PUBLIC INTERNATIONAL LAW

ARTICLE

Trans Boundary Water Issues- An Analysis of

Kishenganga Arbitration Dispute

Submitted By Submitted To

Amit Pande U. Varadharajan

12BLL035 Assistant Professor

Section-A Nirma University

Semester-VIII
INTRODUCTION

Water resources are one of the most important natural resources present on earth and rivers being
sources of fresh water have become even more important. In recent years, the international
community has also realized the importance of efficient management of water resources to
prevent conflict among riparian states1. Unfortunately, a dispute relating to Indus river system
aroused between India and Pakistan, since rapid rise in population, changing environment, global
warming and industrialization has increased the demand of water in both these states.

Both northern plains of India and Pakistan derives their river sources from glaciers present in
Himalayan range, India rely upon various water sources such as the Gangetic river system, the
Indus river system etc., while Pakistan depends primarily on the Indus river system only.
Whereas the Gangetic river system flows entirely through India, the Indus river system is shared
between Indian and Pakistan. Livelihoods of large amount of population of both these nations
depend upon the flow of the Indus river system. Given the warring history between India and
Pakistan, a dispute relating to sharing the flow of Indus River and its tributaries was bound to
arise between both the nations.

The dispute relating to water issue on Indus river system dates back to pre-partition era, as there
was various inter-state noteworthy disputes between states of Punjab Sind, Bahawalpur, and
Bikaner of British India relating to the Indus river system.2 But after the creation of Pakistan, the
dispute became an international issue. To solve the dispute between the two countries, on 19th
September 1960, a water distribution treaty known as the Indus Water Treaty was signed by
Prime Minister of India, Jawaharlal Nehru and the President of Pakistan, Muhammad Ayub
Khan at Karachi in presence of W.A.B Liff, senior-vice president of the World Bank, who also
signed the treaty as a third party.3 The treaty was later ratified by both the countries. The treaty is
considered not only as an agreement for effective water management but also a step towards
peace and cooperation between both the nations.

1
States sharing water bodies between them.
2
Manish Vaid & Tridivesh Singh Maini, Indo-Pak Water Disputes: Time for Fresh Approaches, South Asian
Journal of PeeaceBuilding, Vol. 4, No. 2: Winter 2012, available at http://wiscomp.org/pubn/wiscomp-peace-
prints/4-2/Indo-Pak_Water_Disputes.pdf, (last seen on 08/03/2016)
3
Indus Water Treaty: From Conciliation to Confrontation, Chapter 5, Page 105, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/14384/9/chapter_5.pdf, (last seen on 08/03/2016)
A BRIEF OVERVIEW OF INDUS WATER TREATY

The Indus Water Treaty, 1960 consists of 12 articles covering 79 paragraphs and 8 appendices4,
providing rights and obligations of both the countries on the use of water of Indus river system.

The allocation of water between both the states under the treaty is based upon simple distribution
of rivers and not on distribution of quantity of water present in the rivers, hence the treaty instead
of dividing the water in the river, divided the rivers providing each party independent control
over the rivers subject to limited usage of water of the rivers allocated to other party.

The treaty divides the six main rivers of the Indus river system into two parts- the Eastern
Rivers5 (Ravi, Sutlej, Beas) and the Western Rivers6 (Indus, Jhelum, Chenab), the treaty
provided India with right of unrestricted use of all the waters of the Eastern rivers,7 while
provided Pakistan with unrestricted use of all the waters of the Western Rivers.8

The treaty also provides for an elaborate dispute settlement mechanism at three levels:

1. Any questions relating to the treaty by the parties is to be decided by Permanent Indus
Commission.9 (PIC)
2. Any differences between the parties to be settled by Neutrals Experts.10 (NE)
3. And any dispute to be settled by International Court of Arbitration.11 (ICA)

BRIEF FACTS OF THE CASE

The arbitration that deals with the subject matter of the present case arises due to the construction
of Kishenganga Hydro-Electric Project (KHEP) by India on the Kishenganga river, a tributary of
Jhelum river. (one of the rivers allocated to Pakistan under Indus Water Treaty) Kishenganga,
originates in Jammu and Kashmir (India), and flows through Paksitan occupied Kashmir (PoK)

4
Indus Waters Treaty 1960, between the Government of India, the Government of Pakistan and the International
Bank for Reconstruction and Development, Pak.-India, Sep. 19, 1960, 419 U.N.T.S. 126, available
athttp://siteresources.worldbank.org/INTSOUTHASIA/Resources/2234971105737253588/IndusWatersTreaty1960.
pdf, (last seen on 8/03/2016) .
5
Ibid at Article 1 (8)
6
Ibid at Article 1 (9)
7
Ibid at Article 2 (1)
8
Ibid at Article 3 (1)
9
Ibid at Article IX (1)
10
Ibid at Article IX (1)
11
Ibid at Article IX (2) (b)- IX (5)
and eventually joins the Jhelum river in Pakistan, where it is known as Neelum. India in order to
supply water to KHEP, proposed to divert the flow of Kishenganga river through a tunnel which
resulted in a changed route of entry of Kishenganag river in Pakistan. Pakistan contested that
such diversion of water by KHEP will affect its own planned power plant known as Neelum
Jhelum Hydroelectric Project (NJHEP) on the river Neelum, and the diversion would reduce the
supply of river water which in turn will reduce the capacity of its plant. Aggrieved by the action
of India, Pakistan invoked the jurisdiction of permanent court of arbitration (PCA) on 17th May,
2011.

