Table of Contents
Introduction
Jasmine Moussa, in the Article ‘Implications of the Indus Water Kishanganga Arbitration for the International Law of the Water Courses and the Environment’ critically analyses the Kishenganga Arbitration case[1] between India and Pakistan which was decided by Permanent Court of Arbitration (hereinafter referred to as PCA) and has a great contribution in the development of international environmental law related to water sharing.
This article has been divided into seven sections. The first section of the article deals with the introduction, the second part, brings out the facts and disputes involved in the case, the third section deals with the order granted by PCA in this case, in the fourth section, the author analyses the decision of the PCA, fifth section of the article discusses the judgement of the PCA in brief, sixth section of the article deals with the implications of this decision on the International environmental law and the laws related to watercourses, and the last section provides the conclusion of the author.
Indus Water Treaty and Kishenganga Arbitration
In the introduction part of the article, the author explains that the object of the article is to critically analyse the partial decision of PCA in the Kishenganga Arbitration case. This case was related to the interpretation of the Indus Water Treaty (IWT) entered into between India and Pakistan in 1960.
There were two main issues/disputes which were before the PCA for the decision:
1) ‘Whether diversion of the water of Kishenganga river (knows as Neelum in Pakistan) by India into another tributary was in conformity with the IWT?’
2) ‘whether India is entitled under the IWT to diminish the reservoir level of a run-of-river plant (including but not limited to the KHEP) below dead storage level (DSL) in circumstances other than an unforeseen emergency?’
The award of Kishenganga Arbitration was delivered on 19 February 2013. The decision was partly in favor of India and partly in favor of Pakistan.
Facts of the Kishenganga Arbitration
The author also explains the facts of the case in brief. The IWT was signed between India and Pakistan, which divided the Indus water between these two Nations. Eastern rivers (Sutlej, Beas and Ravi) were given to India and three western rivers (Indus, Jhelum and Chenab) were assigned to Pakistan. India is upstream of the River and Pakistan is the downstream. India initiated a project known as ‘Kishanganga Hydroelectric Project’ (hereinafter referred to as ‘KHEP’) to provide hydroelectricity in the India occupied Jammu and Kashmir.
IWT allowed India to make restricted use of the Western rivers, including the construction of new run-of-river plants, provided that any pre-existing agricultural or hydroelectric uses by Pakistan were not adversely affected. The dispute arose between India and Pakistan because of the fact that due to KHEP, the water of Kishenganga/Neelum river was diverted to another tributary of Jhelum.
The case was initiated by the Pakistan on the ground that the use of river in such a manner by India for the purpose of KHEP is reducing the flow of the river in Pakistan which is further hindering the Neelum-Jhelum Hydropower plant Project (hereinafter NJHEP) in the Pakistan administered Kashmir by reducing its power generating capacity.
Both the parties disagreed on the point: Whether NJHEP existed prior to KHEP and enjoyed protection under IWT?
Interim Measures in Kishenganga Arbitration
In section III of the article, author discusses about the interim measures requested by Pakistan on 6 June 2011. Pakistan requested interim measures (under Paragraph 28, Annexure G of IWT) to restrain India from proceeding with the construction of KHEP in a way that would prejudice the final solution and prevent the restoration of status quo.
PCA did grant the interim measures, but not to the extent Pakistan requested. PCA ordered India only to restrain from constructing any permanent structure related to the project until the final decision. The PCA based its decision on Paragraph 28 as lex specialis (specific law over general law). It also ordered for periodic joint inspection of the dam site in order to ensure compliance with the order.
Analysis of Kishenganga decision
In the IV section of the article, the author critically analyses the PCA’s methodology related to the decision. Firstly, the author discusses about the various rules of interpretation, in order to further highlight the fact that the Tribunal’s decision actually oscillates between these interpretations. Interpretation can be
1) Objective i.e. based on the text of the Treaty,
2) Subjective i.e. based on the intention of the parties or teleological i.e. based on ‘object and purpose’ of the treaty.
Article 31 of the Vienna Convention on the interpretation of Treaties (VCLT) is also a customary international law as held by International Court of Justice (ICJ). Treaty’s Travaux Preparatoires is referred only as a ‘supplementary means’ that is to confirm the interpretation with Article 31 or when the meaning is ‘ambiguous’ or ‘manifestly absurd’.
Another principle of interpretation includes ‘effectiveness’ (that interpretation to be provided which ensures the effectiveness of the text of the Treaty and does not leaves the text ineffective). Article 31(3)(c) of VCLT requires States to consider ‘any relevant rules of international law applicable in the relations between them during the course of interpretation’.
