"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, December 23, 2013

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.

2 comments:

Anonymous said...

Are there official transcripts of all these awards?

Anonymous said...

Is there a way to access the official transcripts of these awards?

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