For request of arbitration, two issues were raised by Pakistan:

1. Whether India breached its obligations under Indus Water Treaty by proposing to divert
the river Kishenganga into another tributary as part of Kishenganga hydro-electric
project.
2. Whether India can deplete the reservoir level of a run-of-river plant below the "Dead
Storage Level12" by using certain sediment control techniques under the Indus Water
Treaty.13

To provide answer to these questions, a court of arbitration was constituted on December, 17

2010, this was a first time when a dispute under Indus Water Treaty (IWT) has been referred to a
court of arbitration.

PARTIAL AWARD

Following the application for interim measure by Pakistan asking to restrain India from
constructing KHEP and diverting the water of Kishenganga river, the Permanent Court of
Arbitration to protect the interest of the party and to avoid prejudice to the final solution as
provided under the treaty,14 passed an order on 6 June, 2011, in favour of Pakistan by ordering
India to hold the construction of all permanent works relating to KHEP but permitted India to
proceed with certain construction relating to cofferdams and plants surface foundation. However

12
Dead storage level is the level below which water may not be withdrawn for consumptive uses.
13
Indus Waters Kishenganga Arbitration (Pak. v. India) (Partial Award of Feb. 18, 2013), para. 5, available
at http://www.pca-cpa.org/showfile.asp?fil_id=2101, (last seen on 08/03/2016)
14
Supra Note 4 at Annexure G, Para. 28
the partial award, which was later passed by PCA on 18th February 2013 nullified the interim
award. The partial award was given on two issues raised by Pakistan:

1. With respect to first issue, whether India can be allowed for inter-tributary transfer of
river water, for its plant, the tribunal found that the interpretation of the term necessity,
under the treaty15 is to determine the scope of inter-tributary transfer and should be used
in reference to the purpose for which the water should be transferred from one tributary
to another, which in the present case is for the generation of power by KHEP. Therefore
diversion was necessary to generate hydro-electric power. Also the tribunal found that
Indias KHEP project receives priority to Pakistans NJHEP project as KHEP has
received all the domestic and international clearances and can said to be in then existing
use while NJHEP was still requiring several clearances and permissions. Thus the first
issue was given in favour of India and India was allowed the construction of KHEP as
tribunal held that India has right to the effective generation of hydro-electricity.
2. With respect to second issue, the tribunal ordered in favour of Pakistan and restrained
India from approving a design which would allow the lowering of water levels below
dead storage level so that Pakistans right of effective use of water does not get violate.
However, the court did not laid down the exact amount of minimum flow of water, India
had to allow to flow into Pakistan from the Kishenganga. The partial award tried to
maintain a balance between rights of both the countries.16

FINAL AWARD

Since the court of arbitration laid down a very comprehensive partial award, which covered
almost all the issues relating to the case, the final award passed on 20th December, 2013 decided
on the issue of minimum flow of water in Kishenganga river, India had to maintain. Both the
countries were required to provide information and forecast flow of water as per their needs
along with their analysis report. India provided a simple analysis report and forecasted minimum
flow of 2 cusecs while Pakistan provided a very detailed analysis report containing various
modeling techniques and forecasted minimum flow of 40 cusecs .The tribunal keeping in mind

15
Supra Note 4 at Annexure D, Para. 15 (iii)
16
Indus Waters Kishenganga Arbitration (Pak. v. India), Order on the Interim Measures Application of Pakistan ,
June 6, 2011, available at www.pca-cpa.org/showfile.asp?fil_id=1726, (last seen on 08/03/2016)
not only the hydro-electric and agricultural usage of both the countries but also the
environmental conditions of Kishenganga ecological system, arrived at the minimum flow of 9
cusecs.17

Overall, the tribunal allowed India to proceed with the construction of KHEP as it was of the
view that India has the priority on the water of Kishenganga river but put the conditions on India
to maintain minimum 9 cusecs flow of water and not to lower the water below the dead storage
level as well as restrained India from using drawdown flush technique for sediment clearing.

CONCLUSION

In the present case, for the first time a water dispute between two nations was referred to the
court of arbitration and the effort the court of arbitration put in for the efficient adjudication of
the dispute by making site visit for survey, providing comprehensive awards, balancing the rights
of both the parties while giving the award was commendable and helped in the peaceful
settlement of dispute between two hostile nuclear states. This case creates a landmark step
towards settlement of water related dispute among nations though the process of arbitration.

However, I have two points of suggestions to provide pertaining to the present case:

1. The court of arbitration while giving the final award should have relied on precautionary
principle of customary international law under the environment law and thereby should
have increased the minimum flow of water, India had to maintain in Kishenganga river.
2. Due to change in climate condition, increasing population and urbanization in both India
and Pakistan, there is an urgent need of time to amend the Indus Water Treaty, 1960 as it
is not able to meet the current requirements and needs of both the member states. The
Indus water treaty has been earlier criticized by many authors for being inflexible to
adjust to changes in water levels. Therefore, considering the scarcity of water in both the
nations, if immediate actions are not taken to revise the treaty, another dispute is meant to
arise in near future between India and Pakistan.

17
In the Matter of the Indus Waters Kishenganga Arbitration (Pakistan vs India), Final Award, 23 December 2013,
available at, http://www.pca-cpa.org/showpage.asp?pag_id=1392, (last seen on 08/03/2016)