Incorporating customary international law can also take place through ‘mutual agreement’ or through ‘treaty stipulation’. This was the approach adopted by the parties in the Pulp Mills case[2]. Purpose approach was followed in Gabcikovo Nagymaros case[3] by ICJ. Teleological interpretation is not followed very frequently, the reason being that it involves reading into it those obligations which are not expressly provided in the Treaty, thus undermining the States’ consent.
The interpretation is contextual and not textual. The Kishenganga Tribunal determines the object and purpose of the IWT in the negative terms saying that Pakistan cannot unilaterally curtail the ability of such Indian Plants to operate as India has been permitted to limited use of Eastern rivers, which were assigned to Pakistan. The author has also analysed the interpretative approach followed by the Courts on various point of issues such as territorial question, first dispute and second dispute.
On First Issue
On the question of territorial issue, the author has also tried to put forth the relevant arguments of the parties. India argued that Pakistan cannot invoke IWT as the treaty does not extend to Pakistan administered Jammu and Kashmir (the area being harmed by KHEP) as it is not under its de jure control of Pakistan and India had never accepted the proposal of Pakistan to extend the jurisdiction of Treaty to areas which are factually under control of each States respectively.
However, Pakistan argued that the Treaty extends to all the areas which are part of Indus system including territories under parties’ factual control. Ultimately, the Tribunal followed the textual interpretation and decided this in favour of Pakistan holding that the there is no expressed provision limiting the scope of the convention to undisputed territorial area.
Now, on the point related to first dispute, the author divided the issue into three parts for the purpose of analysing it.
First part is dealing with the question- is there an outright prohibition of inter-tributary transfers under the IWT? Here also, relevant arguments of the parties have been highlighted. Article III(2) and Article IV(6) are the two provisions of IWT which are relevant to this point of issue. Article III(2) provides that India ‘let flow all the waters of the western rivers’ and ‘not permit any interference with these waters’ except in four conditions- (a) domestic use; (b) non-consumptive use; (c) agricultural use (subject to Annexure C), and (d) hydroelectric power generation (subject to Annexure D).
Pakistan relied on the textual reading of the exceptions and argued that India could not utilize a tributary of the Jhelum to generate hydropower for use in areas outside that river’s drainage basin. And India, in turn argued that the IWT required power to be generated within the drainage basin, but that power could be transported elsewhere. India also argued that Pakistan had not previously objected to other Indian projects whose electricity was transported outside the relevant drainage basin.
Ultimately, the Tribunal decided that Article III(2) imposes restriction on India related to the use of water, and not the product. However, the author has rightly criticised this decision of Tribunal that it failed to appreciate and examine the arguments of the parties and the ‘principle of estoppel’ as argued by India. The parties also relied on the interpretation of term ‘material damage’, that Pakistan has suffered ecological damage which constitutes ‘material damage’ (as argued by Pakistan), but Tribunal failed to decide on the issue that whether environmental damage amounts to ‘material damage’.
The Tribunal simply relied on literal interpretation of the term and hold that Article IV(6) concerned the ‘maintenance of the physical conditions of the channels’, rather than ‘the volume and timing of the flow of water in these channels’. The author has also criticised this approach of the Tribunal of being ignorant to the arguments of the parties.
On Second Issue
Second issue which the author analysed under the heading of first dispute is: Does the KHEP meet the conditions for the permissibility of diversion? As to this question also, the Court relied on textual interpretation of Article 15 (iii) of IWT which states that “Where a Plant is located on a Tributary of The Jhelum on which Pakistan has any Agricultural use or hydro-electric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent that the then existing Agricultural use or hydroelectric use by Pakistan on the former Tributary would not be adversely affected”.
As per the arguments of the parties, two terms were under the consideration- ‘run-of-river plant’ and ‘necessity’. The Tribunal held interpretation of both the terms in the favour of India. it held that KHEP is a ‘run-of-river plant’ and this term must be provided special meaning rather than ‘ordinary meaning’ (VCLT Article 31(4)). Also, the plain reading of this Article 15(iii) indicates that it allowed inter-tributary transfers and provision indicated permanent diversion.
Third issue which the author took under the heading of first dispute is: Is the KHEP prohibited because it adversely affects an existing Pakistani use? Here the question was related to the interpretation of the term ‘existing use’, as paragraph 15(iii) of Annexure D allows for diversion only to the extent that Pakistan’s ‘existing’ agricultural and hydroelectric uses would not be adversely affected.
Pakistan relied on ambulatory approach that is, those uses would be considered as ‘existing’ if it existed at the time of operation of a new Indian project. However, India argued for ‘critical date approach’. Both parties differ on the fact that whether NJHEP falls under ‘existing uses’. Tribunal considered plain meaning of Article 15(iii) and found that it supports ‘ambulatory approach’. But, since ‘ambulatory approach’ was not consistent with the ‘object and purpose’ of the Treaty, Tribunal departed from the ‘literal approach’ as it was in conflict with the ‘object and purpose’ of the Treaty.
