27 October 2014 | CIL Fireside Chat Series

The Judicial Regulation of Shared Freshwater Resources: Indus Waters Kishenganga Arbitration (Pakistan v. India)

Introduction

In September 1960, India and Pakistan signed the Indus Water Treaty to regulate the utilisation of the waters of the Indus system of rivers. In May 2010, Pakistan instituted arbitral proceedings against India under the Treaty, requesting an arbitral tribunal to determine whether the Treaty permits India to (i) divert the waters of the Kishenganga River under the Kishenganga Hydro-Electric Project (KHEP) and (ii) deplete or bring the reservoir level of run-of-river hydroelectric plants below dead storage level.

In December 2010, a Court of Arbitration was constituted. In February 2013, the Court issued a Partial Award concluding that India has the right to divert the waters of the Kishenganga river; however, this right is subject to the constraints provided in the Treaty and customary international law. The Court also held that (i) India must maintain a minimum flow of water in the Kishenganga River and that (ii) India may not employ drawdown flushing at the KHEP reservoir to an extent that would entail depletion of the reservoir below dead storage level.

In its Final Award of December 2013, the Court determined the minimum flow of 9 cumecs that India must release into the Kishenganga River. It noted, however, that given the uncertainty in predicting environmental changes, this rate would be open to reconsideration.

Against the special background of the case, including its legal, economic and environmental aspects, the 13th session of CIL Fireside Chat Series discussed the techniques used by the Court of Arbitration to set a framework for the use of shared freshwater resources, and compared them with other recent international decisions.

Panelists

Sir Franklin Berman KCMG QC
Essex Court Chambers
Member of the Court of Arbitration

Mr Rodman Bundy
Director, Eversheds LLP
Counsel for India

Hosts

Professor S Jayakumar
Professor Tommy Koh

Presentation

Presentation by Mr Rodman Bundy, Director, EvershedsLLP