A Court of Arbitration # 1 assembled under the Indus Water Treaty is expected to have seven members, two members each nominated by India and Pakistan, and three 'umpires' appointed by recognised authorities: the chairman appointed by the United Nations secretary-general and the World Bank president, a legal member/umpire appointed by US Chief Justice and Lord Chief Justice of England, an engineer member/umpire appointed by the President of MIT and the Rector of Imperial College, London. A distinguished panel was thus assembled to hear the case.
Permissibility of the Kishenganga project The Court began by rejecting Pakistan's arguments that the Kishanganga project violated the provisions of the treaty. Then it considered whether the project satisfied the treaty's requirements for hydroelectric plants. Article III(2) obligates India to "let flow all the waters of Western Rivers" and "not permit any interference with the waters". Pakistan argued that the project violated Annexure D of the treaty in three respects: • by the permanent diversion of waters from one tributary to another, • by failure to conform to the requirements for a permitted run-of-the-river plant (by locating the plant along a diversion rather than at the dam site), and • by a diversion of waters between two tributaries that was not "necessary". The court rejected all three objections by analysing the treaty and its negotiating history. The final question was whether the diversion met the requirement of protecting "the
then existing agricultural use or hydro-electric use by Pakistan". The court addressed the issue with a sophisticated Vienna Convention analysis. It rejected Pakistan's "ambulatory" interpretation that all its future uses which might evolve over time were protected by the treaty, and upheld India's interpretation that only those uses existing when Pakistan was given complete information about the project were protected. The court determined that the Neelum–Jhelum project did not exist at the time the Kishenganga project "crystallized". Hence, it was not protected by the treaty provisions. The court upheld India's right to proceed with the Kishanganga project. But it also concluded that the treaty and the
customary international law required India to ensure a minimum environmental flow along the Kishanganga/Neelum riverbed. After requesting additional data from India and Pakistan to determine the requirements for minimum flow, the court determined this to be 12 cumecs at river crossing point into Pakistan. Balancing this figure against India's right to the satisfactory operation of its project, it set down 9 cumecs as the required minimum flow to be ensured at all times. The remaining 3 cumecs flow is met from the Indian territory downstream of the Kishangana dam. The loss of power generation is estimated as 5.7% of total generation in a year. However, CoA has not deliberated the possibility of reducing the loss by converting the excess dead storage above the gates as storage for proving the minimum environmental flow during the lean flow season.
Drawdown flushing Pakistan also raised another dispute at the same Court of Arbitration, questioning India's plan to use drawdown flushing for clearing the sediments that accumulate below the 'dead storage' level. Sedimentation is a serious problem among Himalayan rivers (since the Himalayas are young mountains). The previous
Salal project on the
Chenab river was constructed without drawdown flushing facility and the dam is said to have filled up with sediment within two seasons. If the water is drawn down then, while it is being refilled in the reservoir, the gates would be closed and the downstream areas would be starved of water. In the event of a war or conflict, India would have the ability to flood the downstream areas by using the drawdown facility and then shut off water while refilling the reservoir. So Pakistan perceived the drawdown facility as a key security issue.
Prolonged issues After the partial award of the Court of Arbitration (CoA) on 18 February 2013, India resumed the construction of the project. CoA in its decision/verdict dated 18 February 2013 unequivocally permitted India to construct the project as proposed by India without any modification after disposing off all the pending issues raised by Pakistan. The CoA decision categorically declared as quoted below (page no 201) Even then Pakistan continued to raise other objections via the bilateral Indus Commission for publicity purposes. These were considered 'technical aspects' and India recommended the appointment of a neutral expert to resolve them. However, Pakistan insisted on assembling a second Court of Arbitration. India did not agree to the demand. The World Bank was faced with conflicting demands from the two parties and called for a "pause" in December 2016 asking India and Pakistan to agree on a course of action. There was no further movement afterward till the completion of the Kishenganga project. According to Feisal Naqvi, former counsel for the
Government of Pakistan, Pakistan's concern was that India did not alter the design of the Kishenganga dam in the light of the court's determination. While the court's ruling prohibited drawdown flushing, the low-level orifice outlets that would enable such flushing still remain. A neutral expert decision to declare them "illegal" would have been necessary for Pakistan. India never agreed that the low-level orifice outlets were purely meant for drawdown flushing. As acknowledged by the CoA (paras 507 to 509), the low-level orifice outlets, as permitted by Annexure D (8d) of the Treaty, are also needed to pass the probable maximum flood, to release water in the event of an unforeseen emergency and for sediment control by sluicing without depleting the dead storage. It is stated in the court's proceedings that they would be useful for sediment control generally, even without drawdown flushing. ==Court of Arbitration # 2 ==