The Tribunal found that it is not possible to define a particular critical date. So, it referred to Paragraph 9 of Annexture D which required India to provide full information regarding a project’s design at least six months prior to initiating construction. Instead, the tribunal could determine a ‘critical period’ during which a range of facts (such as tenders, governmental approvals, initiation of construction) indicated ‘firmly’ that a proposed project would proceed.
It found that the relevant ‘critical period’, fell between 2004 and 2006, concluding that the NJHEP could not be considered an ‘existing use’ at the time as Pakistan had not demonstrated a clear commitment to construct it. The author highlights that the Tribunal has accepted the ‘critical period’ approach in a modified form.
Then, the author highlights relevant arguments on behalf of parties related to the second dispute. Pakistan relied on textual interpretation of Annexure D which prohibits the depletion of the reservoir level of a run-of-river plant below DSL except in unforeseen emergencies and sediment removal which can be achieved by other techniques, does falls under ‘unforeseen circumstance’. The Tribunal also agreed with this argument of Pakistan.
On the other hand, India differentiated between ‘operational purposes’ and ‘maintenance’ and argued that ‘drawdown flushing’ being the part of ‘maintenance’ is not prohibited by annexure D. The Tribunal, however, rejected this distinction contended by India. Tribunal relied on teleological interpretation although the ordinary meaning of the text ruled out the permissibility of drawdown flushing.
The author, by bringing into light the various approaches followed by the Tribunal on the points of issue has made an endeavour to highlight that how the Tribunal has taken a shift in application of various rules of interpretation to determine various issues and has not just based its decisions relying on one kind of approach.
Also, the author, by discussing the relevant arguments of both the parties has tried to explain the how both the parties has interpreted the relevant provisions of IWT for justifying their actions. The author by critically analysing the approach taken by the tribunal has brought into light those points which the Tribunal has failed to decide as well as those interpretation and reasonings of the tribunal which has added to the jurisprudence of International Environmental Law (for instance, the approach which the Tribunal has taken for determining ‘critical date’ for determining ‘existing use’ under IWT).
Final Award in Kishenganga Arbitration
In section V of the Article, the author critically analyses the final award granted by Tribunal in December 2013, on the issue of minimum flow of water. Both the parties showed the disagreement on this point. India recommended 3.94-10 cumecs (Cubic meter per second) of water to be maintained and Pakistan recommended 10 to 100 cumecs. India claimed priority of KHEP over NJHEP, arguing that they cannot be treated equally. Pakistan refuted this claim. The Tribunal, ultimately upheld the priority of KHEP over NJHEP. The Tribunal decided the minimum flow at 9 cumecs.
Criticism of Tribunal in Kishenganga Arbitration
In section VI of the article, the author has tried to brought into light the rules which the Tribunal failed to consider while deciding the issue as well as the contribution of this case in the development of International Environment Law and laws related to Watercourse sharing. The author brings out the view that most of the developments related to watercourses has been brought by the decisions of international courts and tribunals involving interpretation of bilateral treaties.
Kishenganga Arbitration is one of such decisions. Such decisions helps establishing state practices. However, the author also criticizes the partial decision of the Tribunal by saying that the Tribunal has failed to mention UN Convention on the Non-Navigational Uses of International Watercourses (UNWC), 1997 in this arbitration, in the following words:
“This is particularly surprising since the tribunal was presided over by Stephen Schwebel, while India was represented by Stephen McCaffrey, two of the ILC’s former Special Rapporteurs on the law of watercourses. Although the UNWC only obtained the requisite number of ratifications to enter into force in May 2014, it has been referred to by the ICJ and is considered by some authorities to be widely reflective of customary international law”.
Also, the author further states that the Tribunal has also failed to take into consideration, even without justification, the principle of ‘equitable utilization’, a customary international law and a core principle of the law of watercourse. However, the author has rightly pointed out the fact that Tribunal might have considered IWT as lex specialis and has acted in accordance with Article 3 of UNWC. However, this argument is undermined by the text of paragraph 29, Annexure G, which empowered the Court to incorporate customary international law in its interpretation of the IWT (which indeed it did in relation to its discussion of environmental protection).
Despite the abovementioned criticism, the author acknowledges that Tribunal did address some of the of important issues within the context of interpreting the IWT, which are capable of broader generalization. Such issues include ‘Defining existing uses’ and ‘dialectic between rights of usage and no harm’.
Regarding ‘defining existing uses’, author says that the main object of watercourse convention is to balance conflicting interest of riparian States between existing and potential uses. UNWC does talk about considering existing and potential uses while determining equitable uses, but does not categorize how to distinguish between these two. Regarding ‘The dialectic between rights of usage and no harm’, author further states that the controversy between past and potential uses of water can be observed in the tension between the principles of no-harm and equitable use.
