s): Lilian Laborde (Buenos Aires, Argentina)
Lilian del Castillo
University of Buenos Aires School of Law


Keyword(s): Sub-theme 15: Water law,
Oral:
Abstract

Building the difficult balance between development and environment: The Kishenganga case (Pakistan v India) Lilian del Castillo 1. Introduction The interpretation and application of the Indus Waters Treaty, entered into by India, Pakistan and the World Bank -for works financing, on September 19, 1960, included provisions regarding the uses of the rivers of both countries, establishing on the one hand rules for the uses of Eastern and Western rivers, and on the other hand other rules applicable to both groups of rivers. The use of Eastern rivers is allocated to India while the Western Rivers -the Indus among them, are allocated to Pakistan, with certain exceptions. The Treaty also establishes a co-operation duty for hydrologic gauging stations and dredging works (Article VII), sets up the Permanent Indus Commission (Article VIII) and states the duty to exchange data on river flows collected on a daily basis, conveyed monthly to the other country (Article VI). Additionally, the Treaty incorporates a settlement of differences and disputes mechanism (Article IX) providing for the submission of the matter to an arbitral tribunal as a final jurisdictional solution. According to Pakistan, the goal of the Treaty was to limit the discretional use of the waters of the Indus River that geography allows India to exert (Order on the Interim Measures, September 23, 2011, para. 86). 2. The Hydro-Electric Project Dispute 2.1.The Indian project to build the 330 megawatt Kishenganga Hydro-Electric works gave rise to a dispute that could not be solved by direct negotiations fifty years after the signature of the Treaty. On May 17, 2010, Pakistan initiated arbitral proceedings against India.1 The Indian project, already under construction, aimed to divert the waters of the river Kishenganga (India)/Neelum (Pakistan) into another tributary, a fact contested by India. For Pakistan, the First Dispute referred to the fact that the Project breached IndiaÂs legal obligations to "let flow all the waters of the Western rivers and not permit any interference with those waters" (Article III(2)) and on the maintenance of natural channels (Article IV (6)). As a Second Dispute, Pakistan asked the Court whether India would be able to deplete the reservoir level to "below Dead Storage Level (DSL) in any circumstances except in the case of unforeseen emergency?" (Partial Award, February 18,2013,para.5). Pakistan also invoked the right to request the Tribunal, pending the final decision, to adopt interim measures in order to prevent the aggravation of the dispute, hence restraining India from proceeding further with the diversion of the river until "the legality of the diversion is finally determined by a Court of Arbitration" (Order on the Interim Measures, September 23,2011, para. 30). 2.2. Interim Measures and Awards. 2.2.1. Interim Measures. The Arbitral Tribunal of seven members, chaired by Judge Stephen M. Schwebel, conducted in June 2011 a site visit to the Neelum Valley, the Neelum-Jhelum and Kishenganga Hydroelectric Projects locations and their surrounding areas. When considering Pakistan's request for interim measures, the Court partially granted them. Thus, the Court decided that pending the arbitral award, India may operate the by-pass tunnel and carry on other temporary or complementary works, but shall not construct "any permanent works on or above the Kishenganga/Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel; [...]" (Ibidem, para. 152). 2.2.2. Partial Award. After a second site visit conducted in February 2012, the Court issued a Partial Award on February 18, 2013, addressing the First and Second Disputes submitted by the Parties. Regarding the former, taking into account that: (a) the Treaty limited India's capacity to store water; (b) the Treaty grants India the right to generate hydro-electric power in the Western rivers; and, (c) that the Kishanganga Hydro-Electric Project is technically a Run-of-River Plant, a sort of plant that according to Annexure D, Paragraph 15, of the Indus Water Treaty allows India to divert water from the River for power generation, the Court ruled that the Project is in accordance with the Treaty (Partial Award, para.V, A), and Interim Measures are lifted accordingly (Partial Award, para.V, E). However, India "[...] may deliver the water released below the power station into the Bonar Nallah", with the obligation to maintain a minimum flow of water [...]" in the River "at a rate to be determined by the Court in a Final Award" (Partial Award, para.V, A). With regard to the latter, the Court ruled that India could not deplete the reservoir below the Dead Storage Level except in case of an "unforeseen emergency" (Partial Award, para.V, B). 2.2.3. Decision on India's Request on Clarification or Interpretation of the Court's Partial Award. On May 20, 2014, India filed a Request for Clarification or Interpretation with respect to paragraph B.1 of the Court's Partial Award, which addressed the Second Dispute stating that "except in the case of an unforeseen emergency, the Treaty does not permit reduction below Dead Storage Level of the water level in the reservoirs of run-of-the River plants on the Western Rivers." In its Decision on May 20, 2013, the Court ruled that India's Request was timely and admissible and clarified that "the prohibition of the reduction below Dead Storage Level of the water in the reservoirs [...]is of general application." 2.2.4.Final Award. In its final award on December 20,2013, the Court established a minimum flow of 9 cumecs, and, in view of the uncertainty embedded in changing environmental conditions,provided that such determination be open to reconsideration by the Permanent Indus Commission seven years after the diversion of the Kishenganga River. 3. Discussion. (a) The Jammu and Kashmir region have an underlying sovereignty dispute that enlarges the significance of submitting the Kishenganga controversy to a jurisdictional solution. In this case, the importance of solving the difference concerning the legality of the use of a transboundary river waters made it possible to put aside the subjacent territorial dispute. (b) Even when the decision emphasizes the need to take into account environmental principles, it at the same time construes the Treaty in favor of the conclusion of the Project. Does it mean that development is the stronger side of the equation? Or is the minimum flow duty relevant enough to balance environment and development? 4. Conclusion. The Kishenganga River decision is an important contribution to the case law on transboundary rivers. For the quality of the intervening judges and the in depth analysis of the Treaty provisions and of applicable customary rules of international law, it is a decision worth discussing for its contribution to the international water law of transboundary rivers 1.Indus Waters Kishenganga Arbitration (Pakistan v. India) (2013) at http://www.pca-cpa.org

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