In the partial Award, the tribunal did not expressly addressed the riparian states’ equitable use, but did acknowledge ‘significant rights’ of India as the upstream riparian. The Tribunal recognized India’s natural advantages and the critical need for both India and Pakistan for hydro-electric power. It suggested that India might not have agreed to the Treaty without being granted substantial rights to use the waters of the Western Rivers for hydroelectric development. This statement was seen as controversial.
The author further criticizes the decision of the Tribunal on the basis of introducing a problematic and controversial notion in the award by acknowledging that the upstream riparian states have ‘significant rights’. This notion gives effect to the concept of ‘absolute sovereignty’, which has been replaced by the principle of ‘community interest’ ‘limited sovereignty’, which advocates for equal treatment of riparian states.
Moreover, The author criticizes the decision of the Tribunal by pointing out the fact that it has failed to clarify the source or implications of the “significant rights” which it attributed to India, due to which it failed to provide protection to Pakistan’s NJHEP project as an ‘existing use’. The author goes on with the criticism stating that Tribunal also failed to reiterate the principle of ‘no harm’ as it did not address the concerns of Pakistan related to environmental degradation regarding the KHEP, unlike the 1957 Lake Lanoux case, which dealt with potential harm, where France offered compensation to Spain for the diversion of water.
In its final award, the Kishanganga tribunal incorporated environmental concerns by setting a minimum flow of 9 cumecs to mitigate potential environmental harm, separate from harm to existing uses. This distinction between environmental harm and harm to existing uses is reflected in both the Helsinki Rules and the UNWC. The Helsinki Rules address harm to existing uses in the context of equitable sharing, while environmental harm is covered under pollution provisions. Similarly, the UNWC specifically addresses the prevention of significant harm from pollution, but not minor harm.
The tribunal adopted an approach similar to the UNWC, focusing on environmental effects of water flow reduction rather than pollution. It emphasized that even treaties concluded before the development of international environmental law must consider contemporary environmental norms, supporting a dynamic interpretation of treaties. The tribunal cited several key cases, such as the Trail Smelter and Gabcikovo-Nagymaros rulings, to underline the duty of states to prevent transboundary harm and consider environmental protection in projects with transboundary effects. As a result, the tribunal concluded that India’s KHEP project was subject to an environmental flow requirement, which would reduce its potential harm and could be revisited after seven years.
Author’s Closing Remarks
Ultimately, the author has rightly concluded that due to the ambiguity in the laws related to watercourses and international environment law, the International courts and Tribunals have great role to play in order to fill in the existing gaps. However, in the Kishenganga Arbitration case, the Tribunal’s stance has been shifting due to oscillation between textual, subjective and teleological interpretative techniques.
However, it has given priority to textualism in deciding the issues. The tribunals has also undermined the principle of ‘equality of rights’ by implying that upstream States have more extensive rights than downstream States under customary international law. However, the author, in spite of these criticisms, does acknowledge that the Kishenganga decision had certain positive implications such as devising a mechanism for the first time to distinguish between ‘existing’ and ‘potential uses’, which was left unanswered by Article 6 of UNWC, reaffirming some important international environmental law principles, such as the duty of due diligence, prevention and continuous environmental impact assessment, and confirming the customary international law status of the obligation to avoid transboundary harm.
Conclusion
It can be concluded that the article is well researched, and the author has explored all the issues and decisions of the Tribunal related to the Environment and laws relating to Water sharing. The author has rightly pointed out the failures of the Tribunal and highlighted the gaps in the decision, and at the same time acknowledged the contribution of the decision in International environment laws relating to water sharing.
However, while the author has rightly pointed out the gaps in the IWT concerning environmental protection, she has discussed very little about the ways in which these gaps can be addressed. In other words, she has highlighted the actual problems in the law, but has very little to say about the solutions of the existing problems.
This is an article review of the article provided below:
Moussa J. IMPLICATIONS OF THE INDUS WATER KISHENGANGA ARBITRATION FOR THE INTERNATIONAL LAW OF WATERCOURSES AND THE ENVIRONMENT. International and Comparative Law Quarterly. 2015;64(3):697-715. doi:10.1017/S0020589315000287)
To read more research articles click here.
[1] Indus Waters Kishanganga Arbitration (Pakistan v. India), ICGJ 476 (PCA 2013) (Final award- 20 December, 2013).
[2] Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Reps 14, 73 [204].
[3] Gabcikovo-Nagymaros Project (Hungary v Slovakia) Judgment [1997] ICJ Rep 7, [140]; [112].
Leave a Reply